RADIKA PREVOZI DOO LJUBLJANA v. NORTH MACEDONIA - 52003/18 (Judgment : Article 1 of Protocol No. 1 - Protection of property : Second Section Committee) [2023] ECHR 249 (21 March 2023)

JUDGMENT STRASBOURG 21 March 2023 This judgment is final but it may be subject to editorial revision. In the case of Radika Prevozi doo Ljubljana v. North Macedonia, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Lorraine Schembri Orland , President , Jovan Ilievski, Diana Sârcu , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no. 52003/18) 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 26 October 2018 by Radika Prevozi doo Ljubljana (“the applicant company”), a Slovenian company based in Ljubljana, which was represented by Mr L. Mitreski, a lawyer practising in Ohrid; 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 decision of the Slovenian Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention); the parties’ observations; the information given to the Government that the case was assigned to a Committee; Having deliberated in private on 28 February 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1. The application concerns the applicant company’s complaint under Article 1 of Protocol No. 1 to the Convention that the temporary seizure of its vehicle and the subsequent compensation proceedings resulted in damage which remained uncompensated. 2. On 8 April 2010 the police stopped the applicant company’s vehicle, which was being driven by Mr F. The vehicle was seized in connection with a suspected misdemeanour and a receipt for the temporarily seized items was issued to Mr F. On 20 September 2012 the customs authorities, stating that the temporary seizure was no longer necessary, returned the vehicle to the applicant company. The return certificate stated that the vehicle was in good condition and that the applicant company’s representative had not made any remarks. Customs-related misdemeanour proceedings were initiated against Mr F. and were subsequently discontinued as time-barred by the Higher Administrative Court in a decision of 7 October 2015. . On 29 November 2012 t he applicant company brought a compensation claim against the respondent State under section 141 of the Obligations Act, seeking an award of approximately 245,560 euros (EUR) in respect of pecuniary damage (for loss of earnings) incurred as a result of the temporary seizure of the vehicle, which it had used as a means of professional transport and its source of income. In support of its claim, it submitted an expert report calculating the amount of earnings lost in the period between 8 April 2010 and 20 September 2012. Section 141 of the Obligations Act provides for the right to claim civil compensation unless the defendant proves that no responsibility can be attributed to him or her for the damage. . On 1 December 2014 the Skopje Court of First Instance dismissed the applicant company’ s compensation claim against the State, holding that the State could not be held responsible in the absence of an unlawful act or omission, as provided for in section 141 of the Obligations Act . It added that the temporary seizure of the vehicle had been lawful and based on a reasonable suspicion that a misdemeanour had been committed. On 30 December 2015 and 28 February 2018 respectively the Skopje Court of Appeal and the Supreme Court upheld that judgment. The courts did not comment on the applicant company’s arguments in respect of the earnings lost, as substantiated in the expert opinion provided by the applicant company. 5. The applicant company complained under Article 1 of Protocol No. 1 to the Convention that it had not been compensated for the damage which it had suffered during the period of the temporary seizure. THE COURT’S ASSESSMENT I. PRELIMINARY ISSUE: The government’s unilateral declaration 6. On 16 February 2021 the Government submitted a unilateral declaration in which they acknowledged that there had been a violation of Article 1 of Protocol No. 1 to the Convention and offered to pay the applicant company a sum of money to cover any and all non-pecuniary damage together with any costs and expenses . On 13 March 2021 the applicant company objected to the striking-out of the application, arguing, in particular, that, under domestic law, a unilateral declaration by the Government, as opposed to a judgment delivered by the Court finding a violation, could not serve as a ground for reopening a case. 7. For the reasons given in Prodanov v. North Macedonia (no. 73087/12 , §§ 23‑25, 10 June 2021), which likewise apply in the present case, namely that it cannot be said with a sufficient degree of certainty that the procedure for reopening civil proceedings would be available were the Court to accept the Government’s unilateral declaration and strike the case out of its list, the Government’s request that the Court strike the application out of its list of cases under Article 37 of the Convention must be rejected. II. ALLEGED VIOLATION OF ARTICLE 1 of protocol n O . 1 to THE CONVENTION 8. 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. 9. The applicant company complained under Article 1 of Protocol No. 1 to the Convention that it had not been compensated for the damage which it had suffered during the period of the temporary seizure. That temporary seizure of the applicant company’s vehicle amounted to interference with its possessions. Such interference was a provisional measure which did not entail a transfer of ownership. It therefore constituted a control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (compare JGK Statyba Ltd and Guselnikovas v. Lithuania , no. 3330/12, § 115, 5 November 2013; Hábenczius v. Hungary , no. 44473/06 , § 28, 21 October 2014; and Stołkowski v. Poland , no. 58795/15 , § 53, 21 December 2021; contrast Andonoski v. the former Yugoslav Republic of Macedonia , no. 16225/08, § 30, 17 September 2015, and Yașar v. Romania , no. 64863/13 , § 49, 26 November 2019). As regards the procedural obligations under Article 1 of Protocol No. 1, the Court reiterates that in the absence of any obligation for a judicial authority to give reasons for its decisions, the rights guaranteed by the Convention would be illusory and theoretical. Without requiring a detailed response to each argument presented before a court, this obligation nevertheless presupposes the right of a party to the proceedings to have his or her essential contentions carefully examined (see Bistrović v. Croatia , no. 25774/05, § 37, 31 May 2007, and Gereksar and Others v. Turkey , nos. 34764/05 and 3 others, § 54, 1 February 2011). 10. The Court notes that no issue arises as to the lawfulness of that measure. It further accepts that the temporary seizure of the vehicle pursued the general aim put forward by the Government in their observations, namely to prevent abuse of the customs system, an aim which undoubtedly falls within the general interest. The only salient point remaining to be assessed is the proportionality. . The Court observes in this regard that the procedure for imposing the measure did not, in itself, fall short of the requirements of Article 1 of Protocol No. 1. T he temporary seizure order was issued in the context of the misdemeanour proceedings against Mr F. , notwithstanding the fact that the applicant company had been the vehicle’s lawful owner . The present case differs from Stołkowski (cited above) in that the value of the seized item did not significantly decrease and the vehicle was retained for two years and five months. However, the review of the proportionality of the measure by the domestic courts in the context of the applicant company’s compensation claim, given the particular circumstances, did not meet the requirements of Article 1 of Protocol No. 1. As appears from the material before the Court, when seeking to have the compensation claim upheld, the applicant company argued that the temporary seizure had had a significant impact on it, as the vehicle in question was a means of professional transport, and the applicant company had therefore sustained a loss of earnings . Three levels of domestic courts with full jurisdiction as to facts and law considered the applicant company’s claim in the light of section 141 of the Obligations Act and held that the respondent State could not be held liable in the absence of an unlawful act or omission (see paragraph above) . The examination carried out by the courts appears to have been very formalistic and limited to ascertaining whether the temporary seizure of the applicant company’s vehicle had been lawful. The mere fact that the temporary seizure retained its lawful character throughout the proceedings is not sufficient to conclude that it was in compliance with Article 1 of Protocol No. 1 as it could have become disproportionate, notably, in the absence of an examination of aspects that are important for the outcome of the case (compare G. I. E. M. S. R. L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 302, 28 June 2018). Although the conditions of entitlement to compensation in such circumstances had not been precisely defined (see paragraph 3 above), the fact remains that the seized vehicle had been the applicant company’s source of income and facilitated its normal commercial activity and that its temporary seizure by the State authorities had prevented the applicant company from operating for two years and five months (between 8 April 2010 and 20 September 2012). The applicant company estimated the earnings that it had lost while the measure had been in place and provided an expert opinion in support of its estimation (see paragraph 3 above). The courts did not give due consideration to that argument (see paragraph 4 above), which had a potentially crucial impact on the proportionality of the impugned measure (see, mutatis mutandis , Saraç and Others v. Turkey, no. 23189/09 , § 90, 30 March 2021). 12. The courts’ omission to respond to the applicant company’s argument concerning the loss of earnings appears to have substantively affected the outcome of the case, since they fell short of their duty to ensure in the compensation proceedings that the temporary seizure would not cause the applicant company more damage than was inevitable. The courts therefore failed to strike a fair balance between the interests involved and to ensure adequate protection of the applicant company’s property rights in the context of the proceedings (compare also Bistrović , cited above, § 44). There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 13. The applicant company claimed 245,560 euros (EUR) in respect of the pecuniary damage allegedly resulting from the loss of its earnings during the temporary seizure. No claim in respect of non-pecuniary damage was made. As to the pecuniary damage claimed, the Court considers that, having regard to the grounds on which it found a violation of Article 1 of Protocol No. 1 to the Convention, it is unable to speculate on and assess the applicant company’s claim under this head and therefore dismisses it. In this connection, it refers to the possibility available to the applicant company to request reopening of the proceedings under section 400 of the Civil Proceedings Act, which would allow for a fresh examination of its claims (see Bistrović , cited above, § 58, and Strezovski and Others v. North Macedonia , nos. 14460/16 and 7 others, § 95, 27 February 2020). 14. The applicant company also claimed EUR 1,010 for costs and expenses, without specifying in which proceedings it had incurred such costs. Having regard to the documents in its possession, the Court considers it reasonable to award the applicant company EUR 850 in respect of costs and expenses, plus any tax that may be chargeable to it . 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 pay the applicant company, within three months, EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant company, to be converted into the currency of the respondent State, 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 amount 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 21 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Dorothee von Arnim Lorraine Schembri Orland Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII