Information Note on the Court’s case-law 189

October 2015

Ãœnsped Paket Servisi SaN. Ve TiC. A.Åž. v. Bulgaria - 3503/08

Judgment 13.10.2015 [Section IV]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Deprivation of property

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Confiscation of means of transport used for transporting drugs: violation

Facts – In 2007 a lorry belonging t o the applicant, a Turkish company running logistics services, was stopped for inspection at a customs post. Drugs were discovered and seized and criminal proceedings were brought against the driver. The lorry was seized as material evidence. The lorry dri ver later concluded a plea bargain agreement with the prosecutor, which included a one-and-a-half-year prison sentence for the driver and forfeiture of the lorry. The applicant company was unable to participate in the criminal proceedings against the drive r, but asked the criminal court not to confiscate the lorry, which was worth over three times the value of the drugs and therefore could not be confiscated under the domestic law. However, the criminal court confirmed the plea bargain agreement in a decisi on which was not subject to appeal and became enforceable the same day. The applicant company’s action against the driver to recover the value of the lorry was unsuccessful as he had no assets.

Law – Article 1 of Protocol No. 1: The confiscation of the lor ry represented an interference with the applicant company’s property rights. The interference was based on the relevant provisions of the domestic law, which were sufficiently accessible, precise and foreseeable.

The confiscation had pursued the legitimate aim of fighting illegal drug-trafficking. However, the national courts had not considered the legality of the confiscation under the domestic law and, in particular, whether the value of the vehicle significantly exceeded that of the smuggled drugs. Nor, despite the lack of any evidence that the applicant company knew or should have known of the offence, had they examined its conduct as owner of the vehicle. Indeed, there was no possibility for an examination of the owner’s case under the domestic law. The absence of such an analysis had not allowed a fair balance to be struck between the different interests involved.

The forfeiture would only have complied with the Convention requirements if it were carried out in accordance with a procedure offering appropriate safeguards against arbitrariness. In the present case there was no procedure available domestically to the a pplicant company to bring its case before the relevant authorities. The State could not relieve itself of its Convention responsibility to provide for such a procedure by asking a person who had not been tried for the criminal offence that led to the confi scation to seek recovery of their property from a third party.

The applicant company had thus borne an individual and excessive burden which could have been rendered legitimate only if it had had the opportunity to challenge effectively the forfeiture of i ts property resulting from the criminal proceedings to which it had not been a party. However, it had not had such an opportunity and therefore the fair balance which should have been struck between the protection of the applicant’s right to property and t he requirements of the general interest had been upset.

Conclusion : violation (unanimously).

Article 41: reserved.

(See also Andonoski v. the former Yugoslav Republic of Macedonia , 16225/08, 17 September 2015, Information Note 188 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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