CASE OF ANDONOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions)
András Sajó;Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1968 and lives in Prilep. 6. The applicant was a taxi driver. On 25 July 2007 his car was parked on a taxi post at the Prilep bus station. As established in the course of the subsequent criminal proceedings (see paragraph 9 below), P.K., accompanied by S.O. and G.F., all Albanian nationals (“the migrants”), asked the applicant to drive them to the village of Vitolište, Mariovo. Only P.K., who was fluent in Macedonian, told the applicant that they were going to Vitolište to work. S.O. and G.F. did not speak during the journey. At around 4 p.m. they were stopped by the police at a place called Sliva. The migrants had no travel documents. The applicant and the migrants were arrested. The applicant’s car was also seized. A receipt for temporarily seized objects was issued to him. 7. On 26 July 2007 an investigating judge of the Prilep Court of First Instance (“the trial court”) opened an investigation against the applicant and P.K. on grounds of a reasonable suspicion of migrant smuggling, punishable under Article 418-b of the Criminal Code (see paragraph 15 below). 8. On 8 August 2007 the public prosecutor withdrew the charges against the applicant for lack of evidence. In a written statement of that date the public prosecutor indicated that there was no evidence that the applicant had known or had reasonable grounds to believe that he had transported illegal migrants. He had met them for the first time at the Prilep bus station. He had never had any contact with them before. Since P.K. was fluent in Macedonian, the applicant could not have suspected that he (P.K.) was a migrant. The other two migrants had not spoken during the journey. Furthermore, P.K. had confirmed that he had misled the applicant, since otherwise nobody would have driven them. For that reason, he had advised S.O. and G.F. not to speak. When the police had stopped them, he had apologised to the applicant. That had been confirmed by S.O. and G.F. and two police officers who had stopped them on the day in question. On the same day, the investigating judge discontinued the investigation concerning the applicant. The latter decision indicated that the applicant had no previous criminal record. 9. On 3 September 2007 the trial court convicted P.K. of migrant smuggling and sentenced him to one year’s imprisonment. The court established that P.K. had told S.O. and G.F., illegal migrants from Albania, that he could transfer them illegally into Greece. They had paid him 270 euros (EUR). They had crossed the Macedonian-Albanian border illegally; they had used a taxi to travel to several cities in the respondent State and to arrive ultimately at the Prilep bus station. There, P.K. had agreed with the applicant, who participated in the proceedings as a witness, to transport them to the village of Vitolište, from where all the migrants had intended to cross the border on foot. 10. The trial court also ordered, under Articles 100-a and 418-b of the Criminal Code 2004 (see paragraphs 14 and 15 below) confiscation of the applicant’s car, as the means by which the criminal offence had been committed (“the confiscation order”). The relevant part of the judgment reads as follows: “According to Article 100-a(2) and (3) taken in conjunction with Article 418-b(5) of the [Criminal Code], the court confiscated ... from [the applicant] the vehicle which had been used for transportation of [S.O. and G.F.], because [the applicant] could have known that [they] were migrants, since both of them – the witnesses [,] had not talked, had not had any equipment with which they would work as construction workers or lumberjacks, and also the time in the afternoon when he had transported them to Mariovo indicated that they were not going to work, but [had intended] to cross the Macedonian-Greek border illegally at night, which should have been known to the [applicant] as an experienced taxi-driver. [The applicant] also stated that he had been suspicious about one of the witnesses, because he had been thin, which meant that he could have known that they had been migrants and not (ordinary) persons who were going to Vitolište to work, as he himself had known that the border was illegally crossed near the villages Vitolište, Canište and Bešište.” 11. The applicant appealed, arguing that the confiscation order had not been based on any fact. He had not been convicted of any crime and the trial court was not entitled to order confiscation of his car. P.K., who was convicted, had been travelling in the car as a passenger. The fact that the public prosecutor had withdrawn the charges against him confirmed that he had not known that he was transporting illegal migrants. No evidence had been adduced to prove otherwise. Lastly, he had never been involved in migrant smuggling. 12. On 7 November 2007 the Bitola Court of Appeal dismissed the applicant’s appeal and upheld the confiscation order. The relevant part of the decision reads as follows: “It is true that the first-instance court, in the operative part and in the reasoning of the impugned judgment concerning the confiscation of the [car], provided reasons, [i.e.] referred to Articles 100-a (2) and (3) in conjunction with Article 418-b (5) of [the Criminal Code], which constitute an incorrect application of the substantive law, and an incorrect application of [the Code]. Article 100-a of [the Code] concerns the confiscation of objects, and paragraph (3) refers to objects used for the commission of a criminal offence. When those objects are owned by a third person, they may be confiscated only if third persons knew or could and ought to have known that the objects are being used or are intended to be used to commit an offence. In the present case there is no need for the application of this rule, because the rule contained in Article 418-b (5) necessarily requires the confiscation of the objects and the means of transport used to commit the offence, irrespective of whom they belong to, whom they are for, or whom they come from. In such circumstances, coupled with the fact which was established beyond any doubt, (namely) that this offence was committed by the accused with the [applicant’s] vehicle, the court was correct to confiscate the vehicle by its decision contained in the operative provision of the judgment.” 13. On 23 January 2008 the public prosecutor notified the applicant that there were no grounds to institute legality review proceedings (барање за заштита на законитоста).