(Application no. 9702/04)
5 February 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Gabrić v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 15 January 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings instituted against the applicant
B. Administrative offences proceedings instituted against the applicant
“In her written defence the accused admitted that she had not declared the money when entering the Republic of Croatia because she had not known that she was required to do so. She submitted that she had taken out a loan from her bank in Germany and that she had been bringing the money to Yugoslavia in order to buy a flat. Since she had not found the flat to her liking she had decided to wait for a while until she found something [more] favourable. ...
... She submitted that she had not been aware that she had to declare the money at the customs. She is asking that the seized money be returned to her because she needs it for the purchase of a flat, and if she does not buy a flat she has to return the money to the bank.
[The Ministry] could not accept the defence of the accused that she had not known that she had to declare foreign currency to the customs authorities, considering that this argument could not constitute a ground for exonerating her from ... liability. ...
In the determination of the amount of the fine, the personal situation of the accused was taken into account, namely the fact that she is divorced and a mother of two children, as well as her financial situation, namely that she is earning EUR 1,200 per month and owns a construction lot. [The Ministry] considered as a mitigating circumstance the fact that the accused had confessed.
The decision to impose the protective measure of confiscating the object of the offence in the amount of DEM 20,000 was rendered on the basis of section 99a of the Foreign Currency Act, which provides that objects of an offence are to be confiscated in favour of the State Budget of the Republic of Croatia. Having assessed the motives of the offence and the circumstances in which it had been committed, [the Ministry] found no particularly justified reasons for not imposing the protective measure, or for imposing the protective measure of partial confiscation of the objects of the offence, because the confession of the accused was the only mitigating circumstance in this case, which in itself (without any other particularly mitigating circumstances) is not sufficient for a decision to return the temporarily seized money, as the object of the offence.”
II. RELEVANT DOMESTIC LAW
“Foreign currency and securities in foreign currency may be freely brought into the Republic of Croatia.”
“All Croatian and foreign natural persons crossing the State border are required to declare to the competent customs officer any ... cash or cheques in domestic or foreign currency of the value prescribed by the statute regulating prevention of money laundering.”
“A fine of at least 5,000.00 kunas for an administrative offence shall be imposed on any Croatian or foreign natural person ... who attempts to take or takes across the State border cash or cheques of the value referred to in section 74a of this Act, without declaring them to the competent customs officer.”
“(1) The competent customs officer shall temporarily seize cash and cheques in domestic or foreign currency taken across the State border in contravention of section 74a of this Act ..., and shall also, along with making an administrative offence complaint, pay that amount without delay into the special account of the Foreign Currency Inspectorate of the Ministry of Finance of the Republic of Croatia.
(2) The cash and cheques which are the objects of the administrative offence referred to in section 97a of this Act shall be confiscated by virtue of the decision on the administrative offence, in favour of the State Budget of the Republic of Croatia.
(4) Exceptionally, in particularly justified situations in which special mitigating circumstances exist, the authority deciding on the administrative offence may decide that the cash and cheques which are the objects of the administrative offence referred to in paragraphs 1 and 2 of this section shall not be confiscated or shall be confiscated only in part.”
“Customs [authorities]... shall inform the Office [for the Prevention of Money Laundering] of any legal transfer or attempted illegal transfer across the State border of cash or cheques in domestic or foreign currency of the value of 40,000 kunas or more, within the period of three days of finding out about such transfer or attempt of illegal transfer.”
Avoiding customs controls
“(1) Anyone who carries a large quantity of goods or objects of great value across the customs border, avoiding customs controls, shall be punished by a fine or by imprisonment not exceeding three years.
(2) Anyone who organises a group or individuals for the perpetration of the criminal offence referred to in paragraph 1 of this section, or a network of resellers or middlemen for the sale of goods not cleared by customs, shall be punished by imprisonment from six months to five years.
(3) The same penalty as referred to in paragraph 1 of this section shall be imposed on anyone who carries across the customs border, avoiding customs controls, goods whose production or distribution is restricted or prohibited.
(4) Anyone who organises a group or individuals for the perpetration of the criminal offence referred to in paragraph 3 of this section shall be punished by imprisonment from one to eight years.
(5) An attempt to commit a criminal offence referred to in paragraphs 1 to 3 of this section shall be punishable.
(6) Goods that are the object of the criminal offence referred to in paragraph 1 of this section shall be confiscated.”
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
“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.”
1. The arguments of the parties
(a) The Government
(b) The applicant
2. The Court's assessment
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Article 6 § 1
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an ... impartial tribunal established by law.”
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable to the applicant, in respect of pecuniary damage;
(ii) EUR 1,850 (one thousand eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 5 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis