FIRST SECTION
 
 
 
 
 
 
CASE OF SULEJMANI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
 
(Application no. 74681/11)
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
28 April 2016
 
FINAL
 
28/07/2016
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sulejmani v. the former Yugoslav Republic of Macedonia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Ledi Bianku, President,
 Mirjana Lazarova Trajkovska,
 Kristina Pardalos,
 Linos-Alexandre Sicilianos,
 Robert Spano,
 Armen Harutyunyan,
 Pauliine Koskelo, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 29 March 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 74681/11) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Mr Osman Sulejmani (“the applicant”), on 2 December 2011. 2. The applicant was represented by Mr B. Pandovski, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov. 3. The applicant complained under Article 1 of Protocol No. 1 to the Convention about the confiscation of his vehicle in criminal proceedings against a third person. 4. On 2 October 2014 the complaint under Article 1 of Protocol No. 1 was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
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 100‑a (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. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal Code 2004 (Official Gazette no.19/2004, 30 March 2004)
17. The relevant provisions state as follows:
Article 100-a
“(1) Nobody can keep or withhold the proceeds of crime. (2) Objects which were intended to be used or which were used to commit a crime shall be confiscated from the offender, regardless of whether he or she or a third person is their owner, if the interests of general security, the health of the people or ethics so require. (3) Objects which were used or were intended to be used to commit the crime can be confiscated if there is a danger that they will be used again to commit a crime. Objects owned by a third person shall not be confiscated, unless he or she knew or could and ought to have known that they had been used or were intended to be used to commit the offence. (4) The court shall also issue a confiscation order in proceedings regulated by law when, for factual or legal obstacles, it is not possible for criminal proceedings to be conducted against the offender. (5) The application of this measure does not affect the right of third parties to compensation for damage from the offender.
...”
Article 380
“(1) A person who uses as evidence, in legal transactions [во правниот сообраќај], a document, book or a file, knowing that it is false, shall be fined or sentenced to up to three years’ imprisonment.”
B. Criminal Proceedings Act 1997 (consolidated text)
18. The relevant provisions state as follows:
Section 102
“... (3) When the court delivers a judgment by which the accused is acquitted of the charges or by which the indictment is dismissed or when, by decision, it stays the criminal proceedings or rejects the indictment, it shall instruct the damaged party to pursue his or her compensation claim in civil proceedings. ...
...”
Section 532
“(1) Objects which must be confiscated under the Criminal Code, shall also be confiscated when the criminal proceedings do not end with a judgment by which the accused is convicted.”
C. Obligations Act 2001
19. The relevant provisions read as follows:
“RESPONSIBILITY FOR LEGAL DEFECTS
[ОДГОВОРНОСТ ЗА ПРАВНИТЕ НЕДОСТАТОЦИ]
Legal defects [правни недостатоци]
Section 496
(1) The seller shall be liable if there is a right over the sold item of a third party which excludes, reduces or restricts the right of the buyer, and the buyer was not informed of its existence, nor agreed to take the item burdened by that right. (2) The seller of another right guarantees that the right exists and that there are no legal obstacles to its exercise. Informing the seller
Section 497
When it is shown that a third party has a right over the item, the buyer is obliged to inform the seller thereof, unless that was already known to the seller, and to invite him to release within a reasonable time the item of that right or of the claim of a third party or, when the subject of the contract are items defined by type, to deliver another item without a legal defect. Sanctions concerning legal defects
Section 498
(1) If the seller does not act upon the buyer’s request, when the seller is deprived of the item, the contract is terminated by law, and when the buyer’s right is restricted or limited, the buyer may choose between terminating the contract or requesting a proportionate reduction in the price paid.

Article of the Convention at issue: Article 1
Outcome: no_violation