Published on 22 January 2024
FOURTH SECTION
Application no. 51382/20
Aydogan MUTLUOGLU
against Serbia
lodged on 13 November 2020
communicated on 3 January 2024
SUBJECT MATTER OF THE CASE
The present application concerns the confiscation of twelve expensive luxury watches and parts of watches, and the vehicle as the means of transport of these goods. The measure was imposed on the applicant, a Turkish citizen, as a sanction in the customs-related misdemeanour proceedings following his failure to declare the goods to the customs while transiting through Serbia. The total value of the confiscated goods and the car amounted to approximately 215,000 euros. The appellate misdemeanour court dismissed the applicant’s appeal, referring to the mandatory nature of the confiscation as a protective measure, in addition to a fine of approximately 850 euros, for the misdemeanour of non-declaration of goods committed by the applicant. In addition, the customs initially rejected the electronic purchase receipts as the applicant’s attempt to prove the allegedly lawful origin of the watches, while a certified translation of the purchase receipts was rejected on appeal, owing to the applicant’s failure to furnish them at first instance.
The Constitutional Court rejected the applicant’s further constitutional appeal, stating that Article 58 of the Constitution, which guarantees the right to property, did not provide protection in respect of objects used for the commission of criminal offences.
The applicant complains that the confiscation of his allegedly lawfully acquired goods and the vehicle, in addition to a fine, had constituted an unjustified interference with his right to peaceful enjoyment of property under Article 1 of Protocol No. 1 to the Convention.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1, by the confiscation of the undeclared goods and the vehicle as the means of their transport?
2. In the affirmative, was the interference justified? In particular:
(a) was it in accordance with the law?
The parties are invited to comment on and/or provide the relevant domestic law in respect of:
(i) the relevant customs proceedings and the applicant’s duty to the declare the goods in question to the Serbian authorities, as well as the essence of his ultimate misconduct;
(ii) whether the interference with the applicant’s right of property can be seen as meeting the qualitative requirement of foreseeability and corresponded to the essence of the misdemeanour in question;
(iii) the mandatory nature of the confiscation as a protective measure provided by Article 298 of the Customs Act and the practice of the misdemeanour courts in cases same or similar to the applicant’s, in particular in respect of the confiscated vehicle as “the means used for committing the misdemeanour”;
(iv) whether the parameter, such as lawful origin of undeclared goods, should or should not have had any bearing on the court’s assessment?
(b) Did it pursue a legitimate aim?
(c) Did the confiscation of the goods and the vehicle strike a fair balance between the demands of the general interests and the right of the applicant, regard being had to the purpose and severity of the measures? In particular, did the confiscation impose an individual and excessive burden on the applicant (see, mutatis mutandis, Milosavljev v. Serbia, no. 15112/07, §§ 55-62, 12 June 2012, and Gabrić v. Croatia, no. 9702/04, §§ 35-39, 5 February 2009)?