CASE OF ÇOBANTUR TURİZM TİCARET VE NAKLİYAT LTD. ŞTİ. v. SERBIA

THIRD SECTION

CASE OF ÇOBANTUR TURİZM TİCARET VE NAKLİYAT LTD. ŞTİ. v. SERBIA

(Application no. 32398/19)

JUDGMENT
 

STRASBOURG

24 June 2025

This judgment is final but it may be subject to editorial revision.

In the case of ÇOBANTUR TURİZM TİCARET VE NAKLİYAT LTD. ŞTİ. v. Serbia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

 Darian Pavli, President,
 Úna Ní Raifeartaigh,
 Mateja Đurović, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 32398/19) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 June 2019 by a Turkish company, Çobantur Turizm Ticaret ve Nakliyat Ltd. Şti. (“the applicant company”), represented by Mr S. Duran, a lawyer practising in Istanbul;

the decision to give notice of the application to the Serbian Government (“the Government”), represented by their Agent, Ms Z. Jadrijević Mladar;

the decision to dismiss the Government’s objection to the examination of the application by a Committee;

the decision of the Government of Türkiye not to avail themselves of their right to intervene in the proceedings under Article 36 § 1 of the Convention and the decision of the President of the Section to invite the Government of Türkiye to submit factual information under Rule 44A of the Rules of Court;

the parties’ observations;

Having deliberated in private on 3 June 2025,

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

SUBJECT MATTER OF THE CASE

1.  The present application concerns the seizure and confiscation of the applicant company’s vehicle in criminal proceedings, allegedly in breach of Article 1 of Protocol No. 1 to the Convention.

2.  On 5 August 2016 the applicant company’s heavy-duty vehicle was seized after the Serbian border police discovered that it had been used to transport illegal migrants. On 21 March 2017 the Sremska Mitrovica High Court, by a final judgment, sentenced the driver of the vehicle to imprisonment for the offence of illegal crossing of the State border and trafficking in human beings under Article 350 § 2 of the Serbian Criminal Code (SCC) and ordered the confiscation of the vehicle. The applicant company was not prosecuted in either Serbia or Türkiye. The Government of Türkiye further informed the Court that the applicant company had neither sought compensation from the driver in Türkiye nor recovered the vehicle’s monetary value through insurance.

3.  The applicant company participated in the criminal proceedings as an injured party and contested the confiscation. It argued that it had neither participated in nor had prior knowledge of the offence and that the vehicle had not been modified to conceal illegal migrants. However, the domestic courts held that, under Articles 87 and 350 of the SCC, any vehicle used in the commission of a crime must be confiscated, as such a measure is mandated by law, irrespective of the owner’s involvement. As a result, the vehicle became public property of the respondent State.

4.  On 17 January 2019 the Constitutional Court dismissed the applicant company’s constitutional complaint, in which it alleged violations of its rights to a fair trial and the right to the respect of its property.

5.  The applicant company subsequently complained before the Court, under Article 1 of Protocol No. 1, that the domestic authorities had applied the law arbitrarily, failing to consider its good faith and property rights. The applicant company contended that the disputed confiscation was neither fair nor proportionate.

THE COURT’S ASSESSMENT

6.  The Court considers that the applicant company’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

7.  The general principles concerning confiscation measures implemented in relation to a possession used in the commission of an offence have been summarized in, for example, B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi v. Slovenia (no. 42079/12, §§ 35-53, 17 January 2017).

8.  In the present case, the Court observes that the seizure and confiscation of the applicant company’s vehicle undoubtedly constituted an interference with its property rights. Furthermore, no issue arises with the requirement of lawfulness or the legitimate aim of that measure. The only remaining salient point is thus its proportionality. Notably, the Court must consider whether the applicable procedures in the present case were such as to enable reasonable account to be taken of the degree of fault or care attributable to the applicant company or, at least, of the relationship between the company’s conduct and the breach of the law which undoubtedly occurred; and also whether the procedures in question afforded the applicant company a reasonable opportunity of putting its case to the responsible authorities (ibid. § 43).

9.  The applicant company sought to recover its vehicle and, to this end, challenged its confiscation in the criminal proceedings against the driver and before the Constitutional Court. However, the domestic courts, including the Constitutional Court, interpreted the relevant domestic legislation as entailing mandatory confiscation of any vehicle used for committing a criminal offence, regardless of the diligence and good faith displayed by the owner. Consequently, despite having the opportunity to present its case before the competent authorities and there being no indication that it was involved in the offence, aware of the driver’s illegal activities, or negligent in maintaining regular vehicle inspections, the applicant company had no effective means of securing the return of its vehicle. The relevant domestic legislation and practice thus took no account of the relationship between the applicant company’s conduct and the offence (see Vasilevski v. the former Yugoslav Republic of Macedonia, no. 22653/08, § 57, 28 April 2016).

10.  Accordingly, the Court cannot accept the Government’s argument that the indiscriminate nature of the measure was sufficiently mitigated by the applicant company’s opportunity to present its case before the domestic courts.

11.  Moreover, the Court cannot accept the Government’s argument that the applicant company had an effective opportunity to obtain compensation for its pecuniary loss by seeking it from the driver convicted of smuggling human beings, who was the party responsible for the damage the company sustained. In a similar situation the Court has previously held that a compensation claim of this nature entailed further uncertainty for a bona fide owner of confiscated property because the offender might be found to be insolvent. The compensation claim was not held to offer bona fide owners sufficient opportunity for bringing their cases before the competent national authorities (see Vasilevski, cited above, § 59). The general nature of the argument adduced by the Government does not provide a sufficient basis for the Court to depart from its above-mentioned findings.

12.  In the light of the above considerations, the Court takes the view that mandatory confiscation of the applicant company’s vehicle, coupled with the lack of a realistic opportunity to obtain compensation for its loss, did not take sufficient account of the applicant company’s property interests. The Court therefore finds that in the present case a fair balance has not been struck between the demands of the general interests of the public and the applicant company’s right to peaceful enjoyment of its possessions and that the burden placed on the applicant company was excessive.

13.  It follows that there has been a violation of Article 1 of Protocol No. 1.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  The applicant company claimed in the application form certain amounts in respect of pecuniary and non-pecuniary damage as well as costs and expenses incurred domestically and before the Court. It made no claim in this regard in its observations.

15.  The Government contended that the applicant company had failed to formulate a claim for just satisfaction in line with the requirements of Rule 60 of the Rules of Court.

16.  The Court reiterates that an applicant who wishes to obtain an award of just satisfaction must make a specific claim to that effect (Rule 60 § 1 of the Rules of the Court). While the Court is, even in the absence of a properly submitted claim, empowered to afford just satisfaction, this applies only in respect of non-pecuniary damage and in exceptional circumstances (see Nagmetov v. Russia [GC], no. 35589/08, §§ 74-82, 30 March 2017). The Court does not discern any exceptional circumstance which could have required it to make an award in respect of non-pecuniary damage in the present case (see Künsberg Sarre v. Austria, nos. 19475/20 and 3 others, § 80, 17 January 2023). It therefore makes no award under Article 41.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 24 June 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova Darian Pavli
 Deputy Registrar President