DISSENTING OPINION OF JUDGE KŪRIS

1. Had this case been the first one in which the Court had to examine the issue of mandatory confiscation of crime-related property belonging to a third person, it would have been quite easy to support the finding of a violation of Article 1 of Protocol No. 1 to the Convention as the logical result of an exercise in “pure” legal theory. Had it been the first one.

However, it is not.

It has to be said that the Court ’ s case-law on this issue calls for greater consistency and refinement. This judgment does not appear to be in line with that part of the Court ’ s case-law which – in my opinion quite reasonably – allows a wider margin of appreciation to be left to the member States as to the choice of means aimed at combating the most dangerous criminal activities such as drug trafficking.

2. In paragraph 50, the majority rightly point out that “a compensation claim of this nature entailed further uncertainty for a bona fide owner of confiscated property because the offender might be found to be insolvent” and that in some cases such a possibility of compensation “was not held to offer bona fide owners sufficient opportunity for bringing their cases before the competent national authorities”.

In some cases, but not in all .

Some of these cases (most notably Air Canada v. the United Kingdom (5 May 1995, Series A no. 316 ‑ A) and AGOSI v. the United Kingdom (24 October 1986, Series A no. 108)) are referred to in the judgment. But there is also other case-law which deserves greater attention than it has received in this judgment. I shall mention only a few of the much greater number of cases.

3. In Waldemar Nowakowski v. Poland (no. 55167/11, 24 July 2012), which is not referred to at all in the present judgment (indeed, there are important factual differences between that case and the instant one), a violation of Article 1 of Protocol No. 1 was found because the applicant was deprived of his property, which in that case was a collection of arms “of considerable historical and presumably also financial value”, “in its entirety”. Moreover, the courts took measures to ensure that a public museum acquired the collection for free, but failed to consider “any alternative measures which could have been taken in order to alleviate the burden imposed on the applicant, including by way of seeking registration of the collection” (§§ 56 and 57).

In the present case the confiscation of the objects in the applicant ’ s possession that were initially seized by the authorities was by no means as indiscriminate (see paragraph 8 of the present judgment regarding the return to the applicant company of the trailer and the goods contained in it). A lorry is a lorry. It cannot be confiscated other than “in its entirety”. It may, according to the law, either be confiscated as instrumentum sceleris (to use the term employed in the judgment) or not.

4. In Sulejmani v. the former Yugoslav Republic of Macedonia (no. 74681/11, § 41, 28 April 2016), to which the majority refer only in the context of the categorisation of confiscated objects as objectum sceleris (see paragraph 37 of the present judgment), the Court did not find the mandatory confiscation of the applicant ’ s property to have violated Article 1 of Protocol No. 1. The Court was satisfied that the applicant had had at his disposal a judicial remedy in the form of a civil claim for compensation against the person responsible for the damage sustained. The applicant “did not explain his failure to lodge such a claim” and “did not argue that there were any impediments to him resorting to that avenue or any particulars ... which would have rendered it ineffective in the circumstances of the case”. Thus, the mandatory confiscation of the item in question, as such, was upheld by the Court. The issue as to whether the confiscated item was to be categorised as objectum sceleris or instrumentum sceleris , although given some prominence by the Chamber in the instant case (see paragraph 37 of the present judgment), did not appear to be of any relevance in Sulejmani .

What is relevant in Sulejmani , from the perspective of the instant case, is that the applicant in the instant case, like the one in Sulejmani , had the possibility of lodging a claim for compensation against the offender, in this case a (convicted) drug trafficker. But, like the applicant in Sulejmani , the applicant company did not explain its failure to lodge such a claim. I have no great difficulty in conceding and agreeing with the majority that that possibility, which would have required the applicant company to “embark on another set of proceedings”, does not (at least, not strongly) support the Government ’ s submissions as to the non-exhaustion of domestic remedies available to the applicant company (see paragraph 51 of the judgment; compare Sulejmani , §§ 26 and 27). But this is clearly not a sufficient basis for finding a violation of Article 1 of Protocol No. 1 in the present case.

Moreover, Sulejmani did not concern anything even close to drug trafficking.

5. In Andonoski v. the former Yugoslav Republic of Macedonia (no. 16225/08, 17 September 2015), to which the majority refer only in the context of the “applicable rule” (see paragraph 38 of the present judgment), a violation of Article 1 of Protocol No. 1 was found because of the decisive circumstance (“[i]in such circumstances”, as explicitly stated in paragraph 40 of that judgment) that the domestic legislation “did not provide for the possibility to claim compensation” for the mandatory confiscation of instrumentum sceleris (again, to use the term employed in the judgment); in addition, the Court took note that the Government “did not provide any illustration of domestic practice that would demonstrate that a compensation claim ... was available, let alone effective, in similar circumstances to the applicant ’ s case” (§ 39).

In the present case, however, the opportunity for the applicant to claim compensation from the offender, that is, the driver convicted of drug trafficking, was obvious . In accordance with the interpretation of the Slovenian legislation by the Constitutional Court of that State, the confiscation of the lorry “did not affect” the applicant company ’ s right to claim such compensation. What is more, the applicant company had not only the right but also the possibility – hence the effective opportunity – to exact compensation from the person responsible for the damage sustained (see paragraph 15 of the judgment).

6. In Vasilevski v. the former Yugoslav Republic of Macedonia (no. 22653/08, 28 April 2016) a violation of Article 1 of Protocol No. 1 was also found because of the ineffectiveness, in practice , of the claim for compensation which the applicant could have lodged against the persons whose actions had caused the damage he sustained. I am afraid that the parallel between the instant case and Vasilevski , as drawn in the judgment, is misleading. Prominence is given to the fact that, like in Vasilevski , “[t]he relevant domestic legislation ... took no account of the relationship between the applicant company ’ s conduct and the offence”, as well as to the fact that, like in Vasilevski , it was not likely “that the [confiscated] lorry might be used again for transporting illegal substances” had it been returned to the applicant company (see paragraphs 45 and 48 of the judgment). Also, Vasilevski is relied upon by the majority in so far as “[t]he compensation claim was not held to offer bona fide owners sufficient opportunity for bringing their cases before the competent national authorities”; the majority state that “[t]he general nature of the argument adduced by the Government does not provide a sufficient basis for the Court to depart from its above ‑ mentioned findings” (see paragraph 50).

However, what is relevant in Vasilevski for the instant case is not some ostensible parallel but the decisive factual difference between the two cases. In Vasilevski , the possibility for the applicant to claim compensation from either a physical person or a company responsible for the damage sustained was illusory. The “particular circumstances of the ... case” rendered that possibility ineffective. The physical person against whom such claims could be lodged “had died ... before the lorry was confiscated from the applicant”, “no information was available as to the whereabouts of his heirs and whether they could be held responsible under the applicable rules”, and the Government had not presented the Court with “any illustration of domestic practice that showed that a claim against heirs of a deceased seller ... had been effective in similar circumstances to the applicant ’ s case”. As to the company against whom the claims could be lodged, it “had ceased to exist before the [object in question] had been confiscated from [the applicant]” (§§ 59 and 60).

Nothing of this sort is apparent from the file in the instant case. In order to rebut the presumption of the availability of compensation from the actual offender and to conclude that the opportunity for the applicant company to claim compensation from the (convicted) drug trafficker was not “sufficient” (see paragraph 50), the majority should have examined whether the alleged “further uncertainty” indeed stemmed from the facts of the case. No such consideration is found in the judgment. Instead, the Chamber is satisfied with the fact-insensitive “blanket” statement that “[t]he general nature of the argument adduced by the Government does not provide a sufficient basis for the Court to depart from its above-mentioned findings” (ibid.).

7. In paragraph 43, the majority cite AGOSI (cited above, §§ 54 and 55 ) and reiterates that the “fair balance between the means employed by the domestic authorities for the purpose of preventing drug trafficking and the protection of the applicant company ’ s property rights ... depends on many factors, and the behaviour of the owner of the property is one element of the entirety of circumstances which should be taken into account”, along with consideration of “whether the applicable procedures in the present case were such as to enable reasonable account to be taken of the degree of fault or care attributable to the applicant company or, at least, of the relationship between the company ’ s conduct and the breach of the law which undoubtedly occurred” and “whether the procedures in question afforded the applicant company a reasonable opportunity of putting its case to the responsible authorities ” (emphasis added). The majority reiterate that “[i]n ascertaining whether these conditions were satisfied, a comprehensive view must be taken of the applicable procedures” .

As a matter of principle, I could not agree more. Without speculating as to the “care” (not the “degree of fault”!) attributable to the applicant company, and confining myself to the “reasonable opportunity of putting [the case] to the responsible authorities”, I can only note that such “reasonable opportunity”, in the instant case, encompassed the avenue of lodging a civil claim for compensation against the person responsible for the damage sustained by the applicant company. It has not been established (unlike in Vasilevski, cited above, see paragraph 6 above) that this avenue was futile.

8. Mandatory confiscation of crime-related property belonging to a third person is indeed a problematic tool. When the interests of such a third person are balanced against the public interest, this tool is not uncontroversial. It is indeed somewhat borderline. Nevertheless, in previous cases the Court did not rule out the use of this tool if there were, prima facie, realistic possibilities for the third person to obtain compensation for the damage sustained. Where a violation of Article 1 of Protocol No. 1 was found in such cases, that finding was (almost) always fact-specific. This stance did not obstruct member States ’ efforts to combat criminal activities such as drug trafficking.

None of us judges would like the present judgment – which may be a prime example of law as contemplated in the quiet confines of a legal library – to be one more tool which, in real life , could and would effectively run counter to these efforts and, by extension, to the public good.

Will this prove to be the case?