FOURTH SECTION

Application no. 3503/08 ÃœNSPED PAKET SERVÄ°SÄ° SAN. VE TÄ°C. A.Åž. against Bulgaria lodged on 16 January 2008

STATEMENT OF FACTS

The applicant, Ãœnsped Paket Servisi SaN . Ve TiC . A.Åž., is a Turkish company. It is represented before the Court by Mr Oktay , 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.

The applicant company runs freight, transport and customs services. On 23 June 2007 one of the company ’ s lorries was stopped for inspection at the Yambol customs point. The Bulgarian authorities uncovered and seized the following substances from the cabin and trailer: 500,060 tablets (with a total value of 24.584,20 Bulgarian levs (BGN)); 3.564 grams of white tablets (with a total value of BGN 81,26) which included “ efedrin hidroklorid ”; and, 6,880 pills which included “ testone enanthate ” (with a total value of BGN 30.203,20). The lorry was also seized as material evidence. Criminal proceedings were opened into the incident.

On 26 June 2007 the applicant company requested the prosecutor to release its lorry. The prosecutor rejected the request on the grounds that the lorry had to be retained as material evidence until the end of the criminal proceedings.

On 3 August 2007 the applicant company again applied to the Yambol Prosecutor ’ s Office asking that the lorry be released. In particular, the company claimed that: there had been no secret place for hiding in the lorry; the driver had abused his duties; the keeping of the lorry was no longer justified as an expert report had already been prepared; the lorry ’ s value (BGN 165,000) was about three times higher than the value of the drugs and so the lorry could not be confiscated under Article 242 § 8 of the Criminal Code and, finally, that the company faced significant losses because of the lorry ’ s seizure. The applicant ’ s request for release of the lorry was rejected by the Yambol Prosecutor ’ s Office on an unspecified date.

Subsequently, the lorry driver concluded a plea bargain agreement with the prosecutor whose terms included a one-and-a-half year prison sentence for the driver and the forfeiture of the lorry. The agreement, in which the driver admitted he was guilty of smuggling under Article s 242 § 1 (d) and 242 § 3 of the Criminal Code and accepted the forfeiture of the transported drugs and lorry under Article 242 §§ 7 and 8 of the Criminal Code, was confirmed in accordance with Article 382 § 7 of the Code of Criminal Procedure by the Yambol Reg ional Court in a decision of 14 August 2007. The decision entered into force on the same day and was not subject to appeal.

B. Relevant domestic law and practice

1 . Criminal responsibility and smuggling

Criminal Code

Article 35 stipulates that criminal responsibility is personal. Only a person who has committed a crime stipulated in law can be punished for that crime. The punishment follows the crime and can be imposed only by a court.

Article 242 § 1 (d) provides that a person who transports across the State border undeclared goods for which he or she has no permission, and which are in large quantities and for trade or production purposes, shall be liable for qualified smuggling, which is punishable with imprisonment of up to ten years, and a fine of between 20,000 levs and 100,000 levs .

Article 242 § 3 stipulates that the transportation across the State border of products and tools for the production of drug substances, is an offence punishable with imprisonment of between two and ten years and a fine of between 50,000 and 100,000 levs .

2 . Forfeiture of property not belonging to the offender

Criminal Code

Article 242 § 8 stipulates that, unless there is a stark discrepancy between the vehicle ’ s value and the nature of the offence, a vehicle which has served for the transportation of smuggled goods across the State border shall be forfeited by the State, even if it is not property of the offender.

3 . Forfeiture/confiscation of property belonging to offender

Criminal Code

A number of legal provisions under the Criminal Code provide that the State can forfeit items of property, on condition that they belong to the offender. In particular, Article 44 contains the general provision related to confiscation of offenders ’ property; Article 53 § 1 (a) stipulates that, irrespective of the criminal responsibility of the offender, the items of property which belong to him or her and which have served for the commission of the offence shall be forfeited; and, Article 280 § 3 provides that the vehicle which has served a person to transport one or more individuals across the State border, without permission or through places not designated for that purpose, shall be forfeited if it belongs to the offender.

4 . Plea bargain agreement

Code of Criminal Procedure

Under Article 381, upon completion of the investigation, on a proposal either of the prosecutor or the suspect, an agreement can be reached as to the outcome of the case. Article 382 stipulates that the agreement is confirmed by a judge within seven days of its conclusion at a hearing in the presence of the prosecutor, the defence lawyer and the accused. After the court has verified that the accused understands the accusation, admits his/her guilt, understands the consequences of the agreement, accepts them and has agreed to all that voluntarily, it approves the agreement if it does not breach the law or the good morals. The court ’ s decision is not subject to appeal. According to Article 383, a plea bargain agreement approved by a court attracts the consequences of a sentence which has entered into force.

5 . Retention of real evidence during criminal proceedings

Code of Criminal Procedure

Article 111 stipulates that real evidence is to be retained until the end of the criminal proceedings. It could be returned to those entitled earlier if that would not hinder the establishment of the facts.

A ccording to Article 112 § 1 , after the end of the proceedings, items retained as real evidence and not forfeited under Article 53 could be forfeited, if it was impossible to ascertain their owner and they had not been claimed within one year after the end of the proceedings.

A new provision 112 § 3 of 2008 provides that the vehicle retained as real evidence outside of the scope of Article 53, shall be forfeited if their owner has not been established and if, within five years of their retention, they have not been claimed.

6 . Provisional measures ( обезпечителни мерки ) with a view to securing property in pending criminal proceedings

Code of Criminal Procedure

The situation of individuals, whose property has been affected by provisional measures (injunctions) while they have not been indicted, was examined in a recent interpretative decision by the Supreme Court of Cassation ( Тълкувателно Решение No 2 от 11 октомври 2012). The court held that provisional measures under Article 72 of the Code of Criminal Procedure may be imposed only on individuals who are formally charged with a criminal offence attracting a fine or confiscation as possible punishment.

The reasoning of the court was that [such measures] affect the ability of the accused to use and dispose of his or her property. Before ruling on it, the courts have to establish the relation between the person and the item of property in respect of which a provisional measure is requested. Criminal law does not allow the imposition of provisional measures in respect of future indictments. If one were to accept that it were not necessary for the person, in respect of whose property a provisional measure is requested, to be indicted, but instead the mere opening of criminal proceedings against him or her were sufficient, that would lead to a stark contradiction with Article 17 § 3 of the Constitution (which guarantees the inviolability of private property) and therefore to an act of arbitrariness.

Exception from the above requirements are situations in which the Criminal Code envisages forfeiture of objects accessory to crime, irrespective of whose property they happen to be (such as under Article 53 § 2, Article 242 § 7 etc.).

The Supreme Court of Cassation also found in point 3 of the same decision that it was acceptable to impose provisional measures on assets retained as real evidence. It signalled in point 4 that the courts have to assess the proportionality between the amount of the requested provisional measure and the amount of the punishment (fine, confiscation, forfeiture) in respect of which that measure had been requested.

COMPLAINTS

Relying on Article 1 of Protocol No. 1, the applicant company complains about t he lorry ’ s forfeiture. In particular, it submits that: (1) the company and not the driver was the lorry ’ s owner; (2) the forfeiture was contrary to Article 242 § 8 of the Criminal Code because the lorry ’ s value was approximately three times higher than the value of the drugs; and (3) the company was not responsible for the offence.

Relying further on Articles 6 § 1, 6 § 2, 6 § 3 (a), 6 § 3 (b) and 6 § 3 (d) of the Convention, the applicant company claims that the criminal proceedings were unfair in particular because the applicant had been prevented from participating in the criminal proceedings of the plea bargain agreement as a third party whose property was affected by the forfeiture.

Finally, relying on Article 13 in conjunction both with Article 6 and with Article 1 of Protocol No. 1 to the Convention, the applicant company complains that it had no effective remedy before a national authority to challenge the forfeiture of the lorry or the unfairness of the criminal proceedings.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant company ’ s peaceful enjoyment of possessions, within the meaning o f Article 1 of Protocol No. 1?

2. If so, did this interference constitute a lawful measure?

3. Has the applicant been made to bear an excessive individual burden as a result of this measure? (see Denisova and Moiseyeva v. Russia , no. 16903/03 , § 64, 1 April 2010 ) ?

4. Was the applicant company entitled to participate in the criminal proceedings as a party potentially affected by the forfeiture of its property?

5. Was Article 6 § 1 of the Convention applicable to the proceedings in the present case in so far as the applicant was concerned? If yes, was it applicable under its civil or criminal head?

6. Does Bulgarian law provide for a possibility for owners of assets, forfeited in criminal proceedings against third parties, to effectively protect their property rights in any other proceedings (see Yildirim v. Italy ( dec. ), no. 38602/02) ?