FIFTH SECTION

CASE OF LAVRECHOV v. THE CZECH REPUBLIC

(Application no. 57404/08)

JUDGMENT

STRASBOURG

20 June 2013

FINAL

20/09/2013

This judgment has become final under Article 44 § 2 of the Convention.

In the case of Lavrechov v. the Czech Republic,

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

Mark Villiger, President , Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, André Potocki, Paul Lemmens, Aleš Pejchal, judges , and Claudia Westerdiek, Section Registrar ,

Having deliberated in private on 21 May 2013,

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

PROCEDURE

1. The case originated in an application (no. 57404/08) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Evgueni Lavrechov (“the applicant”), on 18 November 2008.

2. The applicant was represented by Mr R. Rozmánek, a lawyer practising in Olomouc. The Czech Government (“the Government”) were represented by their Agent, Mr Vít A. Schorm, of the Ministry of Justice.

3. The applicant alleged, in particular, that his property rights had been violated by the forfeiture of his bail.

4. Notice of the application was given to the Government on 27 March 2012. The Government of Russia were invited to state whether they wished to submit written comments on the case (Article 36 of the Rules of Court). They did not avail themselves of that possibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1952 and lives in Udomlya, Russia.

6. He was a representative of a Russian company, T., which bought a share of a Czech company, S. The applicant was a member of the Board of Directors of company S. from 8 August 1995, and its chairman from 27 February 1996. He was unable, however, to exercise his powers between 24 September and 3 December 1996, having been illegally dismissed from the Board of Directors by its Czech members. Company S. later became insolvent.

7. On 11 June 2001 the applicant was charged with insider trading and fraud, in particular with concluding contracts disadvantageous to company S. and causing pecuniary damage of 88,000,000 Czech korunas (CZK) (3,520,000 euros (EUR)). On 20 June 2001 he was placed in pre-trial detention.

8. On 8 January 2002 the applicant requested to be released on bail and offered to pay security of CZK 4,000,000 (EUR 160,000). The request contained a declaration that he was aware of the contents of Article 73 § 3 of the Code of Criminal Procedure, which set out the conditions under which bail could be forfeited. On 17 January 2002 the Ostrava Regional Court granted the applicant bail against payment of security in the amount of CZK 10,000,000 (EUR 400,000). It justified the amount of the security by the exceptional gravity of the charges and the significance of the reasons for taking him into custody originally, in particular the high risk that he would abscond.

9. On 31 January 2002 the applicant authorised his lawyer to pay the security in the amount set by the court. He also undertook to stay at his address in the Czech Republic and to attend hearings in his case, and declared that he was aware that the security would be forfeited if he did not comply. On 22 February 2002 he was released on bail. One of the conditions was that he stay at his address in the Czech Republic and receive mail there.

10. On 7 June 2002 the Regional Court authorised the applicant to leave the Czech Republic for Russia until 18 June 2002, on condition that he attended the first hearing, scheduled for 19 to 21 June 2002. This was the fourth time such a request by the applicant had been granted. The applicant had made three previous trips to Russia, between February and June 2002, and had always returned.

11. On 17 June 2002 the applicant informed his lawyer that on 14 June 2002 his passport, with an entry visa to the Czech Republic, had been stolen in Moscow and that he was arranging for a new passport. As a result the hearing was adjourned to 7 to 9 August 2002.

12. A summons to the new hearing was sent to the applicant at his address in the Czech Republic but returned as undelivered. The Regional Court also attempted to serve the summons on the applicant through his lawyer.

13. On 8 July 2002 the lawyer sent certain documents to the Regional Court, including a confirmation from the Russian authorities that the applicant’s official registered address in Russia was in Udomlya.

14. On 30 July 2002 the lawyer informed the Regional Court that he did not have direct contact details for the applicant in Russia and that he had sent the summons for the hearing to the address given to him by one of the applicant’s co-accused.

15. As the applicant had still not received a new passport and he objected to the hearing being held in his absence, the hearing planned for 7 to 9 August 2002 was cancelled.

16. On 12 March 2003 the Regional Court, having received no information from the applicant, made enquiries of Interpol and the trade representation of the Russian Federation in the Czech Republic as to whether the applicant had applied for a new passport.

17. The date the applicant received a new passport from the Russian authorities is disputed between the parties. The Government claimed that it was on 28 February 2003, but according to the applicant it was not until 2 April 2003. The applicant did not inform the Regional Court that he had obtained a new passport.

18. The Regional Court scheduled another hearing for 6 to 8 September 2004 and, on 22 March 2004, summoned the applicant through the Ministry of Justice at an address in the city of Podolsk in Russia, which was registered in the case file as the applicant’s place of residence in Russia. It also warned the applicant that the fact that he had not applied for a Czech visa, had remained in Russia and had not been in contact with the court was incompatible with his bail conditions, could be qualified as avoiding the criminal proceedings and could lead to the forfeiture of the sum deposited as security. The applicant was also advised of the possibility that criminal proceedings against him would be conducted in absentia .

19. The Russian Ministry of Justice informed the Czech authorities that the applicant was not registered and did not live at the address in Podolsk, and that his current place of residence had not been established. It was thus not possible to deliver the summons to the hearing.

20. Nevertheless, the applicant found out about the scheduled hearing and obtained a short-term visa allowing him to visit the Czech Republic between 2 and 12 September 2004.

21. On 2 September 2004, however, the applicant sent a fax to the Regional Court requesting adjournment of the hearing, referring to unspecified health problems and stating that he now had new lawyers, who would need time to study the case. He did not give his address in Russia. Consequently, the Regional Court was obliged to adjourn the trial once again.

22. On 28 February 2005 the Regional Court asked the Ministry of Justice to request the Russian authorities to deliver a summons to the applicant to a hearing scheduled for 21 to 23 November 2005, at the address in Podolsk or in Udomlya. However, the summons for the trial was not served on the applicant until 16 January 2006, in Udomlya. On 21 November 2005 the Regional Court again cancelled the hearing.

23. On 6 December 2005 the Regional Court decided to conduct the criminal proceedings against the applicant in absentia . It stated that the applicant had been avoiding the criminal proceedings by staying out of the country, that he had not returned to the Czech Republic since June 2002 and that he had created serious difficulties for the conduct of the trial by staying in Russia. The court also found the applicant’s excuse for not attending the hearing on 2 September 2004, namely that he had health problems, totally inadequate. It further observed that the applicant was not respecting the bail conditions he had agreed to, namely that he would appear at hearings and that he would stay at his place of residence in the Czech Republic.

24. On 27 to 29 March, 5 to 7 June, 11 September and 23 October 2006 hearings took place before the Regional Court in the proceedings against the applicant in absentia .

25. On 23 October 2006 the Regional Court fully acquitted the applicant, holding that he had not committed any criminal offence but had merely engaged in standard and transparent business activities.

26. On 28 June 2007 the Olomouc High Court upheld that judgment.

27. On 1 November 2007 the Regional Court, at the applicant’s request, ruled that the bail should be returned to the applicant, as he had not been duly informed about the consequences of not complying with the conditions of bail. Moreover, none of the situations envisaged by Article 73a § 4 of the Code of Criminal Procedure for forfeiting the bail was applicable.

28. On 5 December 2007 the High Court quashed that decision and ruled that the bail was forfeited. It held that the applicant must have known about the possibility of forfeiture of the bail even though he had not been formally informed about it because his requests for release on bail had contained declarations that he had been aware of the possibility of forfeiture should he break the bail conditions. It also held that it was true that for some time the applicant had been unable to return to the Czech Republic because he had lost his passport and the Czech authorities had taken time to issue him with a new visa. However, the applicant had failed to collect correspondence at the address in Podolsk, which was one of the addresses he had given to the prosecuting authorities, and thus letters from the court could not be delivered to him in time. It was also clear from the applicant’s behaviour that he was avoiding criminal prosecution by remaining out of the country. Nor had he kept in contact with the Regional Court, even though he had known about the proceedings. The conditions for forfeiture of the bail under Article 73a § 4 of the Code of Criminal Procedure were thus fulfilled, and in particular the applicant had been in hiding, had failed to inform the relevant authorities of his place of residence, and had thus frustrated delivery of an official letter.

29. The applicant lodged a constitutional appeal against that decision, arguing that it was unjust that such a large sum should be forfeited, even though he had not committed any crime. He also disputed the findings of the High Court.

30. On 3 June 2008 the Constitutional Court dismissed the appeal as manifestly ill-founded.

II. RELEVANT DOMESTIC LAW

31. Article 73a §§ 1 and 2 of the Code of Criminal Procedure provides that individuals in pre-trial detention may be released on bail with a minimum security of CZK 10,000, the actual amount being determined by the court, depending on the particular circumstances of the accused and the case.

32. Under Article 73a § 4 (§ 3 at the relevant time) of that provision bail will be forfeited, inter alia , if the accused absconds, goes into hiding or does not inform the relevant authorities of a change of place of residence, and thus frustrates delivery of an official letter. Under Article 73a § 9 (§ 6 at the relevant time) the accused must be informed in advance of the conditions under which bail may be forfeited.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

33. The applicant complained that the forfeiture of bail after he had been acquitted violated Article 1 of Protocol No. 1, which reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. Admissibility

34. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

35. The applicant maintained, firstly, that the forfeiture of bail had been illegal because he had not been properly advised as to the possibility of forfeiture. He argued that he had not been in hiding and that it had not been his fault that the Regional Court had failed to deliver the correspondence to his correct address in Russia, which was in Udomlya. There had been objective reasons for him not appearing at the trial, including the loss of his passport, the non-issuance of a visa, and illness.

36. The applicant further maintained that the decision of the High Court to forfeit bail of such a high amount had been disproportionate. Generally, the purpose of bail was to prevent an offender from avoiding punishment and to make sure that the purpose of the criminal proceedings was attained. In his view the criminal proceedings had been carried out properly despite his absence, and their purpose had been attained. Thus, the forfeiture of the bail had been an inappropriate interference with his property, even assuming that he had broken the bail conditions.

37. Lastly, the applicant stated that forfeiture of bail when a person had been acquitted and was thus innocent was unjust and against common sense.

38. The Government, for their part, considered the complaint manifestly ill-founded. They argued that the interference had to be assessed in the light of the second paragraph of Article 1 of Protocol No. 1, which concerned control of the use of property. They further maintained that the forfeiture had been legal, as decided by the domestic courts.

39. They noted that the Regional Court had made intensive efforts for nearly four years to summon the applicant to a hearing. Throughout that time the applicant had delivered a number of documents to the court, but none of them had contained any information about a change of the address to which court documents should be sent. Even though the applicant’s absence from the first hearing on 19 June 2002 had been duly authorised, his subsequent attitude to the criminal proceedings had clearly shown his intention to avoid them by staying out of the country, in which he had indeed been successful, as the Regional Court had been obliged to try him in absentia . The applicant had had the opportunity for several years to contact the Regional Court directly, notify it of the address for service of process in Russia and suggest a date on which he would be able to travel to the Czech Republic to attend a hearing, but he had failed to do so.

40. The Government further argued that there was no direct connection between forfeiture of bail and acquittal. The purpose of bail was to replace custody and at the same time to discourage a person being prosecuted from frustrating or avoiding criminal prosecution. If the person did not comply with the conditions of bail, the logical consequence of such behaviour was the forfeiture of the bail, and it was therefore a legitimate deprivation of property in this respect. The fact that the accused had eventually been acquitted did not in any way affect the lawfulness of the custody. The purpose of bail and the purpose of punishment were very different. If the conditions provided for by law were fulfilled, the bail was returned. Bail was not punishment for an offence committed, but was a form of security.

41. The amount of the bail had been commensurate with the applicant’s property situation, as was also clear from the fact that he had been able to pay it. Bail as a means of securing an accused person’s cooperation with the criminal authorities was intentionally set at such a level that its loss would constitute a significant interference with the property situation of the person who had deposited the bail. Otherwise it would not fulfil its purpose.

42. Lastly, the Government noted that the applicant had not specified in what exactly consisted the excessive financial burden on him as a result of the forfeiture of the bail. He had not documented in any way that he had found himself in a state of financial distress.

2. The Court’s assessment

43. The Court first considers that the forfeiture of the bail constituted interference by the State with the applicant’s property rights. The Court does not consider it necessary to decide whether the interference should be examined under the second paragraph of Article 1 of Protocol No. 1, as argued by the Government, because in any event the three rules of Article 1 of Protocol No. 1 are connected and the applicable principles are similar (see James and Others v. the United Kingdom , 21 February 1986, § 37, Series A no. 98). It will therefore examine the situation complained of in the light of the general rule set forth in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis , Broniowski v. Poland [GC], no. 31443/96, § 136, ECHR 2004 ‑ V, and Gladysheva v. Russia , no. 7097/10, § 71, 6 December 2011).

44. The Court reiterates that in order for an interference to be compatible with that provision it must be lawful, in the general interest and proportionate, that is it must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, among many other authorities, Beyeler v. Italy [GC], no. 33202/96, § 107, ECHR 2000 ‑ I, and Gladysheva v. Russia , cited above, § 65). In assessing the proportionality of interference, the Court must take into account on one hand the importance of the aim pursued, and on the other the burden imposed on the applicant, including the nature of the interference, the behaviour of the applicant, and that of the State authorities (see Yildirim v. Italy (dec.), no. 38602/02, ECHR 2003-IV, and Forminster Enterprises Limited v. the Czech Republic , no. 38238/04, § 75, 9 October 2008).

45. Turning to the requirement of “lawfulness”, the Court first notes that nothing in the present case indicates that the High Court applied the legal provisions in question, namely Article 73a § 3 of the Code of Criminal Procedure, in a manifestly erroneous or arbitrary manner. Nor is there any suggestion that the relevant provisions were not accessible, precise and foreseeable (see Beyeler , cited above, §§ 108-09). Consequently, the forfeiture of the bail complied with the requirement of lawfulness.

47. Turning to the proportionality test, the Court first notes that the bail of approximately EUR 400,000 is a substantial amount of money. However, the appropriate time for discussing the proportionality of the amount of security for bail is when the bail is set (see Mangouras v. Spain [GC], no. 12050/04, §§ 78 and 80, ECHR 2010), not when it is forfeited. In the present case the applicant does not contend that the initial bail was unreasonable, and indeed the Court notes that he was apparently able to provide the security swiftly and without undue hardship.

48. The main issue in the case is whether acquittal should play a role in a decision that bail should be forfeited. In this context it observes that the purpose of the bail is to ensure the proper conduct of criminal proceedings, and in particular to ensure that the accused appears at the hearing (see, in the context of the initial fixing of security for bail, Mangouras , cited above, § 78).

49. However, the conduct of the criminal proceedings was significantly hampered by the applicant’s non-compliance with the bail conditions. The applicant failed to appear at any of the scheduled hearings, and failed to assist the court in any way, even though he must have been aware that he was in breach of his bail conditions. Hearings had to be cancelled several times, which resulted in the length of the proceedings being considerably extended and the Regional Court being faced with serious difficulties in its attempts to serve the applicant with documents.

50. It must further be noted that the fact that the applicant was acquitted does not in itself mean that his prosecution was illegal or otherwise tainted in the first place. Different standards of proof are required for a person to be convicted (usually described as proof beyond reasonable doubt) and for a person to be prosecuted (usually described as reasonable suspicion that the person has committed a crime). Therefore there may well be cases of reasonable suspicion which at trial do not result in a conviction beyond reasonable doubt. Nevertheless, in these situations the State still has a legitimate interest in the proper conduct of the proceedings and in ensuring that individuals in respect of whom there exists a reasonable suspicion that they have committed a crime do not try to evade justice or undermine the smooth conduct of the proceedings in which their guilt or otherwise is to be assessed.

51. Therefore, the outcome of the proceedings has no direct relevance to the question of forfeiture of the bail. The question is rather whether forfeiture was proportionate given the breach of bail conditions during the proceedings.

52. The Court observes that the bail in the present case was not forfeited because of the impossibility of delivering a single document to the applicant. The High Court concluded that the applicant had been avoiding criminal prosecution by staying out of the country for several years. The Court considers that even though originally the applicant may have had objective reasons for not attending the hearings, this cannot be said of the period after he acquired a new passport.

53. The applicant was given ample opportunity to appear at the trial. The hearings were rescheduled several times. The applicant received his passport, according to his version of the events, in April 2003, and the decision to hold the trial in absentia was taken only in December 2005. He had thus had at least two years and eight months to enter into contact with the Regional Court so that it could set a date for a hearing for which he could travel to the Czech Republic. In these circumstances the High Court’s finding that the applicant’s own behaviour had shown that he had been avoiding his criminal prosecution does not seem unreasonable.

54. In these circumstances – that is, where the applicant must have been aware of the fact that he was in breach of his bail conditions for a substantial period of time – it was incumbent on him to inform the Regional Court clearly and unequivocally of his address in Russia and to remain in regular contact with it in order to counterbalance the difficulties with delivery of official documents to Russia, which needed to be considered under the European Convention on Mutual Assistance in Criminal Matters. The applicant failed to do so. The letter from the applicant’s lawyer of 8 July 2002 cannot be considered sufficient in these circumstances. The letter only noted where the applicant had his official registered address in Russia, but it did not in any way indicate where he wanted to receive his correspondence. Furthermore, on 2 September 2004 the applicant informed the court that he was unable to attend a hearing because he had health problems and new lawyers, but still failed to give an address for service in Russia.

55. Lastly, the Court adds that the forfeiture, that is the interference in question, was the result of fully adversarial proceedings at which the applicant was able to present his arguments. The domestic courts carefully scrutinised the pertinent issues and reasoned their decisions comprehensively (see G. v. Germany (dec.), no. 10577/83, 6 May 1985). The procedural requirements of Article 1 of Protocol No. 1 (see AGOSI v. the United Kingdom , 24 October 1986, § 55, Series A no. 108) were thus complied with.

56. Having regard to the above considerations, the Court considers that the decision to forfeit the applicant’s bail did strike a “fair balance” between the demands of the general interest of the community and the requirements of the applicant’s rights in the circumstances of the case.

57. There has accordingly been no violation of Article 1 of Protocol No. 1.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

58. Under Article 6 of the Convention the applicant disagreed with the domestic decisions regarding the bail and complained that they had been insufficiently reasoned.

59. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT

1. Declares , unanimously, the complaint concerning Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible;

2. Holds , by six votes to one, that there has been no violation of Article 1 of Protocol No. 1.

Done in English, and notified in writing on 20 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pejchal is annexed to this judgment.

M.V. C.W.

PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE PEJCHAL

I am in full agreement with my colleagues’ conclusion that the complaint alleging a violation of Article 6 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. I also fully agree with my colleagues’ decision to declare the complaint concerning Article 1 of Protocol No. 1 to the Convention admissible.

However, to my regret I have to dissent regarding the finding of no violation of Article 1 of Protocol No. 1. I voted that there had been a violation of Article 1 of Protocol No. 1 to the Convention.

I consider that the crux of the case is rather whether an acquittal should play a role in deciding whether to forfeit bail. In this context I observe that the applicant was finally acquitted, with a finding that he had not committed any criminal offence but had merely engaged in standard and transparent business activities, and further that his bail was forfeited. It is material that the decision to forfeit the applicant’s bail was taken after the acquittal had become final, that is, when the courts knew that the applicant had not committed any crime.

I note that under domestic law acquitted persons are entitled to compensation for the time spent in pre-trial detention: section 9(1) of Law no. 82/1998 on State liability for damage caused in the exercise of public authority by an irregularity in a decision or the conduct of proceedings provides that a person who has been in pre-trial detention has a right to compensation if he or she is acquitted. I note further that the applicant’s bail conditions were in lieu of his pre-trial detention. Moreover, under the domestic case-law a decision on bail is a decision concerning pre-trial detention (see, for example, the opinion of the Supreme Court no. 4/97 of 11 June 1998). On the facts of the present case it is inconsistent for the State, on the one hand, to grant the applicant a right to compensation for the time spent in pre-trial detention (although the applicant did not apparently apply for such compensation in the present case, he cannot be criticised for that as it is a right and not an obligation) and, on the other hand, to forfeit his bail security which, moreover, represents an amount far in excess of any compensation he could have claimed. The applicant should not, in principle, suffer any negative consequences of the criminal proceedings against him.

I further observe that there was some confusion as to the applicant’s address in Russia. On 8 July 2002 the lawyer sent certain documents to the Regional Court, including confirmation from the Russian authorities that the applicant’s official registered address in Russia was in Udomlya. However, the Regional Court continued to send the correspondence to a different address which resulted in the applicant not receiving it or receiving it too late.

On 1 November 2007 the Regional Court ruled, at the applicant’s request, that the security should be returned to the applicant as he had not been informed duly and in advance of the consequences of not complying with the conditions of bail. Moreover, none of the situations envisaged by Article 73a § 4 of the Code of Criminal Procedure for forfeiting the bail was applicable. Like the Regional Court, I have doubts whether the applicant was duly informed about the consequences of not complying with the conditions of bail. Despite the arguments of the High Court, the fact remains that the applicant was never formally informed as required by Article 73a § 6 of the Code of Criminal Procedure in force at the relevant time. The applicant’s statement, relied on by the High Court, says that he was aware of the possibility of forfeiture should the conditions of bail be breached. However, the content of the statement is not clear and it is not even certain whether the applicant understood what he was signing.

Lastly, it does not seem that the applicant’s failure to appear at the trial disrupted the proceedings in any way. The proceedings were conducted and completed in the absence of the applicant. His absence had no substantive influence on the outcome of the proceedings.

Having regard to the above considerations, I am of the opinion that the decision to forfeit the applicant’s bail, in the circumstances of the case, did not strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the applicant’s fundamental rights. Accordingly, there has, in my view, been a violation of Article 1 of Protocol No. 1.

I consider that it would have been more logical for the majority to conclude that the complaint alleging a violation of Article 1 of Protocol No. 1 to the Convention was manifestly ill-founded and to reject it in accordance with Article 35 §§ 3 (a) and 4 of the Convention, rather than to declare the complaint admissible and rule, at the same time, that there had been no violation of Article 1 of Protocol No. 1. For my part, I believe there was a violation of Article 1 of Protocol No. 1 in this particular case.