Communicated on 10 October 2018
FIFTH SECTION
Application no. 59271/11
S.C. DUMAGAS TRANSPORT S.A.
against Bulgaria
lodged on 1 September 2011
STATEMENT OF FACTS
The applicant company, Sc Dumagas Transport SA, is a Romanian joint‑stock company having its registered seat in Branişte.
A. The circumstances of the case
The facts of the case, as submitted by the applicant company, may be summarised as follows.
The applicant company runs transport and logistics services.
On 9 February 2011 three of its lorries, travelling from Turkey to Romania, were stopped for inspection at the Bulgarian-Turkish border. The customs officials discovered large quantities of undeclared perfumes and cigarettes, which were seized. It was established for the purposes of the ensuing criminal proceedings (see below) that the value of the smuggled goods totalled 56,210 Bulgarian levs (BGN), the equivalent of about 28,750 euros (EUR). The lorries were seized as physical evidence, and the remaining merchandise which was not the object of any offence was returned to the applicant company.
Criminal proceedings for smuggling – an offence under Article 242 of the Criminal Code – were opened against the three drivers.
After the applicant company submitted requests under Article 111 of the Code of Criminal Procedure concerning the lorries, in three decisions dated 21 February 2011 a prosecutor from the Yambol Regional Public Prosecutor’s Office refused to return to it those lorries. He pointed out that, since the offences committed by the three drivers had been “proven beyond doubt”, the lorries were to be forfeited. He considered that the conditions of Article 242 § 8 for such forfeiture had been fulfilled. The applicant company lodged appeals, which were dismissed in three decisions of the Yambol Regional Court of 28 February 2011.
In the meantime, the three drivers entered into plea bargain agreements with the prosecution authorities, confessing to having committed offences under Article 242 § 1 of the Criminal Code and accepting suspended prison sentences. The terms of the agreements included also the forfeiture of the smuggled goods and the forfeiture of the lorries, under Article 242 §§ 7 and 8 of the Criminal Code.
The plea agreements were approved by the Yambol Regional Court in three decisions given on 2 and 17 March and 8 April 2011. Those decisions were not subject to appeal and became immediately enforceable.
Subsequently, the applicant company applied for the re-opening of the criminal proceedings. In a decision of 31 May 2011 and two further decisions of 15 June 2011 prosecutors from the Yambol Regional Public Prosecutor’s Office found that there were no grounds to seek re-opening. One of the reasons put forward was that the forfeiture of the applicant company’s lorries had been in compliance with Article 242 § 8 of the Criminal Code, and in particular the proviso that such forfeiture was not to be carried out where the value of the vehicle used for smuggling clearly did not correspond to the seriousness of the offence. It was noted that the seriousness of the offence was determined with reference not merely to the value of the smuggled goods, but also to all other relevant circumstances.
Similar statements were made in three decisions of prosecutors from the Chief Public Prosecutor’s Office dated 1 and 29 September and 17 October 2011, given pursuant to further requests by the applicant company for the re-opening of the proceedings.
The applicant company is the owner of one of the forfeited lorries and the lessee of the two others, on the strength of financial lease contracts. One of those contracts, concluded on 6 February 2008 and amended on 2 August 2010, provides for a period of lease of 52 months, and the other contract, concluded on 5 October 2009, provides for a period of lease of 64 months. Both contracts stipulate that after the expiry of the respective lease periods the applicant company could acquire ownership of the lorries. The applicant company submitted invoices showing that, even after the forfeiture of the lorries, until 2015 it continued to pay the monthly instalments due by it under the above-mentioned contracts.
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
The applicant company complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that it was unable to participate in the proceedings resulting in the forfeiture of its lorries and to defend its rights. Moreover, it considers the forfeiture disproportionate, seeing that the value of the three lorries was largely superior to the value of the smuggled goods.
QUESTIONS TO THE PARTIES
1. Did the forfeiture of the applicant company’s lorries, under Article 242 § 8 of the Criminal Code, meet the requirements of Article 1 of Protocol No. 1?
2. Was the applicant company deprived of access to a court to challenge the forfeiture of its lorries, in breach of Article 6 § 1 of the Convention?
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