CASE OF VALANT v. SLOVENIA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property)
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
5. The applicant was born in 1965 and lives in Tržišče. 6. The applicant is a former rally driver who won several national titles and was still actively competing at the time of the events in the case. His company runs a car repair shop which is also authorised to remodel cars intended to be used for competition. 7. On 17 December 2002 the Novo mesto District Court, at the request of the police, issued a warrant to search the applicant’s premises on the basis of a suspicion that he had exchanged the chassis numbers of two cars in order to be able to register the second one, bought in Austria, and smuggle it through the State border without paying customs duties. He was also suspected of the criminal offences of forgery, certifying false documents as genuine and smuggling. The search warrant included an authorisation for the seizure of items subject to the warrant. On the same day the police conducted a search of the applicant’s car repair shop and seized a Fiat Punto racing car, the car’s registration papers and other documents. 8. The applicant requested the return of the car several times because he needed it for future competitions from which he could not withdraw owing to contractual obligations towards his sponsors. He also insisted that he had not committed any of the offences he was suspected of. 9. On 14 February 2003 the Novo mesto District Public Prosecutor lodged a request for a criminal investigation against the applicant in respect of the above-mentioned offences (see paragraph 7). On 19 March 2003 the Novo mesto District Court approved the request. 10. On 28 March 2003 the applicant paid 74,600 euros (EUR) to lease another racing car, a Fiat Punto 1.6 kit car, for the entire 2003 season. On the same day he competed in a hill climb race with the leased car. He also competed with it in hill climb races on 19 April 2003, 30 May 2003, 23 August 2003 and 13 September 2003 and in rallies on 16 May 2003, 4 July 2003, 5 September 2003, 3 October 2003 and 17 October 2003. 11. On 19 May 2003 the Novo mesto District Public Prosecutor dropped the prosecution (odstopil od pregona) of the smuggling charge and consequently, on 20 June 2003, the Novo mesto District Court discontinued the criminal investigation of that crime. It referred the proceedings related to forgery and the certification of false documents as true to the Trebnje Local Court (see paragraphs 25 and 26 below). 12. On 26 May 2003 customs offences proceedings were instituted against the applicant. 13. On 27 May 2003 the Customs Office issued a seizure order in respect of the same car on suspicion that the applicant had in December 2002 avoided paying duties when importing the car into Slovenia. 14. On 2 June 2003 the car was transferred from the Novo mesto District Court to the customs authorities. 15. On an unknown date the applicant lodged a request for an assessment of customs duties under the regular customs proceedings. 16. On 24 June 2003 the Customs Office issued a declaratory note (ugotovitveni zapisnik), finding that according to information from the police the applicant had bought a Fiat Punto 1.2 in December 2002 and had registered it in Slovenia. The car’s number plates and the metallic plate with the chassis number had then been put on the Fiat Punto 1.6 kit car. That car had been brought onto the territory of Slovenia without any customs duty being paid for it. The note also stated that the duties arose because the applicant had imported the car without paying the duties required by law. As it could not determine the date the debt had been incurred, it based its findings on the regulations in place on 23 May 2003, when the Department for Investigative Matters had found that custom duties for the car had not been paid. It calculated the amount on the basis of documents submitted by the applicant. In the note, the market value of the vehicle was set at EUR 34,000. The customs duties, VAT and vehicle tax were 5,472,143 Slovenian tolars (approximately EUR 22,000). 17. On 4 July 2003 the decision on the amount of customs duties to be paid by the applicant was issued. 18. On 7 July 2003 the applicant paid the customs duties and the car was returned to him. He submitted in writing at the same time that he had only paid the customs duties to prevent further losses. 19. By 19 January 2004 the applicant had obtained all the necessary permits for the car and was able to register it as a special vehicle. 20. On 30 June 2004 the proceedings for customs offences were discontinued because prosecution had in the meantime become time-barred. 21. On 14 March 2005 the applicant instituted proceedings against the Republic of Slovenia before the Ljubljana District Court, claiming compensation for the pecuniary losses sustained due to the seizure of his car in the criminal proceedings. He claimed EUR 74,600, the amount he had paid to lease another car. 22. On 6 September 2005 the Ljubljana District Court dismissed the claim. It held, inter alia, that the seizure of the car had not been unlawful and that the criminal proceedings related to forgery and the certification of false documents as true were still pending. The applicant appealed. 23. On 8 March 2006 the Ljubljana Higher Court dismissed the applicant’s appeal. 24. On 20 April 2006 the applicant lodged an appeal on points of law. He later withdrew it because the civil proceedings had been reopened (see paragraph 29 below). 25. On 16 April 2007 the Trebnje Local Court held that the search warrant of 17 December 2002 had not complied with section 214 of the Criminal Procedure Act because it had lacked evidence of reasonable grounds for suspicion (utemeljeni sum). In particular, basic data such as from whom, when and where the information used as evidence had been collected, was missing. That meant the seizure order had been issued and the car seized on the basis of an unlawful warrant. The court, basing its decision on the exclusionary rule, ordered that all the evidence collected on the basis of the unlawful seizure, including the reports and testimony of experts, should be excluded from the file. 26. At a hearing held on 23 April 2007 the District Public Prosecutor withdrew the charges against the applicant. On the same day the Trebnje Local Court dismissed the charges of forgery and the certification of false documents. 27. Following the dismissal of the charges by the Trebnje Local Court (see paragraph 26 above), the applicant on 15 May 2007 applied to reopen the civil proceedings. He alleged that the decisions on the unlawfulness of the search warrant and the discontinuation of the criminal proceedings had to be considered as new evidence which could influence the outcome of the proceedings. 28. On 21 August 2007 the Ljubljana District Court dismissed the applicant’s application to reopen the proceedings. After a successful appeal, the proceedings were reopened on 2 April 2008. 29. The applicant on 2 September 2008 withdrew his appeal on points of law after the reopening of the civil proceedings. 30. In the reopened proceedings the parties submitted the following arguments. The representative of the State argued, inter alia, that the customs duties on the car in question had not been paid and that therefore it could not have been used any way. Once the applicant had paid the duties his debt had been cleared and the car had been able to enter the domestic market. They also argued that the customs proceedings had not taken an unduly long time as they had lasted only from 27 May 2003 to 7 July 2003. The applicant argued, inter alia, that the order which had led to the seizure of the car had been unlawful and that it therefore gave rise to a liability on the part of the State for any damage resulting from it. He also submitted that the Customs Office’s seizure order had been issued only on 27 May 2003 and was thus irrelevant to the question of liability for damage. The applicant also noted that he had not been found guilty in any of the proceedings and had not done anything wrong. He stated that the car that had been seized had been remodelled in his own repair shop and that he had not yet finished the remodelling or necessary paperwork by the time of the seizure. Such a process included obtaining new approval papers and the registration of the vehicle as a special vehicle. He pointed out that he had finished that process and obtained all the necessary documents once the car had been returned to him. 31. On 10 February 2009 the Ljubljana District Court rejected the applicant’s claim, which it examined under Article 26 of the Constitution and Articles 131 and 148 of the Code of Obligations. The Court found that there was no dispute about the fact that the car had been seized in criminal proceedings. The court noted that it was not bound by the findings of the criminal court that the seizure had been unlawful, but, basing its conclusion on its own assessment, it concluded that the seizure had been ordered on the basis of gossip and newspaper article and that all the other information relating to the alleged offences had been obtained on the basis of the unwarranted seizure. The search warrant had been general and lacking in precision and therefore could not be subjected to any scrutiny. On the basis of such considerations it found that the seizure had not complied with the requirements set out in the Criminal Procedure Act (see paragraph 38 below) and had therefore been unlawful. However, the court found that the causal link between the unlawful seizure and the damage incurred by the applicant had been broken because the applicant would in any event have been unable to use the car for several reasons. Firstly, the applicant, as a professional driver and owner of the repair shop, should have known that any remodelling of the car required a new technical inspection and registration, which the applicant had not done before the seizure. Secondly, no customs duties had been paid on parts that had been imported and then used in the car. The seized car, which had thus not been properly registered or imported in compliance with customs regulations, could not have been used in traffic and the applicant could not have raced with it. The applicant was ordered to pay the opposing party’s costs of EUR 3,462.19. 32. The applicant lodged an appeal. He argued that he had not been given the opportunity to be heard in respect of the alleged break in the causal link. He noted that, in any case, the car had been seized while it had still been in the process of remodelling and that he had intended to register it at the end of the process. He had only been able to complete that process later, after the car had been returned to him. He also referred to the fact that subsequently he had not encountered any problems in obtaining the necessary certificates in order to register the car. 33. On 8 July 2009 the Ljubljana Higher Court dismissed the applicant’s appeal. It held that the applicant had never claimed or proved that the car parts had been imported in accordance with customs regulations. The Ljubljana District Court had been right in holding that the applicant would not have been able to use the car owing to the illegal importation of the car parts and the incorrect registration procedure. 34. The applicant lodged an appeal on points of law (revizija), challenging the conclusions of the court in respect of the break in the causal link and arguing that the loss had already been incurred before the issue of customs duties had arose. He further argued that no customs offence decision had been issued against him and that a car that was not registered for use in normal traffic could still be used in competitions. 35. On 17 December 2009 the Supreme Court dismissed the applicant’s appeal on points of law, confirming that the link in causality had been broken because the applicant had imported some of the car parts in violation of customs regulations. 36. In the above proceedings before the Ljubljana District Court, Ljubljana Higher Court and the Supreme Court, the applicant paid EUR 3,570.38 in total for court fees. 37. The applicant lodged a constitutional appeal, arguing that the seizure of his car had been unlawful and that he had therefore been unable to use the car for racing. He argued that by virtue of the courts’ decisions, in particular their position on the causal link, his human rights, including his right to compensation under Article 26 of the Constitution, and the principle of the rule of law had been violated. The constitutional appeal was dismissed by the Constitutional Court on 17 October 2011 by reference to the second paragraph of section 55.b of the Constitutional Court Act (see paragraph 41 below).