Communicated on 10 October 2018
FIFTH SECTION
Application no. 24642/11
Sava Georgiev KATSAROV
against Bulgaria
lodged on 12 April 2011
STATEMENT OF FACTS
The applicant, Mr Sava Georgiev Katsarov, is a Bulgarian national, who was born in 1974 and lives in Plovdiv. He is represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant runs an international transport business as a sole trader, registered under the name ET SARAY 2000 – Sava Katsarov.
On 13 October 2010 a lorry owned by the applicant was stopped for inspection at the Greek-Bulgarian border. The Bulgarian customs authorities found large quantities of undeclared cigarettes, which were seized. In the ensuing criminal proceedings (see below) it was established that the cigarettes’ value totalled 60,200 Bulgarian levs (BGN), the equivalent of approximately 30,800 euros (EUR). The lorry was also seized and retained as physical evidence.
Criminal proceedings for smuggling – an offence under Article 242 of the Criminal Code – were opened against the lorry driver.
On an unspecified date the applicant requested to have the lorry returned to him, under Article 111 of the Code of Criminal Procedure. In a decision dated 23 November 2011 a prosecutor of the Haskovo Regional Public Prosecutor’s Office refused to order a return, noting that the lorry was to be forfeited. He considered that the conditions of Article 242 § 8 for such forfeiture had been fulfilled, since the value of the smuggled goods was higher that the value of the lorry, and seeing that the offence committed by the driver was aggravated. The applicant did not appeal against this decision, as entitled to under domestic law.
Subsequently the driver entered into a plea bargain agreement with the prosecution authorities, confessing to having committed an offence under Article 242 § 4 of the Criminal Code (aggravated smuggling) and accepting a prison sentence. The terms of the agreements included also the forfeiture of the smuggled goods and the forfeiture of the lorry, under Article 242 §§ 7 and 8 of the Criminal Code.
The plea agreement was approved by the Yambol Regional Court in a decision given on 6 June 2011, which was not subject to appeal and became immediately enforceable. The applicant learnt of the decision in August 2011.
The applicant submits that the retention and the forfeiture of his lorry damaged his professional contacts and reputation and led to financial losses for his business. In particular, during the period of retention he remained liable to pay the lorry’s insurance, and in addition he had to pay about BGN 4,900 (EUR 2,500) in taxes related to that lorry.
B. Relevant domestic law and practice
The relevant domestic law and practice have been summarised in the case of Ünsped Paket Servisi SaN. Ve TiC. A.Ş. v. Bulgaria (no. 3503/08, §§ 13-26, 13 October 2015).
COMPLAINTS
In his initial letter to the Court, sent on 12 April 2011, the applicant complains under Article 1 of Protocol No. 1 and Article 13 of the Convention of “deprivation of property” and of the lack of effective domestic remedies in that regard.
In the application form, lodged on 15 June 2011, the applicant states that his possessions under Article 1 of Protocol No. 1 were affected by the retention of his lorry with a view to its prospective forfeiture, the resulting damage to his business, and his having nevertheless to pay the lorry’s insurance. He argues that the interference with his rights thus defined was disproportionate, because he has not himself committed any offence, and because the forfeiture of the smuggled cigarettes means that any damage inflicted by the driver’s offence has been made good. Under Article 13 of the Convention, the applicant complains that the retention of his property has left him in uncertainty as to whether it would be returned to him, and of the lack of “judicial protection”.
QUESTIONS TO THE PARTIES
1. Did the retention and the ensuing forfeiture of the applicant’s property under Article 242 § 8 of the Criminal Code meet the requirements of Article 1 of Protocol No. 1?
2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 1 of Protocol No. 1, as required by Article 13 of the Convention?
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