Individual Application

The Facts

The applicant, who is a foreign national, engages in gold trading. In the cash declaration forms submitted to the Customs Directorate, the applicant declared USD 90,000 upon arrival in the country. He then purchased various amounts of gold coins from the persons and organisations that he had declared in the cash declaration form. Gold coins weighing 3,100 grams were found in the applicant’s carry-on luggage when he was at the airport to leave the country. He submitted the waybills and stated that he came to İstanbul once a month for gold trading, that he had passed through by presenting the waybills during his previous visits, and that he was unaware of the procedure necessitating the submission of respective invoices to customs at the time of departure.

The incumbent chief public prosecutor’s office imposed an administrative fine of 338,243.50 Turkish liras (equal to the value of 50 percent of the confiscated gold coins) and ordered the return of the gold coins to the applicant. The applicant’s challenge to the administrative fine was dismissed by the 1^st Magistrate Judge. On appeal by the applicant, the 2^nd Magistrate Judge dismissed the appeal request, with final effect, finding that the decision complied with the procedure and the law.

The Applicant’s Allegations

The applicant maintained that his right to property had been violated on account of the administrative fine imposed for his transporting gold coins overseas without fulfilling the notification and authorisation requirements.

The Court’s Assessment

In the present case, the applicant was not charged with any accusation by the public authorities. Nor did he face any allegation that the gold coins in his carry-on luggage had been used in money laundering, financing of terrorism, drug trafficking or in any other criminal activities, or had been originated from any criminal act. The applicant declared the amount of foreign currency in dollars that he brought into the country at the time of his arrival in the country, and he stated that he would use this foreign currency to purchase gold coins from the persons and organisations, which are issuers of the invoices presented by the applicant. The applicant is legally able to transport the gold coins overseas, provided that the notification procedure stipulated in the Law no. 1567 on the Protection of the Value of Turkish Currency is duly complied with. As a matter of fact, the gold coins were returned to him. In this sense, the legal interest sought to be protected by the imposition of an administrative fine is to ensure compliance with the notification and authorisation requirements.

Law no. 1567 envisages that in case of unauthorised personal export or import of precious metals and precious stones, as well as of all kinds of goods and assets made up of such materials, an administrative fine shall be imposed equal to the fair market value of the exported or imported goods and assets, and in case of such an attempt to do so, an administrative fine equal to half of this value shall be imposed. As such, the provision in Law no. 1567 does not enable courts to conduct a judicial review in consideration of the particular circumstances of the given case. Nor does it allow the courts to assess whether the means employed to achieve the legitimate aim sought to be attained is tenable for the persons concerned, whether there is a lack of proportionality between the severity of the interference and the consequence thereof, and whether the consequence is fair.

Therefore, the provision in Law no. 1567 leaves no room for the authorities to assess the degree of fault attributable to the person committing the misdemeanour, the source of the money declared, and the extent to which the legitimate aim sought to be protected by the provision has been impaired. In this respect, the provision, which does not allow for an individualised assessment in terms of the persons committing the misdemeanour, also hampers the reaching of different outcomes capable of rendering the impugned interference proportionate in the particular circumstances of the given case. As a matter of fact, in the present case, there is no proof that the gold coins in question were used in the commission of any offence or that their source was uncertain, and it appears that the legal interest protected by the criminalisation of the relevant act, which is subject to an administrative sanction, is merely to monitor the transportation of precious metals across the country. Nevertheless, as the statutory provision stipulates a fixed rate, the applicant was sentenced to an administrative fine amounting to 50 percent of the confiscated gold coins.

The Court has therefore found that the impugned interference with the right to property by imposing an administrative fine on the applicant for taking gold coins out of the country without complying with the notification requirement placed an excessive burden on the individual vis-à-vis the respective public-interest purpose. It has accordingly been concluded that the fair balance that has to be struck between the legitimate aim sought to be protected by the impugned interference and the right to property was upset to the detriment of the applicant. 

Consequently, the Court has found a violation of the right to property.