CASE OF SULEJMANI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
5. The applicant was born in 1958 and lives in Tetovo. 6. On 12 April 2006, the applicant concluded a sales contract (купопродажен договор) with a Sh.A., for the purchase of a concrete mixing and transport lorry (“the vehicle”) for the equivalent of 5,000 euros (EUR) in Macedonian denars (MKD). On 15 May 2007 the applicant lent the vehicle to his company. 7. On 6 October 2008 the Ministry of the Interior temporarily seized the vehicle and its registration certificate (сообраќајна дозвола) from the applicant in order to examine the vehicle’s chassis (проверка на шасија). A record of temporarily seized objects (потврда за привремено одземени предмети) was issued. 8. On 1 February 2010 the Struga Court of First Instance (“the first-instance court”) acquitted Sh.A. of charges of forgery of a document (“фалсификување исправа“) concerning the vehicle’s chassis number and rejected an indictment brought by a public prosecutor against a certain I.S. The court found that during the trial it had not been established that Sh.A. had altered the vehicle’s chassis. In accordance with section 102(3) of the Criminal Proceedings Act (see paragraph 18 below), the court further advised the applicant, who had claimed compensation in the criminal proceedings, to pursue the claim by means of a separate civil action before the civil courts. On 21 July 2010 the judgment became final. 9. On 16 November 2010 the applicant requested that the first-instance court return the vehicle in his possession. 10. On 3 December 2010 the first-instance court heard evidence from the applicant, who stated that he had bought the vehicle from Sh.A. for EUR 25,000. He further stated that he could not have been aware at the time that the chassis number of the vehicle had been forged. 11. On 6 December 2010 the first-instance court, relying on Article 100a (3) of the Criminal Code (“the Code”, see paragraph 17 below), found that there were no grounds for confiscation of the applicant’s vehicle. The applicant had not known nor could he have known that the vehicle had been used to commit a crime. The court also ordered that the registration certificate be returned to the applicant. 12. Upon the public prosecutor’s appeal, on 24 January 2011 the Bitola Court of Appeal (“the appellate court”) quashed that decision. Relying on Article 100-a (2) of the Code, the appellate court found that the vehicle’s chassis had been forged and that the vehicle, in the interest of public safety, could not be declared roadworthy. It further referred to section 100-a (3) of the Code and instructed the first-instance court to assess whether the continued use of the vehicle would constitute a “use of a forged document” offence under the Code (употреба на фалсификувана јавна исправа, see paragraph 17 below). 13. On 22 February 2011 the first-instance court dismissed the applicant’s application and ordered the confiscation (се одземаат) of the vehicle and its registration certificate. It referred to Article 100-a (2) and (3) of the Code and found that the vehicle’s chassis number had been forged and that the vehicle could be used for committing an offence. For that reason and for the reasons of road safety, it was necessary to confiscate the vehicle and the registration certificate. It also referred to section 532(1) of the Criminal Proceedings Act (see paragraph 18 below) and found that, irrespective of the fact that there had been no proceedings against the applicant and that he was not an offender, it was necessary to confiscate the vehicle for general safety reasons. 14. On 11 March 2011 the applicant appealed arguing that the first-instance court had wrongly applied Article 100-a (2) and (3) of the Code and that he had not known that the vehicle had been used to commit a crime. 15. On 19 May 2011 the appellate court dismissed the appeal and upheld the first-instance court’s decision. The relevant part of the decision states as follows: “[The arguments] raised in the appeals, [namely] that the first-instance court had not established the decisive facts concerning [the certitude] that the [applicant] had not known that the vehicle’s chassis had been forged, which was decisive, are groundless. Specifically, it is true that [the applicant] did not know that the vehicle’s chassis had been forged, as a result of which [he] registered the vehicle as its last buyer, [he was] issued a driving licence and [he] paid a large amount. However, [what is] primary under Article 100-a (2) of the [Criminal Code] is that the objects which were intended to [commit] an offence or were used to commit an offence shall be confiscated notwithstanding that they are not in the ownership of the offender or that they are in the ownership of a third person, if general safety, public health or ethics require so ... The fact that [the applicant] did not know that the vehicle’s chassis had been forged does not signify that the conditions of Article 100-a(3) are met, but the first-instance court correctly found that the use of the vehicle with thus forged identification numbers would affect the safety of the road users in the State [безбедноста на јавниот сообраќај], and therefore also the general safety [интересите на општата безбедност].” 16. It appears that the latter decision was served on the applicant on 2 June 2011.