14-01-2021 - - Legislation
New CJEU judgment on the confiscation of an instrumentality belonging to the third party with a good faith

On 14 January 2021, the Court of Justice of the European Union (CJEU) delivered a judgment in the case C‑393/19 ruling that a national law which permits the confiscation of an instrumentality used to commit an aggravated smuggling offence, where it belongs to a third party acting in good faith, is contrary to EU law.

The preliminary ruling was requested by Apelativen sad (Court of Appeal, Plovdiv, Bulgaria) in the criminal case where a person - a driver of an international freight lorry who was employed to make a journey from Turkey to Germany - had been convicted by the court of the first instance of aggravated smuggling of approximately 3000 coins hidden in the tractor. Along with the conviction, the court seized the coins and the tractor unit for the benefit of Bulgarian State. The tractor belonged to the company established in Turkey that was the employer of the convict.

 

The Court of Appeal in Plovdiv asked the CJEU whether Articles 17 and 47 of the Charter of Fundamental Rights of the EU ('the Charter')  precluded the Bulgarian legislation applicable to the case, which provided for the confiscation of the means of transport used to commit a smuggling offence, even when they belong to a third party.

 

In the judgment, the CJEU noted that the confiscation of instrumentalities used to commit a criminal offence punishable by deprivation of liberty for more than one year is governed by EU law, in this case Framework Decision 2005/212/JHA. That decision also applies to the confiscation of goods belonging to third parties and requires that their rights be protected where they are acting in good faith.

 

The CJEU also stressed that the right to property may be subject to limitations, which must be proportionate and correspond to public interests pursued by the European Union.

 

The CJEU found that the aim pursued by the Bulgarian legislation was to prevent the unlawful importation of goods to the country. However since the confiscation concerned a third party acting in a good faith, who did not know, nor could have known, that its property was used to commit an offence, such confiscation constitutes, in the light of the aim pursued, a dispropotionate and intolerable interferrence, impairing the very substance of that party's right to property. The legislation does not therefore comply with the right to property enshrined in Article 17 of the Charter.

 

As regards to a remedy of the owner of the confiscated property, the CJEU noted that Framework Decision 2005/212/JHA provides for an obligation, on the part of each Member State, to take the necessary measures to ensure that persons affected by the confiscation of instrumentalities and proceeds of criminal offences have effective legal remedies in order to preserve their rights. Furthermore, Article 47 of the Charter provides that any person whose right and freedoms guaranteed by EU law have been violated has the right to an effective remedy before a court.

 

No such right to a remedy was laid down in Bulgarian law. The CJEU thus considers that a national law, which permits the confiscation, in the context of criminal proceedings, of property belonging to a third party, without them being afforded an affective remedy, is contrary to EU law.

 

Please see the press release for the details. The judgment is available on the CJEU website and will be uploaded to the Judicial Library on the EJN website.

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