CASE OF MILOSAVLJEV v. SERBIA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
5. The applicant was born in 1947 and lives in Kikinda. 6. 7. In September 2000 the applicant bought a car (Mercedes 190D) from a person who lived in Germany. His intention was to use it as a taxi. Since the car was already more than six years old, the applicant was unable to have it directly registered in Serbia. Therefore, he first had the car registered in Bosnia and Herzegovina, in his relative’s name, and only registered the car in Serbia in December 2000, which was when the latter State adopted legislation making this arrangement possible. 8. On 21 January 2003 the Municipality of Kikinda issued a decision stating that the applicant, being a taxi driver since 20 September 2002, would from now on be using the car at issue as a taxi. 9. On 6 May 2004 the police seized the applicant’s car because of a customs violation (carinski prekršaj). 10. On 5 July 2004 the Customs Office (Komisija za carinske prekršaje Carinarnice Zrenjanin) discontinued the misdemeanour proceedings (prekšajni postupak) brought against the applicant, but decided nevertheless to confiscate his vehicle. The Customs Office explained that it was convinced that the applicant had committed the offence in question, i.e. that he had accepted to import a vehicle which could not have legally been imported and had not informed the competent customs authorities thereof, but noted that the misdemeanour proceedings could not be continued in view of the applicable “relative prescription” period (relativna zastarelost). The confiscation, however, was warranted since no “absolute prescription” (apsolutna zastarelost) had occurred (see paragraphs 23-25 below). 11. On 21 July 2004 the applicant filed an appeal against this decision, noting that the Customs Office had failed to properly establish the relevant facts, and had also come to “an erroneous legal conclusion” leading to the ultimate confiscation of his car. 12. On 18 February 2005 the Ministry of Finance (Ministarstvo finansija) rejected this appeal. In so doing, it stated, inter alia, that absolute prescription had not occurred and that the impugned confiscation was thus lawful. 13. On an unspecified date thereafter the Customs Office apparently sold the applicant’s car to a third person. The money thus obtained was deposited with the Ministry of Finance. 14. On 16 March 2005 the applicant filed an appeal on points of law (zahtev za vanredno preispitivanje pravosnažnog rešenja), re-stating his earlier arguments. 15. On 2 February 2007 the Supreme Court (Vrhovni sud Srbije) rejected the applicant’s appeal on points of law and upheld the impugned decision of the Ministry of Finance, as well as its reasoning. 16. The Government disagreed with some of the facts provided by the applicant and furnished additional details, which may be summarised as follows. 17. The applicant bought a second-hand car (Mercedes 190D) in August 2000 from a person who lived in Germany. The car’s former owner returned the licence plates to the competent German authorities. 18. At that time and given the vehicle age limitation requirement, the car in question could not have been legally imported to Serbia. In any event, even if this were possible, the applicant would have had to pay a significant sum for customs duties and taxes, i.e. a total of 44% of the catalogue value of the car. 19. At some point in 2000 the Government announced that it was considering a decree which would make it possible to import cars from one of the former Yugoslav republics free from any duties or taxes, and irrespective of the vehicle’s age. This decree was ultimately adopted in December 2000 (see paragraph 28 below). 20. The applicant then used forged documents to prove that the car had been registered in Bosnia and Herzegovina, in another person’s name, for the past three years. Thus he secured the enjoyment of the benefits provided by the said decree and succeeded in registering the car in Serbia on 12 December 2000. 21. On 23 March 2005 the Municipal Court (Opštinski sud) in Kikinda found the applicant guilty of having committed the crime of securing official certification of false information (navođenje na overavanje neistinitog sadržaja). In particular, the Municipal Court established that the applicant had submitted a forged document, i.e. a false Bosnian-Herzegovinian traffic permit, meant to indicate that the car in question was being imported from Bosnia and Herzegovina, rather than Germany, on the basis of which the competent Serbian authorities had issued him with a Serbian traffic permit (saobraćajna dozvola). The applicant, who had paid 5,000 German Marks (DEM) for the car, was sentenced to three months’ imprisonment, suspended for a period of one year. 22. On 1 June 2005 the District Court (Okružni sud) in Zrenjanin upheld this judgment on appeal, and it thereby became final. 23. Article 199 provides that customs-related misdemeanour proceedings may not be instituted if more than three years have elapsed as of the date of commission of the offence in question (relative prescription). 24. Article 204 § 2 provides, inter alia, that a vehicle used for the commission of a customs-related offence may be confiscated even when, for legal reasons, no proceedings may be brought against the perpetrator, except in cases of absolute prescription. 25. Article 48 provides, inter alia, that even if misdemeanour proceedings have been instituted absolute prescription shall occur when twice the time required for relative prescription has elapsed. 26. The Official Gazette of the Republic of Serbia no. 55/04 of 21 May 2004 published an amendment to this Act, whereby, inter alia, the Federal Misdemeanours Act 1977 was repealed in its entirety. 27. However, Article 69 § 7 of the Misdemeanours Act 1989, as amended, substantively corresponds to Article 48 § 1 of the former Federal Misdemeanours Act 1977. 28. In 1997 and 2000 two separate decrees were adopted by the Government (Uredba o registraciji vozila iz bivših republika SFRJ koje nisu u sastavu Savezne Republike Jugoslavije, published in OG FRY no. 32/1997, and Uredba o posebnoj naknadi za registraciju određenih vozila, published in OG RS nos. 49/2000, 51/2000 and 7/2001.) They set out the requirements for the registration of certain vehicles in Serbia, including those registered in one of the former Yugoslav republics. 29. Article 69 § 1 provides, inter alia, that objects used for the commission of a crime may be confiscated if they belong to the perpetrator. 30. Articles 84-87 provide, inter alia, that any pecuniary benefit obtained as a result of the commission of a crime shall be confiscated. The pecuniary benefit in question may include money, physical objects and any other valuables. Should confiscation in kind be impossible, the perpetrator may be obliged to pay a certain sum which shall be proportionate to his or her illegal gains.