FIFTH SECTION
DECISION
Application no. 54953/16
Hamdi GERGURI
against North Macedonia
The European Court of Human Rights (Fifth Section), sitting on 18 November 2021 as a Committee composed of:
Mārtiņš Mits, President,
Jovan Ilievski,
Ivana Jelić, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to the above application lodged on 26 August 2016,
Having regard to the observations submitted by the Government of North Macedonia (“the Government”) and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Hamdi Gerguri, is a national of Kosovo[1] who was born in 1974 and lives in Fus, Kosovo. He was represented before the Court by Mr P. Janura, a lawyer practising in Skopje.
2. The Government were represented by their Agent, Ms D. Djonova.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 5 June 2014 at about 11 p.m., the applicant, travelling from Greece by car, was stopped by customs officials of the respondent State at the border crossing in Bogorodica. When asked if he had anything to declare at customs, he replied that he had 5,000 euros (EUR). Following a thorough search of the vehicle and the applicant, customs officials found EUR 70,500 in cash.
5. In accordance with the Foreign Currency Act and a government decision on the terms and the amount of cash in foreign currency and checks permitted to be taken in or out of the State, the sum of EUR 10,000 was returned to the applicant and the remaining EUR 60,500 was temporarily seized, as the sum exceeded the statutory limit of foreign currency allowed to be brought into the respondent State without being declared to customs. The applicant was issued a receipt to that effect, which included a short explanation of the procedure that had taken place, and which he signed. The border customs authorities issued a payment order (платен налог) for the misdemeanour, by which the applicant was fined EUR 750. The same day the border customs authorities requested the initiation of misdemeanour proceedings against the applicant.
6. On 6 June 2014, acting upon the request of the border customs authorities, the Misdemeanours Commission within the Customs Authority (Комисија за одлучување по прекршок – “the Commission”) held an oral hearing at which the applicant stated as follows:
“[The] foreign currency assets belong to me, or more precisely to my company Gerguri ShPK [in Kosovo], which is an associate company of my company in Germany Gerguri Tief- und Strassenbau ... from whose account I withdrew the foreign currency assets ... and took them to Kosovo ... On 5 June 2014 I personally withdrew the assets from the treasury of my company Gerguri ShPK. I requested my accountant to provide me with a financial report on the cash flow in foreign assets that we maintain in the company and to prepare a financial statement of the withdrawal ... which I showed to the customs officials.”
7. The applicant further stated that he had taken the foreign assets in order to conclude a business deal in Greece but on the way there he had not declared them at customs in Kosovo and the respondent State. Contrary to what the customs officials had stated in the receipt and payment order that had been signed by the applicant (see paragraph 5 above), he stated that he had declared the whole amount to customs.
8. At the hearing before the Commission he provided several documents, including: account receipts for the withdrawal of assets from the company in Germany between February and May 2014 in the amount of EUR 72,570; a registration certificate for the company in Kosovo; and a receipt for the withdrawal of assets from the treasury of the company in Kosovo in the amount of EUR 115,000. In providing those documents, he was seeking to prove that the temporarily seized money belonged to his companies (see paragraph 6 above).
9. It appears from the account receipts that the applicant submitted to the Court that foreign assets of EUR 28,570 were withdrawn from a bank account of the company in Germany and EUR 59,000 from a bank account of a third party. The registration document of the company in Kosovo, presented to the domestic authorities and the Court, indicates that the applicant is registered as its co-owner with limited liability, and that he owns 49% of the share capital.
10. On 6 June 2014 the Commission found the applicant guilty of a misdemeanour. The Commission also ordered, as a separate preventive measure (посебна прекршочна мерка), the confiscation of EUR 60,500 pursuant to section 57(2) of the Foreign Currency Act, which provides for the confiscation of items that are instruments or proceeds of a misdemeanour. The decision stated that regardless of the documents the applicant had presented, the Commission could not establish the connection of those documents to the foreign assets that were the subject of the misdemeanour proceedings, that is, it could not establish their ownership and origin. On 11 June 2014 the same Commission issued a further decision, holding that the applicant would be fined an additional EUR 750 to what he had already paid (see paragraph 5 above), pursuant to section 56‑a(1)(22) of the Foreign Currency Act, which provides that a natural person is to be fined the equivalent of EUR 1,500 to EUR 3,000 in denars if he or she brings in or takes out cash in domestic and foreign currency, cheques or monetary gold, contrary to the conditions laid down by the government and the national central bank.
11. On 14 June 2014 the applicant challenged the decision by means of an administrative dispute claim. He alleged that the assets had been withdrawn from the treasury of his company, for which he had submitted evidence, that he had already agreed to settle, that he had signed the payment order and that he had paid the fine for the misdemeanour. He complained about the “draconian” confiscation of the assets that he alleged he had declared to customs when requested.
12. On 13 May 2015 the Administrative Court dismissed the applicant’s action and held that the Commission’s decision had been lawful.
13. On 4 February 2016 the High Administrative Court dismissed the applicant’s appeal and upheld the Administrative Court’s judgment. The court reiterated that it had been the applicant’s statutory responsibility to declare the confiscated money, which he had failed to do. In addition, the applicant had admitted the misdemeanour by signing the payment order and all the official documents, and had paid the fine, which did not exclude the right of the Customs Authority to impose a separate preventive measure as provided for by law (see paragraph 10 above).
COMPLAINT
14. The applicant complained that the decision of the administrative authorities to confiscate EUR 60,500 from him for having failed to declare it to customs had been disproportionate and excessive and thus had violated his right to property. He relied on Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
THE LAW
The parties’ submissions15. The Government, referring to Eliseev and Ruski Elitni Klub v. Serbia (no. 8144/07, § 33, 10 July 2018) and Dagostin v. Croatia (no. 67644/12, § 24, 23 May 2017), submitted that the applicant did not have victim status. In particular, he had failed to prove which company (in Kosovo or in Germany) the money had belonged to. He had also failed to prove the existence of any link between the two companies or any link between the company in Germany and him. In any event, even assuming that the foreign currency assets were the property of the company in Kosovo, as the applicant alleged, the fact that he was the company’s managing director and a co-owner with a minority stake did not grant him victim status. Lastly, he had not indicated any direct or sufficiently close connection between him and the possible damage as a result of the alleged violation of the Convention.
16. The applicant alleged that he had not been obliged to prove the origin of the confiscated assets as he had been found guilty of a misdemeanour in administrative proceedings and not of a serious criminal offence such as money laundering or tax evasion. He further argued that he had been the person who had held and controlled the assets while crossing the border and the person found guilty in the misdemeanour proceedings. He submitted that the respondent State had brought about an “interference with the substance of ownership” and referred to Sporrong and Lönnroth v. Sweden (23 September 1982, § 60, Series A no. 52).
The Court’s assessment17. The relevant case-law referring to who can claim to be a victim under Article 34 of the Convention and who can allege a violation of Article 1 of Protocol No. 1 is summarised in Eliseev and Ruski Elitni Klub (cited above, § 32).
18. Turning to the present case, the Court observes that the applicant submitted that the money belonged to the company in Kosovo in which he is a co-owner of 49% of the share capital (see paragraph 9 above). The domestic authorities, for their part, could neither establish, on the basis of the available evidence, the real proprietor of the money, nor their origin (see paragraph 10 above).
19. It transpires from the documents submitted to the Court that there is no sufficient evidence that the money found with the applicant belonged to the company in Kosovo, as he claimed. One part of the bank statements, which the applicant submitted, appear to be excerpts from the bank account of the company in Germany. The other part of the bank statements appear to be excerpts from the bank account of a third party (see paragraph 9 above). No evidence was submitted to prove the connection between the applicant and the company in Germany, or the connection between the companies from Kosovo and Germany. Finally, the receipt for withdrawal of assets from the treasury of the company from Kosovo refers to an amount (see paragraph 8 above) which does not correspond to the amount found with the applicant, nor is it sufficient evidence that those are the assets that he carried with him.
20. Furthermore, as the applicant never stated that the assets belonged to him personally, the mere fact that the cash was seized from him was not sufficient to establish that he had a “possession” for the purposes of Article 1 of Protocol No. 1 (see Eliseev and Ruski Elitni Klub, §§ 34 and 35, and Dagostin, § 24, both cited above).
21. Accordingly, the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 December 2021.
Martina Keller Mārtiņš Mits
Deputy Registrar President
[1] The reference to Kosovo, whether to the territory, institutions or population, shall be understood in compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.