CEDH · CASELAW;CLIN;ENG — 12 mai 2009

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Belgium (dec.) - 44614/06 Decision 12.5.2009 [Section II] Article 1 of Protocol No. 1 Article 1 para. 2 of Protocol No. 1 Control of the use of property Confiscation of premises used in connection with offence linked to human-trafficking and exploiting vulnerable aliens: inadmissible Criminal proceedings were brought against the applicant before the Criminal Court for having “taken advantage, either directly or through an intermediary, of the particularly vulnerable situation of numerous foreign nationals as a result of their administrative, illegal or precarious situation, by renting immovable property, rooms or other premises with the intention of making an abnormal profit”. He was sentenced to one year’s imprisonment and fined, and the confiscation of the property concerned, which belonged to the applicant and his wife, was ordered. The Court of Appeal raised his sentence to three years’ imprisonment and a fine and ordered “the confiscation of the rooms and other premises that were rented out by the defendant to the foreign nationals listed in the case file”. In so concluding, the Court of Appeal noted that the special confiscation provided for in Article 42 1° of the Criminal Code, while previously optional, had been rendered mandatory by Article 433 terdecies of the same Code. In order to determine the nature and rate of the penalty to be applied, the Court of Appeal took into consideration the seriousness and particularly heinous nature of the offence which reflected, on the part of the defendant, an inadmissible disregard for human values and dignity, the purely mercenary nature of his conduct, the length of time over which the offences had been committed, and the defendant’s substantial criminal record. An appeal by the applicant to the Court of Cassation was dismissed. Inadmissible : The impugned confiscation had without doubt constituted an interference with the applicant’s peaceful enjoyment of his possessions. Further, the confiscation had concerned property that the courts had found to have been used illegally and had been ordered with the aim of preventing its use for the commission of other offences and the resulting prejudice for the community. Therefore, even though the measure had entailed deprivation of property, it fell within the definition of “control of the use of property” under the second paragraph of Article 1 of Protocol No. 1. Being provided for by law, that interference pursued the legitimate aim, in accordance with the general interest, of combating human trafficking and the exploitation of foreigners in a precarious situation. Where property that had been used illegally was confiscated, the balance between that aim and the applicant’s fundamental rights depended on numerous factors and in particular the attitude of the property owner. It was therefore appropriate to ascertain whether the Belgian authorities had given due consideration to the extent of the applicant’s negligence or prudence, or at least to the relationship between his conduct and the offence in question. In addition, it was necessary to take into account the proceedings in the domestic legal system in order to assess whether they had afforded the applicant, in view of the severity of the penalty, an adequate opportunity to make submissions to the competent authorities, including if necessary to allege a breach of the law or the existence of arbitrary or unreasonable conduct. In this connection, it could be observed from the outset that Article 433 terdecies , paragraph 2, of the Criminal Code, rendered mandatory the confiscation of property used in the commission of an offence in cases referred to in certain other articles of the same Code, which covered offences such as those that had led to the applicant’s conviction in the present case. In addition, the impugned confiscation had not been decided by virtue of the discretionary power of a customs authority, but was a penalty under the criminal law. In cases where confiscation was ordered as a penalty, the owner of the property in question had to be given the opportunity to claim his innocence, without which the fair balance between the protection of the right to the peaceful enjoyment of possessions and the requirements of the general interest would not be maintained. In the present case, proceedings had been brought against the applicant before the Liège Criminal Court for having “taken advantage, either directly or through an intermediary, of the particularly vulnerable situation of numerous foreign nationals as a result of their administrative, illegal or precarious situation, by renting immovable property, rooms or other premises with the intention of making an abnormal profit”. In addition, the Court of Appeal had quite rightly not confined itself to an automatic application of Article 433 terdecies of the Criminal Code in the applicant’s case but had given lengthy reasoning in its decision to uphold the conviction, stressing the applicant’s highly reprehensible conduct. In order to determine the nature and severity of the penalty to be applied, the Court of Appeal had taken into consideration the seriousness and particularly heinous nature of the offence which reflected, on the part of the defendant, an inadmissible disregard for human values and dignity, the purely mercenary nature of his conduct, the length of time over which the offences had been committed, and the defendant’s substantial criminal record. The Court of Appeal had then ordered the confiscation of the property which had been used for the commission of the offence, whilst limiting the measure, however, to the rooms and other premises that had been rented to the foreigners identified in the case file. Lastly, it had ordered the return of other property which had only been seized as real evidence for the purposes of the investigation. In those circumstances, taking into account the margin of appreciation afforded to States in controlling “the use of property in accordance with the general interest”, in particular in the context of a policy aimed at combating criminal activities, the interference with the applicant’s right to the peaceful enjoyment of his possessions had not been disproportionate to the legitimate aim pursued: manifestly ill-founded .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes