2002 EVRO BUS UVOZ-IZVOZ PRILEP DOO v. NORTH MACEDONIA

SECOND SECTION

DECISION

Application no. 27027/18
2002 EVRO BUS UVOZ-IZVOZ PRILEP DOO
against North Macedonia

The European Court of Human Rights (Second Section), sitting on 12 December 2023 as a Committee composed of:

 Pauliine Koskelo, President,
 Lorraine Schembri Orland,
 Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 27027/18) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 June 2018 by 2002 Evro Bus uvoz-izvoz Prilep Doo (“the applicant company”), a company based in North Macedonia, which was represented by Mr D. Stojanoski and Ms O. Kimoska, lawyers practising in Skopje and Prilep;

the decision to give notice of the application to the Government of North Macedonia (“the Government”), represented by their Agent, Ms D. Djonova;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case mainly concerns an alleged violation of the presumption of the applicant company’s innocence (Article 6 § 2 of the Convention) during proceedings for compensation, following the discontinuance of misdemeanour proceedings in which a vehicle it owned had been impounded.

2.  The applicant company had been charged in misdemeanour proceedings with customs offences, namely that it had not taken an imported vehicle in for a customs inspection within the designated period and had used the said vehicle although the formal customs procedures had not been carried out and the taxes had not been paid. In those proceedings, the vehicle was confiscated. After the Administrative Court had quashed the Customs Authority’s decision (in which the applicant company had been found guilty of the charges against it) on 14 January 2013 and discontinued the proceedings because they were time-barred, the State restored ownership of the vehicle to the applicant company.

3.  Subsequently, the applicant company claimed compensation for damage to the vehicle and depreciation for the period between December 2007 and July 2013 during which it had been dispossessed of the vehicle while the misdemeanour proceedings had been pending, and for the loss of the use of the vehicle. On 9 January 2015 the Skopje Court of First Instance dismissed the applicant company’s compensation claim and stated, among other things:

“...the discontinuance of the misdemeanour proceedings as time-barred does not mean that [the applicant company] did not commit the customs offences ... [The applicant company] does not dispute the fact that the vehicle was taken out of storage and was not returned to the customs authorities within the designated time ...”.

4.  On 20 October 2016 the Skopje Court of Appeal added:

“... Based on the Customs Act as well as the Misdemeanour Act, the Customs Authority has been vested with the authority to discover and sanction misdemeanours and therefore there is no appearance of unlawfulness ... this is even more so as [the applicant company] was found guilty ... The quashing of the decision by the Administrative Court cannot influence the fact that the misdemeanour proceedings were brought about by [the applicant company’s] actions ...”.

5.  On 23 November 2017 (notified to the applicant company on 17 January 2018) the Supreme Court, relying on sections 141 and 158 of the Obligations Act, upheld the reasoning of the lower courts, stating among other things:

“... no responsibility can be attributed to the defendant because it was bound by law to deal with administrative offences by misdemeanour proceedings as it did in the present case. ... If a public authority’s actions are in conformity with the law during proceedings they cannot amount to unlawful conduct ...

Accordingly, the lower courts rightfully concluded that the decision [in the misdemeanour proceedings] had been quashed because of the discontinuance of the misdemeanour proceedings as time-barred and not because ... it had not been established that the plaintiff had committed the offence.

... as regards any damage caused to the vehicle while kept at the premises of the Agency for Confiscated Property, the [Customs Authority] has no legal liability ...”

6.  The applicant company complained under Article 6 § 2 of the Convention that the reasoning provided by the civil courts had violated its right to the presumption of innocence. It further complained under Article 13 of the Convention that the domestic civil courts, instead of dealing with its compensation claim, dealt with the issue of its liability for the alleged criminal offence.

THE COURT’S ASSESSMENT

7.  The Court notes that it has already considered the admissibility objection (incompatibility ratione materiae) submitted by the Government and rejected it in a previous similar case (see Milachikj v. North Macedonia (no. 44773/16, §§ 22-28, 14 October 2021). There are no reasons to come to a different conclusion in the present case. Accordingly, Article 6 § 2 is applicable.

8.  The general principles concerning the protection provided by Article 6 § 2 are set out in Pasquini v. San Marino (no. 2) (no. 23349/17, §§ 48-54, 20 October 2020).

9.  In the present case, following the discontinuance of the misdemeanour proceedings as time-barred, there were subsequent compensation proceedings about the applicant company’s claim in respect of the damage to and depreciation in value of the vehicle, which was impounded for five and a half years, and the loss of the use of it while the misdemeanour proceedings against the applicant company were pending.

10.  The Court notes that, in giving reasons for dismissing the applicant company’s compensation claim, the civil courts referred to the misdemeanour proceedings. They described the outcome of those proceedings and commented on the applicant company’s participation in the events leading to the charge brought against it (see paragraphs 3-5 above).

11.  In particular, they acknowledged that the misdemeanour proceedings against the applicant company had been discontinued as time-barred and “not because it had not been established that [the applicant company] had committed the offence”, and that such discontinuance “does not mean that [the applicant company] did not commit the customs offence” (see paragraphs 5 and 3 above). The Court accepts that these formulations are open to different interpretations and may be understood to suggest that the prospects of success of a compensation claim in the present case, where criminal proceedings had been discontinued, were not the same as in a case where a defendant had been finally acquitted. Even if the choice of words was an unfortunate slip, these formulations cannot of themselves amount to an explicit affirmation imputing liability for the misdemeanour to the applicant company (compare in respect of a very similar wording Milachikj, cited above, § 34).

12.  The Court further observes that in its decision, the Court of Appeal mentioned that the applicant company “was found guilty” (see paragraph 4 above). However, read in context, it is clear that the Court of Appeal only referred to the fact that in its initial decision, which was later quashed, the Customs Authority had found the applicant company guilty. The Court of Appeal’s decision cannot therefore be read as reflecting an opinion that that court itself considered the applicant company guilty.

13.  In any event, the use of the unfortunate language quoted above does not mean that the civil courts first had to establish that the applicant company had in fact committed the administrative offence in order to then be able to rule on the compensation claim. Looking at the context of the proceedings as a whole and their special features, it is noteworthy that the applicant company’s compensation claim was examined in a different context from that of the misdemeanour proceedings, by different courts with different panels of judges. The compensation proceedings were therefore neither subordinate to nor merely a continuation of the misdemeanour proceedings (see Milachikj, cited above, §§ 37-38).

14.  While unfortunate language was indeed used, the Supreme Court, in determining the responsibility of the Customs Authority for the damage claimed by the applicant company, relied on tort law and the general principles of civil proceedings (see paragraph 5 above). It explained that the domestic authorities’ order for the discontinuance of the misdemeanour proceedings and the return of the vehicle to the applicant company did not automatically entitle the applicant company to compensation for the loss of value of the vehicle as there had been no unlawful conduct. It was satisfied that the misdemeanour proceedings and the impounding of the vehicle had a sufficient legal basis. Furthermore, and having regard to the principle that in civil proceedings it is normally the plaintiff in a defended action who bears the burden of proof (affirmanti non neganti incumbit probatio), the Court cannot find it unreasonable that the applicant company was required to prove that the defendant, in taking the actions it had in the misdemeanour proceedings, had lacked the requisite diligence. The discontinuance of the misdemeanour proceedings did not mean that the applicant company was dispensed from having to prove its claim in accordance with the applicable domestic rules regarding the burden of proof in civil proceedings (compare also Milachikj, cited above, § 39). Noteworthy in this connection are the Supreme Court’s considerations exempting the Customs Authority from civil liability for the retention of the vehicle by the Agency for Confiscated Property (see paragraph 5 above).

15.  In the light of the foregoing, the Court considers that the language used by the civil courts, taking into account the nature and context of the civil proceedings in the present case, could not reasonably have been read as imputing “criminal” liability to the applicant company (compare Milachikj, cited above, § 40). This part of the application is therefore manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

16.  The applicant company further complained under Article 13 of the Convention that the domestic civil courts, instead of dealing with its compensation claim, dealt with the issue of its liability for the alleged criminal offence. However, the applicant company had, and availed itself of, the possibility to have the substance of its arguable compensation claim determined, in proceedings at three levels of jurisdiction. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI). Therefore, its complaint under Article 13 is manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 January 2024.

 Dorothee von Arnim Pauliine Koskelo
 Deputy Registrar President