Communicated on 3 June 2015
FIRST SECTION
Application no. 48057/12
TRANSKOP AD BITOLA
against the former Yugoslav Republic of Macedonia
lodged on 24 July 2012
STATEMENT OF FACTS
The applicant, Transkop Ad Bitola, is a company incorporated in the respondent State. It is represented before the Court by Mr G. Donovski, a lawyer practising in Skopje.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 27 June 2008 the applicant’s bus was temporarily seized by the Ministry of Interior.
On 4 December 2008 an investigation was opened against the applicant on account of alleged forgery of a document (фалсификување исправа).
During the investigation, the trial court commissioned two expert reports concerning the identification numbers of the applicant’s bus: by the Forensic Bureau (Биро за судски вештачења) at the Ministry of Justice and by the Forensic Science Department (Оддел за криминалистичка техника) of the Ministry of Interior.
On 17 May 2010 the criminal proceeding against the applicant were stayed as the public prosecutor had withdrawn from prosecution due to lack of evidence that the accused had committed the alleged crime.
On an unspecified date, the public prosecutor requested that the bus be confiscated since it could not be subject to market transactions.
On 8 June 2010 the Bitola Court of First Instance (“the first-instance court”) confiscated the bus. On 13 September 2010 the Bitola Court of Appeal (“the appellate court”) quashed that decision and remitted the case for a fresh consideration. On 1 December 2010 and 14 June 2011, respectively, it again remitted the case, instructing the first-instance court to commission an alternative expert report to determine whether the identification number of the bus had been forged.
On 6 December 2011 the Forensic Science Department at the Ministry of Interior provided a fresh expert report on the identification elements of the bus (“the expert report of 2011”).
At a private session (нејавна седница) held on 26 December 2011, the first-instance court ordered confiscation of the bus on the basis of the expert report of 2011 and the reports prepared during the investigation and in 2003 during a set of customs-related minor offence proceedings against the applicant.
The applicant appealed, arguing that it had never been established that the bus in question had been either used or intended to be used for commission of an offence. According to the applicant, it was not served with the expert report of 2011. None of the expert reports confirmed with certainty that the identification elements of the bus had been forged. The applicant further remained to the arguments raised in one of its earlier appeals of 28 February 2011.
On 24 January 2012 the appellate court dismissed the appeal. It found that the first-instance court had correctly found on the basis of the expert report of 2011 that the identification number of the bus’s chassis had not been identical to the original number. In deciding, the first-instance court had been aware that the criminal proceedings against the applicant had ended without a conviction. The bus contained forged chassis number and could therefore not remain in the applicant’s ownership or be subject to transactions (јавен или правен промет) as that would affect the possible future owners.
On 20 April 2012 the public prosecutor informed the applicant that there were no grounds for lodging a request for protection of legality.
COMPLAINTS
The applicant complains under Article 6 about the fairness of the proceedings, including the alleged lack of oral hearing before the domestic courts and their failure to communicate to it a copy of the expert report on which they based their decision. He further complains under Article 7 that the bus was confiscated without a final conviction. Lastly, he complains under Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in accordance with Article 6 § 1 of the Convention?
2. In particular,
- has there been a public hearing in the present case as required by Article 6 § 1 of the Convention?
- were the principles of equality of arms and adversarial hearing respected as regards the alleged lack of communication to the applicant of the expert report on which the domestic courts based their decisions?
3. Did the confiscation of the applicant’s bus amount to a penalty within the meaning of Article 7 of the Convention? If so, was the confiscation compatible with this Article (see Varvara v. Italy, no. 17475/09, 29 October 2013)?
4. Was the confiscation in conformity with Article 1 of Protocol No. 1 to the Convention?
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