Resolution CM/ ResDH (2011)49 [1]

Execution of the judgment of the European Court of Human Rights

Gabrić against Croatia

(Application No. 9702/04, judgment of 05/02/2009, final on 05/05/2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicant ’ s right to the peaceful enjoyment of her possessions due to the confiscation by custom authorities of undeclared foreign currency and the imposition of a fine during a border control (violation of Article 1 of Protocol No. 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)49

Information about the measures to comply with the judgment in the case of

Gabrić against Croatia

Introductory case summary

The case concerns a disproportionate interference with the applicant ’ s right to peaceful enjoyment of her possessions in that the customs authorities, during a border control in January 2002, in addition to fining her for failing to declare foreign currency in her possession, confiscated the sums concerned (violation of Article 1 of Protocol No. 1).

The Court considered the fine to have been a sufficient sanction to prevent future breaches of the national legal requirement to declare currency carried across borders.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

10000 EUR

-

1850 EUR

11850 EUR

Paid on 10/06/2009

b) Individual measures

The Court awarded the applicant just satisfaction in respect of pecuniary damage, in particular concerning the amount confiscated in breach of the Convention. As regards non-pecuniary damage, the Court considered that finding of a violation of Article 1 of Protocol No. 1 to the Convention constituted in itself sufficient just satisfaction in the circumstances of the case. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

In order to prevent similar violations, the Croatian authorities have taken a number of measures.

1) Legislative measures included adoption of a new law on preventing money laundering and financing terrorism, which came into force on 01/09/2009. Pursuant to this law, individuals have an obligation to declare at the border customs control any transfer of cash amounting to at least 10 000 EUR. In this regard, the amount of cash not subject to customs declaration has been roughly doubled in comparison with the rules in force at the time when the facts of this case took place.

2) Change of case law : Following to the Court ’ s judgment in this case, the High Misdemeanor Court has changed its case-law, in particular concerning the application of the Law on Preventing Money Laundering and Financing Terrorism. At its session held on 03/06/2009, the High Misdemeanor Court determined that the confiscation of undeclared cash carried over the border should no longer be applied in similar cases, if the purpose of punishment could be achieved solely by fining the offender. The relevant administrative authorities have been notified on the new case-law.

4) Publication and dissemination: In view of the direct effect of the Convention in Croatia , publication of the Court ’ s judgment and its dissemination to the relevant courts should also facilitate the prevention of similar violations. In this context it should be noted that the Court ’ s judgment has been translated into Croatian and sent out to the Constitutional Court , the Supreme Court, High Misdemeanor Court and the Ministry of Finance. It is also available on the Internet site of the Ministry of Justice ( www.mprh.hr ) and published in a periodic on the case-law of the Court.

III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Croatia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies