European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

 

CASE OF ÜNSPED PAKET SERVİSİ SAN. VE TİC. A.Ş. v. BULGARIA

 

(Application no. 3503/08)

 

 

 

 

 

 

 

 

 

JUDGMENT

(Just satisfaction)

 

 

 

 

 

STRASBOURG

 

24 November 2016

 

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.




In the case of Ünsped Paket Servisi SaN. Ve TiC. A.Ş. v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Erik Møse,
          Khanlar Hajiyev,

          Faris Vehabović,
          Yonko Grozev,
          Carlo Ranzoni,
          Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 3 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 3503/08) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ünsped Paket Servisi SaN. Ve TiC. A.Ş. (“the applicant company”), a Turkish company, on 16 January 2008.

2.  The applicant company was represented by Mr M. Oktay, a lawyer practising in Istanbul, Turkey. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, from the Ministry of Justice.

3.  The case concerned the forfeiture of a vehicle, belonging to the applicant company, in criminal proceedings against the vehicle’s driver who was an employee of the applicant company. In a judgment delivered on 13 October 2015 (“the principal judgment”), the Court found a breach of Article 1 of Protocol No. 1 to the Convention because the forfeiture had been carried out without procedural guarantees allowing the applicant to put its case to the authorities and challenge effectively the forfeiture of its property at the end of criminal proceedings to which it was not a party. The Court held that the absence of such procedural guarantees in the national law had not allowed for a “fair balance” to be drawn between the different competing interests and the applicant therefore bore an individual and excessive burden (see Ünsped Paket Servisi SaN. Ve TiC. A.Ş. v. Bulgaria, no. 3503/08, § 47, 13 October 2015).

4.  Under Article 41 of the Convention the applicant company sought just satisfaction. Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicant company to submit, within three months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., § 50, and point 4 (b) of the operative provisions).

THE LAW

5.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

1.  Submissions by the parties

6.  The applicant company and the Government informed the Court that they had not reached an agreement on the question of damage, and each of them submitted observations.

7.  The applicant company claimed pecuniary damage of a minimum amount of 113,000 euros (EUR). This corresponded to EUR 83,000, which had been the market value of the applicant company’s lorry at the time of the forfeiture, plus the accumulated interest on that amount between the date of the confiscation (23 June 2007) and the date of the Court’s judgment on just satisfaction. Based on the Court’s practice regarding just satisfaction claims, where default interest was considered to be a simple interest rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points, the applicant company considered the interest due to it in the present case to be about EUR 30,000.

8.  It also pointed out that it had brought civil proceedings in Turkey against the driver of the forfeited lorry. While the authorities had found for the company and awarded it EUR 110,116.75 including interest up to 21 December 2011, it had been unable to collect any money from the driver as he had had no assets at the time. If interest were calculated on that amount, the applicant company’s pecuniary damage would be in the amount of EUR 120,616.75.

9.  The applicant company reiterated that, in view of the above information, its pecuniary damage was not less than EUR 113,000. It did not make a claim in respect of non-pecuniary damage.

10.  The Government informed the Court in the first place that there were no grounds for reopening at the national level the criminal case against the driver of the lorry, given in particular that the seriousness of the offence corresponded to the value of the vehicle.

11.  The Government then contested the applicant company’s claims, considering them unjustified and excessive. In particular, they challenged the entirety of the applicant company’s claims in respect of the accrued interest on the value of the vehicle as irrelevant and unjustified.

2.  The Court’s assessment

12.  The Court reiterates that a judgment in which it finds a breach of the Convention imposes on the respondent State a legal obligation to put an end to that breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000-XI; see also Zlínsat, spol. s. r.o. v. Bulgaria (just satisfaction), no. 57785/00, § 39, 10 January 2008).

13.  The basis on which the Court proceeds as regards pecuniary damage depends on the nature of the breaches found. In its judgment on the merits in the present case the Court established that there had been no procedure offering appropriate safeguards against arbitrariness at the national level in which the applicant company could have put its case to the national authorities in respect of the forfeiture of its property. Consequently, such a dispossession of property, without appropriate legal safeguards, can be said to justify restitutio in integrum, similarly to cases of arbitrary or unlawful dispossession. The Court has held in earlier cases that in the event of a failure on the part of the respondent State to provide for restitutio in integrum, it is called upon to effect payment of a sum reflecting the value of the property taken (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, §§ 36-39, Series A no. 330-B; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, §§ 21-24, ECHR 2001-I; and Kehaya and Others v. Bulgaria (just satisfaction), nos. 47797/99 and 68698/01, § 19, 14 June 2007).

14.  Accordingly, in the present case the Court finds that the return of the lorry to the applicant company would put it, as far as possible, in a situation equivalent to the one in which it would have found itself had there not been a breach of Article 1 of Protocol No. 1 (see, similarly, East West Alliance Limited v. Ukraine, no. 19336/04, § 257, 23 January 2014). However, the Court observes that restitutio in integrum is not possible because the Government had not offered to return the vehicle in question as part of a possible settlement, nor has any information been submitted to the Court as to the current whereabouts and state of the lorry which, in any event, would have deteriorated significantly in view of the passage of time. It follows that the respondent State should compensate the applicant company fully for the loss of its property (see, in addition to the cases cited in the previous paragraph, Todorova and Others v. Bulgaria (just satisfaction), nos. 48380/99, 51362/99, 60036/00 and 73465/01, §§ 9-11, 24 April 2008).

15.  As to the amount of that compensation, the only valuation of the property at issue at the disposal of the Court is the one presented by the applicant company, prepared in 2007 during and for the purposes of the domestic judicial proceedings against the lorry’s driver (see paragraph 7 above and paragraph 8 of the principal judgment). The Government did not provide an alternative estimation and neither of the parties submitted more detail as to how, in their view, the quantum of award was to be calculated.

16.  The Court observes that, as submitted by the applicant company, the competent authorities in Turkey had found that the driver of the lorry owed EUR 110,116.75 in damages to the applicant company. While there is no information in the file that the applicant company has been able to collect any of this amount to date (given that the lorry driver had no assets at the time), payment on this enforceable decision is not excluded per se.

17.  Finally, the applicant company has claimed that the award include interest, calculated on the price of the lorry at the time of confiscation, for the whole period since the confiscation to date. Interest in this connection can be seen as a way of quantifying a claim for loss of profit, seeing that it stems directly from the impossibility to use the vehicle during the period in question. On this point the Court finds that, given that the applicant is a company, its economic activity is by its very nature subject to uncertainty and risk. Consequently, it is difficult to quantify any gains it might have accrued using the lorry during the period when it had been deprived of it, or to compare those to the expenses it would have inevitably incurred for maintenance and repair of the vehicle. Likewise, it cannot be speculated as to whether the applicant company would have kept the lorry and used it for its own business operations or whether it would have sold it.

18.  In view of the above imponderables, taking into consideration all the information available to it, the Court finds that a just satisfaction award is to be made ruling in equity. It thus awards the applicant company a lump sum of EUR 80,000. To this should be added any tax that might be chargeable.

B.  Costs and expenses

19.  For the proceedings under Article 41 of the Convention, the applicant company claimed EUR 16,950, which corresponded to 15% of the value of the claim in accordance with the recommended minimum lawyer’s fee of the Istanbul Bar Association. The Government pointed out that the applicant company had not presented a breakdown in respect of the work carried out by its lawyer and that, in any event, the claim in respect of lawyer’s fees was excessive.

20.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

21.  In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the applicant company EUR 1,500 under the present head.

C.  Default interest

22.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Holds

(a)  that the respondent State is to pay the applicant company, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i)  EUR 80,000 (eighty thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicable company, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

2.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 24 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Milan Blaško                                                                  Angelika Nußberger
Deputy Registrar                                                                       President