Communicated on 23 May 2018
FIFTH SECTION
Applications nos. 54563/11 and 22428/15
Serpıl PAR against Azerbaijan
and Katsunori HYODO against Azerbaijan
lodged on 20 August 2011 and 4 May 2015 respectively
STATEMENT OF FACTS
The applicant in application no. 54563/11, Ms Serpil Par, is a Turkish national, who was born in 1960 and lives in Istanbul, Turkey.
The applicant in application no. 22428/15, Mr Katsunori Hyodo, is a Japanese national, who was born in 1973 and lives in Kangava-Ken, Japan.
Both applicants are represented before the Court by Mr M. Mustafayev, a lawyer practising in Azerbaijan.
The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no. 54563/11
On 26 May 2010 the applicant withdrew from her bank account in Baku 250,000 Euros (“EUR”) in cash and arrived in the Heydar Aliyev International Airport later the same day in order to fly to Istanbul. She declared EUR 39,900 at the customs checkpoint and failed to declare the remaining part of money, which was in her cabin bag, carried by her colleague, certain A.A, also a national of Turkey. The officers of the State Customs Committee (the “SCC”) seized the undeclared money.
On 9 August 2010 the SCC’s Investigation Office charged the applicant with smuggling by a group (Article 206.3.2 of the Criminal Code).
On an unspecified date the officers of the SCC’s Investigation Office told the applicant that the criminal proceedings may be terminated and she may leave Azerbaijan, if she agrees to transfer the undeclared money to the State budget.
On 22 September 2010 the applicant signed a statement in Azerbaijani addressed to the “authorized State bodies” indicating her consent to such transfer and that A.A. had been unaware of the money in her bag.
On 23 September 2010 the indictment against the applicant was changed and she was charged with smuggling individually (Article 206.1 of the Criminal Code).
On 24 September 2010 certain R.N., the chief investigator of the SCC’s Investigation Office decided to terminate the criminal proceedings referring to change of circumstances (Article 74 of the Criminal Code). The decision also indicated that the applicant had agreed to transfer the undeclared money to the State budget.
On 29 September 2010 this decision was confirmed by the Chief Prosecutor’s Office. The decision was not delivered to the applicant.
On an unspecified date the applicant left Azerbaijan.
On 5 January and 7 February 2011 the applicant applied to the SCC’s Investigation Office asking for a copy of the decision and return of the undeclared money. The applicant did not receive any reply.
On 18 April 2011 the applicant lodged a claim with the Yasamal District Court against R.N. arguing that her undeclared money had been unlawfully confiscated without a court decision, that the Criminal Code did not provide for such seizure or confiscation and that the seized money had been lawfully obtained by her.
On 17 May 2011 the Yasamal District Court dismissed the applicant’s claim finding that R.N.’s actions were lawful.
On 22 June 2011 the Baku Court of Appeal upheld the judgment of the first-instance court finding that the applicant had voluntarily agreed to transfer the money to the State budget and that the criminal proceedings against her had been terminated without acquittal.
2. Application no. 22428/15
On 30 March 2011 the applicant arrived at the Heydar Aliyev International Airport with his friend K.K., also a national of Japan, in order to fly to Istanbul.
The applicant declared 43,000 Japanese yens, 5,000 Iranian rials, 3,840 Hong Kong dollars, 1,360 Philippine pesos, 1,032 US dollars, EUR 355, 512 Chinese yuans, 40 Turkish liras at the customs checkpoint and failed to declare 248,300 Azerbaijani manats, which were in his cabin bags, carried by him and K.K. The officers of the SCC seized the undeclared money.
On 4 April 2011 the SCC’s Investigation Office charged the applicant with smuggling (Article 206.1 of the Criminal Code).
On an unspecified date the applicant, allegedly under pressure by the officers of the SCC’s Investigation Office, signed a statement in Azerbaijani addressed to the Head of the SCC indicating his consent for transfer of the seized money to the State budget.
On 23 June 2011 the SCC’s Investigation Office terminated the criminal proceedings referring to change of circumstances (Article 74 of the Criminal Code). The decision also indicated that the applicant had agreed to transfer the seized money to the State budget.
On an unspecified date this decision was confirmed by the Chief Prosecutor’s Office.
On an unspecified date the applicant left Azerbaijan.
On 21 June 2013 the applicant lodged a claim with the Yasamal District Court against the SCC asking for termination of the criminal proceedings on the ground that there had not been any crime and for return of the seized money. The applicant argued that his money had been unlawfully confiscated without a court decision, that the Criminal Code did not provide for such seizure or confiscation and that the seized money had been lawfully obtained by him.
On 14 November 2013 the Yasamal District Court dismissed the applicant’s claim finding that the decision of 23 June 2011 was lawful and that any pressure against the applicant was not proved.
On 3 October 2014 the Baku Court of Appeal upheld the judgment of the first-instance court. This final judgment was served on the applicant’s lawyer on 8 December 2014.
COMPLAINTS
1. The applicants complain under Article 1 of Protocol No. 1 to the Convention that their money, which they failed to declare at the customs checkpoint when leaving Azerbaijan, was unlawfully confiscated by the State Customs Committee.
2. The applicants complain under Article 6 § 1 of the Convention that the domestic proceedings in question were not fair, in particular that the domestic courts delivered unreasoned judgments.
QUESTIONS
1. Have the applicants been deprived of their possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? In particular, what was the legal basis for the transfer of the applicants’ money to the State budget?
2. Did the deprivation impose an excessive individual burden on the applicants (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
3. Was Article 6 of the Convention applicable to the domestic proceedings concerning the applicants’ claims? If Article 6 of the Convention was applicable, did the applicants have a fair hearing in accordance with Article 6 § 1 of the Convention? In particular, was the applicants’ right to a reasoned judgment respected?
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