Information Note on the Court’s case-law 196
May 2016
Džinić v. Croatia - 38359/13
Judgment 17.5.2016 [Section II]
Article 1 of Protocol No. 1
Article 1 para. 2 of Protocol No. 1
Control of the use of property
Order for provisional seizure of assets in criminal proceedings without an assessment of the proportionality of the measure: violation
Facts – The applicant, a company director, was placed under investigation on suspicion of economic crimes. During the course of the proceedings the County Court granted a request by the State Attorney’s Office for the seizure of several of the applicant’s properties in order to secure the enforcement of a probable confiscation order covering the pecuniary gain he was alleged to have made. The seizure order was upheld by the Supreme Court. An application by the applicant for it to be lifted or reassessed on the grounds that the value of the properties seized far exceeded the amount of the alleged pecuniary gain was likewise dismissed.
Law – Article 1 of Protocol No. 1: The sole issue before the Court was whether the seizure of the applicant’s properties was proportionate, in other words, whether it had struck a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.
The applicant was suspected of having made a pecuniary gain of approximately EUR 1,060,000 through the commission of the offences. Accordingly, the action taken by the State Attorney’s Office to secure the enforcement of a possible confiscation order was not in itself open to criticism. However, in view of the risk of an excessive burden being imposed on the applicant, that did not absolve the domestic courts from ascertaining whether the conditions for seizure of his properties were met and whether the nature and scope of the seizure were proportionate. Despite having no evidence before it regarding the value of the properties, the County Court had accepted the request for seizure of all the properties without making any assessment of the proportionality between their value and the amount of the alleged gain. The Supreme Court had failed to rectify that omission by making its own proportionality assessment and had later dismissed the applicant’s claims in the criminal proceedings that the properties were in fact worth almost EUR 10,000,000 as speculative without giving reasons. The Court considered it important to note that the properties were not alleged to be a result of crime or traceable to crime. They had nonetheless remained subject to the seizure order for more than two and a half years.
In sum, although in principle legitimate and justified, the seizure had been imposed and kept in force without an assessment of whether the value of the seized properties corresponded to the possible confiscation claim. The manner in which the measure had been applied was thus not adequate to demonstrate that the “fair balance” requirement had been satisfied.
Conclusion: violation (unanimously).
Article 41: EUR 2,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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