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FIRST
SECTION
CASE OF GABRIĆ v. CROATIA
(Application
no. 9702/04)
JUDGMENT
STRASBOURG
5 February 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gabrić
v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 15 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9702/04) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a citizen of Bosnia and Herzegovina, Mrs
Darinka Gabrić (“the applicant”), on 9 December
2003.
- The
applicant was represented by Mrs M. Trninić, an advocate
practising in Slavonski Brod. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
- On
14 September 2006 the President of the First Section decided to
communicate the complaint concerning the right of property to the
Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
- The
Government of Bosnia and Herzegovina, having been informed of their
right to intervene (Article 36 § 1 of the Convention and Rule
44 § 2 (a) of the Rules of Court), did not avail
themselves of this right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, who is of Serbian origin, was born in 1952 and lives in
Pforzheim (Germany).
- On
2 January 2002, at around 8.35 p.m., the applicant, on her way to
Germany, was crossing the border between Bosnia and Herzegovina and
Croatia at Slavonski Brod. She was stopped by the Croatian customs
officers, who first searched her car and found undeclared goods
hidden in its luggage compartment. In particular, in the place for
the spare wheel the officers found 61 cartons of cigarettes of
various brands and 9.5 kg of coffee.
- The
customs officers then searched the applicant and found 30,500 German
marks (DEM), which she had also failed to declare under
section 74a(1) of the Foreign Currency Act and section 9(2) of
the Prevention of Money Laundering Act (see paragraphs 14 and 15
below). They seized DEM 20,000 while allowing the applicant to keep
the remaining DEM 10,500 as that amount roughly corresponded to
40,000 Croatian kunas (HRK), the sum she was not required to declare
pursuant to the above-mentioned legislation. The report drafted on
the spot indicates that the applicant informed the customs officers
that she had obtained the money through a bank loan in Germany and
had been carrying it back there.
A. Criminal proceedings instituted against the
applicant
- On
3 January 2002 the Slavonski Brod Municipal State Attorney's Office
indicted the applicant before the Slavonski Brod Municipal Court for
the criminal offence of avoiding customs controls, prescribed in
section 298(3) of the Criminal Code, accusing her of not having
declared 61 cartons of cigarettes. On 4 January 2002 the court found
the applicant guilty as charged and sentenced her to six months'
imprisonment but suspended the sentence (uvjetna osuda) for a
period of two years provided that in that period she did not commit a
further offence. The court also ordered the confiscation (oduzimanje
predmeta) of 61 cartons of cigarettes as a security measure
(sigurnosna mjera). As the applicant waived her right to
appeal, the judgment immediately became final.
B. Administrative offences proceedings instituted
against the applicant
- On
3 January 2002 the customs authorities instituted administrative
offences proceedings (prekršajni
postupak) against the applicant before the Foreign
Currency Inspectorate of the Ministry of Finance (Ministarstvo
financija, Devizni inspektorat – “the Ministry”).
- On
21 March 2002 the Ministry found the applicant guilty of having
committed an administrative offence and fined her HRK 6,000. At the
same time, the Ministry imposed a protective measure (zaštitna
mjera) confiscating DEM 20,000 pursuant to section 99a(2) of the
Foreign Currency Act. In so deciding it held as follows:
“In her written defence the accused admitted that
she had not declared the money when entering the Republic of Croatia
because she had not known that she was required to do so. She
submitted that she had taken out a loan from her bank in Germany and
that she had been bringing the money to Yugoslavia in order to buy a
flat. Since she had not found the flat to her liking she had decided
to wait for a while until she found something [more] favourable. ...
... She submitted that she had not been aware that she
had to declare the money at the customs. She is asking that the
seized money be returned to her because she needs it for the purchase
of a flat, and if she does not buy a flat she has to return the money
to the bank.
...
[The Ministry] could not accept the defence of the
accused that she had not known that she had to declare foreign
currency to the customs authorities, considering that this argument
could not constitute a ground for exonerating her from ... liability.
...
In the determination of the amount of the fine, the
personal situation of the accused was taken into account, namely the
fact that she is divorced and a mother of two children, as well as
her financial situation, namely that she is earning EUR 1,200 per
month and owns a construction lot. [The Ministry] considered as a
mitigating circumstance the fact that the accused had confessed.
The decision to impose the protective measure of
confiscating the object of the offence in the amount of DEM 20,000
was rendered on the basis of section 99a of the Foreign Currency Act,
which provides that objects of an offence are to be confiscated in
favour of the State Budget of the Republic of Croatia. Having
assessed the motives of the offence and the circumstances in which it
had been committed, [the Ministry] found no particularly justified
reasons for not imposing the protective measure, or for imposing the
protective measure of partial confiscation of the objects of the
offence, because the confession of the accused was the only
mitigating circumstance in this case, which in itself (without any
other particularly mitigating circumstances) is not sufficient for a
decision to return the temporarily seized money, as the object of the
offence.”
- The
Ministry's decision was served on the applicant on 24 May 2002, after
which she appealed against it. Together with the appeal she submitted
a letter from her bank in Germany, dated 27 May 2002, confirming that
according to the loan agreement of 21 November 2001, she had received
a loan of DEM 38,334.27 for the purposes of buying a flat in the
Federal Republic of Yugoslavia.
- On
19 June 2002 the High Court for Administrative Offences (Visoki
prekršajni sud Republike Hrvatske) dismissed the
applicant's appeal and upheld the Ministry's decision, endorsing the
reasons given therein. The decision was served on the applicant on
2 September 2002.
- The
applicant then lodged a constitutional complaint, alleging, inter
alia, a violation of her constitutionally protected right of
property. On 21 May 2003 the Constitutional Court (Ustavni
sud Republike Hrvatske) dismissed her complaint, finding no
violation of any of the constitutional rights relied on, and served
its decision on the applicant on 9 June 2003.
II. RELEVANT DOMESTIC LAW
- The
relevant part of the Foreign Currency Act (Zakon o osnovama
deviznog sustava, deviznog poslovanja i prometu zlata, Official
Gazette nos. 91A/93, 36/98 and 32/01), in force at the material
time, in so far as relevant, read as follows:
Section 72(1)
“Foreign currency and securities in foreign
currency may be freely brought into the Republic of Croatia.”
Section 74a(1)
“All Croatian and foreign natural persons crossing
the State border are required to declare to the competent customs
officer any ... cash or cheques in domestic or foreign currency of
the value prescribed by the statute regulating prevention of money
laundering.”
Section 97a
“A fine of at least 5,000.00 kunas for an
administrative offence shall be imposed on any Croatian or foreign
natural person ... who attempts to take or takes across the State
border cash or cheques of the value referred to in section 74a of
this Act, without declaring them to the competent customs officer.”
Section 99a
“(1) The competent customs officer shall
temporarily seize cash and cheques in domestic or foreign currency
taken across the State border in contravention of section 74a of this
Act ..., and shall also, along with making an administrative offence
complaint, pay that amount without delay into the special account of
the Foreign Currency Inspectorate of the Ministry of Finance of the
Republic of Croatia.
(2) The cash and cheques which are the objects of the
administrative offence referred to in section 97a of this Act shall
be confiscated by virtue of the decision on the administrative
offence, in favour of the State Budget of the Republic of Croatia.
(3) ...
(4) Exceptionally, in particularly justified situations
in which special mitigating circumstances exist, the authority
deciding on the administrative offence may decide that the cash and
cheques which are the objects of the administrative offence referred
to in paragraphs 1 and 2 of this section shall not be confiscated or
shall be confiscated only in part.”
- Section
9(1) of the Prevention of Money Laundering Act (Zakon o
sprječavanju pranja novca, Official Gazette nos. 69/97,
106/97 (corrigendum), 67/01 and 114/01), as in force at the material
time, read as follows:
“Customs [authorities]... shall inform the Office
[for the Prevention of Money Laundering] of any legal transfer or
attempted illegal transfer across the State border of cash or cheques
in domestic or foreign currency of the value of 40,000 kunas or more,
within the period of three days of finding out about such transfer or
attempt of illegal transfer.”
- Section
298 of the Criminal Code (Kazneni zakon, Official Gazette
nos. 110/97, 27/98 (corrigendum), 129/00 and 51/01), as in force
at the material time, read as follows:
Avoiding customs controls
Section 298
“(1) Anyone who carries a large quantity of goods
or objects of great value across the customs border, avoiding customs
controls, shall be punished by a fine or by imprisonment not
exceeding three years.
(2) Anyone who organises a group or individuals for the
perpetration of the criminal offence referred to in paragraph 1 of
this section, or a network of resellers or middlemen for the sale of
goods not cleared by customs, shall be punished by imprisonment from
six months to five years.
(3) The same penalty as referred to in paragraph 1 of
this section shall be imposed on anyone who carries across the
customs border, avoiding customs controls, goods whose production or
distribution is restricted or prohibited.
(4) Anyone who organises a group or individuals for the
perpetration of the criminal offence referred to in paragraph 3 of
this section shall be punished by imprisonment from one to eight
years.
(5) An attempt to commit a criminal offence referred to
in paragraphs 1 to 3 of this section shall be punishable.
(6) Goods that are the object of the criminal offence
referred to in paragraph 1 of this section shall be confiscated.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicant complained that that the decision of the domestic
authorities in the administrative offences proceedings to both fine
her and confiscate DEM 20,000 from her for having failed to declare
that sum at the customs had been excessive and thus violated her
right of property. She 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.”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The arguments of the parties
(a) The Government
- The
Government admitted that there had been an interference with the
applicant's right of property when the domestic authorities had
confiscated DEM 20,000 from her. However, the interference had been
lawful and had pursued a legitimate aim. The confiscation as a
sanction for the administrative offence in question had been
prescribed by section 99a(2) of the Foreign Currency Act (see
paragraph 14 above), and had been a measure aimed at combating money
laundering.
- At
the outset, the Government emphasised that money laundering was a
particularly dangerous form of crime, and had been identified as such
not only at national, but also at international level. For example,
many international instruments of the European Union were devoted to
the fight against money laundering.
- As
to proportionality, the Government first explained that the sanction
for the administrative offence of which the applicant had been found
guilty, and which involved a breach of anti-money-laundering
regulations, consisted of two elements: (a) imposition of a fine, and
(b) mandatory confiscation of the money which was the object of the
offence. When assessing the proportionality of the sanction, the
competent domestic authorities took into account both of these
elements. In the applicant's case, mitigating circumstances had been
taken into account when imposing the fine. However, they had not been
of such a character to justify the exception to the obligation to
confiscate the undeclared amount of money.
- Secondly,
the Government submitted that the domestic authorities had
interpreted the relevant provisions on confiscation of money as a
sanction for breaches of anti-money-laundering regulations
restrictively, but consistently. That interpretation was, in the
Government's view, within the “margin of appreciation”
left to the domestic authorities. Owing to this consistency in
interpretation, the sanction imposed on the applicant lacked
arbitrariness, and the present case was therefore to be distinguished
from the case of Baklanov v. Russia (no. 68443/01, 9 June
2005), where the Court had condemned inconsistencies in the
interpretation of similar provisions.
- Thirdly,
the Government argued that the applicant should have been aware that
the transfer of a considerable amount of cash across the border was
subject to certain restrictions provided for by law. Therefore, she
could have reasonably been expected to make some enquiries into this
matter before setting out on a journey. The facts presented in the
domestic proceedings did not indicate that her alleged ignorance had
been in any way justified.
- Fourthly,
the Government did not wish to speculate on the actual purpose of the
money confiscated from the applicant but nevertheless stressed, in
abstract terms, that the mere fact that the money came from
legitimate sources did not necessarily mean that it was intended for
legitimate purposes (in this connection they cited, as an example,
Article 5 of the Council of Europe Convention on Laundering, Search,
Seizure and Confiscation of the Proceeds from Crime and on the
Financing of Terrorism (CETS no. 198), which specifically referred to
the seizure of property acquired from legitimate sources which had
been intermingled with property derived from proceeds of crime). In
the Government's submission, the circumstances of the present case
indicated that the money in question had been intended for suspicious
purposes. They noted in this connection that the overall
circumstances in which the administrative offence had been committed
were not mitigating for the applicant: apart from carrying a large
sum of money in cash, she had been found to be smuggling a large
quantity of cigarettes and coffee. As section 99a(4) of the Foreign
Currency Act (see paragraph 14 above) referred to particularly
justified cases and particularly mitigating circumstances, it was
obvious that these requirements had not been satisfied in the
applicant's case. This did not mean that the applicant's arguments
had not been taken into account; in the given circumstances they had
simply been insufficient to justify the application of section 99a(4)
of the Foreign Currency Act.
- In
view of the foregoing, the Government submitted that there had been
no breach of Article 1 of Protocol No. 1 to the Convention in the
applicant's case.
(b) The applicant
- The
applicant pointed out that immediately after the customs officers had
detected the money she had been carrying, she had informed them of
its origin and purpose and had produced original documents from her
bank in Germany proving that the money had been obtained through a
housing loan. Furthermore, with her appeal to the High Court for
Administrative Offences she had enclosed a letter from her bank, in
which the bank had confirmed her statements as regards the origin and
the purpose of the money.
- The
applicant admitted that she had failed to declare the money at the
customs and accepted that she had to be fined on that account.
However, there had been no valid reason to confiscate from her the
entire amount of DEM 20,000. She was divorced, a mother of two
children, a semi-qualified worker with modest assets and salary who
was employed as a “guest worker” (Gastarbeiter)
in Germany on a temporary basis, and was not well versed in the
law. Owing to an occupational disease from working in the chemical
industry, she had often been on sick-leave, during which she had
received a monthly allowance of only DEM 2,000. Therefore, the
confiscated amount – with which she had intended to buy herself
a flat in the Federal Republic of Yugoslavia where she could live
after her retirement – had represented a “real fortune”
for her.
- The
imposition of the confiscation measure had also been completely
unwarranted in view of the fact that it had been obvious that the
applicant had not committed the administrative offence in question
wilfully but only with negligence.
- However,
irrespective of all these considerations, the domestic authorities
had treated, and eventually punished, the applicant as a notorious
criminal and a dangerous smuggler, which objectively she was not.
They had therefore failed to strike the requisite fair balance
between the general interest of the community and her right of
property.
2. The Court's assessment
- The
Court reiterates that Article 1 of Protocol No. 1 guarantees in
substance the right of property and comprises three distinct rules.
The first, which is expressed in the first sentence of the first
paragraph and is of a general nature, lays down the principle of
peaceful enjoyment of possessions. The second rule, in the second
sentence of the same paragraph, covers deprivation of possessions and
makes it subject to certain conditions. The third, contained in the
second paragraph, recognises that the Contracting States are
entitled, amongst other things, to control the use of property in
accordance with the general interest. The second and third rules,
which are concerned with particular instances of interference with
the right to peaceful enjoyment of property, are to be construed in
the light of the general principle laid down in the first rule (see,
among other authorities,
Draon v. France [GC], no. 1513/03, § 69,
6 October 2005).
- The
“possession” at issue in the present case was an amount
of money in German marks which was confiscated from the applicant by
a decision of the administrative authorities, subsequently upheld by
the judicial authorities. It is not disputed between the parties that
the confiscation constituted interference with the applicant's right
of property, and that Article 1 of Protocol No. 1 is therefore
applicable. It remains to be determined whether the measure was
covered by the first or second paragraph of that Article.
- The
Court reiterates its consistent approach that a confiscation measure,
even though it does involve a deprivation of possessions,
nevertheless constitutes control of the use of property within the
meaning of the second paragraph of Article 1 of Protocol No. 1 (see
Riela and Others v. Italy (dec.), no. 52439/99, 4
September 2001; Arcuri and Others v. Italy (dec.), no.
52024/99, ECHR 2001-VII; C.M. v. France (dec.), no. 28078/95,
ECHR 2001-VII; Air Canada v. the United Kingdom, 5 May
1995, § 34, Series A no. 316 A; and AGOSI
v. the United Kingdom, 24 October 1986, § 34,
Series A no. 108). Accordingly, it considers that the same
approach must be followed in the present case.
- The
Court further notes that the parties were also in agreement that the
interference was lawful, as the confiscation was based on
sections 74a(1) and 99a of the Foreign Currency Act, taken in
conjunction with section 9(1) of the Prevention of Money
Laundering Act. Furthermore, it was common ground that the
interference pursued a legitimate aim in the general interest, namely
the prevention of money laundering. The Court sees no reason to hold
otherwise.
- Accordingly,
the only question for the Court to determine is whether there was a
reasonable relationship of proportionality between the means employed
by the authorities to achieve that aim and the protection of the
applicant's right to the peaceful enjoyment of her possessions. The
Court must examine in particular whether the interference struck the
requisite fair balance between the demands of the general interest of
the public and the requirements of the protection of the applicant's
right of property, and whether it imposed a disproportionate and
excessive burden on her, regard being had in particular to the
severity of the sanction.
- The
administrative offence of which the applicant was found guilty
consisted of her failure to declare DEM 20,000 in cash, which she was
carrying, to the customs authorities. It is important to note that
the act of bringing foreign currency in cash into Croatia was not
illegal under Croatian law, as it was expressly allowed by section
72(1) of the Foreign Currency Act (see paragraph 14 above). Not only
was it lawful to import foreign currency as such but also the sum
which could be legally transferred, or, as in the present case,
physically carried across the Croatian customs border, was not in
principle restricted (see paragraph 14 above). This element
distinguishes the instant case from cases in which the confiscation
measure applied either to goods whose importation was prohibited (see
AGOSI, cited above, concerning a ban on importing gold coins,
and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi
v. Ireland [GC], no. 45036/98, ECHR 2005 VI, concerning
the banning of Yugoslav aircraft falling under the sanctions regime)
or vehicles used for transporting prohibited substances or
trafficking in human beings (see Air Canada, cited above; C.M.
v. France (dec.), cited above; and Yildirim v. Italy
(dec.), no. 38602/02, ECHR 2003-IV).
-
Furthermore, in the proceedings before the Ministry of Finance the
applicant explained that she had obtained the money through a bank
loan in Germany for the purposes of buying a flat in the Federal
Republic of Yugoslavia (see paragraph 10 above). Together with her
appeal against the first-instance decision she submitted documentary
evidence in support of those factual allegations (see paragraph 11
above). However, it seems that the domestic authorities did not
address that issue in particular as they apparently considered it
irrelevant, at least for the imposition of the confiscation measure.
The Court therefore considers that the lawful origin of the
confiscated cash was not contested. On that ground it distinguishes
the present case from cases in which the confiscation measure
extended to assets which were the proceeds of a criminal offence (see
Phillips v. the United Kingdom, no. 41087/98,
§§ 9-18, ECHR 2001-VII), which were deemed to have
been unlawfully acquired (see Riela and Arcuri, both
cited above, and Raimondo v. Italy, 22 February
1994, § 29, Series A no. 281-A) or were intended
for use in illegal activities (see Butler v. the United Kingdom
(dec.), no. 41661/98, 27 June 2002).
- The
Court further notes that the applicant did not have a criminal record
and that she had not been suspected of, or charged with, any criminal
offence prior to the incident at issue. It is true, as pointed out by
the Government, that on the same occasion the customs officers found
other undeclared goods in the applicant's car, in particular 61
cartons of cigarettes, and that she was criminally convicted on that
account. However, for failing to declare the cartons of cigarettes
the applicant was convicted of a less serious form of the criminal
offence of avoiding customs controls prescribed in paragraph 3 of
section 298 of the Criminal Code, and not, as the Government
submitted (see paragraph 25 above), of smuggling, as an aggravated
form of the same offence prescribed in paragraphs 2 and 4 of that
section (see paragraphs 8 and 16 above). More importantly, the
applicant was not criminally convicted or even prosecuted for failing
to declare the money in question, as doing so did not amount to a
criminal offence but only to an administrative offence. Therefore,
there is nothing to suggest that by confiscating the amount of DEM
20,000 from the applicant the authorities sought to forestall any
criminal activities, such as money laundering, drug trafficking, or
evasion of customs duties. The money she carried had been lawfully
obtained and it was permissible to bring that amount into Croatia as
long as she declared it to the customs authorities. It follows that
the illegal (but not criminal) conduct which could be attributed to
her in respect of the money was her failure to declare it at the
customs.
- The
Court considers that, in order to be proportionate, the interference
should correspond to the severity of the infringement, and the
sanction to the gravity of the offence it is designed to punish –
in the instant case the failure to comply with the declaration
requirement – rather than to the gravity of any presumed
infringement which has not, however, actually been established (such
as an offence of money laundering or evasion of customs duties). The
confiscation measure in question was not intended as pecuniary
compensation for damage – as the State had not suffered any
loss as a result of the applicant's failure to declare the money –
but was deterrent and punitive in its purpose (compare Bendenoun
v. France, 24 February 1994, § 47, Series A
no. 284). In the instant case the applicant had already been
fined for the administrative offence of failing to declare the money
at the customs. It has not been convincingly shown or indeed argued
by the Government that that sanction alone was not sufficient to
achieve the desired deterrent and punitive effect and prevent future
breaches of the declaration requirement. In these circumstances, the
confiscation of the entire amount of the money that should have been
declared, as an additional sanction to the fine was, in the Court's
view, disproportionate, in that it imposed an excessive burden on the
applicant.
- There
has accordingly been a violation of Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- On
the basis of the same facts the applicant adduced in support of her
complaint under Article 1 of Protocol No. 1, she also complained
under Article 6 § 1 of the Convention that the
above-mentioned administrative offences proceedings were unfair and
that the domestic courts involved were not impartial, as well as
under Article 14 that she had been discriminated against on the basis
of her nationality and ethnic origin. Those Articles in their
relevant part read as follows:
Article 6 § 1
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an ...
impartial tribunal established by law.”
Article 14
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The Court notes that the applicant in substance
complained about the outcome of the proceedings, which, unless there
was any arbitrariness, it is unable to examine under Article 6 §
1 of the Convention. In the light of all the material in its
possession, the Court considers that in the impugned proceedings the
applicant was able to submit her arguments before the courts, which
addressed them in decisions that were duly reasoned and not
arbitrary. Moreover, no specific facts or arguments which could lead
to the conclusion that the courts had lacked impartiality or that the
proceedings had otherwise been unfair were put forward by the
applicant, and the case does not appear to raise any issue in that
respect.
- Likewise,
the applicant's complaint under Article 14 appears unsubstantiated as
she provided no details whatsoever. There is no evidence to suggest
that in deciding as they did the domestic authorities were guided by
improper motives, such as the applicant's nationality or ethnic
origin.
- These
complaints are therefore inadmissible under Article 35 §
3 as manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 10,000 in respect of pecuniary damage together
with the accrued default interest at the annual rate of 8% running
from 2 January 2002, the date of the confiscation, until payment. She
explained that the amount of EUR 10,000 corresponded to the amount of
DEM 20,000 confiscated from her by the Croatian authorities and that
the interest rate was equal to the rate stipulated in the loan
agreement she had concluded on 21 November 2001 with her bank in
Germany. She also claimed EUR 2,000 in respect of non-pecuniary
damage.
- The
Government contested these claims.
- The
Court has found that the principal sum claimed by the applicant was
confiscated from her in breach of Article 1 of Protocol No. 1. It
therefore accepts the applicant's claim in respect of pecuniary
damage and awards her EUR 10,000 under this head, plus any tax that
may be chargeable on that amount.
- As
regards non-pecuniary damage, the Court considers that finding of a
violation of Article 1 of Protocol No. 1 to the Convention
constitutes in itself sufficient just satisfaction in the
circumstances.
B. Costs and expenses
- The
applicant also claimed HRK 6,100 for the costs and expenses incurred
before the domestic courts and HRK 12,200 for those incurred before
the Court.
- The
Government contested these claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 150 for costs and
expenses in the domestic proceedings and EUR 1,700 for the
proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the right of
property admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a)
that the respondent State is to pay the applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts:
(i) EUR
10,000 (ten thousand euros), plus any tax that may be chargeable to
the applicant, in respect of pecuniary damage;
(ii) EUR
1,850 (one thousand eight hundred and fifty euros), plus any tax that
may be chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 February 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
