AKSÜNGÜR and others against Serbia

On May 20, 2025, the European Court of Human Rights (hereinafter: the Court) rendered, and on June 24 of the same year, published its judgment in the caseAksungur and others against Serbia, no. 69080/13, 67091/14, 3997/15, 20444/15 and 23307/15.

The verdict was unanimousbroughtCouncil and became legally binding on September 24, 2025.

THE CIRCUMSTANCES CASES

Applicants (hereinafter: applicants), gentlemenAdem Aksüngür, Ensar Kaya, Zekı Dınlemez, Ahmet Karabulutand Abdullah Coskun, are citizens of Germany (MrAksüngür) or Turkey or have both citizenships (MrCoșkun). They live in Germany, France (Mr. Dınlemez) and the Netherlands (MrKarabulut).

In the period from 2012 to 2014, the applicants were, each separately, stopped at various border crossings during their journey through Serbia on their way to or from Turkey. During the search of the vehicle or interview with the applicants, it was established that they have more than 10,000 euros, which amount is prescribed by law as the maximum amount for natural persons to transfer across the border without reporting. Some of the applicants had certificates proving the origin of the money. The customs officials allowed the applicants to keep 10,000 euros each, and temporarily confiscated the amounts above the aforementioned limit as "illegally acquired money".

The applicants were later found guilty of misdemeanors under Article 63, paragraph 1 of the Law on Foreign Exchange, because they did not comply with the obligation to declare money exceeding the amount of 10,000 euros when entering or leaving the country, as well as with other requirements related to the personal and physical transfer of money across the border.

The misdemeanor courts accepted the applicants' claims that they are the owners of the disputed money and/or that it was legally acquired in two stages. However, in addition to a fine in the amount of 70 to 550 euros, the applicants were also given a protective measure of confiscation of the misdemeanor case.  - money - in the amount of 60% of the seized sum (53,000 euros) in the case of the first applicant, or in full (in all other cases - amounts range from 14,425 to 25,020 euros).

Dissatisfied with the outcome of the proceedings before the misdemeanor courts, the applicants filed constitutional appeals with the Constitutional Court.

The Constitutional Court rejected the petitioners' constitutional appeals (Už-7286/2012, Už-6637/2012, Už-5608/2013 Už-7485/2012 and Už-5608/2013).

COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT

The applicants submitted petitions to the Court in the period between June 17, 2013 and May 4, 2015.

Invoking Article 1 of Protocol No. 1 to the Convention (protection of property), the applicants argued that the confiscation of their money was unlawful, disproportionate and not in the public interest.

THE DECISION THE COURT

There was no dispute between the Government and the petitioners that the money was the sole property of the petitioners and that the confiscation of undeclared money by the misdemeanor courts constituted interference with their property.

The confiscation was in accordance with the law - paragraphs 1 and 2 of Article 64 of the Law on Foreign Exchange Operations - which prescribes, among other things, the complete or partial confiscation of the object of a misdemeanor. However, the Court found that not only was the unclear wording of the aforementioned article imprecise in essential elements regarding the circumstances of any situation that would lead to the full or partial confiscation of the misdemeanor case, but also that the practice of the misdemeanor courts, including the Constitutional Court, was inconsistent, and therefore failed to clarify the foreseeable consequences of confiscation and to clearly remove doubts in the interpretation regarding discretionary the rights entrusted to them in any situation that would lead to the total or partial confiscation of the object of the offense.

The court further noted that the relevant law did not prescribe the amount of foreign currency that a non-resident can legally transfer across the Serbian border, but only that it is subject to application and confirmation requirements.

The government claimed that the interference with the applicants' rights was aimed at preventing money laundering. The court, noting that the domestic courts did not establish any bad intention on the part of the applicants, expressed doubt that the interference served the purpose of preventing money laundering. Furthermore, it does not appear from the available information in the case files that the customs authorities informed the Office for the Prevention of Money Laundering about the undeclared money seized from any of the applicants.

Moreover, according to the Court, there were no indications that the applicants were ever suspected of any criminal activity (eg smuggling) or that the money in question was obtained through criminal activity, which calls into question whether the purpose of the confiscation was indeed to prevent illegal activities. In essence, after the procedure and investigation on the origin and destination of the money carried, the applicants were declared responsible (guilty) only for the misdemeanor for not reporting the money.

The money taken away - mostly savings or the result of property sales - was important to the applicants. On the other hand, bearing in mind that they did not avoid paying taxes or caused the outflow of capital from Serbia (and the money could have come from anywhere), the damage to the state of Serbia would be in the failure to provide the certificate and would be insignificant.

It appears that the domestic courts considered that the offense in question automatically required mandatory and full confiscation, as the Government did not provide any other examples of partial confiscation, apart from the case of Mr. A. In these circumstances, the domestic courts failed to adequately examine the proportionality of the respective fines and confiscation of property, both of which were punitive measures, and did not reason why the sanctions imposed were necessary in order to achieved the desired goal in the circumstances of each individual case. In particular, the Court reiterated that the desired deterrent and punitive objective should correspond to the gravity of the offense committed, not the gravity of any alleged offense that has not actually been established, such as money laundering or customs evasion.

Overall, the Court found that the broad and imprecise legal framework, together with the narrow scope of review conducted by the domestic courts, could not provide the necessary fair balance between the requirements of the general interest and the protection of the applicants' right to peaceful enjoyment of their property. The domestic courts did not conduct an adequate analysis of which sanctions were necessary in each individual case.

According to everything stated, the Court established that there was a violation of the right to unhindered enjoyment of property from Article 1 of Protocol No. 1 to the Convention.

FAIRLY SATISFACTION (Article 41 of the Convention)

The court obliged the Republic of Serbia to pay 53,000 euros to the first applicant, 20,000 euros to the second applicant, 14,800 euros to the third applicant, 14,425 euros to the fourth applicant, and 25,020 euros to the fifth applicant.,while in relation to the first applicant, he assessed that determination of violation of sȃmo according to to myself represents enough fairly satisfaction for intangible damage which one is suffered.

The court obliged the Republic of Serbia to pay 1,700 euros for the first three applicants and 1,750 euros for the remaining two applicants as compensation for the costs of the procedure.