Individual Application

The Facts

During the exit controls carried out by the officials at the Free Zone Customs Office, a sum of cash money was found in the car which the applicants were in.

Upon an instruction received from the chief public prosecutor’s office, the customs officers seized the money. The applicants successfully filed an objection with the magistrate judge to lift the seizure order. Upon approval of their objection, the seized money was returned to the applicants.

The chief public prosecutor’s office imposed administrative fines on the applicants separately, on the ground that they committed misdemeanour. The applicants challenged the prosecutor’s decision before the magistrate judge. The latter ordered that an expert examination be carried out on the matter.

The expert report stated that the impugned cash money had been found to have been taken into the country in a bag, while it had been possible to send it through a bank, and that therefore the decision against them was not erroneous. Hence, the magistrate judge dismissed the applicants’ challenge. The applicants’ subsequent appeal was also rejected.

The Applicants’ Allegations

The applicants argued that export and import of currency was allowed in accordance with a decision of the Council of Ministers and that the administrative fine imposed on them was not proportionate to the amount of money subject of the alleged misdemeanour. In this regard, they claimed that their right to property had been violated.  

The Court’s Assessment

In order to strike a fair balance between the public interest pursued by the interference with the right to property and the protection of the individual’s right to property, the property owner must first be provided with the opportunity to effectively make his defence and raise his objections against the measures taken, and then, the relevant allegations and defence submissions must be considered effectively.

In the present case, the public authorities established that the impugned foreign currency had been seized while the applicants had been trying to import it into the country.

The applicants claimed that the administrative fines imposed on them had been unlawful, stating that it was not forbidden to import foreign currency into the country. However, given the fact that at the material time, importing and exporting currency was subject to permission with prior notice and that the applicants failed to comply with this permission procedure, the decisions against them were neither arbitrary nor unforeseeable. However, the applicants were imposed administrative fines amounting to 5,006,183 Turkish liras (TRY) in total for the money amounting to 630,000 USD that had not been notified to the customs authorities. It is observed that a fine of approximately 3.5 times more of the seized money was imposed.

As a result, even though the interference had been caused by the applicants’ own faults and the results of their act had been foreseeable, the total amount of the administrative fines imposed on them was excessively higher than the amount of the seized money and thus caused an excessive burden on them. Accordingly, the fair balance to be struck between the applicants’ right to property and the public interest pursued by the interference had been impaired to the detriment of the applicants.

Consequently, the Court has found a violation of the right to property safeguarded by Article 35 of the Constitution.