Individual Application

The Facts

On the basis of the information received on 6 October 2010 indicating that suspects M.B. and U.K. would be transporting cigarettes without invoices and tax stamps in a vehicle belonging to the applicant, a search was conducted. During the search, 2,500 cartons of cigarettes hidden inside the vehicle were seized. On 7 October 2010, the magistrates’ court ordered the seizure of the vehicle for violation of the Law no. 4733 on the Regulation of Tobacco, Tobacco Products and Alcohol Market. In the indictment issued on 2 February 2011, it was requested that the suspects M.B. and U.K. be punished and that the vehicle, which had been seized by an annotation to the vehicle registration record, be confiscated. On 24 April 2013, the criminal court convicted those accused, while ordering that the applicant’s vehicle would not be confiscated as the statutory conditions had not been met, that the vehicle would be returned to its registered owner, and that the said annotation would be removed. Upon appeal, the Court of Cassation quashed the judgment on 31 May 2016. Following the Court of Cassation’s decision, the criminal court again convicted the accused on 28 May 2021, while ordering that the applicant’s vehicle would not be confiscated as the statutory conditions had not been met, and that the vehicle would be returned to its registered owner. Upon appeal by the administration insofar as it concerned the rejection of the confiscation request, the Court of Cassation once again quashed the judgment on 11 October 2023, and decided to discontinue the proceedings due to the statute of limitations, as well as ordered the return of the applicant’s vehicle to him by removing the annotations from the vehicle registration record. The restriction on the applicant’s vehicle was lifted on 26 December 2023.

 The Applicant’s Allegations

The applicant maintained that due to the excessive duration of the seizure measure implemented by means of an annotation to the registration record of his vehicle, his right to an effective remedy, in conjunction with his right to property, had been violated.

The Court’s Assessment

The right to an effective remedy may be defined as enabling anyone alleging a violation of constitutional rights to resort to reasonable and accessible administrative or judicial remedies, appropriate to the nature of the right concerned and capable of preventing the occurrence or continuation of the violation or of eliminating its consequences by providing adequate redress.

Article 141 of the Code of Criminal Procedure no. 5271 grants individuals the right to seek compensation in cases where their property or other assets have been seized without the statutory conditions, where necessary protective measures have not been taken, where such property has been used for purposes other than those intended, or where it has not been returned in a timely manner. The compensation remedy provided under the aforementioned provision may be regarded as an effective remedy regardless of whether the seizure was de facto or otherwise. However, regard being had to the established case-law of the Court of Cassation, it is observed that seizures carried out solely by an annotation to the registration record are not considered to fall within this scope, and that compensation is awarded only where it is found, through literal interpretation of the provision, that there was a de facto seizure of the property. In this context, given that Article 141 of Law no. 5271 does not explicitly encompass seizures carried out by an annotation to the registration record, the courts’ literal interpretation of the provision cannot be regarded as unforeseeable.

While any seizure necessarily causes damage, in cases where the damage exceeds what is inevitable, the impugned interference with the right to property imposes an excessive burden on the individual concerned. Therefore, in the present case, even though the impugned measure was implemented by means of an annotation to the registration record, there is no doubt that the prolonged duration of the seizure due to reasons not attributable to the applicant resulted in a damage exceeding what was inevitable, thereby imposing an excessive burden on him. However, according to the case-law of the Court of Cassation, in the absence of de facto seizure, the measure of adding an annotation to the registration record is not sufficient in terms of an excessive burden. Therefore, such damage cannot be redressed under Article 141 of Law no. 5271.

Accordingly, for the purpose of protecting the applicant’s right to property, there exists no effective legal remedy to redress the damage sustained as a result of the prolonged duration of the measure implemented by adding an annotation to the vehicle registration record, despite the absence of fault on the applicant’s part. Pursuant to Article 40 of the Constitution, the applicant must be provided with the opportunity to access the competent authority to challenge the damage he had allegedly sustained as a result of the prolonged duration of the impugned measure. In other words, the applicant’s right to an effective remedy must be secured. The said measure restricting the applicant’s ability to exercise his legal rights over the vehicle had been in effect for approximately thirteen years, and it has been established that no effective remedy was available to the applicant whereby he could claim compensation for the damage incurred.

Moreover, the number of applications lodged with the Constitutional Court on grounds of an alleged violation of the right to property due to the prolonged duration of measures imposed by way of annotations in the vehicle registration records has been steadily increasing. A considerable number of complaints in this regard have been brought before the Court through individual application.

The Constitutional Court has rendered new violation judgments in the present case and in other pending cases, in line with the principles set out in its previous judgments, thereby redressing the damages arising from the violation of the right to property by awarding compensation. Nevertheless, such an approach is neither capable of preventing similar applications nor of putting an end to violations arising from the prolonged application of the measures imposed. Accordingly, in consideration of the subsidiary nature of the individual application mechanism, an explicit statutory regulation is needed so as to remedy the structural problem arising from such violations. It is evident that the remedy to be established must be capable of providing redress for the damage sustained by applicants as a result of the excessive duration of measures imposed by way of annotations in the vehicle registration records.

Consequently, the Court has found a violation of the right to an effective remedy, in conjunction with the right to property, and decided to apply the pilot judgment procedure.