Case of European Court of Human Rights, November 26, 2019 (case YAȘAR v. ROMANIA)

Defense:ROMANIA
Resolution Date:November 26, 2019
SUMMARY

No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

 
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FOURTH SECTION

CASE OF YAȘAR v. ROMANIA

(Application no. 64863/13)

JUDGMENT

Art 1 P1 • Peaceful enjoyment of possessions • Confiscation of applicant’s vessel used by third person for illegal fishing • Applicant’s bad faith established by domestic courts in adversarial proceedings • No excessive burden

STRASBOURG

26 November 2019

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Yașar v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Jon Fridrik Kjølbro, President,

Iulia Antoanella Motoc,Branko Lubarda,Carlo Ranzoni,

Georges Ravarani,Jolien Schukking,Péter Paczolay, judges,and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 15 October 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 64863/13) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Kadır Dıkmen and Mr Erol Yaşar (“the applicants”), on 7 October 2013.

  2. The applicants were represented by Mr Matei Ilie Lieanu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, most recently Ms Simona-Maya Teodoroiu, from the Ministry of Foreign Affairs.

  3. Mr Erol Yaşar alleged, in particular, that the confiscation of his vessel was in breach of Article 1 of Protocol No. 1 to the Convention.

  4. On 18 November 2014 the Government were given notice of Mr Erol Yaşar’s complaint concerning the confiscation of his vessel; the complaints introduced by Mr Kadır Dıkmen (hereinafter K.D.) as well as the other complaints lodged by Mr Yasar were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The name of the case has consequently been changed from Dıkmen and Yașar v. Romania to Yașar v. Romania and hereinafter the term “the applicant” refers to Mr Yaşar.

    THE FACTS

  5. The applicant lives in Çayırlı (Turkey).

  6. On 2 April 2010 K.D. was sailing with his crew on the Black Sea on a vessel rented from the applicant. The vessel displayed a Romanian flag.

  7. The Romanian coastguard asked them to stop at a distance of approximately 42 nautical miles from Sf. Gheorghe and 68 nautical miles from Gura Portiţei. Since the crew initially refused to stop, the Romanian coastguard formally ordered them to do so, by threatening to open fire. The crew obeyed the order to stop and the vessel was subsequently subjected to border controls.

  8. Further to the search conducted on the deck of the vessel, the coastguard did not find any fish, but found unauthorised fishing equipment which showed signs of having been recently used. They also ascertained that the vessel was not authorised to perform fishing activities in the Romanian exclusive economic zone in the Black Sea, that K.D. did not have a fishing permit and that the vessel did not possess a fishing journal in which its fishing activities should have been recorded. It seemed that the activities had been ordered by K.D. as commander of the vessel and performed by the members of the crew, without the latter being aware of the failure to comply with the statutory fishing requirements and of the illegal display of the Romanian flag.

  9. The crew were accused of having committed criminal offences relating to the fishing regime in Romanian territorial waters.

  10. The vessel was escorted to the Constanţa harbour and the goods and the vessel were seized. According to the applicant, the value of the vessel was 800,000 euros (EUR), since it was equipped with new Volvo-type engines and electronic maps using the latest technology.

  11. By a bill of indictment of 9 June 2010, K.D. was sent for trial before the Constanţa District Court for having committed the criminal offences punishable by Government Emergency Ordinance no. 23/2008 on fishing and aquaculture (“GEO 23/2008”) since it was held that he did not have a fishing permit for the vessel, that he possessed and had used fishing equipment without authorisation, that he had performed illegal fishing activities and that he had unlawfully displayed the Romanian flag.

  12. K.D., represented by a lawyer of his choice, namely Mr Lieanu, opted to fully acknowledge his guilt and thus to follow a simplified procedure, in accordance with Article 3201 of the Code of Criminal Procedure (see paragraph 35 below).

  13. On 24 May 2011 K.D. declared before the court that he used the vessel on the basis of a verbal agreement with the applicant, who was its owner. He further stated that even though he did not notify the applicant whenever the vessel left Turkish territorial waters, upon returning from foreign territorial waters the crew always informed the applicant where they had caught any fish from, and despite the fact that the applicant usually got upset about this information, he still gave them a bonus for catching fish.

  14. The applicant submitted to the court a written statement, given before a notary public in Istanbul on 27 January 2011. In it he stated that the vessel, which was his property, had been “caught without his knowledge within Romanian territorial waters”. He asked the court to return all the equipment on the ship to him (including the fishing nets). He gave an undertaking never to enter Romanian territorial waters or to act against Romanian laws. He also submitted a copy of his title to the vessel, as well as a permit for fishing within Turkish territorial waters.

  15. Despite several requests from the court asking it to state its position in the case, the National Agency for Fishing and Aquaculture did not reply or formulate any civil claims.

  16. By a judgment of 13 July 2011 the Constanţa District Court sentenced K.D. to two years’ imprisonment, suspended. It also ordered the seizure of the fishing equipment and ordered the return of the vessel to the applicant since there was no clear evidence that K.D. had used the vessel in Romanian territorial waters with the applicant’s knowledge.

  17. The prosecutor’s office attached to the Constanţa District Court (“the prosecutor’s office”) lodged an appeal on points of law (recurs) against that judgment, arguing that K.D. should also be sentenced to the payment of a fine of 6,000 Romanian lei (RON) on account of his prior criminal conviction for offences relating to the fishing regime and that the applicant’s vessel should be seized as a security measure as per Article 66 of GEO 23/2008 (paragraph 33 below).

  18. By a final judgment of 30 March 2012 the Constanţa Court of Appeal allowed the prosecutor’s office’s appeal on points of law and partially quashed the lower court’s judgment. The court rejected the request to impose a criminal fine in relation to K.D.; however, noting that the applicant had not been summoned to appear during the proceedings, the court ordered the lower court to re-examine the case solely in respect of the measure of special confiscation of the applicant’s vessel, and to summon the applicant to appear in court, since the measure in question might substantially affect his property rights.

  19. During the new set of proceedings, K.D. was represented by Mr Lieanu, the applicant’s lawyer in the proceedings before the Court (see paragraph 2 above); the applicant was legally summoned to appear. However, neither K.D., nor the applicant was present during any of the hearings before either the first-instance or the appeal court.

  20. During its last hearing on 21 March 2013 the Constanţa District Court firstly established the scope of the case, holding that it had...

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