The seizure of a ship used for illegal fishing was justified. The public interest in preventing activities that pose a serious threat to natural resources overrides the right to property protection.
JUDGMENT
Yaşar v. Romania 26.11.2019 (no.64863/13)
SUMMARY
Right to property and public interest in the protection of natural resources. Confiscation of the vessel due to its use for illegal fishing in the Black Sea. The European Court of Human Rights unanimously ruled that there was no violation of the right to property.
The Court found, in particular, that the confiscation actually resulted in the applicant being deprived of his property, as the vessel had eventually been sold to a private entity and the proceeds of the sale had been received by the State. However, the courts carefully balanced the rights at stake and found that the public interest in preventing activities that posed a serious threat to natural resources in the Black Sea overruled the applicant’s property right. Non-infringement of Article 1 of the First Additional Protocol.
PROVISION
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Erol Yaşar, is a Turkish national who was born in 1971 and lives in Çayırlı (Turkey).
Mr Yaşar’s vessel was confiscated in 2010 when criminal proceedings were brought against its
captain, Kadir Dikmen, who had been using it on the basis of a verbal agreement with him.
Mr Dikmen was convicted in 2012 following a simplified procedure based on him acknowledging, in
particular, that he had been fishing without a permit for the vessel and had used fishing equipment
without authorisation. In the proceedings Mr Yaşar had submitted a copy of his title to the vessel,
which he said had been “caught without his knowledge within Romanian territorial waters”.
The judgment became final as concerned Mr Dikmen, but the case was sent for retrial with regard to
the confiscation. The courts considered that the confiscation measure had not been taken following
an adversarial procedure as the vessel’s owner had not been summoned in the proceedings against
Mr Dikmen.
In the second set of proceedings, Mr Yaşar was summoned and represented by a lawyer of his choice
who argued that confiscation was disproportionate, given the significant value of the vessel and the
absence of any proven damage. However, in a final judgment in 2013, the courts found that Mr
Yaşar had to have been aware that the vessel had been used for the offences in question, given the
presence on board of equipment used specifically for illegal fishing, which he had claimed as his
own. They also referred to the gravity of the crime committed using the confiscated vessel, involving
potential damage to protected fish stocks in the Black Sea and frequent injuries to dolphins.
The vessel was ultimately sold to a private party in 2016 for approximately 1,900 euros, its value
having in the meantime severely depreciated. The money was collected by the State Treasury.
THE DECISION OF THE COURT…
Neither party contested the fact that the confiscation of Mr Yaşar’s vessel had constituted an
interference with his right to peaceful enjoyment of his possessions. Moreover, the Court considered
that the confiscation had amounted to a deprivation of property as it was a permanent measure,
entailing a conclusive transfer of ownership in 2016.
That interference had been in accordance with the law, namely the domestic law on fishing and
aquaculture, and had pursued the legitimate aim of preventing activities which posed a serious
threat to the biological resources in the Black Sea, such as illegal fishing. The confiscation had
therefore been in the general interest.
The Court went on to examine whether the interference had struck a fair balance between the
demands of the general interest and the protection of the applicant’s property rights.
First, the Court noted that Mr Yaşar had been given a reasonable opportunity to put his case to the
authorities. In particular, the case had been sent for retrial so that the confiscation measure could
be decided in adversarial proceedings. In the new proceedings he had been legally summoned,
represented by the lawyer of his choice and given the opportunity to submit the evidence and
arguments which he had considered necessary to protect his interests. Nothing in the case file
suggested that the Romanian courts had acted arbitrarily in their assessment of the evidence.
Furthermore, the courts had carefully balanced the rights at stake, referring to the gravity of the
crime committed using the vessel and holding that forfeiture in the form of a monetary equivalent
would not be appropriate.
Nor had the confiscation imposed an excessive burden on Mr Yaşar: he had failed to prove to the
courts the value of the vessel or his allegation that renting it had been his only source of income.
Indeed, the vessel had ultimately been sold for approximately EUR 1,900.
There had therefore been no violation of Article 1 of Protocol No. 1.
