Communicated on 1 March 2017
FOURTH SECTION
Application no. 13982/12
ALFA MOBIL 1800 S.R.O.
against Hungary
lodged on 29 February 2012
STATEMENT OF FACTS
1. The applicant, Alfa Mobil 1800 S.R.O., is a company incorporated under Czech law, with a registered office in Brno. It is represented before the Court by Mr P. Bátki, a lawyer practising in Budapest.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant company, may be summarised as follows.
3. The applicant company intended to import mobile phone accessories from Hong Kong via Hungary to the Czech Republic. The carriage of goods was arranged by Malév Hungarian Airlines (“Malév”).
4. On 17 December 2009 the airport customs office ordered the seizure of part of a cargo (assumedly counterfeit accessories bearing the trademarks of “Nokia” and “Samsung”) and initiated criminal proceedings against an unknown perpetrator on account of false marking of goods.
5. According to an expert opinion obtained in the course of the investigation, the seized goods were partly counterfeit and partly genuine.
6. The accessories which had not been found to be counterfeit were released to an employee of Malév on 7 July 2010, whereas the counterfeit accessories remained under seizure.
7. Because of the different values at stake, the prosecuting authority decided to treat separately the counterfeit Nokia and Samsung accessories. The counterfeit Nokia accessories represented a value of 1,552,000 Hungarian forints (HUF), approximately 5,500 euros (EUR), whereas the value of the counterfeit Samsung accessories amounted to HUF 50,400 (approximately EUR 180).
8. The value of the counterfeit Nokia accessories warranted the institution of criminal proceedings. However, those proceedings were suspended on 16 July 2010, for want of an identifiable perpetrator of the offence of false marking of goods.
9. On the same date the prosecuting authority found that, in so far as the counterfeit Samsung accessories were concerned, the offence fell to be examined in administrative-offence proceedings owing to the low value at stake. Consequently, that part of the proceedings was conducted by the Budapest XVIII District Municipality, acting as an administrative-offence authority. On 10 September 2010 the District Municipality discontinued those proceedings for want of an identifiable perpetrator. It nevertheless ordered the confiscation of the seized Samsung accessories.
10. The applicant company did not obtain a copy of the decisions mentioned in paragraphs 8 and 9 above until 28 April and 3 August 2011, respectively.
11. On 9 May 2011 the applicant company applied to the Budapest XIV and XVI District Public Prosecutor’s Office for another expert opinion in the criminal proceedings concerning the Nokia products, arguing that all the accessories were authentic. On 14 July 2011 the District Public Prosecutor’s Office rejected the application on the grounds that the applicant company was not entitled to it under Article 111(2) of the Code of Criminal Procedure. An appeal lodged by the applicant company was dismissed by the Budapest Chief Public Prosecutor’s Office on 5 September 2011.
12. As regards the Samsung accessories, on 9 August 2011 the applicant company lodged a complaint with the District Municipality, challenging the confiscation order. The complaint was dismissed on 11 August 2011 on the grounds that section 88(1) of the Administrative Offences Act (no. LXIX of 1999) did not allow the applicant company to seek such a remedy. The applicant company was informed that it could lodge a complaint with the Budapest Prosecutor’s Office, Department for Supervision of Legality (Budapesti Törvényességi Felügyeleti Ügyészség) against the decision of 11 August 2011. Accordingly, the applicant company challenged the lawfulness of the decision before the prosecuting authority, but on 29 September 2011 the latter found that the facts of the case did not warrant any intervention in the interests of legality.
B. Relevant domestic law
13. The Criminal Code (Act no. IV of 1978), as in force at the material time, provided:
Article 296
False marking of goods
“Any person who – without the consent of a competitor – produces a product with distinctive appearance, packaging, labelling or name, from which a competitor or his product having distinctive features can be recognised, or who acquires such a product for the purpose of placing it on the market, or who places such a product on the market, is guilty of an offence punishable by imprisonment for up to three years.”
14. Government Decree no. 218/1999 (XII.28.) on certain administrative offences, as in force at the material time, provided:
Section 71
“(1) Any person who – without the consent of a competitor and provided that the product’s value does not exceed HUF 100,000 – produces a product with distinctive appearance, packaging, labelling or name, from which a competitor or his product having distinctive features can be recognised, or who acquires such product for the purpose of placing it on the market, or who places such product on the market, may be fined up to HUF 100,000. ...”
15. The relevant part of the Code of Criminal Procedure (Act no. XIX of 1998) provides:
Article 55
“(2) In proceedings involving a criminal offence that may warrant confiscation ... the rights of the victim shall apply to the other interested party whose property may be confiscated ...”
Article 111
“...
(2) In the course of the investigation the defendant and his defence counsel may apply for the assignment of another expert. The decision on the assignment lies with the prosecutor.”
16. The Administrative Offences Act (no. LXIX of 1999), as in force at the material time, provided:
Section 88
“(1) A decision ... ordering confiscation ... may be challenged by means of a complaint ... by the person against whom the proceedings are conducted, his legal representative or defence counsel.
...”
COMPLAINT
The applicant company complains, under Article 13 of the Convention read in conjunction with Article 1 of Protocol No. 1, that it could not challenge the measures interfering with its property rights, notably the classification of certain goods as counterfeit by an expert and the confiscation of certain other goods.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant company’s right to peaceful enjoyment of its possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference necessary in order to control the use of property in the general interest? In particular, did the interference impose an excessive individual burden on the applicant company (see, mutatis mutandis, AGOSI v. the United Kingdom, 24 October 1986, § 55, Series A no. 108; Denisova and Moiseyeva v. Russia, no. 16903/03, § 59, 1 April 2010; and B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi v. Slovenia, no. 42079/12, §§ 43-44, 17 January 2017)?
2. Did the applicant company have at its disposal an effective domestic remedy for its complaint about the peaceful enjoyment of its possessions under Article 1 of Protocol No. 1, as required by Article 13 of the Convention?
Full & Egal Universal Law Academy