FOURTH SECTION
CASE OF ÜNSPED PAKET SERVİSİ SAN. VE TİC. A.Ş. v. BULGARIA
(Application no. 3503/08)
JUDGMENT
(merits)
STRASBOURG
13 October 2015
FINAL
13/01/2016
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Ünsped Paket Servisi SaN. Ve TiC. A.Ş. v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Päivi Hirvelä,
George Nicolaou,
Nona Tsotsoria,
Krzysztof Wojtyczek,
Faris Vehabović,
Yonko Grozev, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 22 September 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 3503/08) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ünsped Paket Servisi SaN. Ve TiC. A.Ş. (“the applicant company”), a Turkish company, on 16 January 2008.
2. The applicant company was represented by Mr M. Oktay, a lawyer practising in Istanbul, Turkey. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, from the Ministry of Justice.
3. The applicant company complained, in particular, about the confiscation of its lorry in proceedings in which it was not a party.
4. On 2 July 2013 the application was communicated to the Government.
5. On 8 July 2013, the Turkish Government were informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court. They chose not to avail themselves of this right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant company runs logistics services. On 23 June 2007 one of the company’s lorries was stopped for inspection at the Yambol customs post. The Bulgarian authorities discovered and seized the following substances from the cabin and trailer: 500,060 tablets (with a total value of 24,584.2 Bulgarian levs (BGN) or 12,200 euros (EUR)); 3,564 grams of white tablets (with a total value of about EUR 40) which included ephedrine hydrochloride; and, 6,880 pills which included testosterone enanthate (with a total value of about EUR 15,000). The lorry was also seized as material evidence. Criminal proceedings were opened against the driver of the lorry.
7. On 26 June 2007 the applicant company, as the owner of the lorry, asked the Yambol Regional Prosecutor to return its vehicle. The prosecutor rejected the request on the grounds that the lorry had to be retained as material evidence until the end of the criminal proceedings (see paragraph 23 below).
8. On 3 August 2007 the applicant company again applied to the Yambol Regional Prosecutor’s Office asking that the lorry be returned in accordance with Article 111 of the Code of Criminal Procedure. In particular, the applicant company claimed that: there had been no hidden compartment in the lorry; the driver had abused his position; the holding of the lorry was no longer justified as a forensic expert report had already been prepared; the lorry’s value (around EUR 83,000) was over three times the value of the drugs and therefore the lorry could not be confiscated under Article 242 § 8 of the Criminal Code (see paragraph 16 below); and, lastly, the company faced significant losses because of the lorry’s seizure. At the time of this request the case file was no longer with the prosecution service as it had been transferred to the courts, so the Yambol Regional Prosecutor’s Office did not reply to the request.
9. In the meantime the lorry driver concluded a plea bargain agreement with the prosecutor. The terms of the agreement included a one-and-a-half-year prison sentence for the driver and the forfeiture of the lorry.
10. On 8 August 2007 the applicant company asked the criminal court competent to approve the plea bargain agreement not to confiscate its lorry. The applicant company emphasised in particular its inability to participate in the criminal proceedings against the driver and to state its position. It further pointed out that as the value of its lorry was three times higher than the value of the smuggled goods, according to the relevant national law the vehicle should not be forfeited (see paragraph 16 below).
11. On 14 August 2007 the Yambol Regional Court confirmed the plea bargain agreement in accordance with Article 382 § 7 of the Code of Criminal Procedure (see paragraph 22 below). In the agreement the driver confessed that he was guilty of smuggling under Articles 242 § 1 (d) and 242 § 3 of the Criminal Code and accepted the forfeiture of the transported drugs and the lorry under Article 242 §§ 7 and 8 of the Criminal Code. The decision was not subject to appeal and became enforceable on the same day.
12. On 26 May 2008 the applicant company brought proceedings before the Istanbul Second Enforcement Office (“the Office”) against the lorry driver, seeking damages. The Office found that the driver was liable to pay EUR 110,116.75 to the applicant company for the damage his actions had caused. However, the applicant company could not collect any of this amount as the lorry driver had no assets at the time.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal responsibility and smuggling
Criminal Code
13. Article 35 stipulates that criminal responsibility is personal. Only a person who has committed a crime stipulated in law can be punished for that crime. The punishment follows the crime and can be imposed only by a court.
14. Article 242 § 1 (d) provides that a person who transports across the borders of the State undeclared goods which he or she is unauthorised to carry for trade or production purposes, shall be liable for the crime of qualified smuggling which is punishable by up to ten years’ imprisonment and a fine of between BGN 20,000 and BGN 100,000.
15. Article 242 § 3 stipulates that the transportation across the borders of the State of substances and instruments for the production of drug substances is an offence punishable with imprisonment of between two and ten years and a fine of between BGN 50,000 and BGN 100,000.
B. Forfeiture of property not belonging to the offender
Criminal Code
16. Article 242 § 8 stipulates that a vehicle which has served for the transportation of smuggled goods across the borders of the State shall be forfeited to the State, even if it is not the property of the offender, except where the vehicle’s value clearly does not correspond to the seriousness of the offence.
17. In a number of cases brought by either the convicted individual or the prosecutor, the national courts examined the proportionality of the forfeiture of the vehicle which belonged to a third party and had been used in committing an offence. They concluded in many cases that the forfeiture had not been justified (реш. № 274 от 20 декември 2008 по в.н.о.х.д. № 560/2008, ПАС; реш. № 163 от 3 април 2009 по к.н.д. № 130/2009, ВКС, I н.о.; реш. № 298 от 5 януари 2009 по в.н.о.х.д. № 590/2008, ПАС; реш. № 215 от 11 май 2012 по н.д. № 1742б2011, III н.о., НК; реш. № 152 от 21 ноември 2008 по в.н.о.х.д. № 211/2008, БАС; and реш. № 215 от 11 май 2012 по н.д. № 174/2011, III н.о., НК).
18. As regards specifically the meaning which national courts have given to the qualifying exception to mandatory forfeiture under Article 242 § 8 of the Criminal Code which is that “the vehicle’s value clearly does not correspond to the seriousness of the offence”, it has been clarified in a number of decisions (see, in particular, реш. № 496 от 1 декември 2010 по н.д. № 471/2010, ВКС, I н.о.; реш. № 54 от 6 февруари 2009 по н.д. № 625/2008, ВКС, II н.о.; and реш. № 150 от 5 юли 2012 по в.н.о.х.д. № 129/2012, ВтАС). While no consistent standard has been developed on this point, the national courts have found that “the vehicle’s value obviously exceeded the value of the transported goods” where the vehicle’s value ranged from between being minimally higher, to nearly half higher, to 10.7 times higher than the transported goods. Where they came to such a conclusion, the courts quashed the forfeiture of the vehicles in question as having been ordered in contravention of Article 242 § 8 of the Criminal Code, and the vehicles were returned to their owners.
19. In some other cases (see реш. № 67 от 19 март 2009 по в.н.о.х.д. № 59/2013, ПАС, and реш. № 54 от 6 февруари 2009 по н.д. № 625/2008, ВКС, II н.ом ) the national courts held that, in addition to the value of the vehicle and the smuggled goods, in determining whether to order forfeiture of the vehicle under Article 242 § 8 of the Criminal Code, courts had to consider also the level of danger the offence and offender posed to society.
20. Nevertheless, in a number of other cases (see реш. № 540 от 4 януари 2010 по н.д. № 635/2009, ВКС, II н.о.; реш. № 226 от 4 декември 2013 по в.н.о.х.д. № 442/2013, ПАС; реш. № 72 от 12 февруари 2014 по в.ч.н.д. № 15/2014, ПАС; реш. № 527 от 29 декември 2008 по н.д. № 554/2008, ВКС, II н.о.; and реш. № 202 от 20 декември 2012 по в.н.о.х.д. № 241/2012, БАС) the national courts did not consider any other aspects related to the seriousness of the offence apart from the value of the vehicle and the goods. In these cases, as the value of the vehicle was lower than that of the smuggled goods, the courts found that there were no grounds for quashing the forfeiture under Article 242 § 8 of the Criminal Code.
C. Forfeiture of property belonging to the offender
Criminal Code
21. By virtue of a number of enabling provisions under the Criminal Code the State can confiscate items of property, on condition that they belong to the offender. In particular, Article 44 contains the general provision related to confiscation of offenders’ property; Article 53 § 1 (a) stipulates that, irrespective of the criminal responsibility of the offender, the items of property which belong to him or her and which have served for the commission of the offence shall be forfeited; and Article 280 § 3 provides that the vehicle which has served to transport one or more individuals across the borders of the State without permission or through places not designated for that purpose shall be forfeited if it belongs to the offender.
D. Plea bargain agreement
Code of Criminal Procedure
22. Under Article 381, upon completion of the investigation, the prosecutor or the suspect can propose an agreement as to the outcome of the case. Article 382 stipulates that the agreement, if mutually acceptable, is confirmed by a judge within seven days of its conclusion at a hearing in the presence of the prosecutor, the defence lawyer and the accused. After the court has verified that the accused understands the accusation, admits his or her guilt, understands the consequences of the agreement and accepts them, and has agreed to all the above voluntarily, it approves the agreement if it does not breach the law or acceptable moral standards. The court’s decision is not subject to appeal. According to Article 383, a plea bargain agreement approved by a court has the equivalent consequences of a court decision which has become enforceable.
E. Retention of physical evidence during criminal proceedings
Code of Criminal Procedure
23. Article 111 stipulates that physical evidence must be retained until the end of the criminal proceedings. It can be released to those entitled earlier if that does not hinder the establishment of the facts. The prosecutor’s refusal to release the evidence can be appealed against before the first-instance court, whose decision is final.
F. Reopening of criminal proceedings
Code of Criminal Procedure
24. The prosecutor or the convicted individual may request the reopening of the proceedings in accordance with Article 420.
G. Law of tort
Obligations and Contracts Act
25. The general rules of the law of tort are set out in sections 45 to 54 of the Obligations and Contracts Act 1950 (Закон за задълженията и договорите – “the 1950 Act”). Section 45(1) provides that everyone is obliged to make good the damage which they have, through their fault, caused to another.
H. Recovering confiscated property in civil proceedings
Property Act
26. Section 108 of the Property Act 1951 provides that the owner of an object may claim it from anyone who possesses it or holds it without lawful grounds. Interpreting this provision in the context of confiscated property in criminal proceedings, the former Supreme Court held that it was not possible to contest a confiscation ordered by a criminal court by way of a claim under section 108 of the Property Act (реш. № 1184 от 9 май 1977 г. по гр. д. № 2259/1976 г., ВС, I г. о.).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
27. The applicant company complained that the confiscation of its lorry in proceedings in which it was not a party breached its right to peaceful enjoyment of its property as provided for in 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
1. The parties’ submissions
28. The Government raised an inadmissibility plea on the grounds that the applicant company had failed to exhaust domestic remedies. First, they submitted that the applicant company had not appealed against the prosecutor’s refusal to release the lorry while the criminal proceedings against the driver were pending (for the relevant national law see paragraph 23 above). Secondly, the applicant company had not asked the prosecutor to seek the reopening of the part of the case concerning the forfeited lorry (for the relevant national law see paragraph 24 above). Lastly, the applicant company had not brought a claim for damages against the driver whose actions were at the origin of the lorry’s fo
