FOURTH SECTION
CASE OF B.K.M. LOJISTIK TASIMACILIK TICARET LIMITED SIRKETI v. SLOVENIA
(Application no. 42079/12)
JUDGMENT
STRASBOURG
17 January 2017
FINAL
17/04/2017
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi v. Slovenia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
András Sajó, President,
Vincent A. De Gaetano,
Nona Tsotsoria,
Paulo Pinto de Albuquerque,
Egidijus Kūris,
Gabriele Kucsko-Stadlmayer,
Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 6 December 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 42079/12) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish company, B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi (“the applicant company”), on 12 April 2012.
2. The applicant company was represented by Mr S. Duran, a lawyer practising in Istanbul. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney.
3. The applicant company alleged that the confiscation of its lorry in criminal proceedings amounted to an unlawful and disproportionate interference with its possessions under Article 1 of Protocol No. 1.
4. On 30 August 2013 the application was communicated to the Government.
5. In accordance with Article 36 § 1 of the Convention and Rule 44 of the Rules of Court, the Turkish Government were informed of their right to submit written comments. They did not avail themselves of this right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant company B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi has its registered office in Istanbul.
7. On 13 November 2008 customs officers stopped and checked the applicant company’s lorry, in which they found packages of unknown content. A preliminary test of the content revealed that the packages contained heroin. The customs officers informed the police accordingly.
8. On 14 November 2008 the police inspected the lorry and its trailer and found 105 kg of heroin. The driver, a Turkish citizen, was arrested and detained. The lorry was seized and the trailer and its goods became the object of a customs procedure. On an unspecified date the applicant company received documents enabling the goods contained in the trailer to be delivered to their destination. The trailer was returned to the applicant company. Subsequently, the police filed a criminal complaint against the driver with the Ptuj District State Prosecutor’s Office.
9. On 15 November 2008 the Ptuj District State Prosecutor’s Office charged the driver with the production and trafficking of illegal drugs under Section 186(1) of the Criminal Code. The District State Prosecutor further requested that the applicant company’s lorry be confiscated under Section 186(5) of the Criminal Code since it had been used for the transportation of illegal narcotic drugs.
10. On 25 November 2008 the applicant company asked the Ptuj District Court to provide it with the case-file concerning the charges against the driver. It also enquired when it would be able to retake possession of the seized lorry. On 8 December 2008 the court informed the applicant company of the charges against the driver. It further informed the applicant company that the lorry had been seized in accordance with Section 220 of the Criminal Procedure Act read in conjunction with Section 186(5) of the Criminal Code and that no decision could be made on the return or confiscation of the lorry until a decision on the merits had been issued. On 23 December 2008 the applicant company informed the court that it opposed the District State Prosecutor’s request for confiscation of the lorry.
11. On 29 December 2008 the Ptuj District Court found the driver guilty of drug trafficking and sentenced him to nine years’ imprisonment. It ordered that the lorry be returned to the applicant company. It held that confiscation was possible only if one of the conditions set out in the second paragraph of Section 73 of the Criminal Code were met, namely the existence of reasons of general security or morality. The District Court considered that that condition had not been met, taking into account the fact that there was no indication that the applicant company knew about the transportation of the illegal material.
12. Both the driver and the Higher State Prosecutor appealed. On 21 May 2009 the Maribor Higher Court modified the first-instance judgment and, relying on Sections 73(3) and 186(5) of the Criminal Code, ordered the confiscation of the lorry. It held that the legislative framework provided for mandatory confiscation in cases of drug-related criminal offences since the nature of their commission, their magnitude and the dangerous consequences thereof called for the extension of coercive measures to persons who were not the perpetrators of the criminal offence, irrespective of whether or not the owners of the vehicle knew what the perpetrator had been transporting. The Higher Court explained that in accordance with Section 73(2) of the Criminal Code, objects used in the commission of a criminal offence could be confiscated even when they did not belong to the perpetrator, in so far as the third party’s right to claim damages from the perpetrator was not thereby affected. Moreover, Section 73(3) provided for the possibility of mandatory confiscation in cases provided for by the statute. Thus, Section 186(5) of the Criminal Code implemented those two provisions by providing mandatory confiscation of the means of transport used for transportation and storage of illegal substances.
13. On 17 July 2009 the applicant company lodged a constitutional complaint against the aforementioned decision and an initiative for review of the constitutionality of Section 186(5) of the Criminal Code, alleging a violation of its property rights. It complained in particular that it had not known that the lorry was being used for illegal purposes, adding that the first-instance court had explicitly established its non-involvement in the commission of the criminal offence at issue. Claiming that it had not had an effective possibility to prevent the abuse of its property for criminal purposes, the applicant company stressed that the lorry had been subject to regular controls concerning possible vehicle modifications and hidden compartments. Thus, according to the applicant company, the measure complained of constituted a punishment and an unjustified and disproportionate interference with its property and that it had not had the opportunity to participate in the criminal proceedings.
14. On 29 September 2011 the Constitutional Court dismissed both the constitutional complaint and the initiative. In reviewing the contested legislation, the Constitutional Court confirmed the Higher Court’s view that Section 186 of the Criminal Code provided for mandatory confiscation of vehicles used for the transportation and storage of drugs or illegal substances in sport, regardless of their ownership. According to the Constitutional Court, drug-related criminal offences sanctioned under Section 186 of the Criminal Code represented a great evil and an extremely high degree of threat not only from the perspective of the individual, but also from the perspective of society as a whole; the purpose of the impugned measure was to prevent the commission of such criminal offences in the future and thus to protect important legal values in society, such as health and life – especially of young people. The Constitutional Court stressed that the nature of the criminal offences in question, the manner in which they were committed and their consequences justified the interference with the ownership rights of all owners of the means of transport used for drug-trafficking, regardless of their potential involvement in the criminal activities at issue, adding that a different regulation governing the confiscation of goods would diminish considerably the possibilities for effectively preventing the criminal offences in question.
15. Balancing the general interests in question with the property rights of the applicant company, the Constitutional Court held that the measure complained of did not amount to an excessive interference despite the fact that the applicant company had had no effective possibility for preventing the misuse of its property for criminal purposes and had not participated in the commission of the criminal offence. In this connection, the Constitutional Court pointed out that legal certainty required that every instance of legally recognised damage be adequately protected. Thus, by virtue of Section 73(2) of the Criminal Code, the confiscation did not affect the right of third parties to claim compensation from the offender. Under the general rules of tort law, the injured owner had the possibility and the right to exact compensation from the person responsible for the damage. The Constitutional Court added that it was for the regular courts to establish in each individual case whether all the elements required for recognition of the alleged damage and thus for payment of compensation were fulfilled.
16. Meanwhile, on 29 June 2009 the Ptuj District Court informed the applicant company that the lorry was to be sold at a public auction and that it could submit written comments in this respect. On 6 July 2009 the applicant company replied that it was willing to buy the confiscated lorry. On 20 October 2011 the court ordered the sale of the lorry and informed the applicant company thereof. On 30 November 2011 the lorry was sold at public auction for 12,000 euros (“EUR”). According to the Government the lorry was sold to the applicant company. In this regard, they submitted a document stating that the lorry had been sold to “B.K.M. LOJISTIK, TAS.VE TIC.LTD.STI”, a company from Istanbul. However, the applicant company contested that statement, alleging that it was another company that had purchased the lorry. The Government did not reply to this submission.
II. RELEVANT DOMESTIC LAW AND PRACTICE
17. Pursuant to Article 33 of the Constitution of the Republic of Slovenia (hereinafter: “the Constitution”) the right to private property and inheritance is guaranteed. Under the second paragraph of Article 15 of the Constitution, the manner in which human rights and fundamental freedoms are exercised may be regulated by law whenever the Constitution so provides or where this is necessary due to the particular nature of an individual right or freedom. According to Article 67(1) of the Constitution, the manner in which property is acquired and enjoyed is established by law so as to ensure its economic, social and environmental function.
18. The relevant provisions of the Criminal Code, as applicable at the material time, laying down the conditions under which, as a safety measure, the confiscation of items may be imposed, read as follows:
Conditions for Application of Safety Measures
Section 70
“(1) The court may apply one or more safety measures in respect of the perpetrator of a criminal offence providing the statutory conditions for the application thereof are met.
(2) The revocation of the perpetrator’s driving licence and the confiscation of objects may be ordered if a prison sentence, a suspended sentence, or a judicial warning has been imposed on him, or in case of the remission of a sentence.
...”
Confiscation of Objects
Section 73
“(1) Objects used or intended to be used, or gained through the committing of a criminal offence may be confiscated if they belong to the perpetrator.
(2) Objects under the preceding paragraph may be confiscated even when they do not belong to the perpetrator if that is required for reasons of general security or morality and if the rights of other persons to claim damages from the perpetrator are not thereby affected.
(3) Mandatory confiscation of objects may be provided for by the statute even if the objects in question do not belong to the perpetrator.
... ”
Unlawful Manufacture and Trade of Narcotic Drugs, Illegal Substances in Sport and Precursors to Manufacture Narcotic Drugs
Section 186
“...
(5) Narcotic drugs or illegal substances in sport and the means of their manufacture and means of transport used for the transportation and storage of drugs or illegal substances in sport shall be seized.”
19. Under paragraph 1 of Section 220 of the Criminal Procedure Act, items which are to be seized in accordance with the Criminal Code or which may prove to constitute evidence in criminal proceedings must be seized and delivered to the court for safekeeping or secured in some other way. Under the fourth paragraph of Section 220, police officers may seize these items during the investigation if proceeding under Sections 148 and 164 of the Criminal Procedure Act. In accordance with Section 224 of that Act, items seized during criminal proceedings must be returned to the owner or current holder if the proceedings are discontinued and there are no grounds for them to be confiscated.
20. The management of the items seized during or in connection with criminal proceedings is regulated by the Decree on the Management of Seized Items, Property and Bail (hereinafter: “the Decree”). Pursuant to Section 9 of the Decree, seized items may be returned to the owner as soon as the grounds for their seizure cease to exist. If it is not possible or permitted to return the items to the owner, the items must be sold. If it is not possible to sell the items, the court must order their destruction or donation for the public good. Prior to issuing a decision on the sale, destruction or donation of the items, the court shall obtain the opinion of the owner of those items. Under the first paragraph of Section 11 of the Decree, the sale must be conducted pursuant to the provisions of the regulations that apply to judicial enforcement proceedings.
21. Under paragraph 1 of Section 55 of the Private International Law and Procedure Act, courts in the Republic of Slovenia have jurisdiction in disputes concerning non-contractual liability for damages in cases where the harmful act was committed on the territory of the Republic of Slovenia. In such cases Slovenian law shall apply (Section 30(1) of that Act).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
22. The applicant company complained that the confiscation of its lorry amounted to an unlawful and disproportionate interference with its possessions under of Article 1 of Protocol No. 1 which reads:
“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 objected that the applicant company had failed to exhaust the domestic remedies as it had not brought an action for compensation against the driver under Section 73 of the Criminal Code and Sections 30 and 50 of the Private International Law and Procedure Act.
24. The applicant company contested that argument.
25. The Court points out that the general principles concerning the exhaustion of domestic remedies have recently been set out in Chiragov and Others v. Armenia ([GC], no. 13216/05, §§ 115-116, ECHR 2015). The Court observes in particular that it is for the applicant to select which legal remedy to pursue for the purpose of obtaining redress for the alleged breaches where there is a choice of remedies available to the applicant in respect of redress for an alleged violation of the Convention. Article 35 of the Convention must be applied in a manner corresponding to the reality of the applicant’s situation in order to guarantee the effective protection of the rights and freedoms in the Convention (see, among other authorities, Airey v. Ireland, 9 October 1979, § 23, Series A no. 32, and R.B. v. Hungary, no. 64602/12 § 60, 12 April 2016).
26. In the present case, the Court finds that the question of whether an action for compensation against the driver may be considered as relating to the alleged violation and as capable of offering an effective remedy within the meaning of Article 35 § 1 of the Convention is closely linked to the substance of the applicant company’s complaint. Accordingly, it should be joined to the merits.
27. The Court notes that the application 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
(a) The applicant company
28. The applicant company complained that the confiscation of the lorry belonging to it was unlawful, that it did not pursue any public interest and that it was disproportionate. It argued that the domestic courts had applied the domestic law arbitrarily and without taking into account its good faith and its property rights. It stressed that it had not participated in the commission of the criminal offence and that there were no bars to returning the lorry. The Criminal Code should have been interpreted as requiring confiscation only in cases where a lorry has been adapted for the commission of the relevant criminal offence. In the applicant company’s view, the confiscation of the lorry amounted to a penalty for the effective fight against drug-related criminal offences. Finally, the applicant company alleged that lorry had been sold to another company at auction.
(b) The Government
29. The Government acknowledged that the seizure and confiscation of the lorry constituted an interference with the applicant company’s possessions. During the period of seizure the applicant company had not been able to use it and, therefore, its property had been controlled. When the court’s confiscation decision became final, the applicant company had lost its title to the lorry. However, it had regained this right by purchasing the lorry at auction.
30. The Government further argued that the lorry had been confiscated pursuant to Section 186(5) of the Criminal Code as applicable at the relevant time. Under that provision, vehicles used for the transportation of narcotic drugs had to be seized irrespective of who the owner of the vehicle was or whether the owner of the vehicle had acted in good faith or whether the vehicle had contained any hidden compartments for the transportation of drugs. The applicant company’s argument that the lorry should have been confiscated only if it had had a specially adapted space for the transportation and storage of drugs was therefore not correct. Moreover, the confiscation had been carried out in accordance with the procedural rules of the Criminal Procedure Act and the applicant company had not alleged that any of the procedural rules had been violated.
31. The Government noted that criminal offences under Section 186 of the Criminal Code were punishable by one to ten years’ imprisonment. In the present case, the perpetrator was sentenced to nine years’ imprisonment, almost the maximum sentence. He had been transporting approximately 100 kg of heroin in the lorry concerned. The Government stressed that the criminal offences referred to in Section 186 of the Criminal Code constituted a great evil posing an extremely serious threat to the health and life of individuals. It was in the public interest to prevent the commission of this type of criminal offence by enacting effective measures. With the measure at issue the legislator wanted to prevent the commission of this type of criminal offence in order to reduce the threat to the most important values in society – human health and life. The perpetrators of such criminal offences were not discouraged by the fact that they did not own the means of transport that they used in order to conceal illegal drugs. An interference with the property of third persons inevitably formed part of the fight against organised crime to protect the highest values and goods of human society. The nature of such criminal offences, the manner in which they were committed and the consequences they had for people’s health and lives justified the mandatory confiscation of means of transport, regardless of the ownership of the vehicle(s) concerned. It could reasonably be expected that any regulatory arrangement (e.g. mandatory confiscation only if the means of transport was owned by the perpetrator) different from that applied would considerably have reduced the possibilities for effectively preventing these criminal offences.
32. The Government stressed that only those means of transport which were indispensable for the commission of the criminal offence could be subject to mandatory confiscation. In the present case the trailer was not subject to confiscation, and the applicant company was able to recover it some days after the event. Soon afterwards, it also received documents enabling the goods contained in the trailer to be delivered to their destination.
33. According to the Government, a third party who had suffered damage because of the measure at issue could claim compensation for such damage from the perpetrator under Section 73(2) of the Criminal Code.
34. Finally, the Government argued that in November 2011 the applicant company had bought back the confiscated lorry at auction, paying EUR 12,000. It had therefore had an opportunity to recover the lorry and made use of it.
2. The Court’s assessment
(a) The applicable rule
35. The Government argued that at a preliminary stage the seizure of the lorry had constituted a control of the use of property and, later, following the confiscation decision, the applicant company had in fact been deprived of its title to the lorry. Moreover, according to the Government the applicant company had later repurchased the lorry at auction, an allegation which was contested by the applicant company.
36. The Court points out that Article 1 of Protocol No. 1 comprises three distinct 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 possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. The three rules are not, however, “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many authorities, AGOSI v. the United Kingdom, 24 October 1986, § 48, Series A no. 108, and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 185, ECHR 2012).
37. The Court has on several occasions examined issues arising from confiscation measures implemented in relation to a possession which has been used unlawfully and aimed at preventing its further unlawful use. Some of those cases involved confiscati
