European Court of Human Rights

 

SECOND SECTION

CASE OF DIMITROV v. NORTH MACEDONIA

(Application no. 24030/19)

 

 

 

 

 

JUDGMENT

 

STRASBOURG

22 October 2024

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of Dimitrov v. North Macedonia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Diana Sârcu, President,
          Jovan Ilievski,
          Gediminas Sagatys, judges,

and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 24030/19) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 30 April 2019 by Mr Branislav Dimitrov ("the applicant"), a Macedonian/citizen of the Republic of North Macedonia, who was born in 1961, lives in Skopje and was represented by Mr D. Stojanoski, a lawyer practising in Skopje;

the decision to give notice of the complaint concerning Article 1 of Protocol No. 1 to the Convention to the Government of North Macedonia ("the Government"), represented by their Agent, Ms D. Djonova, and to declare the remainder of the application inadmissible;

the parties' observations;

Having deliberated in private on 1 October 2024,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the seizure and subsequent confiscation by the customs authorities of the applicant's stereo amplifier in customs-related misdemeanour proceedings against the applicant that were subsequently discontinued as the prescription period had expired.

2.  On 8 March 2009 a stereo amplifier was temporarily seized from the applicant by the customs authorities in misdemeanour proceedings against him for an alleged failure to undergo the relevant importation procedure. On 20 January 2016 the misdemeanour proceedings were terminated on the basis of the expiry of the applicable prescription period without the applicant having been found guilty of any offence. The customs authorities confiscated the stereo amplifier. They relied on Article 100-a (3) and (4) of the Criminal Code (applicable mutatis mutandis to misdemeanour proceedings) which provided that objects which were used or were intended to be used to commit a crime could be confiscated if there was a danger that they could be used again to commit a crime. It further provided that the court should also issue a confiscation order in proceedings regulated by law even when, for factual or legal reasons, it was not possible for criminal proceedings to be conducted against the offender. The customs authorities informed the applicant of the possibility to submit an application for appeal with the Administrative Court within eight days from the notification date.

3.  Following the applicant's appeal, the custom authorities' decision was upheld by the administrative courts at two levels of jurisdiction. The final judgment of the Higher Administrative Court was notified to the applicant's lawyer on 28 January 2019.

4.  The applicant submitted two final judgments of 6 July 2016 by the Higher Administrative Court (nos. 431/2016 and 1201/2015) in which seized items had been returned to the plaintiffs in those cases following the discontinuation of the proceedings owing to the expiry of the applicable prescription period. The Government provided thirteen final judgments by the same court (nos. 1160/2015, 1361/2016, 175/2017, 172/2017, 1250/2016, 195/2017, 420/2017, 732/2016, 330/2017, 962/2017, 108/2018, 105/2018 and 258/2018), rendered in the period between 18 November 2016 and 4 May 2018. In all those judgments the court had ordered the confiscation of items following the discontinuation of the proceedings owing to the expiry of the applicable prescription periods and had noted that there had been no request before the Administrative Court that the items confiscated in those cases be returned.

5.  The applicant complained under Article 1 of Protocol No. 1 to the Convention that his stereo amplifier had been seized and thereafter confiscated despite the fact that he had never been convicted.

THE COURT'S ASSESSMENT

I.        ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION

A.    Admissibility

6.  The Government objected that the applicant's complaint under this head had been submitted out of the six-month time-limit. In particular, they argued that the remedy that he had exhausted in the administrative courts had not been an effective one, given that it lacked any prospect of success in view of the established domestic practice (see paragraph 4 above). Therefore, he should have lodged the application with the Court within six months from the decision of the customs authorities (see paragraph 2 above).

7.  The applicant disagreed, pointing to the Higher Administrative Court's findings in two judgments of 6 July 2016 (see paragraph 4 above).

8.  The Court observes that the applicant lodged an application for appeal with the Administrative Court, having been informed of that possibility by the customs authorities (see paragraph 2 above). Thereafter, the administrative courts at two instances with full jurisdiction as to facts and law considered his claim and upheld the confiscation of the stereo amplifier in the light of Article 100-a of the Criminal Code (see paragraph 3 above). Consequently, the final judgment regarding the applicant's allegations of unlawful confiscation was notified by the Higher Administrative Court on 28 January 2019 (see paragraph 3 above). As the application was lodged on 30 April 2019, it was brought within six months from the date of that decision. In so far as the Government claimed that the administrative courts' case-law had been established and foreseeable as to the mandatory confiscation, the Court reiterates that in case of doubt about the effectiveness of a domestic remedy, the remedy should be tried (see Červenka v. the Czech Republic, no. 62507/12, § 121, 13 October 2016, with further references). It notes that the plaintiffs in all of the cases submitted by the Government had not requested before the Administrative Court the return of the items confiscated from them, whereas the applicant in the present case did request the return of the stereo amplifier. It was thus not clear from the outset that recourse to the administrative courts was ineffective and the applicant was called upon to exhaust that remedy prior to lodging his application with the Court. The Government's objection regarding the six-month time-limit therefore cannot be upheld.

9.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B.    Merits

10.  The general principles concerning the protection of the right to property under Article 1 of Protocol No. 1 to the Convention in the context of confiscation measures have been summarised in Zaghini v. San Marino (no. 3405/21, § 57, 11 May 2023) and in Aktiva DOO v. Serbia (no. 23079/11, §§ 76, 78 and 81-83, 19 January 2021).

11.  The Court notes that it is not in dispute between the parties that the confiscation of the applicant's stereo amplifier amounted to an interference with the applicant's right to the peaceful enjoyment of his possessions. In the instant case, the confiscation involved a permanent transfer of ownership based on the national authorities' interpretation of the relevant provisions of the Criminal Code (applicable mutatis mutandis to misdemeanour proceedings) and the Government did not argue that the applicant had had a realistic possibility of recovering his stereo amplifier. The Court therefore considers that the measure amounted to a deprivation of property for the purposes of the second sentence of the first paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis, Andonoski v. the former Yugoslav Republic of Macedonia, no. 16225/08, § 30, 17 September 2015).

12.  The confiscation of the applicant's stereo amplifier was based, as explained by the customs authorities and endorsed by the national courts, on Article 100-a (3) and (4) of the Criminal Code (see paragraphs 2 and 3 above). The confiscation order was therefore provided for by law. The Court further accepts that the seizure and subsequent confiscation of the stereo amplifier pursued the general aim put forward by the Government in their observations, namely to prevent the uncontrolled importation of items from abroad, and was thus in the public interest. The only salient point remaining to be assessed is the proportionality of the measure.

13.  The Court, in that connection, firstly notes that the applicant's stereo amplifier was confiscated within the misdemeanour proceedings even though those proceedings were terminated on the basis of the expiry of the applicable prescription period, and without the applicant having been found guilty of any offence including the offence referred to by the Government, namely the unlawful importation of the item in issue (see paragraph 2 above). Moreover, the Court notes that, despite the confiscation of the applicant's stereo amplifier, the authorities did not bring any criminal proceedings against him other than the misdemeanour proceedings in which he was not convicted.

14.  Secondly, there was no consideration within the misdemeanour proceedings, nor did the relevant domestic law provide for such a possibility, as to whether the respondent State's legitimate aim, namely to prevent the uncontrolled importation of items from abroad, might also have been achieved by some other, less intrusive means.

15.  Thirdly, the fact that there was no indication that the applicant had ever been convicted for any other customs-related offence seems to have been disregarded when it came to the confiscation issue. There was no indication that the stereo amplifier had been purchased unlawfully, or that it had been previously used to commit an offence (see, conversely, Air Canada v. the United Kingdom, 5 May 1995, § 41, Series A no. 316-A). Nor is there anything to suggest that there were any reasons to fear that the stereo amplifier would be used to commit further offences (see Andonoski, cited above, § 36). The national authorities relied on the latter ground in their decisions dismissing the applicant's claim, yet they did not put forward any reasons as to how he might have used the item to commit further offences (see paragraphs 2 and 3 above).

16.  Lastly, the Government provided examples of domestic practice that they claimed demonstrated the consistency of the national courts' findings in applying Article 100-a (3) and (4) of the Criminal Code between 18 November 2016 and 4 May 2018. Having analysed the judgments, the Court observes that, unlike the applicant in the present case, none of the plaintiffs in those cases requested before the Administrative Court that the confiscated items be returned to them (see paragraph 4 above). Conversely, the applicant submitted two judgments of 6 July 2016 (predating the judgments submitted by the Government) in which the Higher Administrative Court had ordered the return of seized items following the discontinuation of proceedings in view of the expiry of the applicable prescription period (ibid.). Therefore, it appears that mandatory confiscation of items under Article 100‑a (3) and (4) was not a blanket measure and it depended on other elements, for instance, whether a plaintiff sought the return of an item. Nevertheless, the national authorities, although they presumably enjoyed a degree of discretion in such cases, did not examine the applicant's case on the basis of any of the factors described above.

17.  In such circumstances, the Court is of the view that the confiscation order was disproportionate in that it imposed an excessive burden on the applicant.

18.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

19.  The applicant claimed 6,000 euros (EUR) in respect of pecuniary damage, EUR 5,000 in respect of non-pecuniary damage and EUR 1,222 in respect of costs and expenses incurred before the Court.

20.  The Government contested those claims as unsubstantiated and unrelated to the violation claimed.

21.  The Court notes that the relevant principles with regard to pecuniary damage have been summarised in Vasilevski v. the former Yugoslav Republic of Macedonia (no. 22653/08, § 66, 28 April 2016). It accepts the applicant's claim in respect of pecuniary damage regarding the confiscation of his stereo amplifier and considers that its return to him, in the condition that it was in at the time of its confiscation, would place the applicant in the position in which he would have found himself had the violation not occurred (compare ibid., § 67). Alternatively, if it is impossible to return the stereo amplifier, the Court considers it reasonable, in the absence of relevant documents submitted by the applicant proving a different value of the amplifier in the condition at the time of its confiscation, to award the applicant EUR 1,690, that is the value established by the domestic authorities at the time of the confiscation, plus any tax that may be chargeable. The Court also accepts that he suffered some non-pecuniary damage and therefore it awards him EUR 750, plus any tax that may be chargeable.

22.  Having regard to the documents in its possession, the Court considers it reasonable to award the applicant EUR 1,222 covering costs and expenses in the proceedings before the Court, plus any tax that may be chargeable to him.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

3.      Holds

(a)  that the respondent State is to return to the applicant, within three months, the confiscated stereo amplifier in the condition that it was in at the time of its confiscation;

(b)  that, failing such restitution, the respondent State is to pay the applicant, within three months, EUR 1,690 (one thousand six hundred and ninety euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(c)  that in any event, the respondent State is to pay, within the same three-month period, the following amounts:

(i) EUR 750 (seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,222 (one thousand two hundred and twenty-two euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(d)  that the amounts in question are to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(e)  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;

4.      Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 22 October 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

       Dorothee von Arnim                                                 Diana Sârcu
          Deputy Registrar                                                      President