VASILEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" - 22653/08 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2016] ECHR 396 (28 April 2016)

In the case of Vasilevski v. the former Yugoslav Republic of Macedonia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Ledi Bianku, President,
          Mirjana Lazarova Trajkovska,
          Kristina Pardalos,
          Linos-Alexandre Sicilianos,
          Robert Spano,
          Armen Harutyunyan,
          Pauliine Koskelo, judges,
and Abel Campos, Section Registrar,

Having deliberated in private on 28 March 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 22653/08) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Mr Ljupčo Vasilevski (“the applicant”), on 7 May 2008, who was granted leave to represent himself.

2. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

3. The applicant alleged that the domestic authorities deprived him of his possession contrary to Article 1 of Protocol No.1 to the Convention.

4. On 20 November 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1963 and lives in Kavadarci.

A. Background to the case

6. In April 2000, while criminal proceedings were pending against a certain Mr I.A., the latter sold a lorry (“the lorry”) to a company, M.

7. On 13 June 2000 the Skopje Court of First Instance (“the Trial Court”) convicted Mr I.A. of smuggling nearly 9 tonnes of sugar, which he had transported in the lorry in November 1997. According to the Government, the court dismissed the prosecutor’s application to have the lorry confiscated, given that Mr I.A. had stated that he had already sold it. The court considered that the conditions for confiscation of the lorry under Article 68 (2) of the Criminal Code 1996 (see paragraph 21 below) had not been fulfilled: specifically it had not been established that the lorry could be used again to commit an offence; that the confiscation had been necessary for the protection of safety or for reasons of ethics; and that the lorry had been specially adjusted for the commission of specific type of offences. On 20 November 2001, following separate appeals by Mr I.A. and the public prosecutor, the Skopje Court of Appeal found the public prosecutor’s application immaterial (беспредметна) and quashed all aspects of this judgment.

8. On 17 September 2003 the Trial Court convicted Mr I.A. in absentia. It fined him and ordered, under Article 278 (3) of the Criminal Code 1996, the confiscation of the lorry and the sugar (“the confiscation order”). In the absence of an appeal, the judgment became final on 29 October 2003.

9. On 6 September 2004 the company M. sold the lorry to the applicant, who later registered the lorry in his name.

10. On 12 June 2006 the Kavadarci Court of First Instance (“the first-instance court”) enforced the confiscation order of 17 September 2003 against the applicant and issued a record of enforcement (записник за извршување).

11. On 15 November 2006 the applicant objected to the enforcement of the confiscation order, arguing that Mr I.A. had died on 21 March 2005 and that the confiscation order accordingly could not be enforced. There had been no injunction restricting the sale of the lorry. He had been the lawful owner and he had been making his living using the lorry. Lastly, he stated that he had sought, in separate civil proceedings, return of the lorry (see paragraph 14 below).

12. On 20 November 2006 the execution-of-sanctions judge of the Trial Court rejected the objection as inadmissible, finding that the applicant had no procedural standing. It found that the confiscation order had been enforced in accordance with section 355 of the Enforcement of Sanctions Act (see paragraph 26 below). It further found that the applicant, as the third person from whom the lorry had been confiscated, could assume his rights under section 129(5) of the Criminal Proceedings Act (see paragraph 25 below).

13. The applicant appealed. On 6 December 2006 a three-judge panel of the Trial Court dismissed his appeal reiterating that he had no right to object to the enforcement of the confiscation order. However, he had been entitled to claim, in civil proceedings, return of the lorry. Civil courts had jurisdiction, under section 129(5) of the Criminal Proceedings Act, to reverse a final confiscation order issued in criminal proceedings and order the return of the confiscated item.

B. Civil proceedings for determination of the title and return of the lorry

14. On 19 June 2006 the applicant submitted a civil claim seeking that the first-instance court declare him to be the owner of the lorry and to order the State to restore it to his possession. In the case of failure of his first claim, he sought that the State would reimburse him for the upgrades made to the lorry. In this latter context, he identified the upgrades that he had installed in the lorry. He further maintained that he was the bona fide and lawful owner of the lorry. He argued that the authorities had failed to seize the lorry immediately after the offence had been committed (на лице место) and to note a ban on the sale of the lorry on its registration certificate. As he was making his living off the lorry, he requested an injunction restricting the State from selling or otherwise disposing of the lorry until the final resolution of the dispute.

15. By decisions of 29 June and 16 November 2006 respectively, the first-instance court and the Skopje Court of Appeal (“the second-instance court”) dismissed the applicant’s application for an injunction finding no evidence that in the absence of such a measure his claim would be considerably affected or that he would sustain irreparable damage.

16. On 2 March 2007 the applicant informed the first-instance court that Mr I.A. had died in Austria in 2005.

17. On 10 May 2007 the first-instance court dismissed the applicant’s claim. It established that Mr I.A., who knew that the lorry could have been confiscated, had sold it to the company M. At the relevant time, neither the manager of M. nor the applicant had known that the lorry had been used in the commission of the offence and that it had been subject to a confiscation order. Relying on Articles 68 and 278 (3) of the Criminal Code (see paragraphs 21 and 22 below), the court stated that:

“Confiscation is a safety measure, the typical aim of which is to remove conditions which are convenient for the commission of offences, and it is a condition for ordering such a measure that the offender has been sentenced, as in the present case. The court considers that it is mandatory to confiscate the [lorry] under the afore-mentioned provisions, because this safety measure has a wider influence [in the sense of] general deterrence of all future offenders of this type of offences, and otherwise the offenders would be encouraged, after the offence has been committed, to dispose of the means with which they committed the offence and, thus, to even acquire pecuniary benefit; furthermore that would have a negative influence on the ethics of the wider public, [that is to say] on general deterrence ...

... Given that from the evidence and the above-mentioned statutory provisions it has been established that the [lorry] in question was confiscated in favour of [the respondent State] in lawful proceedings, the court finds that the [respondent State] has therein obtained ownership of the [lorry] in question on the basis of a final and enforceable judgment ... in accordance with sections 112(2) and 154 of the [Property Act.]

For these reasons, the court dismisses the [applicant’s] main claim and also the alternative claim, because it concerns upgrades made to the [lorry].

On the other hand, the court considers that the [applicant], as the bona fide owner, can be indemnified for the value of the entire [lorry], including the upgrades, but solely from the offender, [Mr I.A.], in accordance with Article 68 (3) of the [Criminal Code], and not from the [respondent State] ...

The court dismisses as groundless the argument that at the moment of confiscation of the [lorry] in question it was not owned by [Mr I.A.] but by the [applicant] as the bona fide possessor (совесен владетел), given that from the evidence it was established that when the offence was committed the [lorry] was owned by [Mr I.A.] and the safety measure confiscation of the [lorry] was issued on those grounds. The court also considers groundless the [applicant’s] representative’s arguments that under section 129(5) of the Criminal Proceedings Act the final decision for confiscation of the [lorry] could be amended with a decision in civil proceedings if there were a dispute concerning the ownership of the confiscated items, given that this provision would have been applied if the [lorry] had been sold to the [applicant] before the offence was committed and had, under any legal basis, remained in the factual possession of the convicted [Mr I.A.] and he, after having sold it, committed the crime; but in the present case it is vice versa; firstly the offence was committed and then the [lorry] was sold.”

18. The court also established that the applicant had upgraded the lorry to the value of 69,150 Macedonian denars (MKD). Furthermore, on the basis of the applicant’s and two witnesses’ statements, the court established that the applicant had bought the lorry for 4,300 euros (EUR).

19. The applicant appealed. He stated that he had previously requested that the first-instance court obtain evidence from the Ministry of the Interior which would confirm that Mr I.A. had died in Austria in 2005. He argued that the domestic authorities had failed to ban Mr I.A. from disposing of the lorry or to seize the lorry at the time the offence had been discovered. He also argued that he was the bona fide owner and that he had obtained title to the lorry by adverse possession (одршка). The first-instance court had incorrectly applied section 129(5) of the Criminal Proceedings Act. The lorry had been confiscated nine years after the offence had been committed. The State had been unlawfully enriched by the value of the upgrades installed by the applicant.

20. On 19 October 2007 Skopje Court of Appeal (“the second-instance court”) dismissed the applicant’s appeal finding no grounds to depart from the established facts and reasons given by the lower court. On 13 November 2007 this judgment was served on the applicant.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Criminal Code 1996

21. Under Article 68 (1) of the Criminal Code 1996, as in force at the relevant time, objects of a crime or objects which were used or intended to be used in the commission of a crime, would be confiscated if owned by the offender. Under Article 68 (2), an object which could be used again for the commission of a crime would be confiscated, regardless of whether it was owned by the offender or a third person, if public security or ethics so require. Under Article 68 (3), third parties were entitled to claim compensation from the offender.

22. Article 278 of the Criminal Code specified smuggling as a criminal offence. Under Article 278 (3) smuggled goods and the means for their transportation and distribution would be confiscated.

B. Amendment to the Criminal Code 2004 (“Official Gazette” no. 19/2004, 30 March 2004)

23. According to Article 100-a of the Criminal Code 2004, which replaced Article 68 of the Criminal Code 1996, nobody could keep or withhold the proceeds of crime. Objects that were used or were intended to be used in the commission of a crime would be seized from the offender regardless of whether he or she was their owner, if public security, health or ethics so require. Objects owned by a third person would not be confiscated unless he or she knew or ought to have known that they had been used or were intended for use in the commission of an offence. The court would issue a confiscation order even if no proceedings could be instituted against the offender due to factual or legal reasons. Third persons were entitled to claim compensation from the offender.

24. Article 278 of the Criminal Code 2004, which replaced the same provision of the Criminal Code 1996, provided in subsection 7 that the means of transportation or distribution of smuggled goods would be confiscated. If confiscation could not be ordered against the offender, the court would order the confiscation of other property of corresponding value. Under Article 278 (8) the means of transportation or distribution of the smuggled goods were confiscated also when a third person had title over them, if the third person knew or should have known that they would be used for transportation or distribution. They would always be confiscated if they had been specially constructed, adapted, altered or in any manner adjusted to conceal contraband. Articles 278 (7) and (8) were renumbered as Articles 278 (8) and (9) with the amendments to the Criminal Code of 2009 (“Official Gazette” no. 114/09).

C. Criminal Proceedings Act 1997 (Закон за кривичната постапка, “Official Gazette” no. 15/97)

25. According to section 127(5), a final confiscation order could, outside of the context of the extraordinary remedies in criminal proceedings, be reversed in civil proceedings if a dispute arose over the ownership of the confiscated items. This section was renumbered as section 129 (5) with the Criminal Proceedings Act (consolidated text) (Закон за кривичната постапка (пречистен текст), “Official Gazette” no. 15/2005).

D. Enforcement of Sanctions Act 2006 (Закон за извршување на санкциите, “Official Gazette” no. 2/2006)

26. Under section 355(1) as in force at the material time, a final confiscation order, concerning items that had been used or were intended for use in the commission of an offence, or concerning proceeds of crime, was enforced by a court determined by law in a manner established in the order by way of destruction, handing the items over to a State body, by selling the items, or by handing the items over to an appropriate museum, if the nature of the items did not allow for their sale.

E. Property Act (Закон за сопственост и други стварни права, “Official Gazette” no. 18/2001)

27. Under section 82 of the Act, heirs who have not renounced their inheritance are joint owners until the inheritance decision becomes final.

28. Under section 83(1) an heir is responsible for the debts of the testator, up to the value of the inherited property.

29. Section 112(2) provides that ownership can be obtained on the basis of a decision of a competent State body, in a manner and under conditions prescribed by law.

30. Under section 154, ownership is obtained on the basis of a decision of a court or another State body when such a decision becomes final, if the law and the aim of the decision in question do not provide otherwise. Other persons’ rights (стварни права) over the item obtained on the basis of a court decision or a decision of another body do not cease to exist, except if it is otherwise provided by the decision in question or a special law, or if by the nature of the item they cannot continue to exist.

F. Obligations Act 2001 (Закон за облигационите односи, “Official Gazette” no. 18/2001)

31. Under section 496(1) of the Obligations Act, the seller is responsible if a third party claims a right over the sold item, which excludes, reduces or limits the right of the buyer, and if the buyer was not informed of that right and did not agree to accept the item burdened with that right.

32. Section 497 provides that, when it is shown that a third party has a claim over the item, the buyer is obliged to inform the seller of that claim, unless the seller is aware of it, and to request that he or she release the item from the claim (да го ослободи предметот од правото или претензијата на трет), within a reasonable time.

33. Under section 498(1), if the seller does not act upon the request of the buyer and the item is taken (одземен) from the buyer, the sale contract is terminated by force of law. Under section 498(3), in any event, the buyer has the right to claim compensation in respect of damage.

34. Section 499 provides that a buyer who is engaged in a dispute with a third party (without having first informed the seller), which he or she loses, can still claim that the seller has responsibility for the legal defects, unless the seller proves that he had at his disposal means to disprove the third party’s claim.

G. Relevant domestic practice

35. The Government submitted an excerpt from a decision of the Supreme Court (Гзз. Бр. 51/06 of 31 January 2007) in which the court held that the seller of a car was responsible to the buyer for the legal defect (правен недостаток) of the car, irrespective of whether the seller had been aware of that legal defect at the time of the sale contract. In that case, the Supreme Court quashed the lower courts’ judgments in which they had found that there had been no possibility to terminate an agreement or seek compensation from a bona fide seller of a car which had been sold several times before it was discovered that it had been stolen.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.1 TO THE CONVENTION

36. The applicant complained that he had been deprived of his possessions contrary to Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. Admissibility

1. The parties’ submissions

37. The Government submitted that the applicant had failed to exhaust domestic remedies. In particular, he had not sought compensation from Mr I.A., the perpetrator of the criminal offence, under Article 68 of the Criminal Code. The Government argued that the fact that Mr I.A. had died had not prevented the applicant from claiming compensation from his heirs (see paragraph 28 above). Furthermore, the applicant had not sought restoration of the purchase price of the lorry and compensation for damage from the company M, under sections 498 and/or 499 of the Obligations Act.

38. The Government further argued that the applicant, who had been represented by a lawyer in the domestic proceedings, had availed himself of remedies which had not been adequate for the purposes of his grievances in the present case. The objection against the enforcement of the confiscation order had been inadmissible under domestic law. The impugned civil proceedings against the State had provided no reasonable prospect of success, given that the ownership of the lorry had not been disputed and it had therefore not been necessary to prove ownership in civil proceedings. Moreover, the restitution of an item confiscated by a final judgment in criminal proceedings was not possible as it would amount to an annulment of a final judgment (res judicata). Lastly, the Government invoked the case of Jusufoski (see Jusufoski v. the former Yugoslav Republic of Macedonia (dec.), no. 32715/04, 23 August 2009).

39. The applicant contested these arguments. He argued that he could not have sought damages either from Mr I.A., who had died on 21 March 2005, or from the company M., since it had ceased to exist before the lorry had been confiscated from the applicant. The Government did not comment on this latter argument.

2. The Court’s assessment

40. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial organ to first use the remedies provided by the national legal system (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014). Applicants are only obliged to exhaust domestic remedies that are effective and capable of redressing the alleged violation. More specifically, the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and which are, at the same time, available and sufficient (see Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts), and Papadakis v. the former Yugoslav Republic of Macedonia, no. 50254/07, § 101, 26 February 2013).

41. In the present case, the Court notes that the gist of the applicant’s grievances concerns the enforcement of the confiscation order by the State, which resulted in the applicant losing title to and possession of the lorry and the upgrades installed by him. In this connection he pursued two legal avenues: a) he challenged the enforcement of the confiscation order in proceedings before the execution-of-sanctions judge of the Trial Court and b) he instituted civil proceedings against the State in which he had claimed the title to the lorry, with an alternative claim for compensation of the improvements made by him after he had bought the lorry.

42. The Court notes that the applicant’s objection to the enforcement of the confiscation order was rejected as inadmissible. In so doing, the domestic courts, at two levels, advised the applicant that he could assert his rights in separate civil proceedings under section 129(5) of the Criminal Proceedings Act (see paragraphs 12 and 13 above). The applicant relied on this provision in the civil proceedings against the State (see paragraph 19 above). In view of such instructions, the Court considers that it was not unreasonable for the applicant to try to satisfy his grievances through the civil proceedings pursued. It will refer to the Government’s argument that the applicant could have pursued civil claims against Mr I.A. and the company M. in the context of the proportionality of the measure (see paragraphs 59 and 60 below; see also Andonoski v. the former Yugoslav Republic of Macedonia, no. 16225/08, § 23, 17 September 2015).

43. In view of these considerations, the Court considers that the Government’s non-exhaustion objection should be dismissed.

44. The Court further considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

45. The applicant argued that the relevant authorities of the respondent State had failed to seize the lorry when the offence had been committed (на лице место). Moreover, they had also failed to issue an injunction order in the criminal proceedings against Mr I.A. in order to prevent him from selling the lorry. The applicant had registered the lorry notwithstanding the confiscation order. He also argued that under Article 100-a of 2004 Criminal Code, which had replaced Article 68 (1) of 1996 Criminal Code, objects owned by a third party could not be confiscated unless that person knew or could have known that the object had been used or was intended to be used for the commission of an offence. He did not know nor could he have known that the lorry had been used for that purpose. He further reiterated that he was making his living by using the lorry.

46. The Government accepted that there had been an interference with the applicant’s rights under Article 1 of Protocol No. 1. The measure amounted to control of the use of property. It had been lawful and had pursued the legitimate aims of preventing further commission of offences and influencing public ethics. As to the proportionality, the Government reiterated that the applicant could have claimed compensation from Mr I.A.’s heirs, as well as from the company M. In the civil proceedings against the State, the domestic courts had carried out a full examination of the case and provided sufficient reasons related to the relevant circumstances of the case. They had further advised the applicant on the legal avenue which he could follow, namely the initiation of proceedings under Article 68 (1) of the Criminal Code. The State enjoyed a wide margin of appreciation in this matter. The domestic courts’ decisions were not arbitrary and the Court therefore could not question them.

2. The Court’s assessment

(a) General principles

47. The Court reiterates that Article 1 of Protocol No. 1 guarantees in substance the right of property and comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of possessions. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see, among other authorities, Draon v. France [GC], no. 1513/03, § 69, 6 October 2005).

48. An interference for the purposes of Article 1 of Protocol No. 1 must be prescribed by law and must pursue one or more legitimate aims; in addition, there must be a reasonable relationship of proportionality between the means employed and the aim or aims sought to be realised. In other words, the Court must determine whether a balance was struck between the demands of the general interest and the interest of the individual or individuals concerned (see Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 26, § 69, and p. 28, § 73, and James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 34, § 50). In doing so, it leaves the State a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the objective of the law in question (see AGOSI v. the United Kingdom, 24 October 1986, § 52, Series A no. 108).

49. As regards the balance between the aim pursued and the applicant’s rights, the Court reiterates that, where possessions that have been used unlawfully are confiscated, such a balance depends on many factors, which include the owner’s behaviour. It must therefore determine whether the domestic authorities had regard to the applicant’s degree of fault or care or, at least, the relationship between his conduct and the offence which had been committed. In addition, it must be ascertained whether the procedure in the domestic legal system afforded the applicant, in the light of the severity of the measure to which he was liable, an adequate opportunity to put his case to the responsible authorities, pleading, as the case might be, illegality or arbitrary and unreasonable conduct (see Yildirim v. Italy (dec.), no. 38602/02, ECHR 2003-IV). The requisite balance will not be achieved if the person concerned has had to bear an individual and excessive burden (see Waldemar Nowakowski v. Poland, no. 55167/11, § 47, 24 July 2012).

(b) Application to the present case

50. It is not in dispute between the parties that there had been an interference with the applicant’s right to peaceful enjoyment of his possessions.

51. In this connection the Court observes that the confiscation order was issued against Mr I.A. in 2003 when the lorry had not been owned by him, but by the company M. However, the confiscation order was enforced in 2006, after the applicant had obtained title to the lorry from the company M. The enforcement of the confiscation order amounted accordingly to de facto confiscation against the applicant and constituted an interference with his right to peaceful enjoyment of his possessions.

52. The Court further notes that the enforcement of the confiscation order involved a permanent transfer of ownership. However, the Government argued that the applicant could be indemnified domestically for his loss (compare and contrast Andonoski, cited above, § 30). The Court considers that the measure amounted to control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see Milosavljev v. Serbia, no. 15112/07, § 53, 12 June 2012; see also Varvara v. Italy, no. 17475/09, § 83, 29 October 2013).

53. Turning to the lawfulness of the measure, the Court notes that the confiscation order was issued in 2003 on the basis of Article 278 (3) of the Criminal Code. It was enforced in accordance with section 355 of the Enforcement of Sanctions Act as in force at the material time (see paragraphs 12 and 26 above). Accordingly and having in mind its limited power to review compliance with domestic law (see Beyeler v. Italy [GC], no. 33202/96, § 108, ECHR 2000-I), the Court concludes that the interference was prescribed by law.

54. It further accepts that it pursued the legitimate aim of fighting and preventing crime, which undoubtedly falls within the general interest as envisaged in Article 1 of Protocol No. 1 (see Lavrechov v. the Czech Republic, no. 57404/08, § 46, ECHR 2013).

55. The Court will therefore turn to the question of the balance struck between that aim and the applicant’s rights under this head.

56. The Court notes at the outset that the confiscation order was issued in the context of the criminal proceedings against Mr I.A. The lorry was confiscated from Mr I.A. notwithstanding that it had already been sold to the company M. This later fact was not unknown to the criminal courts (see paragraph 7 above). The confiscation proceedings were in no way related to the applicant who bought the lorry from the company M. almost a year after the confiscation order had become final. He neither participated in the criminal proceedings against Mr I.A., nor could he have challenged the confiscation order. The lorry was de facto confiscated from the applicant almost three years after the confiscation order had become final and more than eight years after the crime had been committed (see paragraphs 7, 8 and 10 above). No explanation was provided for this delay.

57. As to the applicant’s possibility to adequately put the case before the domestic authorities, the Court notes that in the civil proceedings the domestic courts found that under Articles 68 (1) and 278 (3) of the Criminal Code the confiscation of the lorry had been mandatory. In such circumstances, it appears that the applicant was deprived of any possibility to argue his case (see, mutatis mutandis, Andonoski, cited above, § 38). Indeed, the domestic courts did not consider the relationship between the applicant’s conduct and the offence. Although they established that the applicant had been the bona fide owner of the lorry, notably he had not been aware at that time that the lorry had been used for commission of an offence (see paragraph 17 above), they did not examine that fact in connection with the proportionality of the impugned measure. The Court observes in this connection that domestic legislation was subsequently amended to accommodate such considerations (see paragraph 24 above). In the applicant’s case, his circumstances and behaviour were considered only with regard to the possibility of initiating proceedings against Mr I.A. (see paragraph 17 above).

58. Furthermore, there was nothing to suggest that there were any reasons to fear that the lorry could be used again for the commission of offences (see Andonoski, cited above, § 36 in fine), since Mr I.A. had already died. Moreover, the domestic courts did not give any weight to the argument that the applicant had been lawfully making his living by using the lorry (see paragraph 14 above). Lastly, the Court notes the scanty reasoning that the domestic courts gave for dismissing the applicant’s alternative claim for compensation of his own investments in the lorry.

59. As to the possibility of the applicant claiming compensation under Article 68 of the Criminal Code, the Court notes the particular circumstances of the present case, specifically the fact that Mr I.A. had died in 2005 before the lorry was confiscated from the applicant (see paragraph 16 above). Notwithstanding that the domestic authorities were aware of that fact, they nevertheless stated that the applicant could be indemnified from him (see paragraphs 17 and 20). The respondent Government were also guided by similar considerations (see paragraph 37 above). In this connection the Court notes that it was not presented with any illustration of domestic practice that showed that a claim against heirs of a deceased seller (Mr I.A. in the present case) had been effective in similar circumstances to the applicant’s case. Furthermore, the Court notes that Mr I.A. died in Austria in 2005 and that no information was available as to the whereabouts of his heirs and whether they could be held responsible under the applicable rules (see paragraph 28 above) for his actions. In the Court’s opinion, it would be an excessive burden for the applicant to seek to establish these issues in fresh proceedings.

60. Similar reasons stand concerning the Government’s argument that the applicant could have sought compensation from the company M. Whereas this remedy was available under domestic law (see paragraphs 31-35 above), the Court does not consider that it would have offered any prospect of success since, as stated by the applicant, the company M. had ceased to exist before the lorry had been confiscated from him. The Government did not provide any comment to disprove this assertion (see paragraph 39 above). In this connection, the Court notes the long delay in the enforcement of the confiscation order.

61. Having regard to the above considerations, and in spite of the wide margin of appreciation afforded to the State in this domain, the Court finds that the enforcement of the confiscation order, which had as a resulting effect the dispossession of the lorry from the applicant, imposed an excessive burden on him.

62. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

63. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

64. The applicant claimed EUR 4,300 in respect of pecuniary damage. This figure was the price that he had paid for the lorry. He also claimed the equivalent of EUR 1,124 as the value of the upgrades he had installed in the lorry. He did not submit any documents in support of these claims. He did not claim any non-pecuniary damage.

65. The Government contested the claims as unsubstantiated.

66. The Court recalls that the principle with regard to pecuniary damage is that the applicant should be placed, as far as possible, in the position in which he or she would have been had the violation found not taken place - in other words, restitutio in integrum. This can involve compensation for both loss actually suffered (damnum emergens) and loss, or diminished gain, to be expected in the future (lucrum cessans). It is for the applicant to show that pecuniary damage has resulted from the violation or violations alleged. The applicant should submit relevant documents to prove, as far as possible, not only the existence but also the amount or value of the damage.

67. The Court notes that the applicant did not provide any documents to support his arguments concerning the value of the lorry or the upgrades. It, however, observes that the domestic courts established that the applicant had bought the lorry for EUR 4,300 and that the value of the upgrades installed was the same as claimed by him before the Court (see paragraph 18 above). The Court considers that return of the lorry, in the state at the time of its confiscation, would place the applicant in the position in which he would have found himself had the violation not occurred (see Andonoski, cited above, § 46). Alternatively, if such a return is impossible, the Court awards the applicant EUR 5,400 in respect of pecuniary damage, plus any tax that may be chargeable.

68. In the absence of a claim for non-pecuniary damage, the Court does not make an award under this head.

B. Costs and expenses

69. The applicant also claimed EUR 520 for the court fees paid in the domestic proceedings and EUR 500 for legal fees. As to the latter, he did not specify whether this figure concerned his representation in the domestic proceedings or before the Court. He did not submit any documents in support of the above claims.

70. The Government contested the claims as unsupported.

71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Stojkovic v. the former Yugoslav Republic of Macedonia, no. 14818/02, § 55, 8 November 2007). The applicant failed to substantiate whether the costs for representation had been incurred in the domestic proceedings or in the proceedings before the Court. The Court furthermore notes that after the application had been communicated to the respondent State, the applicant was granted leave to represent himself in the proceedings before the Court. The Court therefore makes no award under this head.

C. Default interest

72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

3. Holds

(a) that the respondent State is to return to the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the confiscated lorry in the state at the time of its confiscation;

(b) that, failing such restitution, the respondent State is to pay the applicant, within the same three-month period, EUR 5,400 (five thousand four hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Ledi Bianku
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> VASILEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" - 22653/08 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2016] ECHR 396 (28 April 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/396.html Cite as: [2016] ECHR 396