CASE OF VUKOVIĆ v. CROATIA

FIRST SECTION

CASE OF VUKOVIĆ v. CROATIA

(Application no. 47880/14)

JUDGMENT

STRASBOURG

15 November 2018

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

In the case of Vuković v. Croatia,

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

Armen Harutyunyan, President,
Ksenija Turković,
Pauliine Koskelo, judges,
and Abel Campos, Section Registrar,

Having deliberated in private on 23 October 2018,

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

PROCEDURE

1. The case originated in an application (no. 47880/14) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Miroslav Vuković (“the applicant”), on 24 June 2014.

2. The applicant was represented by Ms Lj. Planinić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant complained in particular, under Article 1 of Protocol No. 1, that he had sustained damage on account of the prolonged retention of his car in inadequate storage conditions after it had been seized by the police and that the domestic courts had refused to award him compensation for the damage caused.

4. On 17 October 2016 the application was communicated to the Government.

5. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1953 and lives in Zagreb.

A. Background to the case

7. On 21 July 2000 the police temporarily seized the applicant’s vehicle, which had Canadian number plates, suspecting that it had been stolen by an unknown perpetrator.

8. On 24 July and 1 September 2000 police experts examined the car and established that its vehicle identification number (VIN) was genuine.

9. In the meantime, on 21 July 2000 the police asked the Canadian Interpol office to check whether the applicant’s car and two other vehicles were being sought by the police in Canada, under whose name they had been registered, whether they had been registered for export, and whether the car documents were genuine.

10. On 29 December 2000 the police asked the Zagreb State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) to decide on the status of the vehicle.

11. On 23 March 2001 the Zagreb State Attorney’s Office instructed the police to ask for the relevant information from the Canadian Interpol office.

12. On 18 March 2002 the police asked the Canadian Interpol office to expedite the handling of their request for information.

13. According to the available data, the Canadian Interpol office did not respond to the request of the police.

14. By a decision of 2 May 2002 the Zagreb State Attorney’s Office ordered that the car be returned to the applicant, whereupon, on 7 May 2002, the police did so.

B. Civil proceedings

15. On 22 July 2003 the applicant brought a civil action for compensation against the State in the Zagreb Municipal Court (Općinski sud u Zagrebu). He argued that the car had been returned to him in a state of disrepair because it had not been stored properly and, in any event, it had fallen in value during the two years it had been kept by the police, which had been an unreasonably long period. He sought 55,275.95 Croatian kunas (HRK; approximately 7,126 euros (EUR) at the relevant time) in compensation.

16. The opinion of an expert obtained by the court during the proceedings suggested that the cost of repairing the applicant’s car amounted to HRK 35,275.95 and that its value had dropped by HRK 22,000.

17. By a judgment of 16 December 2008 the Municipal Court dismissed the applicant’s civil action. Its decision was upheld on 30 June 2009 by the Zagreb County Court (Županijski sud u Zagrebu).

18. The courts held that the temporary seizure of the applicant’s car had been lawful as it had been based on Articles 177, 184 and 218 of the Code of Criminal Procedure, and that therefore the State could not be held liable for damages.

19. The applicant then concurrently lodged an extraordinary appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) and a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske).

20. In his appeal on points of law the applicant asked the Supreme Court to pronounce itself on a legal question which he considered important for the uniform application of the law, namely, whether the owners of objects temporarily seized for the purposes of criminal proceedings were entitled to compensation for the inability to use those objects, in a situation where, eventually, no criminal or minor-offence proceedings had been instituted.

21. In his constitutional complaint the applicant argued that the judgments of the first and second-instance courts had been in breach of his right of ownership, guaranteed by Article 48 of the Croatian Constitution.

22. By a decision of 21 February 2012 the Supreme Court declared the applicant’s appeal on points of law inadmissible, finding that the legal question he had raised was not important for the uniform application of the law.

23. On 23 January 2014 the Constitutional Court dismissed the applicant’s constitutional complaint and served its decision on his representative on 7 February 2014. The court examined the case primarily under Article 29 § 1 of the Croatian Constitution, which guarantees the right to fair procedure, and held that the contested judgments had not been arbitrary. As regards the applicant’s argument that his right of ownership guaranteed by Article 48 of the Constitution had been violated, the Constitutional Court held as follows:

“The Constitutional Court protects the right of ownership at the constitutional level in a manner that prevents any restriction or taking of [property] by the State authorities, unless the restriction or taking is provided for by law ...

... interferences with ownership by other legal subjects (natural or legal persons) are property disputes of a private-law nature. The Constitutional Court also examines such decisions by judicial and other authorities if it finds that the contested decision, having regard to the protection of human rights and fundamental freedoms guaranteed by the Constitution, is based on an unacceptable legal view or is so wrong and lacking in sound legal reasoning that it can be described as arbitrary.

The Constitutional Court did not find any such circumstances in the complainant’s case.

Therefore, the complainant’s right of ownership guaranteed by Article 48 of the Constitution was not breached by the contested judgments.”

II. RELEVANT DOMESTIC LAW

24. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette no. 110/1997 with subsequent amendments), which was in force at the relevant time, read as follows:

Article 137

“...

(3) Objects which may be used as evidence shall temporarily be seized and, upon the termination of the proceedings, returned to their owner. If such an object is indispensable to the owner, it may be returned to him or her even before the termination of the proceedings, under an obligation to present it upon request.”

Article 177

“(1) If there are grounds for suspicion that a criminal offence subject to public prosecution has been committed, the police authorities shall take measures required to identify the perpetrator ... [and] discover and secure ... any objects which may be used as evidence ...”

Article 184

“(1) If there is a risk of delay, the police authorities may, even before the commencement of an investigation, temporarily seize objects in accordance with Article 218 of this Code ...”

Article 218

“(1) Objects which have to be confiscated pursuant to the Criminal Code, or which may be used as evidence in criminal proceedings, shall be temporarily seized and, by a judicial decision, deposited for safekeeping.

...

(5) The police authorities may seize objects referred to in subparagraph (1) above ... when acting under Articles 177 and 184 § 1 of this Code or when executing a court order.”

25. The relevant provision of the State Administration Act (Zakon o sustavu državne uprave, Official Gazette no. 75/1993, with subsequent amendments), which was in force at the relevant time, provided as follows:

Section 13

“The Republic of Croatia shall be liable to compensate damage caused to a citizen, legal entity or other party by unlawful or wrongful conduct on the part of a State administration body, or a body of local self-government or administration ...”

26. Section 428a of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette no. 53/1991, with further amendments) provides for a possibility of reopening civil proceedings on the basis of a Court judgment finding a violation of the Convention. In the reopened proceedings, the domestic courts are required to respect the legal opinions expressed in the Court’s judgment.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

27. The applicant complained that he had sustained damage on account of the prolonged retention of his car in inadequate storage conditions after it had been seized by the police and that the domestic courts had refused to award him compensation for the damage caused. He relied on 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 proceeding 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.”

28. The Government contested that argument.

A. Admissibility

1. The parties’ submissions

29. The Government contested the existence of a sufficiently established claim in respect of the damage caused by the seizure and retention of the applicant’s car falling under Article 1 of Protocol No. 1. In their view, the domestic courts had been unable to establish the alleged damage caused to the applicant’s vehicle as he had previously sold the vehicle and there had been no information about its condition either at the time it had been seized or at the time it had been returned.

30. The applicant contended that the damage caused to the vehicle had been sufficiently established by an expert report, which the domestic courts had accepted during the proceedings.

2. The Court’s assessment

31. The Court notes that the central element of the applicant’s grievances concerns the adverse consequences of the seizure of his vehicle by the State authorities. It further notes that at the time of the seizure the applicant was registered as the owner of the vehicle and that the vehicle was held by the authorities for nearly two years before it was returned to his possession (see paragraphs 7 and 14 above). According to the expert report, which the domestic courts did not put into doubt, the applicant sustained damage as a result of the seizure of his vehicle (see paragraph 16 above).

32. In view of those considerations, the Court finds that in relation to the matters complained of by the applicant, he had sufficiently established proprietary interests falling under Article 1 of Protocol No. 1. The Government’s objections should therefore be dismissed.

33. The Court further notes that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

34. The applicant stressed that all the elements normally sufficient to establish the State’s liability to compensate him for the damage caused to his vehicle had been established. However, his claim had been dismissed solely on the grounds that the seizure had not been unlawful. At the same time, the domestic courts had failed to take into account the other circumstances related to the seizure and unreasonably lengthy retention of his vehicle.

35. The Government argued that the seizure and retention of the applicant’s vehicle had been lawful and that it had pursued a legitimate aim, namely the investigation and prosecution of crime. Moreover, it had been necessary to seize the applicant’s vehicle because there had been a suspicion that the vehicle had been obtained through a criminal offence. The Government pointed out that the applicant had failed to prove in the civil proceedings that the police had acted unlawfully or inappropriately regarding the safekeeping of his vehicle. Thus, there had been no basis on which to award him any damages. In the Government’s view, the seizure and retention of the vehicle had also been proportionate as it had been very important to investigate the offence in question. The Government also considered that the domestic authorities had promptly taken all the necessary measures to investigate the offence and that the retention of the vehicle had not been unreasonable.

2. The Court’s assessment

36. There is no doubt that the seizure and retention of the applicant’s vehicle – eventually resulting in the reduction of its value, which the domestic authorities refused to compensate him for – amounted to an interference with his right to peaceful enjoyment of his possessions. The Court finds that the interference in question constituted control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see Borzhonov v. Russia, no. 18274/04, § 57, 22 January 2009, with further references).

37. The Court accepts that the interference was lawful as it was based on Article 218 §§ 1 and 5 of the Code of Criminal Procedure (see paragraph 24 above). The Court also accepts that the interference pursued a legitimate aim in the general interest, namely to provide and safeguard objects which may be used as evidence in criminal proceeding.

38. It remains to be examined whether the interference was proportionate (see, for instance, Borzhonov, cited above, § 59, and Novikov v. Russia, no. 35989/02, §§ 44-45, 18 June 2009).

39. In this connection, the Court would stress that although the seizure of the applicant’s vehicle is not in itself open to criticism, having regard in particular to the margin of appreciation permitted under the second paragraph of Article 1 of Protocol No. 1, it carries with it the risk of imposing on him an excessive burden in terms of his ability to dispose of his property and must accordingly provide certain procedural safeguards so as to ensure that the operation of the system and its impact on an applicant’s property rights are neither arbitrary nor unforeseeable. Furthermore, while any seizure or confiscation entails damage, the actual damage sustained should not be more extensive than that which is inevitable, if it is to be compatible with Article 1 of Protocol No. 1 (see Džinić v. Croatia, no. 38359/13, § 68, 17 May 2016). When the authorities seize property as physical evidence, the possibility should exist in domestic legislation to initiate proceedings against the State and to seek compensation for any damage resulting from the authorities’ failure to keep the property safe and in reasonably good condition (see Novikov, cited above, § 46, with further references).

40. In the case at issue, the applicant’s vehicle was seized in the context of a criminal investigation against an unknown perpetrator and that the intention of the seizure was to establish whether the vehicle had been stolen. That seizure resulted from the application of Article 218 § 5 of the Code of Criminal Procedure, which provided for the mandatory seizure of objects that could be used as evidence in criminal proceedings. That provision was applicable irrespective of whether the objects at issue were owned by the offender or a third party, and irrespective of the third party’s behaviour or relation to the offence.

41. The applicant’s vehicle was retained by the authorities for almost two years without a final determination of the question whether it had been stolen. It is true that this was primarily due to the failure of the Canadian authorities to react to a request sent to them through Interpol. However, the Court sees no reason to examine the background of the possible reasons for those delays since, even taking into account the communication problems with the Canadian authorities, the primary responsibility for the delays rests ultimately with the State (see, mutatis mutandis, Dervishi v. Croatia, no. 67341/10, § 141, 25 September 2012).

42. Following the applicant’s civil action seeking compensation for the damage caused to his vehicle as a result of its prolonged retention in inadequate conditions, the domestic courts in the civil proceedings limited their assessment to the matter of the lawfulness of the seizure and retention, without taking the above-noted considerations into account. They also failed to examine the proportionality of the impugned measure and its effects on the applicant’s property rights, as required under Article 1 of Protocol No. 1 (see paragraph 41 above).

43. In these circumstances, the decisions of the civil courts refusing compensation for the impugned seizure failed to demonstrate adequately that the requirement of “fair balance” inherent in the second paragraph of Article 1 of Protocol No. 1 was satisfied (compare Novikov, cited above, § 51).

44. The foregoing considerations are sufficient to enable the Court to conclude that in the circumstances of the applicant’s case there has been a violation of Article 1 of Protocol No. 1.

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

45. The applicant complained of a violation of his right to a fair trial. He relied on Article 6 § 1 of the Convention.

46. Having regard to the facts of the case, the submissions of the parties and its above finding under Article 1 of Protocol No. 1, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the remaining complaints (see, among other authorities, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014; see also Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

47. 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.”

A. Damage

48. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage. He also asked the Court to order the reopening of the domestic proceedings or, alternatively, to award him 55,275 kunas (HRK), plus statutory default interest of HRK 140,712.17, in respect of pecuniary damage.

49. The Government considered the applicant’s claim unsubstantiated and unfounded.

50. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences. If national law does not allow – or allows only partial – reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, §§ 32-33, ECHR 2000-XI). In this connection, the Court notes that the applicant can now file a petition under section 428a of the Civil Procedure Act (see paragraph 26 above) with the relevant civil court for the reopening of the civil proceedings.

51. Given the essentially procedural nature of the violation found (see paragraphs 43-33 above), the Court finds that it cannot speculate as to the extent of damage caused to the applicant’s vehicle since that matter was not the subject of the domestic proceedings. It therefore considers in the present case that the most appropriate form of redress would be, as suggested by the applicant himself, to reopen the proceedings complained of in due course, if the applicant so requested (compare Vrbica v. Croatia, no. 32540/05, § 84, 1 April 2010). Accordingly, the Court considers that it is not necessary to make an award in respect of pecuniary damage.

52. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage which is not sufficiently compensated by the finding of a violation. Ruling on an equitable basis, it awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.

B. Costs and expenses

53. The applicant claimed HRK 22,436.10 for the costs and expenses incurred before the domestic courts and HRK 16,625 for those incurred before the Court (in total approximately EUR 5,290). He also claimed HRK 6,000 (approximately EUR 810) for the costs and expenses he had been obliged to pay to the State following the dismissal of his civil action.

54. The Government contested this claim.

55. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum claimed (EUR 6,100) for costs and expenses in the domestic proceeding, as well as for the proceeding before the Court, plus any tax that may be chargeable.

C. Default interest

56. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

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 rule separately on the complaint under Article 6 § 1 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 6,100 (six thousand one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel CamposArmen Harutyunyan
RegistrarPresident

 

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