CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 juin 2025

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vertical-align:top } .sC335DB6 { margin-top:6pt; margin-left:18pt; margin-bottom:6pt; text-align:justify; font-size:11pt } .s2A4759FF { margin-top:12pt; margin-bottom:6pt; text-align:justify; font-size:11pt } .sC1CB89D6 { margin-top:0pt; margin-bottom:6pt; text-align:justify; font-size:11pt } .s7CB6920E { border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sDFF87DD { margin-top:6pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .s62945D10 { border-top:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top }   THIRD SECTION CASE OF AKSÜNGÜR AND OTHERS v. SERBIA (Applications nos. 69080/13 and 4 others – see appended list)     JUDGMENT   Art 1 P1 • Control of the use of property • Fine and confiscation of entire or substantial part of applicants’ cash carried across the border without customs declaration • Broad and imprecise legislative framework, coupled with narrow scope of review carried out by domestic courts • Fair balance between competing interests not ensured • Domestic courts’ failure to conduct a meaningful analysis of the necessary sanction in each case   Prepared by the Registry. Does not bind the Court.   STRASBOURG 24 June 2025   FINAL   24/09/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Aksüngür and Others v. Serbia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Ioannis Ktistakis , President ,   Lətif Hüseynov,   Darian Pavli,   Oddný Mjöll Arnardóttir,   Diana Kovatcheva,   Úna Ní Raifeartaigh,   Mateja Đurović , judges , and Milan Blaško, Section Registrar, Having regard to: the five applications against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein; the decision to give notice of the applications to the Serbian Government (“the Government”); the decisions of the German Government (applications nos.   69080/13 and 67091/14) and the Turkish Government (applications nos.   3997/15, 20444/15 and 23307/15) respectively not to avail themselves of their right to intervene in the proceedings (Article 36 §   1 of the Convention and Rule 44); the parties’ observations; Having deliberated in private on 20 May 2025, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present case concerns the confiscation of money belonging to the applicants, which they had been carrying while entering or passing through Serbia, in breach of the obligation to declare sums exceeding 10,000 euros (EUR). The applicants complain under Article 1 of Protocol No. 1 that the confiscation, in addition to the fine, constituted an unlawful and/or disproportionate interference with their right to the peaceful enjoyment of their property. THE FACTS 2.     The applicants are Turkish or German nationals. Further details, their representatives and information regarding the domestic proceedings are set out in the Appendix. 3.     The Government were represented by their Agents, Ms V. Rodić and subsequently Ms N. Plavšić. 4.     The facts of the case may be summarised as follows. MISDEMEANOUR PROCEEDINGS Background to the case 5 .     Pursuant to the applicable legislation, all non-residents who cross the State border while carrying physically transportable means of payment in national or foreign currency must declare to the customs the amount of any such assets equivalent to or exceeding a value of EUR 10,000 (see   paragraphs   29 and 40 below). 6 .     Non-residents were freely permitted to physically carry and import foreign currency into Serbian territory, subject to the requirement that they declare the above-mentioned amount to a customs officer, who would provide them with a written and stamped entry cash declaration receipt in that respect (“the declaration obligation” – see paragraph 31 below). 7 .     Non-residents were further allowed to take out cash in excess of EUR   10,000, subject to the obligation to declare any such amount and to hand over to the customs officer upon exiting Serbia corresponding proof of origin of the cash – including the cash declaration stamped at the border upon entry into Serbia, or other proof of how the cash in question had been acquired during their stay (“the certification obligation” – see paragraph 33 below). Customs control and seizure of cash 8.     Between 2012 and 2014, the applicants, non-residents, were separately transiting through Serbia on their way to or from Türkiye while carrying cash. At various border-crossings, after they had had their passports checked, the Serbian customs officers approached the applicants entering (in the case of the fourth applicant) or leaving Serbian territory (the remaining four applicants). They subjected the applicants to oral questioning and/or personal searches that revealed that they were carrying sums exceeding the statutory limit of EUR   10,000 (see the Appendix). Some applicants carried certificates and/or withdrawal receipts, originating from their states of residence or nationality, attesting to the allegedly lawful origin of the cash. 9 .     The customs authorities permitted the applicants to keep EUR 10,000; they temporarily seized ( zaplenili su ) the amounts in excess of the above ‑ mentioned threshold, noting it in their customs records. The regulations concerning the temporary seizure of such cash by customs authorities referred to “unlawfully acquired” money (see paragraph 34 below). Misdemeanour proceedings against the applicants The courts’ decisions 10.     On the same respective days, the customs authorities instituted misdemeanour proceedings ( prekršajni postupak ) against the applicants for failing to comply with their obligations to declare cash transported across the Serbian border ( devizni prekršaj ) under the legislation regulating foreign ‑ currency operations (see paragraphs 31, 33 and 36 below). 11 .     Following hearings before the competent first-instance misdemeanour courts on the same respective days, the applicants – some of whom were questioned in the presence of a lawyer or court interpreter – were found guilty of committing a misdemeanour under Article 63 § 1 of the Foreign Currency Transactions Act (see paragraph 36 below). Namely, (i) the fourth applicant was found guilty of deliberately failing to comply with his obligation, when entering the State, to declare any cash in excess of EUR 10,000, as additional EUR   14,425 have been found in his wallet; (ii) the remaining applicants were found guilty of failing to declare any cash they had been carrying when crossing the border on their way out and of failing to obtain upon entry into Serbia a written declaration of any excess cash. Those applicants broke the law through negligence (see the Appendix). 12 .     Fines of between 7,500 and 60,000 dinars (RSD – approximately EUR   70 and 550, respectively) were imposed on the applicants. The relevant courts took into account (i) the minimum and maximum possible fines of RSD 5,000 and 150,000 (see paragraph 36 below); and (ii) any mitigating and other circumstances (see paragraph 45 below, Article 39 of the Misdemeanours Act), such as the degree of guilt, the motives, the perpetrators’ conduct before and after the commission of the offence and their respective personal or financial situation. 13 .     In addition to fines, the courts imposed confiscation of the objects of the offence ( zaštitna mera oduzimanja predmeta prekršaja ) – namely, all cash in excess of EUR 10,000, referring to paragraphs 1 or 2 of Article 64 of the Foreign Currency Transactions Act, which provide, respectively, full or partial confiscation of the objects of a misdemeanour (see paragraphs 37 and 38 below). In particular, the domestic courts ordered the confiscation of (i) in the first applicant’s case, 60% of the amount exceeding EUR   10,000 (EUR   53,000), or (ii) in all other cases, the entire amount of cash exceeding EUR   10,000 (sums ranging between EUR   14,425 and EUR   25,020). 14.     These decisions became immediately enforceable before they became final, because the perpetrators were not residents of Serbia. Furthermore, if an applicant failed to pay the imposed fine within a time-limit, pursuant to Article 37 § 1 of the Misdemeanours Act that fine would be converted to a term of imprisonment. All the applicants paid their respective fines. 15.     Appellate misdemeanour courts subsequently either upheld the first ‑ instance decisions in their entirety or altered them only in so far as they cited the relevant regulations, or increased the fines and costs (see   the   Appendix). Additional facts concerning the origin of the confiscated cash 16 .     It appears from the relevant customs’ reports, the records of the hearings and the appeals, that each applicant submitted various certificates to prove (i) the lawful provenance of the money, (ii) that the money belonged to them or had been entrusted to them, and/or (iii) the purpose of transferring the money to or from their country of origin/residence (see the Appendix). 17 .     The fifth applicant explained that a portion of the cash belonged to him, while another part had been transferred to his account by a German company, for which he worked as a representative in Istanbul, for his salary and expenses. He did not specify, either before the domestic authorities or the Court, what proportion of the cash had been intended for which purpose. He submitted, at the border crossing, the receipt of a bank in Istanbul, certifying the withdrawal, three days before, of Turkish liras (TRL) 80,759.88, and their conversion into EUR 34,380, as well as a request to close that bank account. The applicant explained that he had carried the impugned cash to Germany with intention to buy a new car, and had not transferred money from his Turkish to his German bank account to avoid high transfer fees. 18 .     The first-instance and/or second-instance decisions indicate that the respective courts accepted the applicants’ assertions that they had been the owners of the money in question and that it had been lawfully acquired. Reasoning of the misdemeanour courts in respect of the confiscation 19 .     In the first applicant’s case, in applying Article 64 § 2 of the Foreign Currency Transactions Act, the court confiscated EUR 53,000 (around 60% of the entire amount of cash), while EUR 40,000 was returned to him. In its brief reasoning, the court concluded that the motives did not warrant full confiscation. It had particular regard to (i) the first applicant’s unawareness of the regulation, and (ii) the fact that the undeclared cash, which had been withdrawn from a bank account in Germany, had not been concealed but rather kept in a suitcase and declared immediately after the customs officer had asked if the first applicant had any cash in his possession. According to the higher misdemeanour court, the lower court had duly taken into account all the circumstances, including the negligence and lawful origin of money, as otherwise the sanctions would have been even more serious (see the Appendix). The court also imposed the fine of RSD 60,000 (approximately EUR 550). 20.     In the other cases, the courts referred to mitigating circumstances, such as an applicant’s honest conduct during the proceedings; the fact that the offence had been committed by negligence, owing to ignorance of the law; the financial situation, and the absence of aggravating factors. Fines imposed ranged from RSD   7,500 to 50,000, referring to the same or similar mitigating circumstances (see paragraph 12 above and the Appendix below). While imposing full confiscation, the relevant first-instance courts summarily concluded that no arguments or evidence had been advanced to warrant partial confiscation under Article 64 § 2 of the Foreign Currency Transactions Act (see the Appendix). 21 .     Appellate courts upheld the lower courts’ decisions, referring to the relevant regulations, which provided the obligation to declare in writing the amount of carried cash, and what they found to be the mandatory nature of the confiscation measure regarding any undeclared excess (see   paragraphs   31, 33 and 37 below). The applicants had failed to furnish any arguments or evidence to prove that it had not been warranted to confiscate the entire amount of cash in excess of EUR 10,000. The following arguments advanced by the applicants on appeals were disregarded or explicitly dismissed by the appeal courts as irrelevant to the application of Article 64 §   2 of the Foreign Currency Transactions Act: (i) their failure to declare the money had not been intentional, they being unaware of the regulations, (ii) they had had no opportunity to declare the cash before being approached by the customs officers, (iii) the money at issue had been lawfully acquired, (iv) the confiscated amounts were not insignificant to the applicants, or (v) the money was not being exported from Serbia, as the first applicant had only been passing through the respondent State. constitutioNAL complaintS 22 .     The first applicant lodged a constitutional complaint under Articles 32 and 36 of the Constitution (see paragraphs 24 and 25 below) alleging a violation of his right to a fair trial, in the light of the courts’ unlawful and arbitrary decisions ordering the confiscation, and sought compensation by way of damages. All other applicants lodged similar constitutional complaints, asserting a violation of their property right, referring to Article   58 of the Constitution (see paragraph 26 below) and Article 1 of Protocol No.   1. 23 .     The Constitutional Court ( Ustavni sud ) ruled as follows in its decisions rendered between May 2013 and October 2014 (see Appendix): (i)     it dismissed ( odbacio ) the first applicant’s complaint, finding that the decisions have been rendered in a constitutionally acceptable manner and that the applicant had failed to show that they were arbitrary; (ii)     it summarily dismissed the second applicant’s complaint, finding that it was lawful to confiscate the impugned cash for the purpose of collecting taxes or fines and thus there has been no violation of the right to property; (iii)     it dismissed, with more detailed reasoning, the complaints lodged by the remaining applicants, finding that the interference with their right to the peaceful enjoyment of property had been lawful (referring to the relevant law cited in paragraphs 37 and 38 below). It followed, therefore, that no assessment in respect of proportionality was necessary. RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTICE The Constitution of the Republic of Serbia 24 .     Article 32 §§ 1 and 2 of the Constitution provides, inter alia , that everyone shall have the right to a fair hearing before a tribunal in the determination of their rights and obligations and shall be guaranteed the right to the free assistance of an interpreter if they do not speak or understand the language officially used in court. 25 .     Article 36 § 1 guarantees equal protection of rights before the courts. 26 .     Article 58 guarantees peaceful enjoyment of possessions and other property rights lawfully acquired. The “right of property” ( pravo na imovinu ) may be revoked or restricted only in the public interest (as established by law) and in return for compensation, which cannot amount to less than the market value of the property in question. The law may restrict the manner in which the property is used. Obligation to declare cash, cheques and securities at customs 27 .     The provisions regarding transfer of cash across the border are set out in the following legal instruments, some of which have been amended or repealed over the years: (i)     the 2006 Foreign Currency Transactions Act ( Zakon o deviznom poslovanju , OG RS, nos. 62/2006, 31/2011, 119/2012 and 139/2014); (ii)     the Decision of the National Bank of Serbia regarding personal and physical transfers of means of payment (cash, cheques and securities) across the border, adopted in 2006, as amended in 2008 and 2009 ( Odluka o uslovima za lične i fizičke prenose sredstava plaćanja u inostranstvo i iz inostranstva , OG RS, nos. 67/2006, 52/2008 and 18/2009); (iii)     the Law on the prevention of money laundering and the financing of terrorism ( Zakon o sprečavanju pranja novca i finansiranja terorizma, OG RS, nos. 20/2009, 72/2009, 91/2010 and 139/2014 – “the Money Laundering Act”). 28.     The relevant provisions, as worded at the material time, may be summarised as follows.   Decision of the National Bank of Serbia no. 67/2006 29 .     In implementation of Article 31 of the Foreign Currency Transactions Act, the National Bank of Serbia adopted decision (see paragraph 27 above; hereinafter “the 2006 Bank Decision”) which provided that every individual crossing the State border was free to carry cash in any currency, subject to the obligation to report an amount that is equivalent to or exceeds that determined by his or her residency status. (a)    When entering the country and importing means of payment ( unositi ) 30.     All Serbian residents were permitted to bring into Serbia foreign currency and cheques, subject to the obligation to declare ( prijavi ) to the customs any amount of cash exceeding the threshold of EUR 10,000 (see   paragraph 40 below; point 9 of the 2006 Bank Decision). 31 .     Non-residents were permitted to bring cash into Serbia in foreign currency, subject to the requirement that they report any amount exceeding EUR 10,000 (or its equivalent) to a customs officer, who would provide them with a written receipt in that respect (point 11a of the 2006 Bank Decision). (b)    When leaving Serbia and “exporting” ( iznositi ) means of payment 32.     Serbian residents may take cash or cheques abroad if the total sum does not exceed EUR 10,000 (or equivalent), except if they are emigrating (points 10 and 11 of the 2006 Bank Decision, as amended in 2008). 33 .     Non-residents may export cash in domestic or foreign currency not exceeding EUR 10,000 (or equivalent; point 12 § 1 of the 2006 Bank Decision, as amended in 2008). They may export higher amounts in the following instances: (a)     on the basis of a declaration on bringing cash into Serbia that has been stamped by a customs officer (see paragraph 31 above); (b)     upon submission of a bank slip recording the withdrawal of cash from a foreign-currency account while in Serbia; (c)     upon submission of a receipt recording exchanges into euros from national currency previously acquired while using their credit card. Such declarations shall be annulled by the customs while exiting the country for the first time ( pri prvom izlasku iz zemlje; point 12 § 2 of the 2006 Bank Decision, as amended in 2008). (c)    Temporary confiscation of cash exceeding EUR   10,000 34 .     Customs officers may temporarily seize from residents and non ‑ residents currency in cash and cheques being carried into or out of Serbia exceeding EUR 10,000 and which has been unlawfully acquired ( стечене су супротно прописима ); in such case, those customs officers shall issue declarations of seizure (point 14 of the 2006 Bank Decision). The 2006 Foreign Currency Transactions Act 35 .     Articles 59-63 of the Foreign Currency Transactions Act define various misdemeanours for residents and non-residents who do not comply with the duties and rules imposed by this Act. 36 .     Under Article 63 § 1 (including with changes in force since December 2012), the failure of a non ‑ resident to comply with the regulations adopted by the National Bank of Serbia (see paragraph 29, 31 and 33 above) constitutes a misdemeanour, subject to a fine ranging from RSD 5,000 to 150,000. 37 .     Under Article 64 § 1, in addition to a fine, the relevant authorities shall impose the protective measure of confiscation of any assets that were intended or used for the commission of the misdemeanour in question. 38 .     Article 64 § 2 provides that, by way of an exception ( izuzetno ) to paragraph 1, if the offender’s motive or other circumstances imply that it is not justified to confiscate the entire amount of the assets which are the object of the misdemeanour, they are to be confiscated only in part. 39 .     Foreign currency that constitutes the object of the criminal offence or misdemeanour shall be sold to the National Bank of Serbia and its equivalent in national currency is to be transferred into the State budget (Article 66). The 2009 Money Laundering Act 40 .     Article 67 § 1 provides that every natural person who crosses the State border carrying means of payment equivalent to or exceeding EUR 10,000 in national or foreign currency is obliged to declare those assets to the customs. 41 .     Article 68 provides that the customs authority must ensure compliance with that obligation by carrying out a check, in accordance with the law. 42 .     Article 70 § 1 provides that the customs authorities must, within three days, inform the Office for the Prevention of Money Laundering of any transfer across the State border of means of payment, and to provide the grounds for suspicion ( osnovi sumnje ) of money laundering or the financing of terrorism. 43 .     Article 90 § 3 (which came into force on 3 December 2010) provides a fine of between RSD 5,000 and 50,000 for a failure to comply with Article   67 §   1   (see paragraph 40 above). 44 .     The Act does not provide by way of a sanction the confiscation of undeclared assets in this context. Misdemeanours Act of 2005 45 .     The 2005 Misdemeanours Act ( Zakon o prekršajima , first published in OG FRY, nos. 101/2005 and 111/2005, then OG RS, nos. 116/2008 and 111/2009), as worded at the time and in so far as relevant, read as follows: Types and purpose of sanctions for misdemeanours Article 5 “(1)     Sanctions for misdemeanours are: penalties (a fine and imprisonment), admonitory measures (a reprimand and a suspended sentence), [and] protective and educational measures. (2)     The reason for providing, imposing and applying sanctions for misdemeanour is so that citizens respect the legal system and that [they do not] commit a misdemeanour in the future.” Determining the penalty Article 39 “(1)     The type and severity of the penalty to be applied shall be determined within the margins [of discretion] provided by law in respect of the misdemeanour committed, taking into account all the circumstances that may render the penalty (in terms of its type and severity) heavier or lighter for the perpetrator ([presence of] mitigating and aggravating circumstances), and in particular, the following: the gravity and consequences of the offence, the circumstances under which the offence was committed, the degree of guilt [and] the personal status of the perpetrators of the offence, and [their] conduct after the commission of the offence. ...” The purpose and imposition of protective measures Article 45 “(1)     Within the framework of general purpose of misdemeanour sanctions (Article   5   §   2), the purpose of applying protective measures is to remove the conditions that enable or incite the perpetrator to commit a new misdemeanour. (2)     The protective measures are set out by law or decrees.” Types of protective measures Article 46 “(1)     The following protective measures may be imposed in respect of a misdemeanour: 1. confiscating items [ oduzimanje predmeta ], ... (2)     Protective measures specified under § 1 (points 1, 6, 7 and 9) may be imposed under the conditions provided by this Act, even if the measure [in question] has not been provided by the separate legislation setting out the misdemeanour in question.” Confiscation of items Article 48 “(1)     The items that were intended or used for the commission of a misdemeanour or constitute the proceeds of the offence [in question] may be temporarily or permanently confiscated if they are owned by the perpetrator, or used by the legal entity that committed the misdemeanour. (2)     Items described under (1) may be confiscated even when they are not in the perpetrator’s ownership or not used [ne raspolaže ] by the legal entity [in question], if [confiscation] is necessary for the protection of general safety, the protection of people’s lives and health [or] the security of the traffic of goods, or for moral reasons, and in other situations provided for by this law. ... (5)     The regulation stipulating the misdemeanour may provide the mandatory imposition of the protective measure of confiscation of the object [in question]. (6)     The application of this protective measure shall not affect the right of third parties to seek compensation from the perpetrator of the misdemeanour.” Practice of the Constitutional Court Case-law before 2018 46.     Before 2018, the Constitutional Court would summarily dismiss ( odbacivao ) constitutional appeals lodged by non-resident appellants, on the same grounds as those cited in the instant case (see paragraph 23 above), namely, that the appellants’ allegations raised no issue under the protected right or that the correct application of the law could not amount to interference with the property right (see, for example, inadmissibility decisions Už ‑ 5608/2013 of 16   June 2014, Už-3861/2015 of 4 October 2016 and Už ‑ 1210/2016 of 20   September 2017). Case-law between 2018 and 2020 47 .     Between 2018 and 2020, the Constitutional Court adopted several more expansively reasoned decisions in which it examined similar constitutional appeals on the merits. Several decisions were published in the Official Gazette as landmark decisions of jurisprudential value. (a)    Decisions in favour of the appellants (i)       Decision Už-367/2016 of 7 June 2018 (A.A.), published in OG RS, no. 99/2018 48 .     In this first decision on the merits, the Constitutional Court, referring to the Court’s case-law, ruled that the appellant’s constitutional rights to a fair trial and to the peaceful enjoyment of his property had been violated. 49.     The misdemeanour courts convicted the appellant for his failure to declare cash in excess of EUR   10,000, fined him RSD 30,000 and confiscated the excess sum (namely, EUR 10,000) as a protective measure. The Niš High Misdemeanour Court ruled that “the application [by] the defendant’s lawyer asking that the measure of partial confiscation be applied could not be accepted given that the first-instance court had correctly applied the law and found that there were no reasons for [allowing such an application]” (decision of 1 December 2015, Prz- 21954/15). 50 .     The Constitutional Court found that the Niš High Misdemeanour Court, relying only on Article   64 § 1 of the Foreign Currency Transactions Act, had failed to render a reasoned decision. It had simply endorsed the first ‑ instance decision, without assessing “motives and other circumstances” of the offence or explaining whether the partial confiscation could have fulfilled the purpose, given that the disproportionality of the sanction had constituted the crux of the appeal. In particular, it had not explained the weight of various elements, such as proof of the origin of the cash, the means of transporting it, whether there had been an intent to deceive the authorities and/or knowledge of the regulations and the sanctions that could be imposed on a foreigner. 51.     The Constitutional Court found that full confiscation and a fine had placed a disproportionate burden on the appellant. It quashed the appeal court’s decision and ordered it to render a new decision. (ii)     Decision Už-1202/2016 of 8 November 2018 (with the dissenting opinion of Judge T.Š.), published in OG RS, no. 99/2018 52.     The Constitutional Court arrived at the same conclusion as above and provided similar reasoning in this decision concerning the appellant’s right to the peaceful enjoyment of property; however, it dismissed ( odbačena ) the complaint concerning an alleged breach of the right to a fair trial. 53.     The misdemeanour courts fined the appellant and confiscated the entire excess sum of EUR 8,900. The courts accepted that the money had been lawfully acquired, but dismissed the argument that this had justified application of Article 64 § 2 of the Foreign Currency Transactions Act. 54 .     In respect of the right to property, the Constitutional Court considered that the misdemeanour courts should have provided more extensive reasons justifying full confiscation over partial. (b)    Decisions dismissing the constitutional appeals (i)       Decision Už-5214/2016 of 24 October 2019 (with two dissenting opinions of Judges T.Š. and T.K.), published in OG RS, no. 88/2019 55 .     In this decision, referred to in many later decisions, the Constitutional Court for the first time dismissed on the merits ( odbio kao neosnovanu ) a similar appeal. The appellant, a Turkish national in transit though Serbia, had been fined RSD 40,000 and had had confiscated in its entirety EUR 19,000 carried in excess of the EUR 10,000 limit, for failure to declare it to the customs. The appellant stated that he had been aware of the declaration obligation, but that he had been subjected to a customs check before he had been given an opportunity to declare the cash. He considered that full confiscation had been grossly disproportionate, as he had proved the lawful origin of money by submitting a recent bank withdrawal receipt; he had also proved that the money was intended for the purchase of a house in Türkiye. 56 .     The Constitutional Court explained the principles of application of Article 64 of the Foreign Currency Transactions Act. According to it, the option of partial confiscation presupposed that the perpetrator had at first instance advanced arguments during the misdemeanour proceedings and had furnished evidence to justify, as an exception, application of Article 64 § 2. Only under such circumstances would the authorities be obliged to assess the appellant’s allegations, to determine whether the conditions for application of Article 64 § 2 had been fulfilled and to explain how the court had determined the proportion to be confiscated. In the case at hand, the appellant had not presented any such motives or circumstances to the first-instance court. 57 .     The court considered that the authorities had achieved the purpose of the sanctions provided in the Misdemeanours Act (see paragraph 45 above), and had duly balanced the public interest and the applicant’s constitutional right. The Constitutional Court took into account the Court’s case-law, but deemed that the confiscation of the entire amount was justified since: (i) the appellant had been aware of the declaration obligation; (ii) the cash had been hidden in several places in the appellant’s car; (iii) the appellant had given different statements on how much cash he was carrying; (iv) he had failed to prove the origin of the money, as the bank statements could not constitute sufficient evidence in this respect; (v)   while no actual damage had been caused, the purpose of the confiscation was to serve both as a deterrent and to protect society against recurrence of similar misdemeanours. (ii)     Decision Už-8449/2017 of 18 June 2020 (with a dissenting opinion of judge T.K.), published in OG RS, no. 105/2020 58.     The appellant travelled with his wife through Serbia on his way to Türkiye. To a customs officer at the border crossing point, he stated that they were carrying EUR   1,000; however, a personal search revealed 73,100 Swiss Francs (CHF) and EUR 5,500 in several envelopes in the appellant’s wife’s handbag. They were allowed to keep the equivalent of EUR 20,000; the remaining amount of CHF   57,600 was seized. At a misdemeanour hearing conducted on the same day, the appellant, who had no legal representation, explained that he had not been aware of the obligation to declare money which belonged to his children and was intended for the purchase of a plot of land in Türkiye. The misdemeanour court found the applicant guilty of deliberate non-compliance with the obligation to declare cash, fined him and confiscated CHF 57,600. On appeal, the appellant sought application of Article 64 § 2 of the Foreign Currency Transactions Act, arguing that the offence had been committed by negligence and that the money had been lawfully acquired. He provided a declaration produced several days before the incident, stamped by a notary in Switzerland, showing that his three daughters had each entrusted him CHF   25,000. 59.     The appellate court accepted this declaration as proof of the lawful origin of money, but upheld the first-instance decision. It found the appellant’s arguments irrelevant for the application of Article 64 § 2. 60.     The appellant complained under Article 58 of the Constitution and Article 1 of Protocol No. 1 to the Convention that the sanction imposed on him had been disproportionate. The Constitutional Court dismissed the complaint, referring to the above-mentioned decision Už-5214/2016; in particular, it noted that the appellant had failed to advance arguments and furnish evidence before the first-instance court that would justify the latter assessing whether the motives or other circumstances had warranted the application of Article 64 § 2 and the confiscation of excess assets only in part. (iii)    Other similar decisions of the Constitutional Court 61 .     The Constitutional Court reasoned similarly in two decisions concerning full confiscation of the excess sums, rendered on the same date: (i) decision Už-10438/2018, given the fact that, inter alia , the bank withdrawal receipts furnished by the appellant could not have constituted valid evidence of the lawful origin of the money; and (ii) decision Už ‑ 7327/2017, where the appellant’s son had authorised her to carry the money for the purchase of a house in Bulgaria. (iv)   Additional common reasoning in the above-mentioned decisions (i-iii) 62 .     While referring to the Court’s general assessment tests, the Constitutional Court found that the appellants had had possession of the sums in question, regardless of their ownership, for the purpose of the application of Article 58 of the Constitution, and that the confiscation of those sums had constituted an interference with their right to the peaceful enjoyment of their property. It further considered the interference to have been lawful and proportionate. In particular, the checking of cross-border cash transfer had been justified (i) by the possibility that the origin of such money was illegal or that its transfer could be connected with criminal activities, and/or (ii) to deter anyone who may threat or seriously disturb the balance of payments ( platni bilans ) and monetary and foreign currency exchange rate policies ( devizni kurs ); (iii) by its aim to secure the financial stability of Serbia. (c)    Other relevant decisions 63.     The Constitutional Court rendered a number of other decisions regarding alleged violations of the right to a fair trial in similar context. In decision Už ‑ 1932/2017 of 5 March 2020, the Constitutional Court dismissed the appellant’s complaint ( odbijena kao neosnovana ) that the full confiscation, in addition to the imposition of a fine, had been disproportionate to his failure to declare the sum, as well as his complaints of an arbitrary application of law that had resulted in full confiscation and an alleged breach of his right to a fair trial. The Constitutional Court considered that, in any event, the return of EUR   10,000 to each co-traveller and the confiscation of only the excess sum meant that the courts had in practice imposed a measure of partial confiscation, even if they referred to Article 64 § 1 of the Foreign Currency Transactions Act. 64.     In its decision Už-3875/2016 of 15 October 2020, the Constitutional Court upheld the appellant’s complaint about a breach of his right to a fair trial and ruled that the appellate court’s decision had been insufficiently reasoned regarding the question of whether only full confiscation could have corresponded to the gravity of the offence, or whether (as argued by the appellant) partial confiscation could have served the same purpose. 65 .     Lastly, in two cases concerning the confiscation of undeclared goods on the basis of the Customs Act, the Constitutional Court dismissed, inter   alia , complaints lodged by foreign nationals who had been subjected to confiscation measures, considering that Article 58 of the Constitution did not protect property that was the object of an offence (decision Už-5386/2016 of 25   April 2019, and decision Už-8691/2017 of 3   March 2020). Relevant international material Council of Europe 66 .     The relevant part of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (which was signed in Warsaw on 16 May 2005 and which entered into force in respect of Serbia on 1 February 2009) – as well as the relevant part of the Explanatory report to that Convention – are cited in the case of Boljević v. Croatia (no. 43492/11, §§ 18-19, 31 January 2017). 67.     As regards the mandatory confiscation, the Convention states that “[p]arties may provide for mandatory confiscation in respect of offences which are subject to the confiscation regime. Parties may in particular include in this provision the offences of money laundering, drug trafficking, trafficking in human beings and any other serious offence” (paragraph   3   of   Article 3). The relevant part of the Explanatory Report reads as follows: “70. Paragraph 3 of Article 3 deals with the question of mandatory confiscation. It should be noted from the outset that this provision is not mandatory for Parties, which are therefore free to decide whether to implement it or not. The drafters of this Convention however intended to send a signal that