FIFTH SECTION
CASE OF TRANSKOP AD BITOLA v. NORTH MACEDONIA
(Application no. 48057/12)
 
 
 
 
JUDGMENT

This version was rectified on 21 April 2021
under Rule 81 of the Rules of the Court. STRASBOURG
1 April 2021
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Transkop Ad Bitola v. North Macedonia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
 Mārtiņš Mits, President,
 Jovan Ilievski,
 Ivana Jelić, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 48057/12) 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”) by Transkop Ad Bitola, a company registered in Bitola, North Macedonia (“the applicant company”), on 24 July 2012;
the decision to give notice to the Government of North Macedonia (“the Government”) of the complaints concerning Articles 6 and 7 of the Convention and Article 1 of Protocol No. 1 to the Convention and to declare the remainder of the application inadmissible;
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 11 March 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns mainly Article 6 complaints regarding proceedings in which a bus belonging to the applicant company was confiscated based on the finding that its chassis number had been forged. THE FACTS
2. The applicant company was represented by Mr G. Donovski, a lawyer practising in Skopje. 3. The Government were represented by their former Agent, Mr K. Bogdanov, succeeded by their present Agent, Ms D. Djonova. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant company specialises in bus passenger transport. 6. On 27 June 2008 one of its buses (“the bus”) was temporarily seized by the Ministry of the Interior on account of forgery of a document (фалсификување исправа). 7. On 4 December 2008 an investigating judge (истражен судија) opened an investigation against the applicant company and the driver of the bus on suspicion of forgery punishable under the Criminal Code. It was suspected that the original chassis number of the bus had been mechanically altered. The investigating judge commissioned two expert reports concerning the chassis number, one by the Forensic Bureau (Биро за судски вештачења) at the Ministry of Justice and the other by the Criminal Investigations Bureau (Оддел за криминалистичка техника) of the Ministry of the Interior. 8. On 17 May 2010 at the request of the public prosecutor, the investigative judge discontinued the investigation due to insufficient evidence that the applicant company had altered the chassis number of the bus. The public prosecutor did not appeal and the decision became final. 9. In the meantime, namely on 14 May 2010, the public prosecutor requested that the Bitola Court of First Instance (Основен суд Битола) confiscate the bus, arguing that since its chassis number had been altered, it could not be subject to legal transactions (не може да биде во правен промет). 10. The first-instance court granted the request, but the case was remitted on three occasions by the Bitola Court of Appeal (Апелационен Суд Битола), each time ordering the lower court to commission a fresh expert report with regard to the chassis. It further held that it could not make a decision on the request for confiscation relying on expert reports made within the framework of the investigation (see paragraph 7 above), since that had been a separate set of proceedings. No hearing was held before either the first or the second-instance court, notwithstanding the applicant company’s written requests in that respect. 11. On 6 December 2011 the Criminal Investigations Bureau provided a fresh expert report (“the 2011 expert report”) in which it established that the chassis number of the bus had been altered.[1]
12. At a hearing held in private on 26 December 2011 (in the absence of the applicant company) the first-instance court again ordered the confiscation of the bus, relying, inter alia, on the 2011 expert report. It based its decision on Article 100-A §§ 1 and 4 of the Criminal Code. 13. The applicant company appealed, arguing that the chassis number had not been forged and that it had never been established that the bus in question had been either used or intended to be used for the commission of an offence. It stated that it had not been served with the 2011 expert report and the other expert reports had been inconclusive. 14. On 24 January 2012, relying on Article 100-A of the Criminal Code, the Court of Appeal dismissed the applicant company’s appeal, finding that on the basis of the 2011 expert report, the first-instance court had correctly established that the bus’s chassis number had been altered. In making its decision, the first-instance court had been aware that the applicant company had not been indicted. The relevant part of the appellate court’s decision reads as follows:
“In line with section 532 of the Criminal Proceedings Act, objects which have to be confiscated under the Criminal Code shall be confiscated even in absence of a finding of guilt. In view of the fact that this vehicle’s chassis number has been forged, it cannot remain in the possession of [the applicant company], nor can it be subject to transactions, as that would result in consequences for possible future owners.”
RELEVANT LEGAL FRAMEWORK
15. The relevant provisions of the Criminal Code and the Criminal Proceedings Act have been summarised in the cases of Sulejmani v. the former Yugoslav Republic of Macedonia (no. 74681/11, § 17, 28 April 2016), and Mitrov v. the former Yugoslav Republic of Macedonia (no. 45959/09, §§ 33 and 34, 2 June 2016), respectively. THE LAW
ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
16. The applicant company complained under Article 6 that the proceedings that had resulted in the confiscation of its bus had been unfair. In particular, there had been no oral hearing before the domestic courts and the 2011 expert report had not been communicated to the applicant company. Article 6 § 1 of the Convention, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...”
Admissibility
17. The Government did not submit any objection as to the admissibility of this complaint. 18. Notwithstanding the absence of an objection by the Government, the Court would like to address the issue of the applicability of Article 6 of the Convention (see, for example, Gerovska Popčevska v. the former Yugoslav Republic of Macedonia, no. 48783/07, § 38, 7 January 2016, with further references). 19. The Court observes that the applicant company alleged unfairness of the proceedings before the domestic courts which resulted in the loss of its property as a direct consequence of the confiscation order. 20. Those proceedings were initiated by the public prosecutor, but were separate from the investigation into the applicant company, which was abandoned on account of lack of evidence (see paragraph 8 above). This finds support in the domestic courts’ refusal to rely on evidence gathered during the investigation (see paragraph 10 above). Accordingly, this case is to be distinguished from G.I.E.M. S.R.L. and Others v. Italy (merits) [GC], nos. 1828/06 and 2 others, 28 June 2018) in which the applicants were indicted and either relieved of any responsibility by final judgments or on the basis of the application of statutory limitations. The proceedings in the instant case therefore did not involve the determination of a criminal charge against the applicant company (see Air Canada v. the United Kingdom, 5 May 1995, §§ 53-54, Series A no. 316‑A, and AGOSI v. the United Kingdom, 24 October 1986, § 65, Series A no. 108). 21. The Court further observes that a confiscation measure, such as in the instant case, nonetheless affected in an adverse manner the property rights of the applicant company. Since property rights are civil rights within the meaning of Article 6 § 1 of the Convention, that Article, under its civil head, is applicable in the instant case (see Rummi v. Estonia, no. 63362/09, § 64, 15 January 2015; Silickienė v. Lithuania, no. 20496/02, §§ 45 and 46, 10 April 2012; Dimitar Krastev v. Bulgaria, no. 26524/04, § 57, 12 February 2013; and Saccoccia v. Austria, (dec.) no. 69917/01, 5 July 2007). 22. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant company
23. The applicant company submitted that the first-instance court had never decided on its written requests for an oral hearing. It further submitted that due to the lack of an oral hearing, it had been unable to effectively participate in the proceedings and contest the prosecution’s evidence that the chassis had been forged. 24. The applicant company reiterated that the 2011 expert report had not been served on it and as a consequence, it had been put at a disadvantage compared with the prosecution. (b)   The Government
25. The Government conceded that the entire proceedings had been held in private and exclusively in writing, in the absence of either party. None the less, the applicant company had failed to explain how the possibility to present the case orally would have strengthened its position. Besides the need to establish the forgery of the chassis number, the case had concerned exclusively issues of law, and therefore written submissions had been sufficient to satisfy the criteria laid out in Article 6 § 1 of the Convention. Lastly, as evident from the written submissions and appeals of the applicant company, it had been able to effectively participate in the proceedings. 26. The Government further submitted that the 2011 expert report had not been submitted to either party in the proceedings. Furthermore, two other expert reports had been drawn up during the investigation and had been made available to the applicant company. Since all those reports concerned the chassis number forgery, the applicant company had had sufficient opportunity to present its case.

Outcome for Article 6: violation