SULEJMANI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" - 74681/11 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2016] ECHR 397 (28 April 2016)

In the case of Sulejmani v. the former Yugoslav Republic of Macedonia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Ledi Bianku, President,
          Mirjana Lazarova Trajkovska,
          Kristina Pardalos,
          Linos-Alexandre Sicilianos,
          Robert Spano,
          Armen Harutyunyan,
          Pauliine Koskelo, judges,
and Abel Campos, Section Registrar,

Having deliberated in private on 29 March 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 74681/11) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Mr Osman Sulejmani (“the applicant”), on 2 December 2011.

2. The applicant was represented by Mr B. Pandovski, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

3. The applicant complained under Article 1 of Protocol No. 1 to the Convention about the confiscation of his vehicle in criminal proceedings against a third person.

4. On 2 October 2014 the complaint under Article 1 of Protocol No. 1 was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1958 and lives in Tetovo.

6. On 12 April 2006, the applicant concluded a sales contract (купопродажен договор) with a Sh.A., for the purchase of a concrete mixing and transport lorry (“the vehicle”) for the equivalent of 5,000 euros (EUR) in Macedonian denars (MKD). On 15 May 2007 the applicant lent the vehicle to his company.

7. On 6 October 2008 the Ministry of the Interior temporarily seized the vehicle and its registration certificate (сообраќајна дозвола) from the applicant in order to examine the vehicle’s chassis (проверка на шасија). A record of temporarily seized objects (потврда за привремено одземени предмети) was issued.

8. On 1 February 2010 the Struga Court of First Instance (“the first-instance court”) acquitted Sh.A. of charges of forgery of a document (“фалсификување исправа“) concerning the vehicle’s chassis number and rejected an indictment brought by a public prosecutor against a certain I.S. The court found that during the trial it had not been established that Sh.A. had altered the vehicle’s chassis. In accordance with section 102(3) of the Criminal Proceedings Act (see paragraph 18 below), the court further advised the applicant, who had claimed compensation in the criminal proceedings, to pursue the claim by means of a separate civil action before the civil courts. On 21 July 2010 the judgment became final.

9. On 16 November 2010 the applicant requested that the first-instance court return the vehicle in his possession.

10. On 3 December 2010 the first-instance court heard evidence from the applicant, who stated that he had bought the vehicle from Sh.A. for EUR 25,000. He further stated that he could not have been aware at the time that the chassis number of the vehicle had been forged.

11. On 6 December 2010 the first-instance court, relying on Article 100-a (3) of the Criminal Code (“the Code”, see paragraph 17 below), found that there were no grounds for confiscation of the applicant’s vehicle. The applicant had not known nor could he have known that the vehicle had been used to commit a crime. The court also ordered that the registration certificate be returned to the applicant.

12. Upon the public prosecutor’s appeal, on 24 January 2011 the Bitola Court of Appeal (“the appellate court”) quashed that decision. Relying on Article 100-a (2) of the Code, the appellate court found that the vehicle’s chassis had been forged and that the vehicle, in the interest of public safety, could not be declared roadworthy. It further referred to section 100-a (3) of the Code and instructed the first-instance court to assess whether the continued use of the vehicle would constitute a “use of a forged document” offence under the Code (употреба на фалсификувана јавна исправа, see paragraph 17 below).

13. On 22 February 2011 the first-instance court dismissed the applicant’s application and ordered the confiscation (се одземаат) of the vehicle and its registration certificate. It referred to Article 100-a (2) and (3) of the Code and found that the vehicle’s chassis number had been forged and that the vehicle could be used for committing an offence. For that reason and for the reasons of road safety, it was necessary to confiscate the vehicle and the registration certificate. It also referred to section 532(1) of the Criminal Proceedings Act (see paragraph 18 below) and found that, irrespective of the fact that there had been no proceedings against the applicant and that he was not an offender, it was necessary to confiscate the vehicle for general safety reasons.

14. On 11 March 2011 the applicant appealed arguing that the first-instance court had wrongly applied Article 100-a (2) and (3) of the Code and that he had not known that the vehicle had been used to commit a crime.

15. On 19 May 2011 the appellate court dismissed the appeal and upheld the first-instance court’s decision. The relevant part of the decision states as follows:

“[The arguments] raised in the appeals, [namely] that the first-instance court had not established the decisive facts concerning [the certitude] that the [applicant] had not known that the vehicle’s chassis had been forged, which was decisive, are groundless. Specifically, it is true that [the applicant] did not know that the vehicle’s chassis had been forged, as a result of which [he] registered the vehicle as its last buyer, [he was] issued a driving licence and [he] paid a large amount. However, [what is] primary under Article 100-a (2) of the [Criminal Code] is that the objects which were intended to [commit] an offence or were used to commit an offence shall be confiscated notwithstanding that they are not in the ownership of the offender or that they are in the ownership of a third person, if general safety, public health or ethics require so ...

The fact that [the applicant] did not know that the vehicle’s chassis had been forged does not signify that the conditions of Article 100-a(3) are met, but the first-instance court correctly found that the use of the vehicle with thus forged identification numbers would affect the safety of the road users in the State [безбедноста на јавниот сообраќај], and therefore also the general safety [интересите на општата безбедност].”

16. It appears that the latter decision was served on the applicant on 2 June 2011.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Criminal Code 2004 (Official Gazette no.19/2004, 30 March 2004)

17. The relevant provisions state as follows:

Article 100-a

“(1) Nobody can keep or withhold the proceeds of crime.

(2) Objects which were intended to be used or which were used to commit a crime shall be confiscated from the offender, regardless of whether he or she or a third person is their owner, if the interests of general security, the health of the people or ethics so require.

(3) Objects which were used or were intended to be used to commit the crime can be confiscated if there is a danger that they will be used again to commit a crime. Objects owned by a third person shall not be confiscated, unless he or she knew or could and ought to have known that they had been used or were intended to be used to commit the offence.

(4) The court shall also issue a confiscation order in proceedings regulated by law when, for factual or legal obstacles, it is not possible for criminal proceedings to be conducted against the offender.

(5) The application of this measure does not affect the right of third parties to compensation for damage from the offender.

...”

Article 380

“(1) A person who uses as evidence, in legal transactions [во правниот сообраќај], a document, book or a file, knowing that it is false, shall be fined or sentenced to up to three years’ imprisonment.”

B. Criminal Proceedings Act 1997 (consolidated text)

18. The relevant provisions state as follows:

Section 102

“...

(3) When the court delivers a judgment by which the accused is acquitted of the charges or by which the indictment is dismissed or when, by decision, it stays the criminal proceedings or rejects the indictment, it shall instruct the damaged party to pursue his or her compensation claim in civil proceedings. ...

...”

Section 532

“(1) Objects which must be confiscated under the Criminal Code, shall also be confiscated when the criminal proceedings do not end with a judgment by which the accused is convicted.”

C. Obligations Act 2001

19. The relevant provisions read as follows:

“RESPONSIBILITY FOR LEGAL DEFECTS

[ОДГОВОРНОСТ ЗА ПРАВНИТЕ НЕДОСТАТОЦИ]

Legal defects [правни недостатоци]

Section 496

(1) The seller shall be liable if there is a right over the sold item of a third party which excludes, reduces or restricts the right of the buyer, and the buyer was not informed of its existence, nor agreed to take the item burdened by that right.

(2) The seller of another right guarantees that the right exists and that there are no legal obstacles to its exercise.

Informing the seller
Section 497

When it is shown that a third party has a right over the item, the buyer is obliged to inform the seller thereof, unless that was already known to the seller, and to invite him to release within a reasonable time the item of that right or of the claim of a third party or, when the subject of the contract are items defined by type, to deliver another item without a legal defect.

Sanctions concerning legal defects
Section 498

(1) If the seller does not act upon the buyer’s request, when the seller is deprived of the item, the contract is terminated by law, and when the buyer’s right is restricted or limited, the buyer may choose between terminating the contract or requesting a proportionate reduction in the price paid.

(2) If the seller does not meet within a reasonable time the buyer’s request to release the item of the right or claim of a third party, the buyer can terminate the contract if his or her aim cannot be fulfilled for these reasons.

(3) In any event, the buyer shall be entitled to compensation of the damage suffered ...”

D. Relevant domestic case-law

20. The Government referred to the position of the Supreme Court adopted in decision Гзз.бр. 51/06 of 31 January 2007, where the Supreme Court had found that the seller of a vehicle was responsible for a legal defect, irrespective of whether he had been aware or not of that legal defect. If due to that legal defect the vehicle was taken away from the buyer, the sale contract was terminated by law and the buyer was entitled to compensation for the damage suffered. In that particular case, the Supreme Court quashed the lower court’s judgments concerning a vehicle seized in Bulgaria given the inconsistent data entered in the relevant documents regarding the vehicle and those indicated on its chassis, on the basis of which it had been determined that the vehicle had been stolen.

21. The Government further submitted copies of four final decisions delivered by the Bitola Court of Appeal (КСЖ.бр.-105/10 of 18 October 2010, КСЖ.бр.-8/12 of 24 January 2012, КСЖ.бр.-130/12 of 20 September 2012 and КСЖ.бр.-16/13 of 5 February 2013). In all those cases, the vehicles with altered chassis had been confiscated, despite the fact that nobody had been held accountable and convicted (the accused had either been acquitted or the proceedings against them had been stayed). In a fifth case КСЖ-26/14, on 6 February 2014 the vehicle with an altered chassis had been confiscated, without any information as to the outcome of the criminal proceedings related to that confiscation.

THE LAW

ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

22. The applicant complained about the confiscation of his vehicle. He relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“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.”

A. Admissibility

23. The Government submitted that the applicant had failed to exhaust all available domestic remedies. In particular, despite being instructed by the domestic courts and being represented by a lawyer, the applicant had failed to initiate civil proceedings, under the Obligations Act, against Sh.A. for reimbursement of the price of the vehicle and for compensation for the damage suffered.

24. The applicant argued that he had been prevented from pursuing his claim in civil proceedings against Sh.A. as the latter had been acquitted of the charges.

25. The Court reiterates that the rule of exhaustion of domestic remedies obliges those seeking to bring their case against the State before an international judicial organ to first use the remedies provided by the national legal system. Applicants are only obliged to avail themselves of domestic remedies that are effective and capable of redressing the alleged violation. More specifically, the only remedies which Article 35 § 1 of the Convention requires to be used are those that relate to the breaches alleged and which are, at the same time, available and sufficient (see Andonoski v. the former Yugoslav Republic of Macedonia, no. 16225/08, § 22, 17 September 2015).

26. In the instant case, the Court observes that the gist of the applicant’s grievances concern the confiscation of his vehicle by the State authorities. In this respect the Court notes that, after the vehicle had been temporarily seized from the applicant, the latter applied to have the vehicle returned to his possession (see paragraph 9 above). The first-instance court dismissed that application and ordered the permanent confiscation of the vehicle. The applicant appealed against the confiscation order before the appellate court, which was competent to quash or overturn said order. The Court therefore considers that the applicant used a reasonable avenue to challenge the confiscation order. It will refer to the Government’s argument that the applicant could have pursued a civil claim against Sh.A. in the context of the proportionality of the measure (see paragraph 41 below; see also Andonoski, cited above, § 23).

27. In view of these considerations, the Court considers that the Government’s non-exhaustion objection should be dismissed.

28. The Court further notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

29. The applicant submitted that the domestic courts had wrongly applied Article 100-a (2) of the Criminal Code, given that the vehicle had not been confiscated from the offender (as provided in that Article), but from a third person, namely him. He had lawfully obtained title over the vehicle and had regularly registered it. The vehicle had not been a means by which an offence had been committed, as there had been no offence. The aim pursued could have been attained by confiscation of the vehicle’s registration certificate. This would have allowed him to use the vehicle for spare parts.

30. The Government argued that the vehicle had been confiscated in accordance with the applicable provisions, which had been precise and foreseeable. Under domestic law, there were two categories of confiscation: mandatory (under Article 100-a (1) and (2) of the Criminal Code) and optional (under Article 100-a (3) of the Code). Under section 532(1) of the Criminal Proceedings Act, the items subject to mandatory confiscation could be confiscated even if the criminal proceedings had not ended in a conviction. The Government further referred to the submitted case-law (see paragraph 21 above), delivered by the Supreme Court in cases both pre- and post-dating the applicant’s case, which demonstrated that in all instances the vehicles with a forged chassis had been confiscated from persons who had neither had title to the vehicles, nor had been convicted as offenders in the criminal proceedings.

31. The Government further argued that the impugned measure was aimed at protecting general safety and the principle of legal certainty, as a vehicle with a forged chassis could not be subject to any legal transactions nor could it be used on public roads. The measure had been further proportionate to this aim and there had been no alternative means to achieve it. States had a wide margin of appreciation in similar cases. The applicant had failed to pursue the civil claim against the person from whom he had bought the vehicle.

2. The Court’s assessment

(a) The applicable rule

32. It is not in dispute between the parties that the confiscation order amounted to an interference with the applicant’s right to peaceful enjoyment of his possessions. It remains to be determined whether the measure was covered by the first or second paragraph of that Convention provision.

33. The Court reiterates that Article 1 of Protocol No. 1 comprises three rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers the deprivation of property and subjects it to conditions; the third rule, stated in the second paragraph, recognises that the States are entitled to, amongst other things, control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be read in the light of the general principle laid down in the first rule (see, among many other authorities, Hábenczius v. Hungary, no. 44473/06, § 27, 21 October 2014; Rummi v. Estonia, no. 63362/09, § 101, 15 January 2015; and Veits v. Estonia, no. 12951/11, § 69, 15 January 2015).

34. The Court notes that, in the instant case, the confiscation of the vehicle was a permanent measure which entailed a conclusive transfer of ownership. However, the Government argued that the applicant could be indemnified domestically for his loss (compare and contrast Andonoski, cited above, § 30). The Court considers that the measure amounted to control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see Milosavljev v. Serbia, no. 15112/07, § 53, 12 June 2012; see also Varvara v. Italy, no. 17475/09, § 83, 29 October 2013).

(b) Compliance with Article 1 of Protocol No. 1

(i) Alleged unlawfulness of the confiscation order

35. The Court reiterates that under Article 1 of Protocol No. 1 any interference by a public authority with the peaceful enjoyment of possessions has to be lawful (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II). This means firstly that the measures should have a basis in domestic law (see Shchokin v. Ukraine, nos. 23759/03 and 37943/06, § 51, 14 October 2010). The principle of lawfulness also presupposes that the applicable provisions of domestic law be sufficiently accessible, precise and foreseeable (see Beyeler v. Italy [GC], no. 33202/96, § 109, ECHR 2000-I). The Court has limited power, however, to review compliance with domestic law (ibid, § 108).

36. Turning to the present case, the Court notes that Article 100-a (2) of the Criminal Code, which served as basis for the confiscation order, indeed provided that the instruments of crime would be confiscated “from the offender” and that in the present case, in the absence of a final conviction for the offence in question, there was no “offender”. However, Article 100-a (4) provides that the court shall also issue a confiscation order in proceedings regulated by law when, for factual or legal obstacles, it is not possible for criminal proceedings to be conducted against the offender. In this regard, the Court recalls that the first-instance court acquitted Sh.A. of charges of forgery of a document concerning the vehicle’s chassis number and furthermore rejected an indictment brought by the public prosecutor against a certain I.S. (see paragraph 8 above). Furthermore, the Court notes that the Government submitted examples of case-law, both pre- and post-dating the final decision in the applicant’s case, which demonstrated that the same domestic court had consistently upheld confiscation orders, even in situations where there had been no “offenders” (as there had been no final convictions). In view of this and having in mind its limited power to review compliance with domestic law, the Court accepts that the interpretation of Article 100-a (2) by the domestic courts was sufficiently foreseeable. The impugned interference with the applicant’s property rights is thus “lawful” within the meaning of Article 1 of Protocol No. 1.

(ii) The aim and proportionality of the interference

37. As the Court has held on many occasions, an interference with property rights must pursue one or more legitimate aims. In addition, there must be a reasonable relationship of proportionality between the means employed and the aims sought to be realised. In other words, the Court must determine whether a fair balance was struck between the demands of the general interest and the interest of the individuals concerned. As regards the balance between that aim and the applicant’s rights, the Court reiterates that, where possessions that have been used unlawfully are confiscated, such a balance depends on many factors, which include the owner’s behaviour (see Waldemar Nowakowski v. Poland, no. 55167/11, § 50, 24 July 2012). The requisite balance will not be found if the person or persons concerned have had to bear an individual and excessive burden (see Andonoski, cited above, § 31 and Waldemar Nowakowski, cited above, § 47).

38. The Court accepts that the interference pursued a legitimate aim in the general interest, namely to protect the safety of road users.

39. As regards the balance between that aim and the applicant’s rights, the Court firstly notes that the car was confiscated in the context of the criminal proceedings against a third person, namely Sh.A., from whom the applicant had lawfully bought the vehicle. The applicant was not accused in those proceedings. Furthermore, it was established by the domestic courts that the applicant had not been aware that the vehicle had been used to commit an offence (see paragraph 15 above).

40. However, the Court gives significant weight to the fact that the confiscated vehicle had a forged chassis and could not be put back onto the road. In the Court’s view, this element in the instant case renders it similar to the cases in which the confiscation measure applied to goods whose importation was prohibited (see AGOSI v. the United Kingdom, judgment of 24 October 1986, Series A no. 108, concerning a ban on import of gold coins; Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005-VI, concerning the impounding of a Yugoslav aircraft falling under a sanctions regime). In this respect, the domestic courts established (see paragraphs 13 and 15 above) that the vehicle had to be confiscated in the interest of the general safety. Furthermore, on appeal the applicant claimed that he had not known that the vehicle had been used to commit a crime. The appellate court explicitly considered this argument (see paragraph 15 above) and balanced the interest of the applicant against the mandatory ground of confiscation under Article 100-a (2) of the Criminal Code relating to the general safety of the public, namely the safety of the “road users of the State”.

41. The Court will now turn to the Government’s argument that the applicant should have lodged a civil claim against Sh.A. under the Obligations Act (see paragraphs 23 and 26 above). The Court notes that under the relevant domestic law (see paragraph 19 above), the buyer of an item with a legal defect could claim compensation from the seller. Furthermore, as demonstrated by the relevant domestic practice (see paragraph 20 above), the seller (Sh.A. in the present case) was liable for the legal defects even if he or she had not been aware of the legal defect at the time of the sale contract. Thus, the Court is satisfied that the civil claim in question was available to the applicant. The applicant did not explain his failure to lodge such a claim. Moreover, he did not argue that there were any impediments to him resorting to that avenue or any particulars (such as, for example, the death or impossibility to access the seller) which would have rendered it ineffective in the circumstances of the case. Consequently, the Court finds that in his capacity as a buyer who had acted in good faith, the applicant had a judicial remedy before a civil court of general jurisdiction to be indemnified for the damage suffered as a result of the confiscation of the vehicle (see, mutatis mutandis, C.M. v. France (dec.), no. 28078/95, 26 June 2001).

42. In this connection, the Court also observes that the applicant apparently lodged a compensation claim in the criminal proceedings against Sh.A. When the criminal court acquitted Sh.A., it advised the applicant to pursue that claim by means of a separate civil action before the civil courts (see paragraph 8 above). Despite such clear instruction, the applicant did not embark on that avenue of redress.

43. In such circumstances, the Court considers that the confiscation of the applicant’s vehicle did not impose an excessive burden on the applicant.

44. Accordingly, there has been no violation of Article 1 of Protocol No. 1.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 1 of Protocol No. 1 admissible;

2. Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention.

Done in English, and notified in writing on 28 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Ledi Bianku
Registrar President

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