Seizure of money and 27 years of procedures for its return! Violation of respect for property!
JUDGMENT
Zaklan v. Croatia 16.12.2021 (app. no. 57239/13)
SUMMARY
The case concerned attempts by the applicant to recover foreign currency seized by the Yugoslav
authorities in 1991 in Croatia when that State had still been part of Yugoslavia.
The Court found in particular that the 27-year wait while administrative proceedings against the
applicant for taking foreign currency across State borders had been stayed too long, and had
prevented him from gaining satisfaction in both Croatia and Serbia. The weight overall had fallen
disproportionately on the applicant.
PROVISION
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Đorđe Zaklan, is a Croatian national who was born in 1944 and lives in Pakrac
(Croatia).
In 1991 the customs authorities of the former Yugoslavia (SFRY) seized 4,350 Deutschmarks and 100
US dollars from Mr Zaklan as he tried to bring it into Hungary from the then Yugoslav republic of
Croatia in contravention of the law.
Minor-offence proceedings were initiated against Mr Zaklan by the federal authorities of the SFRY.
When Croatia declared independence on 8 October 1991 it took over all such proceedings, and on
13 November 1992 stayed them until the completion of the succession process following the
dissolution of the SFRY.
On 2 June 2004 the Agreement on Succession Issues between the successor States to the SFRY
entered into force.
In 2007 Mr Zaklan wrote to the State Attorney’s Office, asking for the return of the money. It replied
that the money was in the account of the former federal authorities in Belgrade and suggested to
the applicant to seek the return of money from the Serbian authorities.
The applicant then brought proceedings before the Croatian civil courts but his case was dismissed
The courts reasoned that that the succession process had not been completed because cases such as
his were not regulated by the Succession Agreement, that the administrative-offence proceedings
thus remained stayed and that it was therefore premature to seek the return of the money via the
courts.
A subsequent constitutional complaint by the applicant was dismissed in 2013.
Relying on Articles 1 of Protocol No. 1 to the Convention (protection of property), the applicant
complained of the refusal of the court to order the return of the money that had been seized from
him.
THE DECISION OF THE COURT…
The applicant argued that the administrative proceedings against him had been taken over by
Croatia. The proceedings had been stayed for more than 27 years and the administrative offence he
had been charged with had become time-barred. It was therefore the responsibility of Croatia, not
Serbia, to return the funds seized from him, regardless of the fact that the money was not located in
Croatia.
The Court noted that Croatia had taken over the administrative proceedings against the applicant
and that the prolonged stay of proceedings imposed by Croatian legislation had prevented him from
recovering the money both from the Croatian and from the Serbian authorities. It therefore
concluded that the situation the applicant complained of was attributable to the Croatian authorities
and thus the application was admissible. It emphasised that Serbia was not a party to the
proceedings, and this decision was without prejudice to that State’s responsibility in the case.
Concerning the substantive issue, the Court held that the money belonged to the applicant and had
been seized only temporarily. The Court was satisfied that it had been lawfully seized and that the
delay in returning it had had the legitimate aim of protecting the public purse.
However, the Court held that the applicant had been made to wait too long. The stayed proceedings
had also prevented him from seeking the return of the money from the Serbian authorities, which
could not be said to have been protecting the Croatian State’s financial interests. The Court
concluded that the applicant had been made to bear a disproportionate burden in this case, leading
to a violation of Article 1 of Protocol No. 1.
Just satisfaction (Article 41)
The Court held that Croatia was to pay the applicant 1,327 euros (EUR) in respect of non-pecuniary
damage and EUR 4,365 in respect of costs and expenses.
