CASE OF ÜNSPED PAKET SERVİSİ SAN. VE TİC. A.Ş. v. BULGARIA

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 forfeiture (for the relevant national law see paragraph 25 above).

29. The applicant company contested those submissions. In particular it pointed out in respect of the first argument that an appeal against the prosecutor’s refusal to release the lorry would have been pointless, given that the lorry was ultimately confiscated at the end of the criminal proceedings in a plea bargain agreement to which the applicant company was not party. In respect of the Government’s third argument above, the applicant company emphasised that although it did bring proceedings against the driver in Turkey and the relevant authorities found in its favour, it could not collect any money from the driver as the latter had no assets at the time (see paragraph 12 above).

2. The Court’s assessment

30. As regards the Government’s first objection on the ground of non-exhaustion, the Court notes that domestic law, in particular Article 111 of the Code of Criminal Procedure, provides for a single-instance judicial review of prosecutors’ refusals to release seized property items in pending criminal proceedings (see paragraph 23 above). The applicant company did not attempt to bring such proceedings following the prosecutor’s refusal of its request for return of the impounded property. The Court finds that this omission is of no consequence in the circumstances of the case, given that the applicant company’s complaint before the Court was about the lorry’s forfeiture which had been imposed with a final act at the end of the criminal proceedings against its driver. The legal possibility referred to by the Government might have only achieved the temporary release of the seized lorry to the applicant company, while the criminal proceedings were pending, but would not have affected the result of the criminal proceedings against the driver about which the applicant company complains. Those proceedings ended with a court-approved plea bargain agreement under the terms of which the lorry was forfeited with reference to the applicable criminal-law provision, Article 242 § 8 of the Criminal Code. Therefore, an appeal against the prosecutor’s refusal to release the property while the proceedings were pending cannot be considered an effective remedy in this case.

31. In respect of the Government’s second objection of non-exhaustion, the Court notes that under domestic law only the prosecutor or the convicted individual could seek the reopening of criminal proceedings, but not third parties (see paragraph 24 above). As to the Government’s suggestion that the applicant company, a third party to those proceedings, could have asked the prosecutor to seek to reopen the case with a view to the applicant company recovering its property, the Court notes that such a situation is hardly compatible with the Convention requirements of direct access to a court, given that reopening would have depended on the prosecutor’s will (see Stanev v. Bulgaria [GC], no. 36760/06, § 237, ECHR 2012). Consequently, this cannot be considered an effective remedy either.

32. Lastly, as regards the possibility of recovering the lorry’s value by bringing tort proceedings against the driver as advanced in the Government’s third argument, the Court notes that the applicant company did bring proceedings against the driver to attempt to recover the value of the forfeited lorry (see paragraph 12 above). Those proceedings were unsuccessful as the driver had no assets at the time. In any event, the Court notes that even in situations where the State confiscates the tools or proceeds of a crime, it can only deprive someone of their property in accordance with the requirements of Article 1 of Protocol No. 1 to the Convention, which include requisite procedural guarantees (see AGOSI v. the United Kingdom, 24 October 1986, § 55 and § 62, Series A no. 108, where the Court held that the applicable domestic procedures had to ensure either that reasonable account was taken of the behaviour of the applicant company or to afford it a reasonable opportunity to put its case; see also Phillips v. the United Kingdom, no. 41087/98, § 43, ECHR 2001‑VII, and Grayson and Barnham v. the United Kingdom, nos. 19955/05 and 15085/06, § 45, 23 September 2008). In the present case the State was at the origin of the confiscation and domestic law and practice did not provide for any procedure through which the applicant company could have its property rights defended. Consequently, the Court finds that the State cannot relieve itself of its responsibility under the Convention to provide for such a procedure by asking the person who was not tried for the criminal offence leading to the confiscation to seek recovery of their property from a third party.

33. The Court notes that the 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.

B. Merits

1. The parties’ submissions

34. The Government submitted that under the second paragraph of Article 1 of Protocol No. 1 to the Convention, States were entitled to control the use of property in accordance with the general interest by applying relevant laws. States had a wide margin of appreciation in that connection. The geographical location of Bulgaria as a route for drug trafficking in the Balkans and the country’s European Union obligations were determinative for the State policy on fighting this illicit trade. The high degree of danger for society from drug smuggling explained the extension of civil liability associated with the crime of smuggling to property belonging to third persons. The application of Article 242 § 8 of the Criminal Code in the present case was lawful, justified and proportionate to the aim pursued.

35. The applicant company reiterated its claim that the forfeiture of its lorry breached its property rights.

2. The Court’s assessment

(a) General principles

36. According to the well-established case-law of the Court, Article 1 of Protocol No. 1 to the Convention comprises three distinct rules. The first rule, which can be found in the first sentence of the first paragraph and which is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that States are entitled to control the use of property in accordance with the general interest or to enforce laws to secure, among other things, the payment of penalties. The Court has repeatedly held that the second and third rules must be construed in the light of the general principle laid down in the first rule (see, among many authorities, AGOSI v. the United Kingdom, 24 October 1986, § 48, Series A no. 108; Air Canada v. the United Kingdom, 5 May 1995, § 30, Series A no. 316‑A; Bowler International Unit v. France, no. 1946/06, § 35, 23 July 2009).

37. The Court reiterates that under Article 1 of Protocol No. 1 any interference by a public authority with the peaceful enjoyment of possessions has to be lawful (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II). This means first that the measures should have a basis in domestic law. It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned, precise and that the consequences of its application be foreseeable (see Beyeler v. Italy [GC], no. 33202/96, § 109, ECHR 2000-I). The requirement of “lawfulness” within the meaning of the Convention also demands compatibility with the rule of law which includes freedom from arbitrariness (see East West Alliance Limited v. Ukraine, no. 19336/04, § 167, 23 January 2014).

38. Furthermore, any interference with peaceful enjoyment of possessions must strike a “fair balance” between the general interests of the community and the protection of an individual’s fundamental rights. Where possessions which have been used unlawfully are confiscated, such a balance depends on many factors, which include the property owner’s behaviour (see Yildirim v. Italy (dec.), no. 38602/02, 10 April 2003). In such cases the national authorities are called upon to consider the property owner’s degree of fault or care, or at least the relationship between his or her conduct and the offence (see Yildirim, cited above). In addition, although Article 1 of Protocol No. 1 contains no explicit procedural requirement, it has been construed to necessitate that persons affected by a measure interfering with their possessions be afforded a reasonable opportunity to put their case to the responsible authorities for the purpose of effectively challenging those measures, pleading, as the case might be, illegality or arbitrary and unreasonable conduct (see Yildirim, cited above; see also AGOSI, cited above, pp. 18-19, §§ 54-55, and pp. 20-21, §§ 58-60, and Air Canada, cited above, p. 18, § 46; see also, mutatis mutandis, Arcuri and Others v. Italy (dec.), no. 52024/99, ECHR 2001-VII, and Riela and Others v. Italy (dec.), no. 52439/99, 4 September 2001). In ascertaining whether the above condition has been satisfied, the Court must take a comprehensive view of the applicable procedures (see AGOSI, cited above, § 55, Series A no. 108; Bowler International Unit v. France, no. 1946/06, §§ 44‑45, 23 July 2009; Jokela v. Finland, no. 28856/95, § 45, ECHR 2002‑IV; Denisova and Moiseyeva v. Russia, no. 16903/03, § 59, 1 April 2010). The requisite balance will not be found if the person concerned has had to bear an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69 and 73, Series A no. 52).

(b) Application of these principles to the present case

(i) Whether there has been an interference

39. It is not in dispute between the parties that the confiscation of the applicant company’s lorry represented an interference with the applicant company’s property rights under Article 1 of Protocol No. 1 to the Convention. However, the parties disagreed as to whether that constituted deprivation of property under the first paragraph of Article 1 of Protocol No. 1 or control on the use of property under the second paragraph of that provision.

40. The Court considers that there is no need to resolve this issue because the principles governing the question of justification are substantially the same, involving as they do the need for the interference to be lawful and in the public interest, and to strike a fair balance between the demands of the general interest and the applicant company’s rights (see, for a similar approach, Denisova and Moiseyeva, cited above, § 55).

(ii) Whether the interference was justified

41. Examining whether the interference in the present case complied with the Convention requirement of “lawfulness”, the Court observes that the confiscation was the result of the application of domestic law, specifically Article 242 § 8 of the Criminal Code (see paragraph 16 above). According to this provision and its interpretation by the domestic courts (see paragraphs 16, 18, 19 and 20 above), a vehicle which had served for the commission of the offence of trafficking was confiscated unless its value manifestly did not correspond to that of the drugs. On the basis of its text and related judicial practice the Court accepts that the relevant legal provision can be said to be sufficiently accessible, precise and foreseeable.

42. As to the manner in which the national court applied that legal provision, the Court notes that although it can and should exercise a certain power of review in this matter since failure to comply with domestic law entails a breach of Article 1 of Protocol No. 1, the scope of its task is subject to limits inherent in the subsidiary nature of the Convention; in that sense the Court cannot question the way in which domestic courts have interpreted and applied national law, except in cases of flagrant non-observance or arbitrariness (see Microintelect OOD v. Bulgaria, no. 34129/03, § 39, 4 March 2014). It notes in this connection that in the present case the value of the lorry – about EUR 83,000 as established in an expert report during the criminal proceedings against the driver – was over three times higher than the value of the smuggled drugs (the latter having been estimated at about EUR 27,000). Even though the applicant company asked the court hearing the case not to confiscate the lorry, referring specifically to this legal provision (see paragraph 10 above), the national court did not respond to that request. Indeed, it does not appear that the national court assessed at any point in time whether the value of the vehicle significantly exceeded that of the smuggled drugs, although this was a requirement in domestic law.

43. The Court does not consider it necessary to rule on the question of lawfulness because, in any event, it finds that the confiscation of the applicant company’s lorry is incompatible with Article 1 of Protocol No. 1 to the Convention on other grounds (see for the same approach in the context of other Convention provisions requiring proportionality of the interference with the aim pursued, Funke v. France, 25 February 1993, § 51, Series A no. 256‑A; Manoussakis and Others v. Greece, judgment of 26 September 1996, Reports of Judgments and Decisions 1996‑IV, p. 1362, § 38). The Court will examine the applicant’s complaints that the domestic legislation did not meet the Convention “fair balance” requirements from the perspective of whether the interference was necessary for the achievement of the legitimate aim pursued (see for a similar approach Microintelect, cited above, § 39, in which the applicant owned confiscated alcohol and had no available procedure to have its case heard; see also, mutatis mutandis, Yordanova and Others v. Bulgaria, no. 25446/06, § 108, 24 April 2012).

44. The Court agrees with the Government that the confiscation pursued a legitimate aim in the public interest – that of fighting illegal drug trafficking (see, mutatis mutandis, on the point of the aim pursued with the confiscation order procedure under UK law in the context of fighting drug trafficking, Phillips v. the United Kingdom, no. 41087/98, § 52, ECHR 2001‑VII).

45. Assessing whether there was a reasonable relationship of proportionality between the confiscation and the aim sought to be realised, the Court observes that the national courts did not consider the legality of the confiscation under national law (see paragraph 42 above). Nor did they examine the conduct of the confiscated lorry’s owner or the relationship between the conduct of the latter and the offence. There is no evidence before this Court suggesting that the owner could or should have known of an offence being committed and the owner was clearly not given an opportunity to put its case. Indeed, a possibility for such an examination was not provided for in domestic law, yet it was necessary under the Convention so that the authorities could assess the proportionality of the confiscation (see paragraph 38 above). Consequently, the absence of such an analysis by virtue of the applicable law did not allow to strike a “fair balance” between the different interests involved.

46. Finally, and most importantly, the Government did not suggest that the confiscation was carried out according to a procedure in which the applicant company could put its case to the national authorities, or that indeed such a procedure existed at all at national level. Since the applicant company was not a victim of the offence, but a third party affected by the criminal proceedings against the driver, there was no basis for it to intervene in those proceedings. The Court considers that forfeiture would only have complied with the Convention requirements if it were carried out in accordance with a procedure offering appropriate safeguards against arbitrariness (compare and contrast the present case with Phillips, cited above, § 43, where the Court found that the confiscation order procedure was compatible with the Convention requirements of “fair trial” and “peaceful enjoyment of possessions” as it was decided by a court in judicial proceedings which included a public hearing, advance disclosure of the prosecution’s case and an opportunity for the applicant to adduce documentary and oral evidence; contrast it also with AGOSI, cited above, § 62, where the Court held that the British system ensured that reasonable account was taken of the behaviour of the applicant company and afforded it a reasonable opportunity to put its case). The Court refers in this connection also to its conclusion in Hentrich, cited above, § 49, where it found that the applicant “bore an individual and excessive burden which could have been rendered legitimate only if she had had the possibility – which was refused to her – of effectively challenging the measure taken against her ... and that the fair balance which should be struck between the protection of the right of property and the requirements of the general interest was therefore upset”. As pointed out above, in the present case there was no procedure available domestically to the applicant company to put its case before the relevant authorities.

47. In the light of the foregoing considerations, the Court finds that the applicant company bore an individual and excessive burden which could have been rendered legitimate only if it had had the opportunity to challenge effectively the forfeiture of its property resulting from the criminal proceedings to which it was not a party; however, the applicant company had no such opportunity and therefore the fair balance which should be struck between the protection of the applicant’s right to property and the requirements of the general interest was upset, in violation of Article 1 of Protocol No. 1 to the Convention (see, similarly, Denisova and Moiseyeva, cited above, § 64, and Microintelect OOD v. Bulgaria, no. 34129/03, § 47 last sentence and § 49, 4 March 2014).

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

48. The applicant company complained that it did not have access to a court in order to put its case asserting its property rights. The company relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by a ... tribunal ...”

49. The Government did not point to any domestic procedure under which the applicant company could seek to assert its property rights in court. Neither did they attempt to explain or justify this lack of access to a court, other than with reference to the seriousness of the offence in relation to which the lorry was confiscated.

50. The Court notes that this complaint is linked to the one examined above and must likewise be declared admissible.

51. Having regard to the finding related to Article 1 of Protocol No. 1 to the Convention (see paragraphs 46 and 47 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 6 § 1 (see, for a similar approach, Bowler International Unit, §§ 62 and 63, and Microintelect, § 54, both cited above).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

52. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

Damage

53. The applicant company claimed EUR 110,116.75 in respect of pecuniary and non-pecuniary damage, without specifying further details. In particular, it submitted a document showing that this was the amount of damage which the Istanbul Enforcement Office found in December 2011 that the driver had caused the applicant company by provoking with his actions the forfeiture of its lorry (see paragraph 12 above).

54. The Government submitted that this sum was excessive. They further specified that the expert valuation of the market value of a comparable lorry, used during the domestic criminal proceedings against the driver, was EUR 83,000. They also pointed out that any just satisfaction had to take into account any adverse consequences to the applicant as a result solely of the violation found and should not exceed the amount of satisfaction in similar cases.

55. The Court considers that this question is not ready for decision. Accordingly, it shall be reserved and the subsequent procedure fixed having regard to any agreement which might be reached between the parties (Rule 75 § 1 of the Rules of Court).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

3. Holds that there is no need to examine the complaint under Article 6 § 1 of the Convention;

4. Holds that the question of the application of Article 41 of the Convention is not ready for decision and accordingly:

(a) reserves the said question in whole;

(b) invites the parties to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;

(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.

Done in English, and notified in writing on 13 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıGuido Raimondi
Deputy RegistrarPresident

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