Information Note on the Court’s case-law 52
April 2003
Yildirim v. Italy (dec.) - 38602/02
Decision 10.4.2003 [Section I]
Article 1 of Protocol No. 1
Article 1 para. 2 of Protocol No. 1
Control of the use of property
Refusal to return to the owner a rented vehicle seized after being used to transport illegal immigrants: inadmissible
Article 6
Criminal proceedings
Article 6-1
Criminal charge
Proceedings involving the confiscation of a vehicle in connection with the criminal conviction of a third person who had used it unlawfully: Article 6 inapplicable
The applicant was the owner of a bus which he hired to a company. The rental agreement stated that the vehicle would be used for the carriage of persons in the countries of Europe and Asia. Subsequently, the drivers of the bus were apprehended while they were unlawfully carrying illegal immigrants and the bus was seized. The drivers were given custodial sentences and the court ordered that the bus be confiscated. The applicant brought proceedings to recover the vehicle. He claimed, in particular, that he had acted in good faith, submitting that he was unaware of the unlawful use of his bus. He was unsuccessful at all levels of jurisdiction, primarily on the ground that he had not duly shown that he had acted in good faith. In particular, the courts considered that there was some doubt as to his knowledge of the possible unlawful use of his bus, since the local situation, characterised by frequent illegal immigration, called for special diligence on the part of the owner of a vehicle used to take persons abroad. The vehicle was eventually broken up.
Inadmissible under Article 1 of Protocol No. 1: The confiscation affected an asset which the courts found to have been put to an unlawful use and was intended to prevent the vehicle from being used to commit further offences of a type which were harmful to the community. The measure therefore entails the regulation of the use of possessions. The confiscation was in accordance with the law and pursued the legitimate aim of combating clandestine immigration and the traffic in human beings, which corresponds with the general interest. As regards the balance between that aim and the fundamental rights of the owner, every legal system recognises presumptions of fact or of law and, provided that they are reasonable and respect the rights of the defence, the Convention does not stand in their way. The applicant was able to apply for the return of his vehicle and to appeal on a point of law against the decision dismissing his application. These proceedings, which related to the legality and also to the non-arbitrary nature of the seizure, involved the participation of both parties and the applicant had the opportunity to adduce evidence and to present the arguments which he considered necessary to protect his interests. Nor was any irrebuttable presumption applied to his detriment. Quite to the contrary, the applicant had the opportunity to show evidence of his good faith, which would have led to the restoration of his possession. There was no arbitrary assessment of the evidence adduced by the applicant on this point. In those circumstances, having regard to the margin of appreciation which the States have in regard to combating criminal phenomena, the interference was not disproportionate to the aim pursued: manifestly ill founded.
Inadmissible under Article 6: The offence at the origin of the seizure and confiscation of the applicant's motor vehicle had been committed by another party and no criminal proceedings had been initiated against the applicant. The applicant was therefore not the subject of a “criminal charge”: incompatibility ratione materiae. As the applicant's right of ownership was affected by the proceedings in issue, Article 6 applies in its civil aspect. In this case, there was no breach of the principles of a fair trial or equality of arms: manifestly ill founded.
Inadmissible under Article 7: The applicant claimed that the confiscation measure was an “ancillary penalty”. The existence of a “penalty” implies that the measure in question was imposed following conviction of an “offence”. In this case, no prior criminal conviction had been pronounced against the applicant and the proceedings relating to the seizure and confiscation did not concern a “criminal charge” against him. Accordingly, the confiscation in issue did not entail a finding of guilt, which follows a charge; it therefore does not constitute a “penalty” within the meaning of Article 7: incompatibility ratione materiae.
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