Published on 3 July 2023

THIRD SECTION

Application no. 42820/19 Ä°smail PEKSERT against Bulgaria lodged on 6 August 2019 communicated on 16 June 2023

STATEMENT OF FACTS

The applicant, Mr Ä°smail Peksert, is a German national of Turkish origin, who was born in 1955 and lives in Wuppertal, Germany. He is represented before the Court by Mr G. Ä°ÅŸler, a lawyer practising in Bursa.

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

On 10 May 2018, the applicant and his wife travelled from Türkiye to Germany by car, passing through Bulgaria. They were carrying with them 1,350 grams of golden jewellery stored in a suitcase at the back of their car.

According to the applicant, the Bulgarian customs officers asked whether he and his wife had cigarettes or alcohol to declare, to which he replied in the negative. The officers nonetheless searched the car and discovered the jewellery mentioned above.

Thereafter, the deputy head of Burgas customs drew up a procès-verbal for a customs violation, considering that the applicant had failed to comply with his duty under section 14а(1) of the Currency Act to declare the gold when crossing the border. The jewellery was also seized with a view to its possible forfeiture. The applicant signed the procès-verbal once it had been translated to him into Turkish.

On 18 September 2019 the authorities issued the applicant with a penal order for having failed to declare the golden jewellery, in breach of section 14а(1) of the Currency Act. The order imposed on the applicant a fine in the amount of 520 euros (EUR) in accordance with section 18(1) of the Currency Act, as well as the confiscation of the seized gold in accordance with section 20(1) of the Currency Act.

The applicant brought judicial review proceedings, arguing that he had not been informed of any obligation to declare the gold. On 5 November 2018 the Svilengrad District Court upheld the penal order. In a final decision of 15 February 2019, the Haskovo Administrative Court confirmed the lower court’s decision.

RELEVANT LEGAL FRAMEWORK

Section 14 of the Currency Act provides that individuals may carry an unlimited quantity of precious metals and gemstones, and items containing or made up of those, across the national border. Under 14a(1) of the Currency Act, those crossing the border must declare to the customs officials any of the above weighing more than 60 grams.

Failure to comply with the requirement of declaration amounts to an administrative offence punishable by a fine, if the breach does not constitute a criminal offence (section 18(1) of the Currency Act as worded until 18 February 2020). The fine in respect of physical persons ranges between 1,000 and 3,000 Bulgarian levs (the equivalent of EUR 510 and EUR 1,540).

In addition, section 20(1) of the Currency Act, as in force until 18 February 2020, provided that any undeclared precious metals were to be forfeited. This section was repealed on the latter date. Following that, the law no longer provides for confiscation of undeclared precious metals, nor does it envisage any other sanction for failure to declare precious metals, apart from the fine indicated above.

As to the procedure to be followed when establishing an administrative offence and imposing a punishment, section 21 of the Currency Act refers to the Administrative Offences and Penalties Act 1969 (“the 1969 Act”). As set out in its section 1, the 1969 Act provides general rules concerning administrative offences and punishments and the guarantees necessary for the protection of individuals’ rights.

The 1969 Act provides in section 20(3) that items which are the subject of an administrative offence may be forfeited if they are property to the offender and if the relevant special statute so provides.

The administration’s decision to impose an administrative penalty is subject to judicial review by the respective district court (section 59(1) of the 1969 Act). Section 63c of the 1969 Act provides that the district court’s judgment is subject to appeal before the respective regional court.

COMPLAINT

The applicant complains in particular under Article 1 of Protocol No. 1 to the Convention that the confiscation of his golden jewellery for failing to declare it at the Bulgarian border was excessive.

QUESTIONS TO THE PARTIES

Was the confiscation of all of the jewellery which the applicant did not declare to the Bulgarian customs authorities necessary to control the use of property in accordance with the general interest, within the meaning of Article 1 of Protocol No. 1 to the Convention? In particular, in the circumstances of the present case did that measure strike the requisite fair balance between the demands of the general interest and the requirements of the protection of the applicant’s right to property, or did it impose a disproportionate and excessive burden on him, regard being had in particular to the severity of the sanction (see, for example, Ismayilov v. Russia , no. 30352/03, 6 November 2008; Gabrić v. Croatia , no. 9702/04, 5 February 2009; Boljević v. Croatia , no. 43492/11, 31 January 2017; Togrul v. Bulgaria , no. 20611/10, 15 November 2018; and Stoyan Nikolov v. Bulgaria , no. 68504/11, 20 July 2021)?