Confiscation of goods by Serbian Customs faces a serious human rights issue

The European Court of Human Rights (ECtHR) has passed a judgment on 17th September 2024, which has subsequently become final on 17th December 2024 in the case Yaylalı v. Serbia (no. 15887/15) ¹. The case concerns a Turkish national living in the Netherlands whose personal and lawfully acquired jewellery that belonged to his wife was confiscated, following his failure to declare it to Serbian customs authorities when entering from Croatia to Serbia with his car. The jewellery in question consisted of eight gold bracelets weighing totally 254g, with a net worth of 7.620,00 EUR at the time of confiscation (19th June 2013). He also had to pay a fine since the Serbian Misdemeanour Court found him responsible for a misdemeanour of failing to declare goods to the customs. The ECtHR found that the confiscation was a grossly disproportionate and unjustified measure in breach of Article 1 of Protocol No. 1 (protection of property) to the European Convention of Human Rights, even though it is a lawful and mandatory measure under Serbian Customs Law when a person is found guilty of a misdemeanour. The Court also awarded the applicant pecuniary damage of 7,620 euros (value of the confiscated gold jewellery), costs, and expenses of 1,000 euros. 

The provisions of the then valid Customs Law stipulated that a person bringing goods into the customs territory must declare those goods. Any person who assumes responsibility for the carriage of goods brought into the customs territory becomes responsible for compliance with the obligation to declare those goods. The law further provides that any legal person, sole proprietor or natural person shall be fined if that person does not declare goods being brought, through the border crossing, into the customs territory of the Republic of Serbia or does not present the goods to the customs authority. Furthermore, it requires mandatory confiscation, as a “protective measure” (type of sanction), of goods that are the object of the offence. In addition to the object of the offence, the means of carrying goods that are the object of the offence (such as the container, packaging and other items) are also to be confiscated. Goods are to be confiscated even if the perpetrator is not their owner. Goods that are the object of the offence, where confiscation is prescribed as a mandatory protective measure, are to be seized and placed under customs supervision until the end of the misdemeanour proceedings. Lastly, it provides that all permanently confiscated goods may be sold publicly after the condemning judgment is passed and confirmed, and the income derived from that sale should be transferred to the budget of the Republic of Serbia. The customs offence proceedings are adjudicated by misdemeanour courts in misdemeanour proceedings ². Since then, Serbia has adopted a new Customs Law, but the provisions regarding the obligation to declare the goods, proposed fines for failing to comply, and most importantly the measure of confiscation and auctioning off such goods have stayed the same ³.

The Serbian Constitution guarantees under Article 58 the peaceful enjoyment of possessions and other property rights acquired by law. The right to property may be revoked or restricted only in the public interest (as established by the law) and in return for compensation, which cannot amount to less than the market value. The law may restrict the manner in which property is used ⁴ .

Article 1 of Protocol No. 1 to the European Convention of Human Rights stipulates, “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties” ⁵ .

The ECtHR observed several issues in this case. Firstly, the Court found the application to be admissible even though the jewellry belonged to the applicant’s wife, and found the he enjoyed “the victim status” under the Convention ⁶. Secondly, the Court found that there was interference with the applicant’s right to property since his property was confiscated, that such interference was prescribed by law (but it did not address the case from the lawfulness perspective), and that it pursued a legitimate aim of preventing crime ⁷. However, the main issue was whether the confiscation of goods was a measure of the state that was proportional to the violation of human rights under the proportionality test. The Court found that no fair balance between the applicant’s right of property and the requirements of the general interest was achieved, since the applicant had to bear “an individual and excessive burden”, and for several reasons. Generally, under Serbian law, the transportation of jewellery was not prohibited, nor limited in quantity, there is only an obligation to declare it. The confiscation was not directed towards preventing any criminal activity such as smuggling, money laundering or tax evasion, but the only “misconduct” of the applicant was failure to declare the goods. There was also no indication that the applicant had any criminal record or past. Even the Misdemeanour Court’s monetary fine was under the prescribed statutory threshold, since this court found the offence not to be of serious gravity, which contradicts the issuance of measure of confiscation of goods, which was punitive in nature and had much more serious consequences for the applicant than the actual fine as the main sanction. In conclusion, the Court found that the Serbian Customs Law does not provide the misdemeanour courts the discretion to decide on a case-to-case basis whether it is justified and proportionate to confiscate the undeclared goods. Legal provisions that require mandatory and automatic confiscation of undeclared goods without the viable possibility to challenge such measure with success violate human rights, i.e. protection of property under of Article 1 of Protocol No. 1 to the Convention. The Court, for these reasons provided the applicant the damages ⁸ . The Court again reiterated the principle taken in its previous decisions regarding mandatory customs confiscations that “a too rigid legislative approach could often lead to a failure of the domestic authorities to strike the requisite fair balance between the requirements of the general interest and the protection of an individual’s right of property” ⁹ . This was first such decision concerning Serbia, thus its significance, but certainly, it will not be the last ¹⁰. 

As previously said, the current Serbian Customs Law provides mandatory confiscation of undeclared goods and objects used for their storage. It also requires the mandatory confiscation of a vehicle used for the transportation of such goods if the value of the confiscated goods exceeds 1/3 of the value of the vehicle, and if the perpetrator knew that it would be used for the commission of the offence. After the finality of the misdemeanour court condemning judgment, temporarily seized goods are to be permanently confiscated and auctioned off ¹¹. Such “draconian” measures usually affect regular passengers transiting through Serbia (having in mind that two international motorway corridors pass through Serbia and connect various EU countries with Turkey and the Middle East), which are often subjects to questionable court proceedings from a human rights standpoint (often speedy with no legal counsel or appropriate interpreter provided). 

 There cannot be equalisation of consequences for smuggling illicit goods such as drugs or weapons, and failing to declare legal personal goods. The countries’ efforts to fight crime, money laundering and smuggling are surely justified, nevertheless, the law must acknowledge the difference between these situations. Thus, the law must provide a discretionary possibility for the courts to decide on a case-to-case basis conducting the test of proportionality in terms of gravity of each case with respect of human rights in mind. The stance of the ECtHR in this case will have an immense impact on many similar past and future decisions of misdemeanour courts in Serbia and will potentially make Serbia face damages claims concerning human rights violations. The Serbian Supreme Court and the Constitutional Court have not yet taken stances on the issue, nor have the legislation amendments been proposed. As of the moment of writing of this article, the misdemeanour courts in Serbia facing with requests for reopening the cases on the basis of the ECtHR’s Yaylali v. Serbia decision are all pending, since the misdemeanour courts are expecting the Appellate Misdemeanour Court (as the highest misdemeanour court) to take a stance on the issue. As a country with millions of passengers transiting via its territory every year, Serbia faces a potential large-scale human rights crisis. Therefore, immediate legislation changes are necessary in order to abolish mandatory confiscation in all cases and grant the courts the discretionary possibility to decide whether to apply the measure of confiscation based on the facts of each specific case.

1. European Court of Human Rights, Yaylali v. Serbia, Judgment of the Chamber 17th September 2024, application no. 15887/15, https://hudoc.echr.coe.int/?i=001-235694, date accessed 24th June 2025.
2. The Customs Law, “Official Gazette” of the RS, Nos. 18/10 and 111/11, https://pravno-informacioni-sistem.rs/eli/rep/sgrs/skupstina/zakon/2010/18/1/20171225, date accessed 22nd July 2025, articles 63, 65, 66, 292, 298, 288, 290 and 306.
3. The Customs Law, “Official Gazette” of the RS, Nos. 95/18 and 144/20 https://www.carina.rs/upload/media/2021/6/30/50830/Customs_Law.pdf, date accessed 24th June 2025, articles 262, 265, 271 and 272.
4. Constitution of the Republic of Serbia, “Official Gazette of the RS”, Nos. 98/2006 and 115/2021, https://www.paragraf.rs/propisi/constitution-of-the-republic-of-serbia.html, date accessed 24th June 2025, article 58.
5. Council of Europe, European Convention of Human Rights, https://www.echr.coe.int/documents/d/echr/convention_ENG, date accessed 24th June 2025, article 1 of the Protocol No. 1.
6. See footnote 1, paras 27-34.
7. Ibid., paras. 40-46.
8. Ibid., paras. 47-59.
9. European Court of Human Rights, Gyrlyan v. Russia, Judgment of the Chamber 9th October 2018, application no. 35943/15, https://hudoc.echr.coe.int/eng?i=001-186689, date accessed 22nd July 2025, para. 24; Yaremiychuk and Others v. Ukraine, Judgment of the Chamber 9th December 2021, applications nos. 2720/13 et al., https://hudoc.echr.coe.int/eng?i=001-213789, date accessed 22nd July 2025, para. 31; Boljević v. Croatia, Judgment of the Chamber 31 January 2017, application no. 43492/11, https://hudoc.echr.coe.int/eng?i=001-170594, date accessed 22nd July 2025, para. 43;
10. European Court of Human Rights, Aksüngür and Others v. Serbia, Judgment of the Chamber 24th June 2025, applications no. 69080/13 et al., https://hudoc.echr.coe.int/?i=001-243774, date accessed 25th June 2025 – The case concerns the confiscation of money exceeding the threshold of 10.000,00 EUR, where the Court similarly found that there has been violation of the right to property. Çobantur turizm ticaret ve nakliyat ltd sti v. Serbia, Judgment of the Committee 24th June 2025, application no. 32398/19, https://hudoc.echr.coe.int/eng?i=001-243778, date accessed 22nd July 2025 – The case concerns the confiscation of a truck that was used for illegal migrant smuggling, which the company knew nothing about, and where the Court similarly found the violation of the right to property.
11. See footnote 3.