FIRST SECTION

DECISION

Application no . 67644/12 Damir DAGOSTIN against Croatia

The European Court of Human Rights (First Section), sitting on 23 May 2017 as a Committee composed of:

Kristina Pardalos, President, Ksenija Turković , Pauliine Koskelo , judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 5 October 2012,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Damir Dagostin , is a Croatian national, who was born in 1965 and lives in Pazin . He was represented before the Court by Ms R. Trivić , a lawyer practising in Zagreb.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š.Stažnik .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 27 August 2009 the applicant attempted to cross Croatian-Slovenian border while carrying 3,350 euros (EUR) and 11,120 United States dollars (USD) which he failed to declare to the customs authorities.

5. He was stopped by customs authorities who, in the course of their routine checks, found the money in question.

6. The money was seized and the Customs Administration instituted administrative offence proceedings ( prekršajni postupak ) against the applicant before the Ministry of Finance ( Ministarstvo financija ) for failing to declare cash exceeding the amount prescribed by law which was defined as an administrative offence under the legislation regulating foreign currency operations and that concerning prevention of money laundering.

7. On 1 October 2009 a hearing was held before the Ministry of Finance at which the applicant stated that the EUR 3,000 were his savings, while the rest of the confiscated money belonged to his mother.

8. By a decision of 6 November 2009 the Ministry of Finance found the applicant guilty as charged. The applicant was fined 5,000 Croatian kunas (HRK). At the same time, the Ministry imposed a protective measure ( zaštitna mjera ), confiscating, in full, the money the applicant had been carrying.

9. The applicant and the two other individuals lodged an appeal with the High Court for Administrative Offences ( Visoki prekršajni sud Republike Hrvatske ), challenging their conviction and the confiscation measure.

10. On 20 January 2010 the High Court for Administrative Offences quashed the Ministry ’ s decision and remitted the case.

11. In the resumed proceedings before the Ministry of Finance, at the hearing held on 23 September 2010, the applicant stated that the amount of some EUR 6,000-7,000 that had been confiscated from him constituted his mother ’ s savings, while the rest of the money belonged to him. He explained that his mother lived and worked in Italy as a cleaning lady. She had been saving from her earnings and bringing those savings to Croatia, where he had been converting them into USD and keeping the money in his flat.

12. By a decision of 23 September 2010 the Ministry of Finance found the applicant guilty for failing to declare cash in the amount exceeding EUR 10,000, imposed a fine of HRK 5,000 and a p rotective measure whereby EUR 350 and USD 11,120 were confiscated from the applicant.

13. The applicant appealed, but by a decision of 16 March 2011 the High Court for Administrative Offences dismissed that appeal and upheld the Ministry ’ s decision.

14. The applicant then lodged a constitutional complaint before the Constitutional Court ( Ustavni sud Republike Hrvatske ) claiming a violation of his constitutional right of property .

15. By a decision of 3 May 2012 the Constitutional Court declared the applicant ’ s constitutional complaint inadmissible as manifestly ill-founded because the case did not raise any constitutional issues. That decision was served on his representative on 18 May 2012.

16. On 24 November 2014 the amount of EUR 3,000 (together with the accrued statutory default interest of EUR 203.44) was returned to the applicant. That sum constituted the difference between EUR 350 confiscated by a decision of 23 September 2010 (see paragraph 12 above) and EUR 3,350 seized by the customs authorities on 27 August 2009 (see paragraphs 4-6 above) .

B. Relevant international and domestic law and practice

17. The relevant international and domestic law and practice is summarised in the case of Boljević v. Croatia , no. 43492/11, § § 16-21, 31 January 2017.

COMPLAINTS

18. The applicant complained under Article 1 of Protocol No. 1 to the Convention about the confiscation measure.

19. He also complained under Article 6 § 1 of the Convention about the unfairness of the proceedings.

THE LAW

A. Alleged violation of Article 1 of Protocol No. 1 to the Convention

20. The applicant complained that the confiscation of EUR 3,350 and USD 11,120 from him had violated his right of property. He relied on Article 1 of Protocol No. 1 to 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 parties ’ submissions

21. The Government argued, inter alia , that the applicant had not had a “possession” within the meaning of the Article 1 of Protocol No. 1 to the Convention because he had himself claimed that some EUR 6,000-7,000 of the sums confiscated from him had belong ed to his mother (see paragraph 11 above). Moreover, they submitted that he had “never claimed that the money exceeding EUR 3,000 was his”. Further to this, EUR 3,000 had been returned to him by a decision of the Ministry of Finance (see paragraph 16 above). Therefore, the applicant could not be considered a victim of the violation complained of.

22. The applicant did not comment on this specific issue. He maintained that there had been nothing to suggest that, by confiscating from him the two sums in EUR and USD in full the authorities had sought to forestall any criminal activities, such as money laundering. Moreover, he had not had any criminal record and neither before nor after the event on 27 August 2009 had he been charged with any criminal offence . Therefore the full confiscation of the two sums had been unwarranted and had imposed an excessive burden on him, violating his property rights, contrary to Article 1 of Protocol No. 1.

2. The Court ’ s assessment

23. The Court reiterates that, in order 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 mentioned 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 Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09 , § 47, ECHR 2013 (extracts)). The word “victim”, in the context of Article 34 of the Convention, denotes the person or persons directly or indirectly affected by the alleged violation (see SARL du Parc d ’ Activités de Blotzheim v. France , no. 72377/01, § 20, 11 July 2006).

25. In this connection, the Court first notes that, according to the applicant ’ s own admission before the domestic authorities, a large part of the confiscated sums did not belong to him. In particular, at the hearing of 1 October 2009 the applicant stated that EUR 3,000 were his savings, while the rest of the money that had been confiscated belonged to his mother (see paragraph 7 above). Moreover, at the hearing of 23 September 2010 the applicant stated that some EUR 6,000-7,000 of the confiscated money were his mother ’ s savings (which he had converted into US dollars), while the rest of it was his (see paragraph 11 above). Since that amount of “some EUR 6,000-7,000” at the time roughly corresponded to 11,120 USD, it follows that, in so far as it concerns the confiscation of the sum in USD, the impugned decision did not relate to the applicant ’ s but his mother ’ s possessions. In consequence, in respect of the confiscation of that sum the applicant cannot claim that he was a victim of the alleged violation of Article 1 of Protocol No. 1 to the Convention.

26. Accordingly, this part of the applicant ’ s complaint is inadmissible for lack of victim status and must be rejected pursuant to Article 34 and Article 35 §§ 3 (a) and 4 thereof.

27. The Court further notes that on 24 November 2014 the amount of EUR 3,000 together with the accrued statutory default interest were returned back to the applicant (see paragraph 16 above). It follows that in reality EUR 350 was confiscated from the applicant which, in light of its case-law (see, by converse implication, Gabrić v. Croatia , no. 9702/04, § § 10 and 39, 5 February 2009 ), the Court does not consider excessive. Consequently, the measure complained of did not impose an excessive individual burden on the applicant.

28. Accordingly, this part of the applicant ’ s complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.

B. Alleged violation of Article 6 § 1 of the Convention

29. The applicant complained of a violation of his right to a fair hearing. He relied on Article 6 § 1 of the Convention, which in its relevant part reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair... hearing within a reasonable time by [a] ... tribunal ...”

30. The Government contested that argument.

31. The Court notes that the applicant failed to raise this complaint before the Constitutional Court (see paragraph 14 above).

32. It follows that this complaint is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4 thereof.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 June 2017 .

             Renata Degener Kristina Pardalos              Deputy Registrar President