DOGRU v. SERBIA and 4 other applications

Published on 27 January 2025   THIRD SECTION Application no. 33745/17 Abdurrahman DOGRU against Serbia and 4 other applications (see list appended) communicated on 10 January 2025 SUBJECT MATTER OF THE CASE The present applications concern the confiscation by misdemeanour courts of entire amounts of cash, which the applicants individually had been carrying while transiting Serbia, in violation of their duty to declare to the Serbian customs officers any such sum exceeding a value of EUR 10,000 euros. The applicants complain under Article 1 of Protocol No. 1 that the respective confiscation, in addition to the imposed fines, constituted an unlawful and/or disproportionate interference with their right to the peaceful enjoyment of their respective property. QUESTIONS TO THE PARTIES AND REQUEST FOR INFORMATION As regards all applicants   1.  Did the confiscation of the amounts of cash that the applicants failed to 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? In particular: (a)  Were they established by law? As regards the assessment of the factors that are taken into account in the fixing of the applicants’ respective sanctions by the misdemeanour courts, can the interferences with the applicants’ right of property be seen as meeting the requirement of legal certainty and corresponding to the essence of their ultimate misconduct? (b)  Were they effected in pursuit of a legitimate aim? (c)  Did the interferences strike a fair balance between the demands of the general interests and the rights of the applicants, regard being had to the purpose and severity of the measures?   In the above context, see also, for example Grifhorst v. France, no. 28336/02, §§ 81-106, 26 February 2009; Gabrić v. Croatia, no. 9702/04, §§ 31-40, 5 February 2009; Boljević v. Croatia, no. 43492/11, §§ 37-46, 31 January 2017; Sadocha v. Ukraine, no. 77508/11, §§ 22-37, 11 July 2019; Imeri v. Croatia, no. 77668/14, §§ 63-94, 24 June 2021; and Yaremiychuk and Others v. Ukraine, nos. 2720/13 and 6 others, §§ 21-36, 9 December 2021)?   2. The Government are further invited to provide the relevant information, regulations and practice concerning the following matters:   (i) Having regard to the wording of Article 64 §§ 1 and 2 of the relevant Foreign Currency Transactions Act and the discretion conferred on misdemeanour courts when deciding whether to apply §§ 1 or 2, what factors are identified in the practice of the relevant authorities that would characterise the kind of “motives” for the misdemeanour or “other circumstances” which would justify the imposition of a full or a partial confiscation of the objects of the misdemeanour in question?   (ii) Whether the relevant law, or its interpretation by the relevant authorities, specify with whom the burden of proof in respect of such “motives” and “circumstances” shall lie; in particular, whether the onus to advance arguments and evidence which would prompt the misdemeanour courts to carry out a proportionality assessment is placed on the prosecution authorities or the defendant?   Specific questions as regards the first and third applicants only (applications nos. 33745/17 and 16968/18)   Can the applicants claim to be the victims of a violation of the Convention, within the meaning of Article 34? If so, can the entire amounts of confiscated cash or goods, respectively, be considered to be the applicants’ possession within the meaning of Article 1 of Protocol No. 1?       APPENDIX No. Application no. Case name Introduction date Applicant’s name Year of birth Place of residence Nationality Representative’s name Location 1. 33745/17 Dogru v. Serbia 02/05/2017 Abdurrahman DOGRU 1989 Vienna Turkish Saša MUTIĆ Belgrade 2. 16944/18 Duran v. Serbia 04/04/2018 Ökkes DURAN 1969 Ostfildern German Ulrich KAHLER Arnsberg 3. 16968/18 Jildiz v. Serbia 02/04/2018 Kadir JILDIZ 1965 Selters Turkish Saša MUTIĆ Belgrade 4. 15515/21 Jildiz v. Serbia 12/03/2021 Husejin JILDIZ 1950 Ebikon Turkish Saša MUTIĆ Belgrade 5. 35535/24 Alkan v. Serbia 19/05/2017 Murat ALKAN 1969 Esenyurt/Istanbul Turkish Saša MUTIĆ Belgrade