Communicated on 21 February 2017
THIRD SECTION
Application no. 48725/12
Rifat PRENČA against Serbia
and 7 other applications
(see list appended)
1. The first applicant is a Serbian, the second and third applicants are German and the remaining applicants are Turkish nationals. For additional personal details, the dates of introduction of their complaints before the Court, and information regarding their legal counsel, respectively, see the attached appendix.
A. The circumstances of the cases
2. The facts of the cases, as submitted by the applicants, may be summarised as follows.
3. Between 2012 and 2014, the first applicant while doing usual transport business on the way to Hungary and the remaining applicants on their way to or from Turkey, were individually crossing the Serbian borders at various border-crossings with cash. The Serbian customs officers stopped the applicants and their subsequent searches revealed the money which the applicants failed to report to the Serbian custom officers as prescribed by the Foreign Currency Act. The authorities permitted the applicants to keep the money allowed to be transferred unreported and temporarily seized the remaining amounts or objects in each individual case.
4. Subsequently, separate administrative offences proceedings (the misdemeanour proceedings, prekšajni postupak) were instituted against the applicants. The applicants submitted various certificates to declare the origin of the money/objects. The first- and second-instance misdemeanor courts (in the first case, the competent bodies of the Ministry of Finance (see annex)) have found the applicants guilty of having committed administrative offences, fined them and imposed protective measures of partial confiscating the object of the offence (zaštitna mera delimičnog oduzimanja predmeta prekršaja) - seizing the whole amount of the money or the objects not allowed to have been carried, pursuant to the Foreign Currency Act. The Supreme Court (Vrhovni sud Srbije) rejected the first applicant’s appeal on points of law (zahtev za vanredno preispitivanje pravosnažnog rešenja) on its merits, as at the time, this remedy was available.
5. The applicants then filed constitutional complaints claiming violations of their property rights. The Constitutional Court (Ustavni sud) dismissed their complaints, finding that the misdemeanor courts had not been deciding on their property rights or that the interferences had been lawful, without examining the proportionality.
B. Relevant domestic law and practice
6. The provisions regarding the transfer of cash/objects across Serbian border are set out in the following legal acts which have been amended or repealed over the years: the Foreign Currency Act (Zakon o deviznom poslovanju, Official Gazette of the Federal Republic of Yugoslavia, nos. 23/02 and 34/02); Decision of the National Bank of Yugoslavia (Odluka o uslovima i nacinu ličnih i fizičkih prenosa sredstava plaćanja u inostranstvo i iz inostranstva, Official Gazette of the Federal Republic of Yugoslavia, no. 25/2002); the Foreign Currency Act (Zakon o deviznom poslovanju, Official Gazette of the Federal Republic of Serbia, nos. 62/2006, 31/2011, 119/2012 i 139/2014); Decision of the National Bank of Serbia (Odluka o uslovima za lične i fizičke prenose sredstava plaćanja u inostranstvo i iz inostranstva, Official Gazette of the Republic of Serbia, no. 67/2006, 52/2008, 18/2009) and the Prevention of Money Laundering Act (Zakon o sprečavanju pranja novca, Official Gazette of the Federal Republic of Yugoslavia no. 53/2001). The relevant provisions can be summarised as follows.
7. The Foreign Currency Acts provided that the National Bank of then Yugoslavia/Serbia shall prescribe the conditions under which a resident and/or non-resident may take abroad foreign cash and securities that he/she acquired in compliance with the law, as well as bring into the country foreign cash and securities. All residents and non-residents crossing the State border are required to declare to the competent customs officer any cash or cheques in domestic or foreign currency exceeding the threshold prescribed by the statute regulating prevention of money laundering. The competent customs officer may temporarily seize cash and cheques in domestic or foreign currency taken across the State border, which exceed the threshold prescribed by the National Bank of Yugoslavia/Serbia, while providing a declaration in that respect.
8. Fines from 200 up to 21,000 dinars according to the former Foreign Currency Act, and from 5,000 up to 150,000 dinars pursuant to the current Act, for an administrative offence shall be imposed on any resident or non-resident ... who attempts to take or takes across the State border cash or cheques in contravention of the regulations adopted by the National Bank of Yugoslavia/Serbia. In addition to the fine, such cash and cheques which are the objects of the administrative offence shall be confiscated by virtue of the decision on the administrative offence. They may be confiscated irrespective of the lack of ownership or the right to use them on the side of the offender. Only exceptionally, if motive or other circumstances imply that it is not justified to confiscate the entire amount, the authority deciding on the administrative offence may decide that the cash and cheques which are the objects of the administrative offence shall be confiscated only in part.
9. The National Banks of Yugoslavia/Serbia adopted their respective decisions, whereby all residents and non-residents importing/exporting cash had to declare to the customs the amount of cash exceeding 2,000 according to the former Decision and 10,000 euros pursuant to the decision in force, regardless of the currency. The non-residents had additionally to declare the origin of the money. If declared on entry or a certificate about withdrawal from the bank is produced, they can export higher amounts which correspond to the certified amount.
COMPLAINTS
The applicants complain under Article 1 of Protocol 1 that the forfeitures of the amounts of cash or objects, allegedly undeclared, have not been in the public interest and were grossly disproportionate.
QUESTIONS
Did the forfeitures of the amounts that the applicants did not declare to the Serbian custom authorities constitute an interference with the peaceful enjoyment of their possessions, within the meaning of Article 1 of Protocol No. 1?
If so, were the interferences justified under the second paragraph of Article 1? In particular:
(a) were they established by law?
(b) were they done in pursuit of a legitimate aim?
(c) did the interferences strike a fair balance between the demands of the general interests and the right of the applicants, regard being had to the purpose and severity of the measures (see, Grifhorst v. France (no. 28336/02, 26 February 2009), Gabrić v. Croatia (no. 9702/04, 5 February 2009) and Ismayilov v. Russia (no. 30352/03, 6 November 2008)?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Date of
relevant decisions
Date of initial forfeit/forfeited amounts and fines
48725/12*
26/07/2012
Rifat PRENČA
15/03/1954
Novi Pazar
Refija GARIBOVIĆ
Novi Pazar
After a retrial, Foreign Currency Inspectorate of the Ministry of Finance: 14 January 2008
Appellate Chamber of the Ministry of Finance (Ministarstvo finansija, Veće za drugostepeni prekršajni postupak): 25 August 2008
Supreme Court: 4 March 2009
Constitutional Court: 30 January 2012
18 May 2004 (initially 47,500 euros)
Fine: 10,000 dinars
Forfeited amount: 39,500 (as the maximum amount increased to 10,000 euros)
69080/13
17/06/2013
Adem AKSÜNGÜR
04/04/1969
Sinsheim
Pavle VIDENOVIĆ
Dimitrovgrad
Pirot Misdemeanour Court: 11 July 2012
Belgrade High Misdemeanour Court (Niš unit): 8 August 2012
Constitutional Court: 27 May 2013
11 July 2012
Fine: 60,000 dinars (550 euros)
Forfeited amount: 53,000 euros
67091/14
29/09/2014
Ensar KAYA
01/01/1982
Limburg
Saša MUTIĆ
Belgrade
Pirot Misdemeanour Court (Dimitrovgrad unit): 7 June 2012
Belgrade High Misdemeanour Court (Niš unit): 21 June 2012
Constitutional Court: 25 March 2014
7 June 2012
Fine: 50,000 dinars; costs: 1,000 dinars
Forfeited amount: 20,000 euros)
3997/15
31/12/2014
Zekı DıNLEMEZ
04/12/1966
Soissy
Saša MUTIĆ
Belgrade
Sremska Mitrovica Misdemeanour Court (Šid unit): 4 June 2013
Belgrade High Misdemeanour Court (Novi Sad unit): 11 June 2013
Constitutional Court: 16 June 2014
4 June 2013
Fine: 8,000 dinars; costs: 1,000 dinars
Forfeited amount: 14,800 euros
4320/15
26/12/2014
Mehmet Alı AKSOY
06/06/1966
Stade
Saša MUTIĆ
Belgrade
Pirot Misdemeanour Court (Dimitrovgrad unit): 24 December 2012
Belgrade High Misdemeanour Court (Novi Sad unit): 2 July 2013
Constitutional Court: 23 September 2014
2 December 2012
Fine: 50,000 dinars; costs: 1,000 dinars
Forfeited amount: 51,100 euros)
15887/15
25/03/2015
Mehmet Alı YAYLALI
28/03/1964
DM Ede
Saša MUTIĆ
Belgrade
Sremska Mitrovica Misdemeanour Court (Šid unit): 19 June 2013
Belgrade High Misdemeanour Court (Novi Sad unit): 2 July 2013
Constitutional Court: 23 September 2014
19 June 2013
Fine: 55,000 dinars; costs: 1,000 dinars
Forfeited object: 8 golden bracelets of 254 gr (value of 12,825 euros)
20444/15
20/04/2015
Ahmet KARABULUT
03/06/1964
Tilburg
Saša MUTIĆ
Belgrade
After a remittal, Sremska Mitrovica Misdemeanour Court (Šid unit): 13 August 2012
Belgrade High Misdemeanour Court (Novi Sad unit): 23 August 2012
Constitutional Court: 20 October 2014
28 July 2012
Fine: 10,000 dinars; costs: 500 dinars
Forfeited amount: 14,425 euros
23307/15
04/05/2015
Abdulah COȘKUN
06/02/1967
Hamburg
Saša MUTIĆ
Belgrade
After a remittal, Sremska Mitrovica Misdemeanour Court (Šid unit): 18 May 2013
Belgrade High Misdemeanour Court (Novi Sad unit): 23 May 2013
Constitutional Court: 20 October 2014
18 May 2013
Fine: 7,500 dinars; costs: 3,300 dinars
Forfeited amount: 25,020 euros
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