Last Updated on June 15, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 8144/07
Aleksandar ELISEEV and RUSKI ELITNI KLUB
against Serbia
The European Court of Human Rights (Third Section), sitting on 10 July 2018 as a Chamber composed of:
Helena Jäderblom, President,
Helen Keller,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A.Serghides,
Jolien Schukking,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 8 February 2007,
Having regard to the observations submitted by the parties,
MrBrankoLubarda, the judge elected in respect of Serbia, withdrew from sitting in the Chamber (Rule 28). The President accordingly appointed MsAlena Poláčková to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29),
Having deliberated, decides as follows:
THE FACTS
1. The applicants are MrAleksandarEliseev (“the first applicant”) and RuskiElitniKlub (“the applicant organisation”).
2. The first applicant is a Russian national who was born in 1953 and lives in Moscow. He was also a resident of Montenegro at the relevant time. The applicant organisation is a non-governmental organisation based inKotor, Montenegro.Both applicantswere represented before the Court by Mr V.Beljanski and Mr S. Beljanski, lawyerspractising in Novi Sad.
3. The Serbian Government (“the Government”) were initially represented by their former Agent, Mr S. Carić, who was ultimately substituted by their current Agent, Ms N. Plavšić.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 19 March 2004 the first applicant,on his way from Montenegro to Russia, intended to board the plane to Moscow at Belgrade Airport. He was accompanied by his wife, T.Z., who is the director of the applicant organisation. The first applicant was carrying 9,400 euros (EUR) in cash, which he had obtained from the applicant organisation and intended to use to open a bank account in Moscow on the latter’s behalf. In this connection, the applicant organisation’sassembly body had on 2 February 2004 decided to establish a branch office in Moscow, nominated its managers and assigned EUR 10,000 from its assets for the opening of a bank account in Russia for this purpose.
6. The first applicant was stopped at the border at the airportby Serbian customs officers. There are two versions as to the exact course of the events of that day.
7. According to the first applicant, when asked how much cash he was carrying, he replied that he and his wife were each carrying around EUR 4,500. When he showed the customs officer the amount of EUR 9,400 in cash, the officer seized it. After he asked for a lawyer and an interpreter, he was told that waiting for an interpreter would mean that he would have to miss his flight. The customs officers drew up a report (zapisnik), which the applicant refused to sign because he disagreed with its description ofthe facts. The customs officers refused to listen to the applicant’s argument about the origin and distribution of the money or to look at the assembly’s decision of 2 February 2004. Finally, the applicant received EUR 4,000 back, while EUR 5,400 remained seized.
8. According to the Government and the report of the custom officers involved in the incident, the first applicant acknowledged carrying only EUR 4,000-5,000. A subsequent search revealed him to in fact be carrying EUR 9,400. They allowed the first applicant to keep the amount of cash permitted to be transferred undeclared – that is to say EUR 4,000 (EUR 2,000 per person) but temporarily seized the remaining amount. The report quoted the first applicant, who had allegedly said that he had brought the money from Montenegro, where he lived, and that he also possessed an attestation regarding the origin of the money, which he could not produce. The custom officers also noted that the first applicant understood and spoke fluent Serbian.
9. On 31 March 2004 the customs authorities instituted administrative offences proceedings (prekršajnipostupak) against the first applicant before the Foreign Currency Inspectorate of the Ministry of Finance (Ministarstvo finansija– Sektorzadeviznuinspekciju). On the same day the first applicant was interviewed.
10. On 1 July 2004 the Inspectorate found the first applicant guilty of having committed an administrative offence and fined him 5,000 Serbian dinars (RSD – approximately EUR 70). If the fine was not paid within fifteen days, it would be replaced by a term of imprisonment. At the same time, the Inspectorate imposed a protective measure of partial confiscation of the object of the offence (zaštitnameradelimičnogoduzimanjapredmetaprekršaja), pursuant to Article 54 § 3 of the Foreign Currency Act (see paragraph 17 below). Having regard to the first applicant’s partial declaration in respect of the cash that he had been carrying,the Inspectorate decided to confiscate EUR 4,500 and return to the first applicant the remaining EUR 900 of the initially seized amount.
11. On 6 August 2004 the first applicant lodged an appeal against this decision, stating, inter alia, that the Inspectorate had come to an erroneous factual and legal conclusion, which had led to the ultimate confiscation of the money. He stated that he could not benefit from a lawyer or an interpreter during the search at the border. Together with the appeal, he also submitted a written record of the applicant organisation’s decision of 2 February 2004.
12. On 2 February 2005 the appellate chamber of the Ministry of Finance (Ministarstvofinansija, Većezadrugostepeniprekršajnipostupak) upheld the Inspectorate’s decision of 1 July 2004. In doing so, it held that the first applicant had intended to transfer money undeclared and covertly and that he had failed to provide any declaration regarding the origin of the confiscated money or the entry of the money into the respondent State, as required from non-residents.
13. On 10 October 2005 the first applicant lodged an appeal on points of law (zahtevzavanrednopreispitivanjepravosnažnogrešenja), restating his earlier arguments regarding an erroneous factual and legal conclusion, made by the Inspectorate. However, he did not complain about the denial of access to a lawyer and an interpreter at the airport.
14. On 26 April 2006 the Supreme Court (VrhovnisudSrbije) dismissed on the merits the first applicant’s appeal on points of law, upholding the reasoning of the appellate chamber of the Ministry of Finance. This decision was served on the applicant on 29 August 2006.
B. Relevant domestic law
1. The Foreign Currency Act (Zakon o deviznomposlovanju, Official Gazette of the Federal Republic of Yugoslavia, nos. 23/02 and 34/02), as applicable at the material time
15. Article 36 § 2 provided that the National Bank of Yugoslavia could prescribe the conditions under which a non-resident could take abroad (or bring into the country) foreign cash and securities that he/she had acquired in a manner in compliance with the law.
16. Article 37 prescribed, inter alia, that all residents and non-residents crossing the State border were required to declare to the customs officer in charge any domestic- or foreign-currency cash or cheques exceeding the threshold prescribed by the statute regulating the prevention of money laundering.
17. Article 54 §§ 1 and 3 provided that a fine of between RSD 200 andRSD 21,000 dinars for an administrative offence was to be imposed on any resident or non-resident who attempted to take or took across the State border cash or cheques in contravention of the regulations issued by the National Bank of Yugoslavia. In addition to such a fine, the cash and chequesthat were the subject of the administrative offence in question were tobe confiscated by virtue of the decision on that administrative offence. Such cash or cheques could be confiscated even if the holder had not owned themor had the right to use them. Only exceptionally (provided thatthe motivesof the offender or other circumstances indicated that theconfiscation of the entire amount was not justifiable) could the authority deciding on the administrative offence decide that the cash and chequesthat were the objects of the administrative offence could be confiscated only in part.
2. Decision of the National Bank of Yugoslavia (Odluka o uslovimainačinuličnihifizičkihprenosasredstavaplaćanja u inostranstvoiizinostranstva, Official Gazette of the Federal Republic of Yugoslavia, no. 25/2002)
18. On the basis of Article 36 of the Foreign Currency Act (see paragraph 15 above), the National Bank of Yugoslavia issued a decision whereby all residents and non-residents exporting cash had to declare to the customs authorities the amount of such cash exceeding EUR 2,000, regardless of the currency. Non-residents had additionally to declare the origin of such money. If they did so, they could export amounts corresponding to the certified higher amount.
3. The Minor Offences Act 1989 (Zakon o prekršajima, Official Gazette of the Republic of Serbia –OG RS nos. 44/89, 21/90, 11/92, 20/93, 53/93, 67/93, 28/94, 16/97, 37/97, 36/98, 44/98 and 65/01)
19. Article 35 § 1 provided that if a natural person (fizičko lice) failed to pay the fine imposed, it would be converted into a prison term on the basis that one day in prison would be the equivalent of RSD 500, but that such a term of imprisonment could not exceed a total period of thirty days.
20. Article 36 § 2 provided that if a corporate entity failed to pay the fine imposed, it would be collected “forcibly” (naplatiće se prinudnimputem).
21. Article 246 § 4 provided that if the confiscation of the object of offence were ordered as a precautionary measure [but that object] was not the property of the accused, then the owner of that item could lodge an appeal only with regard to the decision on the imposition of that measure.
22. Under Article 277, the Supreme Court had the power, should it allow an appeal on points of law lodged by one of the parties concerned, to overturn and/or amend the impugned decision in question or to quash it and order the re-examination of the issue by the relevant administrative authorities.
C. Serbian reservation and related documents
23. The reservation contained in the instrument of ratification of the Convention deposited by the State Union of Serbia and Montenegro reads as follows:
“While affirming its willingness fully to guarantee the rights enshrined in Articles 5 and 6 of the Convention, Serbia and Montenegro declares that the provisions of Article 5, paragraph 1[.c] and Article 6, paragraphs 1 and 3, shall be without prejudice to the application of Articles 75 to 321 of the Law on Minor Offences of the Republic of Serbia (SlužbeniglasnikSocijalistickeRepublikeSrbije, no. 44/89; SlužbeniglasnikRepublikeSrbije, nos. 21/90, 11/92, 6/93, 20/93, 53/93, 67/93, 28/94, 16/97, 37/97, 36/98, 44/98, 65/2001), which regulate proceedings before [the] magistrates’ courts.”
The relevant provisions of the laws referred to in this reservation regulate the following matters:
– proceedings before the magistrates’ courts, including the rights of accused, rules of evidence and legal remedies (Articles 75 to 89 and 118 to 321 of the Law on Minor Offences of the Republic of Serbia);
– theestablishment and organisation of magistrates’ courts (Articles 89a to 115 of the Law on Minor Offences of the Republic of Serbia); and
– measures for securing the presence of accused (Articles 183 to 192 of the Law on Minor Offences of the Republic of Serbia).”
24. On 14 June 2006 the Committee of Ministers of the Council of Europe noted, inter alia, that:
“1. … the Republic of Serbia will continue the membership of the Council of Europe hitherto exercised by the … [State Union] … of Serbia and Montenegro, and the obligations and commitments arising from it;
2. … the Republic of Serbia is continuing the membership of [the State Union of] Serbia and Montenegro in the Council of Europe, with effect from 3 June 2006; […]
4. … the Republic of Serbia was either a signatory or a party to the Council of Europe conventions referred to in the appendix … to which [the State Union of] Serbia and Montenegro had been a signatory or party [including the European Convention on Human Rights].”
25. The above-cited reservation was withdrawn by the Serbian Government on 10 May 2011, and the withdrawal was registered at the Secretariat General of the Council of Europe on 11 May 2011.
COMPLAINTS
26. The applicants complained, under Article 1 of Protocol No. 1 to the Convention, that the confiscation of the cash at the border from the first applicant had violated their property rights.
27. They further complained under Article 6 §§ 1 and 3(e) of the Convention about the fairness of the proceedings. In particular theycomplained that the first applicant had been denied an oral hearing, as well as access to a lawyer and an interpreter during the search at the border and subsequently on 31 March 2004 while giving his first statement in the administrative offence proceedings.
28. Lastly, the applicants complained under Article 13 of the Convention that they had had no effective domestic remedy at their disposal in respect of their complaints under Article 1 of Protocol No. 1to the Convention.
THE LAW
A. Alleged violation of Article 1 of Protocol No. 1 to the Convention
29. As noted above,the applicants complained about the confiscation measure.They relied on Article 1 of Protocol No. 1to the Convention, 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.”
1. The first applicant
(a) The parties’ submissions
30. The Government argued, inter alia, that the first applicant had not had a “possession” within the meaning of the Article 1 of Protocol No. 1 to the Convention because the confiscated cash had not belonged to him personally but to the applicant organisation. Therefore, the applicant could not be considered a victim of the violation complained of.
31. The first applicant did not dispute the fact that the applicant organisation was the owner of the confiscated sum, but he emphasised that this cash had been entrusted to him in connection with the fulfilment of a certain task and that, at the time of the seizure, he had been responsible for the confiscated money. According to him this corresponded to ownership rights and obligations.
(b) The Court’s assessment
32. The Court reiterates that, in order to be able to rely on Article 34 of the Convention, an applicant must meet two conditions: he or she must fall into one of the categories of petitioners listed in that Article and must be able to make out a case that he or she is the victim of a violation of the Convention (see Vallianatosand Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)). There must, however, be a sufficiently direct link between the applicant and the harm that he considers he has sustained on account of the alleged violation (GorraizLizarraga and Others v. Spain, no. 62543/00, § 35, ECHR 2004‑III).
33. The Court furthermore reiterates that an applicant can allege a violation of Article 1 of Protocol No. 1 to the Convention only in so far as the impugned decisions concerned his “possessions”, within the meaning of this provision (see Von Maltzan and Others v. Germany (dec.) [GC],nos. 71916/01 and two others § 74(c), ECHR 2005‑V).
34. Turning to the present case the Court observes that it is not in dispute between the parties that the confiscated sum belonged to the applicant organisation. Therefore, it follows that the impugned decision did not relate to the first applicant’s possessions but the applicant organisation’s possessions. The mere fact that the cash was seized from the first applicant does not mean that he had any “possession” for the purposes of Article 1 of Protocol No. 1 to the Convention.
35. Furthermore, the Court notes that the present case is different from its established case-law, in which it has held thatwhen an individual and a professional entity were closely connected, such an individual could be considered to be directly affected by the measures taken in respect of that entity and thathe could therefore be considered to be a victim. In the present case, this “close connection” does not exist, given that the first applicant was just one of the foundersof the applicant organisation and was neither a representative nor thedirector of the latter at the relevant time(contrast,inter alia,Ankarcrona v. Sweden (dec.), no. 35178/97, 27 June 2000; Nosov v. Russia (dec.), no. 30877/02, 25 October 2005; and Oklešen and PokopališkoPogrebneStoritve Leopold Oklešen S.P. v. Slovenia, no. 35264/04, § 40, 30 November 2010).
36. Accordingly, the first applicant’s complaint is inadmissible for lack of victim status and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant organisation
(a) The parties’ submissions
37. The Government submitted that the applicant organisation had never instituted or participated in the proceedings related to the impugned confiscation. In particular, they maintained that the applicant organisation had failed to lodge an appeal against the decision by which the protective measure had been imposed, pursuant to Article246of the Minor Offence Act (see paragraph 21 above).
38. The applicant organisation submitted that the impugned proceedings had been instituted only against the first applicant and that it had not been informed of the said proceedings and its rights in respect thereof. It made no comment on Article246 of the Minor Offences Act, to which the Government had referred.
(b) The Court’s assessment
39. The Court reiterates that the States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014).
40. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others, § 71, cited above).
41. Article 35 § 1 also requires that complaints intended to be made subsequentlyunder the Convention should have been made to the appropriate domestic body – at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (ibid., § 72).
42. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (ibid., § 74).
43. Turning to the present case, the Court observes that the applicant organisationmade no comment whatsoever in respect of Article 246of the Minor Offences Act, which the Government had explicitly relied on. The said provision provided that the owner of the object of an offence who was not an accused in the impugned proceedings could lodge an appeal – but only with regard to a protective measure imposed. The Court considers that the applicantshould have made use of this remedy, particularly since the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see,mutatis mutandis,Kecojević v. Montenegro (dec.), no. 14336/09, 2 February 2016).
44. The Court does not accept the applicant organisation’ssubmission that it was unaware of the impugned proceedings – especially bearing in mind the fact that that the director of the applicant organisation was present at the airport at the time in question, accompanying the first applicant.
45. In view of the foregoing, the applicant organisation’scomplaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Alleged violation of Article 13 of the Convention
46. As noted above, the applicants complained that they had not had an effective domestic remedy for their complaints under Article 1 of Protocol No. 1to the Convention. The relevant provision of Article 13 of the Convention reads as follows:
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
(a) The parties’ submissions
47. The Government argued that both applicants had had at their disposal effective remedies for the purpose of Article 13 of the Convention.
48. The applicants reaffirmed their complaints, but made no additional comments.
(b) The Court’s assessment
49. Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Powell and Rayner v. the United Kingdom, 21 February 1990, § 31, Series A no. 172).
50. Since the first applicant’s complaint under Article 1 of Protocol No. 1 to the Convention is inadmissible on the grounds that he lacks victim status, the Court considers that it cannot be regarded as “arguable” for the purposes of Article 13. As regards the applicant organisation’s complaint, the Court has already found that there was an effective remedy at its disposal and that its complaint under Article 13, taken in conjunction with the said Article, is therefore manifestly ill-founded. Thus, the complaints of both applicants must be rejected, in accordance with Article 35 §§1, 3 and 4 of the Convention.
C. Alleged violation of Article 6 §§ 1 and 3 (e) of the Convention
51. As noted above, the applicants, lastly, complained that the first applicant had been denied an oral hearing, as well as access to a lawyer and an interpreter during the search at the border and subsequently on 31 March 2004 while giving his first statement in the administrative offence proceedings.
Article 6
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …
…
3. Everyone charged with a criminal offence has the following minimum rights:
…
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
(a) The parties’ submissions
52. The Government maintained that, in view of the reservation contained in the instrument of ratification of the Convention deposited by the State Union of Serbia and Montenegro, the applicants’ complaints under Article 6 §§ 1 and 3 should be rejected as inadmissible rationemateriae.
53. The applicants’ reaffirmed their original complaints, but made no additional comments.
(b) The Court’s assessment
54. The Court observes that it has previously examined the validity of the said reservation (see the “Serbian reservation and related documents” section under C above) in Matić and Polonia v. Serbia (dec.), no. 23001/08, 23 May 2015 and concluded that the reservation deposited in respect of Article 6 §§ 1 and 3 of the Convention was in compliance with Article 57. There is no reason to decide otherwise in the present case.
55. The Court notes that the provisions relating to the lack of an oral hearing, a lawyer and an interpreter were set out in Articles 80, 132 and 225 of the Law on Minor Offences, and those provisions were referred to expressly in the Serbian reservation (see paragraphs 23 and 24 above). The complaints, including those related to events at the border insofar as they are part of the determination of a criminal charge, are therefore covered by the scope of the reservation, and are thus incompatible rationemateriae with the provisions of the Convention within the meaning of Article 35 § 3. Thus, they must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 30 August 2018.
StephenPhillips HelenaJäderblom
Registrar President
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