FOURTH SECTION

DECISION

Application no. 44093/10 S.C. I.F.N. COMAUTOSPORT LEASING S.A. against Romania

The European Court of Human Rights (Fourth Section), sitting on 17 April 2018 as a Chamber composed of:

Ganna Yudkivska, President, Vincent A. De Gaetano, Faris Vehabović , Egidijus Kūris , Carlo Ranzoni, Georges Ravarani, Marko Bošnjak , judges, and Marialena Tsirli, Section Registrar ,

Having regard to the above application lodged on 6 July 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, S.C. I.F.N. Comautosport Leasing S.A., is a Romanian company, whose registered office is in Bistri ţ a . It was represented before the Court by Mr V. Petra, a lawyer practising in Bistri ţ a .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 6 June 2007 the applicant company concluded a vehicle leasing agreement with a third party, the private company V. C. S.R.L. (the lessee), managed by E.V.

4. The contract stated, inter alia , that monthly instalments were to be paid to the applicant company until 5 June 2011, when the property right concerning the vehicle was to be transferred to the lessee, V. C. S.R.L. The contract further stipulated that the lessee was not allowed to use the vehicle for transporting merchandise, unless the lessor had given his or her prior written approval thereto. The contract also stated that the failure of the lessee to pay two successive instalments could entitle the lessor to ask for the termination of contract ( reziliere ), in accordance with the general principles of contract law.

5. On 22 July 2009 the Customs National Authority squad caught E.V., who was driving the leased vehicle, transporting 120 litres of alcohol, without having the appropriate excise stamp or documentation concerning their provenience. The authorities issued a contravention report, sanctioning E.V. to a fine of 20,000 RON. They also confiscated the vehicle, in accordance with the provisions of Article 220 of the Code of Fiscal Procedure. The report mentioned that the vehicle belonged to the applicant company and was leased to the company V. C. S.R.L.

6. The report was contested by the applicant company. It complained that the vehicle, which was its property, was confiscated from its owner even if it had not participated to and had not had any knowledge about the commission of the act sanctioned by the fiscal authorities. The applicant also mentioned that following the confiscation, the lessee ceased to pay the agreed instalments. It argued that the circumstances constituted a deprivation of property without appropriate compensation.

7. On 21 December 2009 the Cluj Napoca District Court dismissed the applicant company ’ s complaint, mentioning that the sanction was in accordance with the law, namely the Code of Fiscal Procedure. Noting that the applicant company had concluded a leasing agreement with the company V.C. S.R.L., the court considered that all issues referring to alleged breaches of contract were to be dealt with under the contract responsibility law, and not within the framework of the fiscal procedure, which was meant to determine the lawfulness of the contravention report.

8. The applicant appealed, without addressing the District Court ’ s arguments referring to the remedy allegedly offered by the contract law.

9. The Cluj County Court dismissed the appeal on 28 April 2010, finding that the lower court ’ s judgment was lawful and well-founded. The County Court further held that the Code of Fiscal Procedure imposed the sanction of confiscation of the vehicle used for committing a contravention, without differentiating between the owner or the user of the vehicle subject to confiscation.

B. Relevant domestic law and practice

10. The domestic legal provisions and practice of the Romanian Constitutional Court relevant for the present case are set out in detail in the case of S.C. Service Benz Com S.R.L. v. Romania (no. 58045/11, §§ 15-20, 4 July 2017).

COMPLAINTS

11. The applicant company complained of having been deprived of its property without appropriate compensation, in breach of Article 1 of Protocol No. 1 to the Convention.

12. It further claimed a breach of Article 13 of the Convention, in so far as it did not have at its disposal any effective remedy to redress the alleged breach of its right of property.

THE LAW

A. Complaint under Article 1 of Protocol No. 1 to the Convention

13. The applicant company complained that the confiscation of its vehicle, without any compensation, on account of the acts committed by a third party amounted to an unlawful and disproportionate interference with its possessions, under 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.”

14 . The Court refers to its recent findings in the case of S.C. Service Benz Com S.R.L. v. Romania (no. 58045/11, 4 July 2017) , where it stated that the confiscation of a vehicle was lawful, based on the provisions of Article 220 of the Code of Fiscal Procedure (§ 31). Furthermore, such confiscation did not impose an excessive burden on the applicant in S.C. Service Benz Com S.R.L. , because at the relevant time, a claim under the Civil Code would have been an effective remedy for the applicant ’ s claims, offering sufficient prospect of success. The applicant in S.C. Service Benz Com S.R.L. had unjustifiably failed to use that remedy ( § § 39-43) . The Court thus concluded that a fair balance had been struck between the demands of the general interest of the community and the requirements of the protection of the applicant ’ s right s under Article 1 of Protocol No. 1 to the Convention and that there had therefore been no violation of that provision .

15. The Court notes that the present case has close similarities, both in fact and law, with the case of S.C. Service Benz Com S.R.L. and does not see any reasons to depart from the conclusion reached in the latter case, summarised in paragraph 14 above.

16. It follows that the applicant company ’ s complaint under Article 1 of Protocol No. 1 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 13 of the Convention

17. The applicant company claimed that no effective remedy existed under domestic law in respect of its complaint concerning the confiscation of its property. It argued that Article 13 required not only an appropriate compensation mechanism, but also an acknowledgment, by the State, of the existence of a breach of Article 1 of Protocol No. 1.

Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

18. The Court notes that Article 13 requires that a remedy be available in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see Nada v. Switzerland [GC], no. 10593/08, § 208, ECHR 2012 ).

19. The Court has found that the applicant ’ s complaint under Article 1 of Protocol No.1 to the Convention is manifestly ill-founded. It accordingly finds that that claim cannot be said to be “arguable” within the meaning of the Convention case-law.

20. It follows that also this part of the application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 17 May 2018 .

Marialena Tsirli Ganna Yudkivska Registrar President