Communicated on 24 February 2017
FIRST SECTION
Application no. 17893/15
Borče NAJDOVSKI
against the former Yugoslav Republic of Macedonia
lodged on 4 April 2015
STATEMENT OF FACTS
The applicant, Mr Borce Najdovski, is a Macedonian national, who was born in 1965 and lives in Demir Hisar. He is represented before the Court by Mr T. Torov, a lawyer practising in Štip.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was a private transporter, which presented the sole source of income for him and his family. For the purposes of transport he owned and used a truck, which was registered in his name.
On 1 July 2014 the applicant obtained a permission (испратница) to transport 9,80 meters cubic of lumber, which he bought, from Belicka Reka to Bitola. The permission specified that the applicant had to organise the transport of the lumber between 11 a.m. and 5 p.m. on 1 July 2014, using his truck.
On 1 July 2014, following the instructions contained in the permission the applicant entered Bitola but his truck then broke down. He attempted to contact the forestry police but did not succeed reaching them so, having no other option, he parked the truck on the side of a street and left. When he came back the following morning with the intention to fix the truck, he found that the forestry police was present on the spot. They asked if he had a valid permission, and when he provided the permission, the forestry police determined that it had expired.
As a consequence, his truck along with the lumber was temporarily seized and misdemeanour proceedings against him were initiated before Bitola Court of First Instance. The truck and the lumber were taken to a depot of the forestry police for safekeeping.
The court heard two members of the forestry police and one witness proposed by the applicant. On the basis of the testimonies of the forestry police members the court determined that on 2 July 2014, upon detecting the applicant drive into Bitola with a truck loaded with lumber, they had stopped him and requested a valid permission for the transport. On inspection of the permission in question, they determined that it had expired and seized the truck along with the lumber.
On 18 September 2014 Bitola Court of First Instance convicted the applicant of a misdemeanour of “transporting lumber without a proper tag or permission”, defined in section 104, subsection 1 paragraph 11 of the Woods Act. He was fined EUR 2,400. By that same decision, the court confiscated the applicant’s truck and the lumber, in accordance with section 104, subsection 3 of The Woods Act and sections 4, 41 and 105 of the Misdemeanours Act.
On 3 October 2014 the applicant appealed challenging his fine and the confiscation measure.
On 5 November 2014 Bitola Court of Appeal upheld the lower courts’ findings and the applicant’s conviction.
B. Relevant domestic law
1. The Woods Act (Закон за Шумите, Official Gazette Nos. 64/09, 24/11, 53/11, 25/13, 79/13, 147/13, 43/14)
Section 104, subsection 1 paragraph 11 of the Woods Act prescribes that a fine in the amount ranging from EUR 3,500 to EUR 4,000 will be imposed on anyone who transports cut lumber without a proper tag or permission.
Section 104, subsection 3 of the Act prescribes that in cases of offences defined in section 104 subsection 1, notwithstanding the fine, the domestic courts shall give a confiscation order regarding the objects which have been used in the commission of the administrative offence as well as the objects themselves (the lumber).
2. Misdemeanours Act (Закон за Прекршоците, Official Gazette Nos. 62/06, 51/11)
Section 41 of the Misdemeanours Act specifies that in case of confiscation of goods in misdemeanour proceedings, the courts shall refer to sections 97 – 100 - A of the Criminal code.
3. Criminal Code (Кривичен Законик, Official Gazette Nos.37/96, 80/99, 04/02, 43/03, 19/04, 81/05, 60/06, 73/06, 7/08, 139/08, 114/09, 51/11, 185/11, 142/12, 166/12, 55/13, 82/13, 14/14, 27/14, 28/14)
Section 100-A of the Criminal Code specifies that the objects which were intended to be used or were used to commit an offence shall be confiscated from the offender, regardless of whether he or a third person is their owner, if the interests of general security, the health of other persons or the interests of morals so require.
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 to the Convention that the confiscation of his truck and lumber, taken together with the fine to which he was sentenced, imposed an excessive burden on him.
QUESTIONS TO THE PARTIES
Did the confiscation of the applicant’s truck and lumber constitute an interference with the peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1? If so, was the confiscation imposed in accordance with the conditions provided for by law and in the public interest? Was it necessary and proportionate, within the meaning of Article 1 of Protocol No. 1?
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