Communicated on 2 October 2014

FIFTH SECTION

Application no. 23912/12 Samo VALANT against Slovenia lodged on 20 April 2012

STATEMENT OF FACTS

The applicant, Mr Samo Valant , is a Slovenian national, who was born in 1965 and lives in Tržišče . He is represented before the Court by Mr J. Starman , a lawyer practising in Koper .

A. The circumstances of the case

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

1. The criminal investigation and the seizure of the applicant ’ s car

The applicant is a former rally car racer who won several national titles and was at the time of the events still actively competing. His company runs a car repair shop which is also authorised for remodelling of the cars intended to be used for racing competitions.

On 17 December 2002 the Novo mesto District Court, upon a request by the police, issued a search warrant for the applicant ’ s premises on the basis of police suspicion that he might have exchanged the car chassis numbers of two cars, in order to be able to register the second one, bought in Austria, and smuggle it through the State border without paying customs duties.

On the same day the police conducted the search at the applicant ’ s car repair shop and seized a Fiat Punto racing car in the value of 100,000 euros (EUR), the car licen s e and further documents.

Following the seizure of the car, the applicant several times requested its return, since he needed it for the forthcoming competitions from which he could not withdraw due to contractual obligations towards his sponsors. He insisted that he had not committed the offences he was suspected of.

On 14 February 2002 the Novo mesto District Public Prosecutor lodged a request for a criminal investigation against the applicant in respect of the offences of smuggling and forgery.

On 19 March 2003 the Novo mesto District Court upheld this request.

On 28 March 2003 the applicant leased another racing car and paid EUR 74,600 for the lease.

On 19 May 2003 the Novo mesto District Public Prosecutor abandoned the prosecution in respect of the offence of smuggling.

On 20 June 2003 the Novo mesto District Court discontinued the criminal investigation in respect of the offence of smuggling and referred the proceedings in respect of the offences of forgery and false certification to the Trebnje Local Court (see below).

2. The customs offences proceedings, the regular customs proceedings, and the return of the applicant ’ s car

On 17 May 2003 the Customs Office issued a seizure order in respect of the same car on suspicion that the applicant had in December 2002 committed the customs offence of avoiding the payment of customs duties when importing the car to Slovenia.

On 26 May 2003 customs offences proceedings were instituted against the applicant.

On 2 June 2003 the car was transferred from the Novo mesto District Court to the customs authorities.

On an unknown date the applicant lodged a request for subsequent assessment of customs duties under the regular customs proceedings.

On 4 July 2003 the decision on the amount of customs duties to be paid by the applicant was issued.

On 7 July 2003 the applicant paid the customs duties and the car was returned to him.

By 19 January 2004 the applicant had obtained all the necessary licenses for the car and was able to register it as special vehicle.

On 30 June 2004 the customs offences proceedings were discontinued since the prosecution had in the meantime become time-barred.

3. The civil proceedings

On 14 March 2005 the applicant instituted proceedings against the Republic of Slovenia before the Ljubljana District Court claiming compensation for the pecuniary losses sustained due to the seizure of his car. He claimed EUR 74,600, the amount he had paid for the lease of another car.

On 6 September 2005 the Ljubljana District Court dismissed the claim. It held that the seizure of the car was not unlawful, as the car had been confiscated on the basis of a valid search warrant . Even though the prosecution for smuggling had been discontinued, the criminal proceedings in respect of forgery and false certification were still pending. In addition, there was a further legal basis for the seizure due to the opening of the customs offence s proceedings. The State could therefore not be liable for the allegedly incurred losses. The applicant appealed.

On 8 March 2006 the Ljubljana Higher Court dismissed the applicant ’ s appeal.

On 20 April 2006 the applicant lodged an appeal on points of law.

4. The criminal proceedings before the Trebnje Local Court

On 16 April 2007 the Trebnje Local Court held that the search warrant of 17 December 2002 had not been issued in accordance with Section 241 of the Criminal Procedure Act, since the police had failed to establish reasonable grounds for suspicion that the applicant had committed the alleged offences . I t found that the police based their suspicion s solely on local rumo r s that the applicant had been seen using the car in regular traffic without registering it and on an article in a car magazine which reported that the applicant had bought a new car for racing competitions. It therefore decided to exclude from the case file all the evidence obtained on the basis of the search warrant.

At the hearing held on 23 April 2007 the District Public Prosecutor withdrew the charges against the applicant. On the same day the Trebnje Local Court dismissed the charges of forgery and false certification.

5. The reopening of the civil proceedings

Following the dismissal of the charges by the Trebnje Local Court , the applicant on 15 May 2007 lodged a request for the reopening of the civil proceedings . He alleged that the decision s on the unlawfulness of the search warrant and the discontinuation of the criminal proceedings were to be considered as new evidence which could influence the outcome of the proceedings.

On 19 June 2007 the Ljubljana District Court decided to suspend the proceedings in respect of the applicant ’ s appeal on points of law until the decision on the reopening request .

On 21 August 2007 the Ljubljana District Court dismissed the applicant ’ s request for the reopening of the proceedings. The applicant appealed.

On 2 April 2008 the Ljubljana Higher Court granted the applicant ’ s appeal and ordered the reopening of the proceedings.

On 10 February 2009 the Ljubljana District Court dismissed the applicant ’ s claim, which it examined under Article 26 of the Constitution and Section 148 of the Code of Obligations. It took into consideration the decision of the Trebnje Local Court of 16 April 2007 and established that the seizure of the car was unlawful. It however held that the causal link between the unlawful seizure and the damage incurred by the applicant had been interrupted due to the fact that the car was later also confiscated in the ambit of the customs proceedings. The Ljubljan a District Court held that in any case the applicant would not have been able to use the car since he had not fulfilled all the formal customs requirements in respect of its registration.

The applicant lodged an appeal. He argued that he had not been given the opportunity to be heard in respect of the alleged interruption of the causal link, since this argument had been brought forward by the State in their last submissions to which he had not been able to reply. He noted that in any case, the car had been seized while it was still in the process of remodelling and that he had the intention to register it at the end of the process. He was able to do so only later on, after the car had been returned to him. He further referred to the fact that subsequently he did not encounter any problems in obtaining the necessary certificates in order to register the car.

On 8 July 2009 the Ljubljana Higher Court dismissed the applicant ’ s appeal.

The applicant lodged an appeal on points of law challenging the conclusions of the court in respect of the interrupted causal link and arguing that the loss had already occurred before the car was seized in the customs proceedings. He further insisted that no customs offence decision had been issued against him and that a car not registered for regular use could still be used in competitions. In any case, the relevant submissions by the State in this respect had been filled too late and therefore should not have been considered by the court.

On 17 December 2009 the Supreme Court dismissed the applicant ’ s appeal on points of law confirming the conclusions on the interruption of the causal link. It further held in respect of the late submissions of the State that the argument about the non-fulfilment of the customs duties had been in substance previously raised by arguing that the applicant had imported his car illegally.

The applicant lodged a constitutional appeal which was rejected on 17 October 2011 by reference to S ection 55 .b of the Constitutional Court Act.

B. Relevant domestic law

1. Criminal Procedure Act

The relevant provisions of the Criminal Procedure Act as in force at material time read as follows:

Section 214

“ (1) A search of the dwelling and other premises of the accused or other persons may be conducted if there are reasonable grounds for suspecting that a specific person has committed a criminal offence and there is a likelihood of apprehending the accused during the search or of discovering the traces of the crime or objects of the relevance for the criminal proce edings.... . ”

Section 220

“(1) Objects which must be seized under the Penal Code, or which may prove to be evidence in criminal procedure, shall be seized and delivered to the court for safekeeping or secured in some other way.... “

2 . The 1991 Constitution

Article 26 of the Constitution read as follows:

“Everyone shall have the right to compensation for the damage caused by the unlawful acts of a person or body when performing a function or engaging in an activity on behalf of a State or local authority or as a holder of public office. ...”

3. Code of obligations

Article 148 of the Code of Obligations regulates the liability of legal persons for the damage inflicted by one of their subsidiary bodies, which also applies to the determination of the State ’ s liability for damage. It provides that a legal person is liable for the damage inflicted on a third party by one of its subsidiary bodies in the exercise of its functions or in connection therewith.

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. that the seizure of his car in the criminal proceedings and the rejection of his claim for compensation amounted to an unlawful and disproportionate interference with his right to the peaceful enjoyment of his possessions.

2. The applicant also complains under Article 6 § 1 of the Convention in respect of the length of the criminal and civil proceedings.

3. Under Article 6 § 1 of the Convention the applicant further complains that he was not afforded a fair hearing , as he was put at a substantial disadvantage vis-à-vis h is opponent – the State. He notes in particular that he had not been given the opportunity to respond to State ’ s belayed observations in respect of the interruption of the causal link. In any case, the State has also failed to prove any actual violation of the applicant ’ s customs obligations.

4. F inally , the applicant complains under Article 13 that he did not have at his disposal an effective legal remedy in respect of the above complaints.

QUESTIONS TO THE PARTIES

1. Taking into account the restitution of the applicant ’ s car, the acknowledgment of a violation of Article 1 of Protocol 1 to the Convention and the rejection of his claim for compensation, c an the applicant still claim to be a “victim” of a violation of Article 1 of Protocol 1 to the Convention within the meaning of Article 34 of the Convention ?

2. Assuming that the applicant can still claim to be a “victim”, did the seizure of his car satisfy the requirements of Article 1 of Protocol No. 1, and in particular the requirement that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see, Iatridis v. Greece [GC], no. 31107/96, § 58 , ECHR 1999 ‑ II) ?