JOINT DISSENTING OPINION OF JUDGES SAJÓ, PINTO DE ALBUQUERQUE AND WOJTYCZEK

[(Translation)]

1. The hard core of the present case concerns a crucial question of contemporary criminal and administrative law, namely objective vicarious liability. The majority’s answer to this question blatantly contradicts one of the Court’s previous judgments. We disagree with the majority. In our view there was a violation of Article 1 of Protocol No. 1 to the Convention, for the following reasons.

2. The Court notes that the Romanian Constitutional Court has on several occasions been called upon to examine the constitutionality of the provisions of Article 220 § 2 (b) of the Code of Tax Procedure, following challenges for non-compliance with the right of property on the grounds that the said provisions authorised the confiscation of property belonging to persons other than the administrative offender. It notes that Constitutional Court Decision no. 685 of 16 November 2006 declared those provisions constitutional, having held, in particular, that the owner of the confiscated property was at liberty to claim damages from the administrative offender by means of an action for damages based on the contract which they had concluded [1] .

3. We, for our part, observe that the Government have failed to provide any example of a domestic decision demonstrating that the domestic courts have followed the approach adopted by the Constitutional Court and that the latter’s findings were not merely theoretically valid at the material time. In other words, the present case is not different from that of Andonoski v. the Former Yugoslav Republic of Macedonia [2] , in which the Court found that the domestic remedy was not effective because of the absence of relevant practice in the domestic courts. It cannot be overlooked that the majority has here effected a “covert” reversal of the Andonoski case-law, in breach of the procedure set out in Article 30 of the Convention. That fact alone would warrant involving the Grand Chamber in this case, but there are also further arguments which would render such involvement indispensable should the applicant company choose to exercise the option under Article 43 of the Convention.

4. Indeed, it is impossible to speculate about the effectiveness of the remedy mentioned by the Government, particularly since the applicant company’s main objective was to recover its fuel tankers. We consider that the majority is doing just that, speculating, in reaching the conclusion that the applicant company could have exercised the remedy concerning contractual liability in order to secure just satisfaction for the damage caused by the confiscation. In those conditions, we would consider it excessive to ask the applicant company to bring new proceedings against the other party to its contract in order to claim compensation for the actions of the public authorities. Moreover, the majority’s rationale would lead to an inadmissibility decision because they consider that the applicant company had a judicial remedy at its disposal which it failed to exhaust. Hence we find it hard to understand how the majority managed to reach a no-violation finding on the basis of such a line of reasoning.

5. What is more, the applicant company’s liability could not have been incurred under the particular circumstances of the case for the following three reasons.

First of all, the contract concluded between the applicant company and company N. stipulated that it was incumbent on the company N. to “complete the transport documents with the requisite, correct and accurate information” [3] . That clause corresponded to the legal framework applicable at the material time. This confirms that the applicant company was under no obligation to verify the liquid being carried by the fuel tankers. Therefore, it could not be criticised for not having checked the product being transported.

Secondly, the Government followed the Constitutional Court in speaking of liability for risk [4] . They submitted that the applicant company had taken on the “risk that the company N. might potentially act unlawfully”. That line of reasoning is highly problematic in the sphere of criminal and administrative law, because it presupposes some form of vicarious liability. Even in civil law, vicarious liability is exceptional and must be prescribed by law. However, the Government have not presented any legal basis for establishing the transporter’s liability for a risk originating in the forwarder’s goods. Quite to the contrary, the relevant provision of the Code of Commerce in force at the material time, Article 416, provided that the forwarder, and not the transporter, was liable for the content and lawfulness of the customs papers and any other necessary documentation [5] .

Thirdly, in any event, the applicant company had had no opportunity to check the conformity of the goods, and a tax office representative sealed the two fuel tankers after loading. In other words, the applicant company at no point showed any lack of due diligence.

6. We do not believe that the confiscation of the property of third parties without evidence of mala fide, fault or even lack of due diligence in the framework of criminal or administrative proceedings is compatible with Article 1 of Protocol No. 1 to the Convention. Having regard to the punitive nature of such a measure, as acknowledged by the County Court itself [6] , the automatic and mandatory confiscation of possessions belonging to third parties raises a serious issue not only of lack of proportionality but also of a gross breach of the presumption of innocence. The manner in which confiscation as laid down in Article 220 (k) of the Code of Tax Procedure was applied to the applicant company’s two fuel tankers by the domestic courts in the administrative proceedings against the company N. left the administrative and judicial authorities no choice but to carry out the confiscation in accordance with the factual circumstances, and even prevented them from opting for a less intrusive penalty. The measure therefore amounted to a “blind” restriction on the right to property, making no distinction between the status of owner and that of holder by permission of the property used for the unlawful transport of goods subject to excise duty. Furthermore, the penalty is imposed despite the courts’ inability to assess or take into account the particular circumstances of the individual cases and, in particular, the damage inflicted on the owner.

7. In the light of the above considerations we conclude that the mandatory confiscation of the fuel tankers, combined with the lack of any realistic opportunity for the applicant company to defend itself or obtain compensation for the damage thus caused, failed to take sufficient account of that company’s interests. Consequently, while acknowledging the need for action to combat tax fraud, and even though the States must benefit from a broad margin of appreciation in this sphere, we consider that the interference with the applicant company’s right to respect for its property failed to strike a fair balance between the requirements of the general interests of society and those of the protection of the applicant’s fundamental rights. In the present case there was therefore a violation of Article 1 of Protocol No. 1 to the Convention.

[1] See paragraph 17 of the judgment.

[2] See Andonoski v. the Former Yugoslav Republic of Macedonia , no. 16225/08, 17 September 2015.

[3] See paragraph 7 of the judgment.

[4] See paragraph 17 of the judgment for the Constitutional Court’s position and paragraph 24 for that of the Government.

[5] See paragraph 14 of the judgment.

[6] The County Court described the confiscation as an “ ancillary penalty ” see (paragraph 14 of the judgment).