Communicated on 18 November 2014
THIRD SECTION
Application no. 64863/13
Kadir DIKMEN and Erol YASAR
against Romania
lodged on 7 October 2013
STATEMENT OF FACTS
1. The applicants, Mr Kadir Dikmen and Mr Erol Yasar, are Turkish nationals, who live in Istanbul and Cayirli respectively. They are represented before the Court by Mr M. I. Lieanu, a lawyer practising in Bucharest.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On 2 April 2010, the first applicant was sailing with his crew on the Black Sea on a vessel rented from the second applicant. The Romanian coast guard asked them to stop at a distance of approximately 42 nautical miles from Sf. Gheorghe and 68 nautical miles from Gura Portiţei. Since the crew initially refused to stop, the Romanian guard legally summoned them, by threatening to open fire. The crew obeyed the order to stop and the vessel was subsequently subjected to border control. Further to the search conducted on the deck of the vessel, the coast guard did not find any fish, but found unauthorized fishing equipment which showed signs of having been recently used. They further ascertained that the vessel was not authorized to perform fishing activities in the Romanian exclusive economic zone in the Black Sea, that the first applicant did not have a fishing permit and that the vessel did not possess a fishing journal in which the fishing activities should have been mentioned. It seemed that the activities had been ordered by the first applicant as commander of the vessel and performed by the members of the crew, without the latter being aware of the non-fulfilment of the legal fishing requirements and the illegal display of the Romanian flag. The vessel was escorted to the Constanţa harbour and the goods and the vessel were seized. According to the second applicant, the value of the vessel was EUR 800,000 (eight hundred thousand euros), being equipped with new Volvo type engines and electronic maps of latest technology. The crew was accused of having committed criminal offences relating to the fishing regime in the Romanian territorial waters.
4. By a bill of indictment of 9 June 2010, the first applicant was sent to trial before the Constanţa Court of First Instance for having committed the criminal offences sanctioned by Article 64 letters a) and k) and Article 65 (1) letter b) of Emergency Government Ordinance no. 23/2008 on fishing and aquaculture (“EGO 23/2008”) since it was held that he did not hold a fishing permit for the vessel, that he possessed and used fishing equipment without authorisation and that he illegally displayed the Romanian flag.
5. By a judgment of 13 July 2011, the Constanţa Court of First Instance sentenced the first applicant to two years’ imprisonment with conditional stay of execution, following a simplified procedure further to his acknowledging of his guilt (article 3201 (7) of the Romanian Criminal Procedure Code). It further ordered the seizure of the fishing equipment and ordered the return of the vessel to the second applicant since there was no clear evidence that the first applicant had used the vessel in Romanian territorial waters with the second applicant’s knowledge.
6. The Prosecutor’s Office attached to the Constanţa Court of First Instance (the “Prosecutor’s Office”) lodged an appeal on points of law (recurs) against this judgment, stating that the first applicant should also be sentenced to the payment of a fine of 6,000 Romanian lei (RON) due to his prior criminal sanctioning for criminal offences relating to the fishing regime and that the second applicant’s vessel should be seized as a safety measure as per Article 66 of EGO 23/2008.
7. By a final judgment of 30 March 2012, the Constanţa Court of Appeal allowed the Prosecutor’s Office’s appeal on points of law, partially quashed the lower court’s judgment, rejected the request to impose a criminal fine in relation to the first applicant and ordered the re-examination of the case by the lower court only in respect of the measure of special confiscation of the second applicant’s vessel, with the latter’s summoning, since such a measure might substantially affect his patrimony.
8. By a judgment of 8 April 2013, the Constanţa Court of First Instance ordered the confiscation of the vessel belonging to the second applicant, relying on Article 66 of EGO 23/2008. It noted that due to the length of the fishing nets deployed in deep seas, the vessel had been necessarily used to commit the criminal offence of illegal fishing for which the first applicant had been convicted and that without the vessel the fishing activity in the Black Sea would not have been possible. It held that it was of no relevance whether the second applicant had been aware of the purpose of the use of the vessel by the first applicant, since Article 66 of EGO 23/2008 did not condition the imposition of the measure on the subjective attitude of the owner of the vessel, in case the latter did not coincide with the perpetrator, being widely known the principle according to which the special norm departs from the general norm.
9. The applicants appealed against this judgment. They contested the imposition of the special confiscation measure and invoked the provisions of Article 118 (1) letter b) of the Romanian Criminal Code which stated that the items used to commit a criminal offence should not be confiscated if they belonged to another person than the perpetrator and the latter was not aware of the purpose of their use. They stated that the vessel and the fishing equipment were the second applicant’s property and that the latter had not been aware of the use made of the rented items by the first applicant in the Romanian exclusive economic zone. They also disputed the definition of such a zone since in the absence of a specific regulation in the United Nations Convention on the Law of the Sea, it should have been decided upon by the incumbent coastal States, which had not happened in the present case. They further invoked Article 118 (6) of the Romanian Criminal Code which provided that the goods that served to ensure the subsistence or were used for the exercise of the profession should not be confiscated. The second applicant stated that he derived his only income from the rental of and the fishing with the vessel. He argued that the confiscation of the vessel was disproportionate with the nature and the gravity of the offence, given the important value of the vessel and the absence of any proven damage. He stated that the special confiscation measure should be applied when the goods would serve for a potential indemnification, based on a judgment delivered by the Constanţa Court of Appeal (judgment no. 717/16 September 2003). The second applicant claimed that in the present case there had been no prejudice and no civil or prejudiced parties joined their complaints to the proceedings. He further invoked the previous case-law of the Constanţa Court of Appeal (judgment no. 963/18 October 2011 and judgment no. 1017/3 November 2011) which, in similar cases, if the special confiscation measure were applicable, had ordered the forfeiture by monetary equivalent according to Article 118 (2) of the Criminal Code, for the amount of EUR 10,000 (ten thousand euros).
10. By a final judgment of 26 June 2013 (drafted on 15 July 2013), the Constanţa Court of Appeal dismissed the applicants’ appeal on points of law and upheld the lower court’s judgment. It stated that the innocence of the second applicant could not be ascertained and his statement before the notary public to that end (submitted to the court) did not suffice to prove his good faith since it was not corroborated by other evidence. It also held that the forfeiture by monetary equivalent was not admissible on the ground that the safety measure was proportional to the gravity of the criminal offence and the extent of the consequences that might have been caused from an economic and ecological standpoint (potential damaging of the fish stock in the Black Sea).
B. Relevant domestic and international law
11. Emergency Government Ordinance no. 23/2008 on fishing and aquaculture (“EGO 23/2008”) abolished Law no. 192/2001 on fish stock, fishing and aquaculture (see Plechkov, v. Romania, no. 1660/03, §§ 30-37, 26 August 2014, not final). Article 66 (1) of EGO 23/2008 reads as follows:
Article 66
“Fishing vessels and equipment, animals, transportation means, fire arms and any other items that served to commit a criminal offence shall be seized for the purpose of confiscation.”
12. The relevant provisions of Article 118 of the Romanian Criminal Code, in force at the time of the events, read as follows:
Article 118
“(1) Shall be subject to special confiscation:
(...)
(b) the goods that were used in any way to commit a criminal offence, if they belonged to the perpetrator or if belonging to a third party, the latter had been aware of the purpose of their use...
(2) In the case provided by par. 1 letter b), if the value of the goods subject to confiscation is clearly disproportionate by reference to the nature and the gravity of the offence, the partial forfeiture in monetary equivalent may be ordered, taking into consideration the outcome of the criminal offence and the contribution of the good to its causing
(...)
(6) The court may not order the confiscation of goods if they serve to ensure the subsistence, are aimed for daily use or for the exercise of the profession of the perpetrator or of the person whom the confiscation measure may affect”.
13. The relevant provisions under the international law are provided in Plechkov, cited above, § 22.
COMPLAINT
The applicants complain under Article 1 of Protocol No. 1 about the confiscation of the second applicant’s vessel for having served to commit a criminal offence to the fishing regime in the Black Sea for which the first applicant had been convicted to a prison sentence with conditional stay of execution. They claim that the seizure of the second applicant’s vessel was unlawful by reference to the fact that the deed was not subject to Romanian jurisdiction and that the Romanian authorities failed to apply the relevant provisions of Article 118 of the Romanian Criminal Code which provided at the most for the forfeiture by monetary equivalent. The applicants further argue that the confiscation measure was disproportionate by reference to the value of the vessel and the damage actually incurred through the perpetration of the criminal offence.
QUESTION TO THE PARTIES
Did the interference with the second applicant’s property right have a legal basis, pursue a legitimate purpose and was proportional to that purpose as required by Article 1 of Protocol No. 1, considering in particular the automatic sanctioning provided by the special law (Article 66 of Emergency Government Ordinance no. 23/2008 on fishing and aquaculture) and the very restricted assessment of the second applicant’s fault and conduct in relation to the criminal offence committed by the first applicant (see Yildirim v. Italy (dec.), no. 38602/02, 10 April 2003, CEDH 2003-IV)?
Full & Egal Universal Law Academy