Communicated on 2 October 2014
FIRST SECTION
Application no. 74681/11
Osman SULEJMANI
against the former Yugoslav Republic of Macedonia
lodged on 2 December 2011
STATEMENT OF FACTS
The applicant, Mr Osman Sulejmani, is a Macedonian national, who was born in 1958 and lives in Tetovo.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 12 April 2006, the applicant bought a concrete mixing transport truck (“the vehicle”) from Sh.A.
On 6 October 2008 the vehicle was temporarily seized from the applicant. A record of temporarily seized objects (потврда за привремено одземени предмети) was issued.
On 1 February 2010 the Struga Court of First Instance (“the first-instance court”) acquitted Sh.A. of charges of forgery of a document (“фалсификување исправа“) concerning the vehicle’s chassis (шасија) and rejected an indictment brought by a public prosecutor against I.S. The court further advised the applicant, who had claimed compensation in the criminal proceedings, to pursue it by means of a separate civil action before the civil courts. On 21 July 2010 the judgment became final.
On 16 November 2010 the applicant requested that the first-instance court return the vehicle in his possession.
On 6 December 2010 the first-instance court found that there were no grounds for confiscation of the applicant’s vehicle since he had not known that the vehicle had been used for the commission of an offence. It also ordered that the registration certificate (“сообраќајна дозвола“) be returned to the applicant.
On 24 January 2011 the Bitola Court of Appeal (“the appellate court”) quashed that decision. It found that the vehicle’s chassis had been forged and that the vehicle, in the interest of public safety, could not be put into circulation. It further referred to section 100-a (3) of the Criminal Code (“the Code”) and instructed the first-instance court to assess whether the repeated use of the vehicle would constitute an offence “use of a forged document” (употреба на фалсификувана јавна исправа).
On 22 February 2011 the first-instance court dismissed the applicant’s request and ordered confiscation of the vehicle. It referred to Article 100-a (2) and (3) of the Code holding that the vehicle’s chassis had been forged and that the vehicle could be used for committing an offence. For that reason and for the reasons of road safety protection, it was necessary to confiscate the vehicle and the registration certificate. It also referred to section 532 (1) of the Criminal Proceedings Act and found that, irrespective of the fact that there had been no proceedings against the applicant and that he was not an offender, it was necessary to confiscate the vehicle for general safety reasons.
The applicant appealed arguing that the first-instance court had wrongly applied Article 100-a (2) and (3) of the Code and that he had not known that the vehicle had been used as means of which the offense had been committed.
On 19 May 2011 the appellate court dismissed the appeal and upheld the first-instance court’s decision. It found that the applicant had not known that the vehicle’s chassis had been forged. However, Article 100-a (2) required the confiscation of means used to commit a crime irrespective of the fact that the offender had not had the title to those objects; general safety, public health and ethics required so. The fact that the applicant had not known that the vehicle’s chassis had been forged did not signify that the conditions of Article 100-a (3) had not been met. The first-instance court correctly found that the use of the vehicle would affect the road and general safety.
B. Relevant domestic law
1. Criminal Code
Article 100-a (2) provides that objects that were used or intended to be used as means for the commission of a crime will be seized from the offender irrespective of whether he or she was the owner of those objects, if the public security, health or ethics so require.
Under Article 100-a (3) such objects can be confiscated if there is a danger that they would be used again for the commission of crimes. Objects owned by a third person will not be confiscated unless he or she knew or ought to have known that they had been used or intended to be used for the commission of the offence.
Under Article 100-a (4), a court will issue a forfeiture order even if no proceedings, due to factual or legal reasons, could be instituted against the offender.
Article 100-a (5) provides for the right of third persons to claim compensation from the offender.
2. Criminal Proceedings Act 1997 (consolidated text)
Under section 532 (1), the objects which must be confiscated under the Criminal Code, will be confiscated also when the criminal proceedings do not result in a conviction.
COMPLAINT
The applicant complains under Article 1 of Protocol No. 1 to the Convention about the confiscation of his vehicle.
QUESTIONs TO THE PARTIES
Has there been a violation of Article 1 of Protocol No. 1? In particular, was the confiscation of the applicant’s vehicle in accordance with “the conditions provided for by law”? In this connection, was the law applied and interpreted by the domestic courts sufficiently precise and foreseeable? If so, did the impugned measure strike a fair balance between the demands of the general interest and the interests of the applicant? [A1]
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