Information Note on the Court’s case-law 43

June 2002

Napijalo v. Croatia (dec.) - 66485/01

Decision 13.6.2002 [Section I]

Article 2 of Protocol No. 4

Article 2 para. 2 of Protocol No. 4

Freedom to leave a country

Confiscation of passport: admissible

In February 1999 the applicant’s passport was confiscated by the Croatian customs as he came back from Bosnia Herzegovina. Thereafter his passport remained in the ha nds of the authorities, although no proceedings were instituted against him. In March 1999 the applicant filed a civil action against the Ministry of Finance in the competent Municipal Court. In April 2001 his passport was returned to him by the police. He sought nonetheless a declaratory decision that in February 1999 his passport had been taken by the authorities and returned in April 2001. In November 2001 the court dismissed his claim. In the meantime, in April 1999, he had lodged an application with th e County Court, claiming that his freedom of movement was breached and requesting that the Ministry of Finance be ordered to return his passport. In September 1999 his application was turned down and he was advised to start civil proceedings before a munic ipal court against the Ministry of Finance to recover his passport. The applicant’s subsequent appeal to the Supreme Court was rejected in April 2000.

Admissible under Article 6 § 1 (applicability, length of proceedings).

Admissible under Article 2 of Prot ocol No. 4: No proceedings concerning the applicant’s alleged customs offence were instituted against him and no decision was taken regarding the confiscation of his passport. Hence he was prevented from challenging the confiscation of his passport in the course of legal proceedings whereby the authorities would have established the relevant facts and given the reasons for this confiscation. Only proceedings of that character would have given the applicant a real opportunity to challenge the confiscation of his passport and establish a possible violation of his right to freedom of movement. The proceedings before the Municipal Court only concerned the return of his passport. In these proceedings, the passport was treated as his possession and not as a docume nt issued by public authorities for the purpose of travelling outside Croatia. The proceedings before the County Court and the Supreme Court only dealt with the procedural question of whether the applicant was able to lodge a claim for the protection from an unlawful act. Neither of these proceedings would have allowed him to challenge any decision relating to the confiscation of his passport and therefore his complaints could not be rejected for failure to exhaust domestic remedies.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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