Confiscation and retention for over nine years of sums of money not declared to Bulgarian customs: violation of the right to property

JUDGMENT 

Togrul v. Bulgaria 15.11.2018 (no. 20611/10)

see here

SUMMARY

The case concerned the confiscation by the Bulgarian authorities of a sum of 199,400 euros (EUR) which Mr Togrul had not declared to Bulgarian customs, and the retention of a sum of EUR 9,100.

The Court observed that Mr Togrul had been penalised in administrative proceedings for not declaring to the Bulgarian customs the sum of EUR 199,400 which he was carrying. There had been no suspicions in the present case as to the lawful origins of the money, and the criminal proceedings had been discontinued. The Court found in particular that the confiscation of the full undeclared amount (EUR 199,400) had pursued a purely punitive aim as it had not been intended to compensate for any loss by the State. The confiscation had thus been disproportionate and had placed an excessive burden on Mr Togrul. Furthermore, the retention of the sum of EUR 9,100 had ceased to be proportionate to the legitimate aim pursued (the conservation of physical evidence) once the criminal proceedings had been terminated on 26 January 2009. Beyond that date there had thus been no basis for retaining the money.

PROVISION 

Article 1 of the First Additional Protocol

PRINCIPAL FACTS

The applicant, Ismet Togrul, is a Turkish national who was born in 1963 and lives in Istanbul (Turkey).

In October 2008 Mr Togrul entered Bulgaria in a vehicle. As he was leaving the country a Bulgarian
customs official asked him whether he had anything to declare. He said that he had, and presented a
sum of EUR 199,400 in cash, explaining that the money came from the sale of his vehicle and from
his bank account. He presented supporting documents. The same day the head of the Svilengrad
customs office issued an administrative offence notice accusing Mr Togrul of failing to declare the
money to customs. A police investigator seized the EUR 199,400, together with two banknotes with
a total value of EUR 600. Mr Togrul subsequently handed over further banknotes worth EUR 8,500 to
the investigator. Criminal proceedings were brought against him but in January 2009 the public
prosecutor found that the facts did not constitute a criminal offence.

In February 2009 the head of the Svilengrad customs office fined Mr Togrul approximately
EUR 1,533.88 on the grounds that he had not complied with his obligation to declare the EUR 199,400 that had been confiscated from him. In addition, the EUR 9,100 which Mr Togrul had handed over to the police investigator was retained.

THE DECISION OF THE COURT

Article 1 of Protocol No. 1 (protection of property)

With regard to the administrative sanctions, namely the order to pay a fine and the confiscation of
EUR 199,400 that had not been declared to customs, the Court found as follows.

The Court considered that there had been interference with Mr Togrul’s right to the peaceful
enjoyment of his possessions. The interference had been provided for by the currency legislation,
which made it an offence not to comply with the requirement to declare sums of money in cash
when crossing the Bulgarian border, and had pursued the legitimate aim of monitoring the import
and export of cash amounts.

The Court observed that administrative penalties had been imposed on Mr Togrul for failing to
declare to the Bulgarian customs the sum of EUR 199,400 which he was carrying. No suspicions had
been raised as to the lawful origins of the money, and Mr Togrul had presented bank papers and
provided a coherent account in that regard. Moreover, the criminal proceedings had been
discontinued as Mr Togrul was not suspected of any illegal activity. The offence for which he had
been punished had thus been failure to comply with a customs declaration requirement. In that
connection the Court pointed to its consistent case-law according to which, in such a situation, the
penalty should correspond to the gravity of the infringement found, in this case the failure to comply
with the declaration requirement, rather than to the gravity of any presumed infringement which
had not actually been established, such as an offence of money laundering or tax fraud. In the
present case the Court took the view that the confiscation of the full undeclared amount of
EUR 199,400 had pursued a purely punitive aim since it had not been intended to compensate for
any loss sustained by the State. Furthermore, the Government had not demonstrated convincingly
that it had been necessary to impose the administrative fine and also confiscate the entire
undeclared amount in order to achieve the deterrent and punitive aim of the administrative sanction
and prevent further infringements of the declaration requirement in question. Consequently, the
Court found that the confiscation of the full undeclared amount, ordered in Mr Togrul’s case for his
failure to declare the money as required, had been disproportionate and had placed an excessive
burden on him. There had therefore been a violation of Article 1 of Protocol No. 1 to the
Convention.

With regard to the retention of the EUR 9,100: The Court observed that this money had been seized
as physical evidence on 8 October 2008 under the Code of Criminal Procedure; that the measure had
been designed to ensure the proper administration of justice and had been in the general interest;
and that the money had been retained by the authorities for over nine years.

The Court accepted that the retention of this sum had been justified until the criminal proceedings
were terminated on 26 January 2009. Beyond that date, the only proceedings against Mr Togrul had
been administrative, for his failure to declare the sum of EUR 199,400. The remainder of the money
seized on 8 October 2008, EUR 9,100, had been retained by the authorities without any basis. The
Court noted that Mr Togrul had applied both to the police and to the prosecuting authorities in
Svilengrad, which had not responded to his requests for repayment of the money, and that his
appeal to the Svilengrad District Court in that connection had not been examined. Accordingly, the
Court held that the retention of the amount of EUR 9,100 belonging to Mr Togrul had ceased to be
proportionate to the legitimate aim pursued once the criminal proceedings had been terminated.

There had therefore been a violation of Article 1 of Protocol No. 1 to the Convention.

Article 41 (just satisfaction)

The Court held that Bulgaria was to pay Mr Togrul 208,500 euros (EUR) in respect of pecuniary
damage. It also held that the finding of a violation constituted sufficient just satisfaction in respect of
non-pecuniary damage(echrcaselaw.com editing). 


ECHRCaseLaw

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