CONCURRING OPINION OF JUDGE KŪRIS

1. The present judgment is in line with the trend dominating the Court’s case-law pertaining to the (in)compatibility of confiscation of crime-related property with Article 1 of Protocol no. 1 of the Convention. I dealt with this case-law in my dissenting opinion in the recent case which goes against that trend, B.K.M. Lojistik Tacimacilik Ticaret Limited Sirketi v. Slovenia (no. 42079/12, 17 January 2017). This dispenses me from discussing these issues here again.

2. Unlike in B.K.M. Lojistik Tacimacilik Ticaret Limited Sirketi (cited above), the majority (of which I am a part) did not confine itself within the limits of the dogma as suggested by too literal (and only literal) reading of Article 1 of Protocol no. 1, but paid heed, even if implicitly, to the broader context of combating smuggling and some other types of crime (especially trans-border crime).

3. This case is about culpa in eligendo . The employment of the legal tool of culpa in eligendo in such cases pursues the undoubtedly legitimate goal of “prevention of further commission of crime” (ibid., § 37). True, this tool is not uncontroversial, and the practice of its application is not completely mistake-proof. Still, there must be a compelling reason for member States (for Romania is not an isolated exception which knows this tool) not to dispose of it but to continuously use it, whenever applicable. This reason has a lot to do with authorities’, alas, limited possibilities to fight smuggling (and certain other types of crime) by “less uncontroversial” means.

4. Had the opposite finding been reached in the instant case, that is to say, had a violation of Article 1 of Protocol 1 been found in the instant case, not only the ages-tested raison d’être of the institution of culpa in eligendo would have been undermined, but also the wisdom of the Constitutional Court of Romania would have been contemptuously dropped of the scales. That court on yet three (!) occasions confirmed the conformity of the relevant provision of the Code of Fiscal Procedure with the constitutional provisions pertaining to inviolability of property (see paragraph 17 of the judgment). Moreover, that Constitutional Court is far from being the only constitutional court of a member State which had reached the same conclusion (for example, the Lithuanian Constitutional Court decided on the constitutionality of confiscation of instrumentum sceleris yet in 1997).

5. The decisive criterion for finding or not finding a violation of Article 1 of Protocol 1 in culpa in eligendo cases is whether domestic law allows the owner of the confiscated property to obtain compensation for the damage sustained. The Romanian law explicitly, most clearly allows to obtain such compensation. The existence of such possibility under Romanian law was confirmed, not once (!), by that country’s Constitutional Court. It would be pretentious, indeed proud-stomached for the Court to ask for a “firmer” proof.

6. Deciding culpa in eligendo disputes in the spirit of appreciation that reality – especially crime-related reality (!) – does not easily lend itself to be squeezed in library-developed legal formulas detached from life has long been the Court’s principled stance prior to its judgment in B.K.M. Lojistik Tacimacilik Ticaret Limited Sirketi (cited above). The latter case (which dealt with not “mere” smuggling but drug trafficking) stands out as some lonely exception. The said principled stance should persist, at least if (as I sincerely want to believe) the Court really cares about public good and bona fide believes that member States care about it, too.

[1 June 2017]