THIRD SECTION
CASE OF SAQUETTI IGLESIAS v. SPAIN
(Application no. 50514/13)
 
JUDGMENT
 
Art 2 P7 • Right of appeal in criminal matters • Heavy customs fine imposed without proportionality assessment and not open to challenge before “higher tribunal” • Whether penalty “criminal” under Engel criteria • Severity preventing offence from being regarded as minor, even where not punishable by imprisonment • Amount of fine almost equalling full sum which applicant had failed to declare on leaving country (over EUR 150,000) • “Highest tribunal” to be defined by reference to general hierarchy of courts, not by reference to claim value threshold for appeal • Individual application for constitutional relief not equatable to appeal, in view of the former’s limited purpose • No proportionality assessment carried out by sole court to hear applicant’s case
 
STRASBOURG
30 June 2020
 
FINAL
 
30/09/2020
 
 
This judgment has become final under Article 44 § 2 of the Convention. In the case of Saquetti Iglesias v. Spain,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Paul Lemmens, President,
 Helen Keller,
 Alena Poláčková,
 María Elósegui,
 Gilberto Felici,
 Erik Wennerström,
 Lorraine Schembri Orland, judges,
and Milan Blaško, Section Registrar,
Having deliberated in private on 3 June 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 50514/13) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Mr Martín Saquetti Iglesias (“the applicant”), on 29 July 2013. 2. The applicant was represented by Mr J. E. Raschetti Rocca, a lawyer practising in Madrid. The Spanish Government (“the Government”) were represented by their Agent, Mr R.-A. León Cavero, who is a government legal officer and head of the human rights legal service at the Ministry of Justice. 3. On 13 June 2014 and 2 October 2019 the Government were given notice of the complaint under Article 2 § 1 of Protocol No. 7 to the Convention and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. FACTS
CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1948 and lives in Madrid and Buenos Aires. 5. On 20 March 2011 the applicant underwent a security screening at Terminal 4, International Departures, of Madrid‑Barajas Airport as he was preparing to board a flight to Buenos Aires, Argentina, where he intended to take up residence. Civil Guard officers working in airport security detected objects possibly containing money in the applicant’s checked luggage, whereas he had not declared himself to be transporting any sums of money when passing through the security checkpoint. They opened the applicant’s bags at airport customs, in his presence, and found 154,800 euros (EUR) concealed amidst magazines and shoes. They seized almost the entire sum – EUR 153,800 – under the Prevention of Money Laundering (Declaration of Movements of Means of Payment) Order (Order EHA/1439/2006 of 3 May 2006). 6. During the customs search the applicant stated that he was the owner of the sum in question, which he had brought into Spain over the course of various journeys he had made starting in 2002 at the time of the Argentine corralito[1], and that he had filled out the required import declarations (“S1 declarations”, to be precise) upon each entry into Spain. He stated that he was unaware that he also had to declare the sums when leaving the country, and added that he had the documents proving entry in his possession. In particular, he provided the following breakdown of the sums imported: EUR 100,000 on 21 January 2002; EUR 50,000 on 22 February 2004; EUR 45,000 on 10 April 2004; EUR 40,000 on 25 September 2004; and EUR 42,000 on 24 October 2004. He also specified the sums that had been imported by his wife (EUR 25,000 on 16 September 2002) and mother-in-law (EUR 25,000 on 16 September 2002). In addition, the applicant mentioned that he owned a fleet of eight taxi cabs in Argentina, and further stated that he had sold a building there. The total of EUR 327,000 recorded in the aforesaid import declarations had not drawn any comment from the Commission for the Prevention of Money Laundering and Currency Offences at the times in question. 7. On 22 March 2011 the Standing Committee of the Commission for the Prevention of Money Laundering and Currency Offences started proceedings against the applicant. By a decision of 30 August 2011 the Treasury and Financial Policy Department of the Ministry of the Economy fined him EUR 153,800 – the full amount seized – for commission of a serious offence under sections 2(1)(v), 52(3) and 57(3) of the Money Laundering and Terrorist Financing (Prevention) Act (Law no. 10/2010 of 28 April 2010) and Article 2 § 3 of Royal Decree no. 925/1995 of 9 June 1995 as amended by Royal Decree no. 54/2005 of 21 January 2005, approving rules for the implementation of the Money Laundering (Specific Preventive Measures) Act (Law no. 19/1993 of 28 December 1993). 8. To challenge that decision, the applicant could elect either to submit an application for reconsideration (reposición) to the authority that had issued it, namely the aforementioned Department, or to bring a claim for judicial review in the Madrid High Court of Justice. 9. On 27 October 2011 the applicant brought a claim for judicial review of the aforesaid administrative decision. In a judgment of 17 January 2013 the Madrid High Court of Justice dismissed the claim. It found that the applicant had not discharged the duty to make the declaration prescribed for the export of the funds, as required for all sums of EUR 10,000 or more – a duty of which he could not plead ignorance – and had not provided proof of the origin of the sums in question. As to the penalty imposed, the High Court determined that, given the amount in issue, it had been proportionate to the aim pursued, namely the control of international means of payment, and pointed out that the statute prescribed a penalty of anywhere from EUR 600 to twice the value of the means of payment used. The judgment of the High Court stated that, pursuant to section 86(2)(b) of the Judicial Review Act (Law no. 29/1998 of 13 July 1998), it could not be the subject of an appeal on points of law to the Supreme Court. That was because the section in question had been amended by the Expeditious Proceedings Act (Law no. 37/2011 of 10 October 2011), increasing the claim value threshold for such an appeal from EUR 150,000 to EUR 600,000. 10. The applicant launched amparo proceedings (proceedings for the protection of fundamental rights) in the Constitutional Court, relying on the principle of legality and the right to have his case reviewed by a higher court, and arguing that no reasons had been given for the decision to impose the penalty on him. He further complained that the events of the case had predated the amendment of Law no. 29/1998. By a decision of 29 April 2013, notified on 3 May 2013, the Constitutional Court refused to entertain the case on the ground that the applicant had not made an adequate showing of its “special constitutional importance”. RELEVANT DOMESTIC AND INTERNATIONAL LAW
11. The Money Laundering and Terrorist Financing (Prevention) Act (Law no. 10/2010 of 28 April 2010) provides in relevant part:
Section 2(1) ‒ Persons and entities concerned
“1. This Act applies to the following persons and entities:
... (v)  natural persons effecting movements of means of payment, subject to the provisions of section 34.
...”
Section 34 ‒ Duty to declare
“1. Any natural person who ... effects any of the following movements shall present a prior declaration in accordance with the provisions of this Chapter:
(a)  Movements into or out of the national territory of means of payment whose value is equal to or greater than 10,000 euros ...
...”
Section 50 ‒ Classification of offences
“The administrative offences for which this act makes provision are classified as minor, serious or very serious.”
Section 52(3) ‒ Serious offences
“The following are serious offences under this Act:
(a)  Breach of the duty under section 34 to declare movements of means of payment.
...”
Section 57(3) ‒ Penalties for serious offences
“Breach of the duty to make a declaration under section 34 shall be punished by a fine of no less than 600 euros and no more than twice the value of the means of payment used.”
Section 59 ‒ Determination of penalties
“1. The penalty to be imposed in a given case shall be determined according to:
(a)  The size of the transactions affected by the breach [of the duty to declare];
(b)  The benefit obtained as a result of the acts or omissions that constituted the offence;
(c)  The fact that the offence has or has not been remedied voluntarily;
(d)  Any administrative penalties, imposed on the person or entity concerned in the last five years for any offences under this Act, which are no longer subject to appeal;
(e)  The degree of responsibility or intent ... with which the offence was committed;
(f)  The seriousness and duration of the offence;
(g)  Any loss caused to third parties by the breach [of the duty to declare];
(h)  Where the penalty is a fine, the financial resources of the person or entity proceeded against;
(i)  The extent to which the person or entity proceeded against has cooperated with the relevant authorities. The penalty shall in every case be determined so as to ensure that the offender is not placed in a better position than had the offence not been committed. 2. In determining which of the penalties prescribed by sections 56(3), 57(2) and 58 is to be imposed, regard shall be had to:
(a)  The degree of responsibility or intent ... with which the offence was committed;
(b)  The prior conduct of the person or entity in question ...;
(c)  The nature of any arrangement whereby the person or entity in question acts on behalf of another party;
(d)  Where the penalty is a fine, the financial resources of the person or entity in question;
(e)  The benefit obtained as a result of the acts or omissions that constituted the offence;
(f)  Any loss caused to third parties by the breach [of the duty to declare];
(g)  The extent to which the person or entity proceeded against has cooperated with the relevant authorities. 3. In determining the penalty that is to be imposed for a breach of the duty to declare under section 34, regard shall be had to:
(a)  The fact that the movement is of a substantial sum, which is defined as any sum equivalent to at least twice the level of the declaration threshold;
(b)  Failure to provide evidence of the lawful origin of the means of payment;
(c)  The fact that the amount being moved is not consistent with the activity in which the person is engaged;
(d)  The fact that the place or circumstances of discovery of the means of payment disclose a clear intent to conceal them;
(e)  Any administrative penalties, imposed in the last five years for breach of the duty to declare, which are no longer subject to appeal;
(f)  The degree of intent, on the part of the person in question, with which the offence was committed.”
12. Section 86(2)(b) of the Judicial Review Act (Law no. 29/1998 of 13 July 1998) was amended by the Expeditious Proceedings Act (Law no. 37/2011 of 10 October 2011) to read:
“(b)  [no appeal on points of law to the Supreme Court shall lie against] a judgment given in any proceedings in which the value of the claim does not exceed 600,000 euros, unless it is a judgment given in special proceedings for the defence of fundamental rights, in which case such an appeal shall lie irrespective of the value of the claim.”
13. The same section before it was amended read:
“(b)  [no appeal on points of law to the Supreme Court shall lie against] a judgment given in any proceedings in which the value of the claim does not exceed 150,000 euros, unless it is a judgment given in special proceedings for the defence of fundamental rights, in which case such an appeal shall lie irrespective of the value of the claim.”
14. Law no. 37/2011 contains the following transitional provision:
“In proceedings pending before a court at the time of the entry into force of this Act, the law as it stood before the entry into force of this Act shall continue to apply until the court delivers its judgment.”
15.

Outcome for Article P7-2: violation