FIFTH SECTION

Application no. 42079/12 B.K.M. LOJISTIK TASIMACILIK TICARET LIMITED SIRKETI against Slovenia lodged on 12 April 2012

STATEMENT OF FACTS

The applicant company B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi , is a Turkish company with its registered office in Istanbul. It is represented before the Court by Mr S. Duran, a lawyer practising in Istanbul.

A. The circumstances of the case

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

On an unspecified date the police stopped the applicant company ’ s heavy-duty vehicle and arrested the driver X after unlawful narcotic drugs had been found in the vehicle . The vehicle, which belonged to the applicant company, was seized since it had been used to commit a crime.

On 29 December 2008 the Ptuj District Court found X guilty of drug trafficking. It ordered that the vehicle be returned to the applicant company since it did not know about the transport of illicit material.

X and the Higher State Prosecutor appealed. On 21 May 2009 the Maribor Higher Court modified the first-instance judgment and, relying on Sections 73 (3) and 186 (5) of the Penal Code, ordered the confiscation of the vehicle as it had been used for the commission of the relevant crime. It held that the legislative framework provided for mandatory confiscation and this type of crimes, the way in which they were committed, their magnitude and their dangerous consequences required extending sanctions to persons who were not the perpetrators of the crime, irrespective of whether the owners of the vehicle knew what the perpetrator had been transporting.

The applicant company lodged a constitutional appeal against the abovementioned decision and a petition for review of the constitutionality and legality of Section 186 (5) of the Penal Code, alleging a violation of its property right. It complained in particular that it did not know that the vehicle had been used for illicit purposes and stressed that the vehicle was subject to regular controls concerning possible vehicle modifications and hidden spaces. It further complained that the measure constituted a punishment and an unjustified and disproportionate interference with its property and that it had no possibility to participate in the criminal proceedings.

On 29 September 2011 the Constitutional Court rejected the constitutional appeal and the petition. In reviewing the contested legislation, the Constitutional Court accepted the Government ’ s justification of the alleged interference, namely the prevention of crimes endangering human health and life. It further noted that the perpetrators use d whatever available means to easily hide illicit narcotic drugs notwithstanding that these means belonged to a third party. Indeed, in most cases, the perpetrators used means not belonging to them. According to the Constitutional Court, these reasons justified the confiscation of all vehicles used for the commission of the relevant crime and the contested measure was an adequate measure of general prevention. Regarding the proportionality of the measure concerned, the Constitutional Court noted that only vehicles used for the commission of the relevant crime could be confiscated. Moreover, since these vehicles had been used for the commission of such serious crimes, their confiscation did not constitute a disproportionate interference with property rights. Lastly, the injured party ’ s right to claim compensation from the perpetrator remained unaffected. In rejecting the applicant company ’ s constitutional appeal the Constitutional Court based itself on the abovementioned findings and upheld the Higher Court ’ s reasoning. It noted that despite being informed of the seizure, the applicant company failed to prove that it had requested to participate to the relevant criminal proceedings.

B. Relevant domestic law

The relevant provisions of the Penal Code read as follows:

“Confiscation of Objects

Section 73

(1) Objects used or intended to be used, or gained through the committing of a criminal offence may be confiscated if they belong to the perpetrator.

(2) Objects under the preceding paragraph may be confiscated even when they do not belong to the perpetrator if that is required for reasons of general security or morality and if the rights of other persons to claim damages from the perpetrator are not thereby affected.

(3) Compulsory confiscation of objects may be provided for by the statute even if the objects in question do not belong to the perpetrator.

...

Unlawful Manufacture and Trade of Narcotic Drugs, Illicit Substances in Sport and Precursors to Manufacture Narcotic Drugs

Section 186

...

(5) Narcotic drugs or illicit substances in sport and the means of their manufacture and means of transport used for the transport and storage of drugs or illicit substances in sport shall be seized.”

COMPLAINT

The applicant company complains under of Article 1 of Protocol No. 1 that the domestic authorities had applied the domestic law arbitrarily and without taking into account its good faith and its property rights. In particular, the applicant company complains that the Penal Code must be interpreted as requiring confiscation only in cases where the truck had been adapted for the commission of the crime. Finally, it complains that the confiscation was not legal, proportionate and fair .

ITMarkFactsComplaintsEND

QUESTION TO THE PARTIES

Did the confiscation of the applicant company ’ s heavy-duty vehicle amount to an interference with its possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? If so, was that interference necessary to control the use of property in accordance with the general interest ? In particular, did that interference impose an excessive individual burden on the applicant company (see, for example, Air Canada v. the United Kingdom , 5 May 1995, Series A no. 316 A)?