FIRST SECTION

Application no. 22653/08 Ljupco VASILEVSKI against the former Yugoslav Republic of Macedonia lodged on 7 May 2008

STATEMENT OF FACTS

The applicant, Mr Ljupčo Vasilevski , is a Macedonian national, who was born in 1963 and lives in Kavadarci . He is represented before the Court by Ms S. Vasilevska , a lawyer practising in Kavadarci .

A. The circumstances of the case

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

1. Background of the case

In April 2000, while criminal proceedings were pending against him, certain I. has sold a truck (“the truck” ) to company M. On 17 September 2003 Skopje Court of First Instance (“the trial court”) convicted I. of smuggling nearly 9 tons sugar, which he had transported in the truck in November 1997. The court fined him and issued, under section 278 (3) of the Criminal Code 1996 (see “Relevant domestic law” below), forfeiture of the truck (and the sugar).

On 6 September 2004 company M. sold the truck to the applicant. The latter has registered the truck in his name.

On 12 June 2006 the trial court confiscated the truck from the applicant. The latter objected that I. had died on 21 March 2005 and that the forfeiture order could not be accordingly enforced. There had been no order restricting sale transactions with the truck. He had been a lawful owner and he had been making his living using the truck . Lastly, he stated that he had sough, in separate civil proceedings, restoration of the truck (see below).

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 further advised him that he could assume rights regarding the truck, as means of which the offence had been committed ( instrumentum sceleris ), under section 127 of the Criminal Proceedings Act (see “Relevant domestic law” below). This decision was upheld in second instance by a three-judge panel of the trial court, which confirmed that the applicant had no right to object to the enforcement of the forfeiture order. However, he had been entitled to claim, in civil proceedings, restoration of the truck. Civil courts were vested with jurisdiction, under section 127 (5) of the Criminal Proceedings Act, to reverse the forfeiture order and order restoration of the object at issue.

2. Civil proceedings for determination of the title and restoration of the truck

On 19 June 2006 the applicant submitted a civil claim seeking Kavadarci Court of First Instance (“the first-instance court”) to declare him owner of the truck and to order the State to return it into his possession. He also sought that the State reimburses him for the investment made in the truck. In this latter context, he identified the elements that he had meanwhile built-in in the truck. He further argued that he had been bona fide and lawful owner of the truck. He should not suffer any damage due to the failure of the authorities to seize the truck immediately after the offence had been committed and to prevent any further transactions with the truck. Since he had been making his living of the truck he requested an interim measure restricting the State to sell or otherwise dispose with the truck until the final resolution of the dispute.

With decisions of 29 June and 16 November 2006 respectively, the first- and second-instance courts dismissed the applicant ’ s request for an interim measure finding no evidence that in the absence of such measure his claim would be considerably affected or that he would sustain irreparable damage.

On 10 May 2007 the first-instance court dismissed the applicant ’ s claim. It established that I. , having known that the truck could be confiscated, had sold it to company M. On the basis of oral evidence given during the trial, the court established that neither the manager of company M. nor the applicant had known at the relevant time that the truck had been used as means of committing the offence and that it had been the subject of the forfeiture order. Relying on sections 68 and 278 (3) of the Criminal Code (see “Relevant domestic law” below), the court ruled that the confiscation, as a preventive measure applied against the offender, had been compulsory since its aim had been to deter the commission of any similar crimes. In the absence of that measure, offenders would be encouraged to sell such objects to third parties and acquire income, which would have negative impact on the general ethics. It considered that the applicant, as bona fide owner, could claim compensation from I. Lastly, it found that section 127 (5) of the Criminal Proceedings Act did not apply to the present case since the truck had been in possession of I. when the offence had been committed.

The applicant appealed against that decision reiterating the arguments that he had raised before and notified the court of I. ’ s death.

On 19 October 2007 Skopje Court of Appeal dismissed the applicant ’ s appeal finding no grounds to depart from the established facts and reasons given by the lower court.

B. Relevant domestic law

1. Criminal Code 1996

According to Article 68 of the Criminal Code 1996, as worded at the time, objects of a crime or objects which were used or intended to be used as means of which a crime had been committed, would be confiscated, if owned by the offender. An object which could be used again for commission of a crime would be confiscated regardless of the fact whether it was owned by the offender or a third person if the public security or ethics so require. Third parties were entitled to claim compensation from the offender.

Article 278 of the Criminal Code specified smuggling as a criminal offence and provided for a confiscation of smuggled goods and means for their transportation and distribution.

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

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 intended to be used as means of which a crime had been committed would be seized from the offender regardless of the fact whether he or she was their owner if the 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 intended to be used for commission of the offence. Court would issue a forfeiture order even if no proceedings, due to factual or legal reasons, could be instituted against the offender. Third persons were entitled to claim compensation from the offender.

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, court would order forfeiture of another property of corresponding value.

3. Criminal Proceedings Act 1997

According to section 127 (5) of the Criminal Proceedings Act 1997, a final forfeiture order could be reversed in civil proceedings concerning a dispute over the ownership of the objects at issue.

COMPLAINT

The applicant complains that he was deprived of his possessions contrary to Article 1 of Protocol No. 1 to the Convention.

QUESTIONS TO THE PARTIES

Has there been a violation of Article 1 of Protocol No. 1? In particular, did the confiscation of the applicant ’ s vehicle strike a fair balance between the demands of the general interest and the interests of the applicant? Having regard to the facts of the case established by the domestic courts, did the enforcement of the forfeiture order issued against I. impose an excessive individual burden on the applicant?