THIRD SECTION

DECISION

Application no. 60039/13 Bohuslav UKROPEC against Slovakia

The European Court of Human Rights (Third Section), sitting on 6 November 2018 as a Committee composed of:

Dmitry Dedov, President, Alena Poláčková, Jolien Schukking, judges, and Fatoş Aracı, Deputy Section Registra r.

Having regard to the above application lodged on 17 September 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Bohuslav Ukropec, is a Slovak national who was born in 1977 and lives in Záhorská Bystrica. He was represented before the Court by Mr M. Benedik, a lawyer practising in Bratislava.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Piro ší ková.

The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. On 12 July 2002 the applicant was charged with the criminal offences of conspiracy and aiding in laundering money.

4. On 23 July 2002 the Bratislava regional office of the Public Prosecution Service (“the prosecutor ’ s office”) issued an injunction freezing real property belonging to the applicant pending the outcome of his prosecution. The decision states that the applicant was expected to receive the penalty of forfeiture of all property and that the execution of this penalty would otherwise be jeopardised. It could be challenged within three days of its pronouncement by way of an interlocutory appeal ( s ťažnosť ) that fell to be determined by a court (Articles 146a and 347 § 2 of the Code of Criminal procedure (Law no. 141/1961 Coll., as applicable at the relevant time – “the CCP”)).

5. At the pre-trial stage of the proceedings, the power to review the injunction was vested in the prosecution service. Once the applicant was indicted to stand trial, it shifted to the Bratislava Regional Court, as the trial court (Articles 248 § 2 and 249 of the CCP).

6. In late 2011 the applicant asked the Office of the Prosecutor General (“the OPG”) to review the lawfulness of the injunction on the grounds that the restriction of his property rights had lasted an unreasonably long time.

7. In response, on 16 November 2011 the OPG informed him that since the matter was already pending before a court the prosecutor ’ s office was no more than a party to the proceedings. The applicant ’ s request had therefore been transmitted to the Regional Court, which was the body competent to deal with it (see paragraph 5 above).

8. In a letter of 12 December 2011 the Regional Court responded to the applicant ’ s request informing him that, in the view of the court, “the reasons why his property [had been] frozen [hitherto] [had] not ceased to pertain”.

9. On 16 February 2012, through the intermediary of his lawyer, the applicant lodged a complaint with the Constitutional Court under Article 127 of the Constitution.

As to the defendant of his complaint, he submitted that, once the indictment against him had been lodged, the only body entitled to deal with matters such as the freezing of his prop erty was the Regional Court. He therefore directed the complaint against that court.

Regarding the subject matter of his complaint, he alleged a violation of his property rights under Article 1 of Protocol No. 1 to the Convention and its constitutional equivalent, arguing in particular that the duration of the freezing of his property under the injunction of 23 July 2002 had been excessive. He asked the Constitutional Court to annul that injunction.

10. On 21 February 2013 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded, essentially giving the following two reasons.

Firstly, it pointed out that the applicant had invoked only his fundamental rights of a substantive nature. In other words, he had not alleged any violation of the rules of procedure. In that regard, the Constitutional Court referred to its established case-law, pursuant to which a general court could not bear “secondary liability” for a violation of human rights and fundamental freedoms of a substantive nature unless there had been a constitutionally relevant violation of the rules of procedure.

Secondly, the Constitutional Court noted that the definition of the relief sought by the applicant ’ s complaint was ambiguous in that, on the one hand, the complaint was directed against the Regional Court and, on the other hand, the applicant had requested the quashing of an injunction issued by the prosecutor ’ s office. According to the Constitutional Court, the Regional Court ’ s letter of 12 December 2011 had in fact constituted a decision and the constitutional complaint should have properly been aimed at it.

Lastly, the Constitutional Court held that if the applicant considered that the Regional Court was indeed in violation of his human rights and fundamental freedoms, there was no obstacle for him to assert them by way of a fresh complaint under Article 127 of the Constitution.

The decision was served on the applicant on 19 March 2013 and it was not amenable to appeal.

11. In a judgment of 9 June 2014 the Regional Court acquitted the applicant of his charges having found that the actions imputed to him did not constitute a criminal offence. The judgment became final and binding on 25 August 2014.

12. The applicant subsequently asked the Regional Court to annul the impugned injunction, which the Regional Court did by a decision of 10 November 2014.

COMPLAINTS

13. The applicant complained that in view of its duration the freezing of his property had constituted a disproportionate interference with his property rights and that the Constitutional Court had arbitrarily denied him protection in that connection. He relied on Article 1 of Protocol No. 1 and, in substance, on Article 13 of the Convention.

THE LAW

14. The applicant complained of a violation of his property rights and of the dismissal of his constitutional complaint. Article 1 of Protocol No. 1 provides:

“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.”

Article 13 of the Convention reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

15. In reply, the Government pointed out that the applicant could have challenged the injunction of 2002 by way of an interlocutory appeal to a court and that, moreover, he could have sought its review already at the pre-trial stage. As to the situation at the trial stage of the proceedings, the Government argued that the applicant had failed to assert his rights before the Constitutional Court in accordance with the applicable rules and practices. By not having used these remedies at all or properly, he had failed to meet the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. As these remedies had been effective, his Article 13 complaint was manifestly ill-founded.

Furthermore, and in any event, in relation to the injunction of 2002, the Government argued that his application of 2013 had been clearly lodged out of time.

As to the substance, the Government contended that the freezing of the applicant ’ s property had been lawful, legitimate, and proportionate. As to the length of the measure, in particular, they stated that the freezing had been an integral part of the criminal proceedings against him, that he no doubt could have challenged the length of those proceedings by way of a complaint to the Constitutional Court, and that he had actually made no complaint about it at the domestic level or before the Court.

16. The applicant for his part replied by submitting, as to the scope of his application, that it inherently included a complaint about the length of the underlying criminal proceedings. Nevertheless, he affirmed that the core of the case was the fact of having his property frozen, which had restricted his right to hold and use it, and in particular its duration, which he considered excessive.

As the duration of the freezing had not yet been problematic at the pre ‑ trial stage, there had been no need of and use for any remedies in respect of it. Moreover, he pointed out that even at the trial stage the Regional Court had considered that the reasons for the freezing had persisted, in view of which it would have been completely illusory to hope for a different assessment of the same question at the pre-trial stage.

As to his constitutional complaint, the applicant argued that the primary reason for rejecting it had been the Constitutional Court ’ s position of principle, which he considered wrong, that there could not be a violation of human rights of a substantive nature unless there had simultaneously been a constitutionally relevant violation of the rules of procedure. Thus, even if in theory, as hinted at by the Constitutional Court and argued by the Government, his constitutional complaint had been aimed at annulling the Regional Court ’ s letter of 12 December 2011, it would still have been inadmissible on the former grounds. However, in his view, the Regional Court ’ s letter of 12 December 2011 could not actually have been challenged as a decision because, lacking any reasoning and other essential attributes of a decision, it had not been one.

Since the freezing of his property had been a continuous situation, the six-month time-limit under Article 35 § 1 of the Convention had only commenced once the freezing had been lifted, which had been well after the introduction of his application to the Court.

Lastly, the applicant argued that the severity of the impugned interference with his property rights had been aggravated by the fact that, as ultimately confirmed by his acquittal, his entire prosecution had been short of a genuine foundation.

17. The Court observes that this application essentially is about the freezing of the applicant ’ s property in the context of criminal proceedings against him. While the imposition of that measure by the prosecutor ’ s office in 2002 as such does not at all appear to be of the applicant ’ s concern, even if it were, as the applicant did not appeal against it before a court, its examination would be outside the Court ’ s competence on account of the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention. Moreover, and in any event, a complaint in that connection would be outside the six-month time-limit under the same provision.

18. However, the specific focus of the application appears rather to be the continuing situation of having his property frozen, and even more specifically the duration of that measure. The applicant contested these matters at the domestic level by a request that was ultimately replied to and, as a matter of fact dismissed, by the Regional Court ’ s letter of 12 December 2011. It was further possible for him and the applicant actually made use of that possibility t o assert his rights by way of a complaint under Article 127 of the Constitution before the Constitutional Court.

19. The ensuing questions are, whether the constitutional complaint was a remedy to be used for the purposes of Article 35 § 1 of the Convention and, if so, whether the applicant made proper use of it so as to comply with the requirements of that provision.

20. From that perspective, the Court reiterates that it has been accepted that an individual complaint to the Constitutional Court under Article 127 of the Constitution is a remedy that, in general, has to be exhausted for the purposes of Article 35 § 1 of the Convention (see, for example, L.G.R. and A.P.R. v. Slovakia (dec.), no. 1349/12, § 51, 13 May 2014, with further references). In the present case, the Constitutional Court denied the applicant protection of his property rights on two separate grounds.

21. First, the Constitutional Court relied on a premise of its own jurisprudential making that in the absence of any violation of the applicant ’ s procedural rights, which could not even be considered as it had not been alleged by him, there could not be any violation of any of his human rights and fundamental freedoms of a substantive nature.

22. The Court observes that this premise is not free from criticism under various requirements of the Convention (see, for example, MAC TV s.r.o. v. Slovakia , no. 13466/12, § 57, 28 November 2017, and Soltész v. Slovakia , no. 11867/09, § 54, 22 October 2013). However, rather than examining it in abstracto , it is the Court ’ s task to review its application on the facts of the specific case at hand (see, for example, DRAFT – OVA a.s . v. Slovakia , no. 72493/10, § 65, 9 June 2015, with further references).

23. In the present case both at the national level and before the Court the applicant challenged the duration of the freezing of his property. Moreover, before the Court, he argued that this complaint implies a complaint about the length of his proceedings, and added a claim that the Regional Court ’ s reply to his request for that measure to be re-considered had lacked any reasoning and other elements constitutive of a judicial decision.

24. In that connection, the Court has no difficulty in accepting the Government ’ s argument that the freezing of the applicant ’ s property was an integral element of the criminal proceedings against him and that its duration depended directly on the length of those proceedings. It is plain that this is a matter of procedure and there is no doubt that the applicant could have raised it before the Constitutional Court.

25. Moreover, the applicant ’ s argument before the Court of a lack of reasoning and other elements constitutive a decision in the Regional Court ’ s letter of 12 December 2011 again undoubtedly involved procedural considerations and there appears to have been nothing to prevent the applicant from having advanced it before the Constitutional Court.

26. As both the length of the underlying proceedings and the alleged lack of a proper decision on the part of the Regional Court are directly linked and relevant to the assessment of the applicant ’ s property complaint, the Court accepts that, on the specific facts of the present case, for the purposes of Article 35 § 1 of the Convention they should have been raised before the Constitutional Court together with his property complaint. This is all the more so that, before the Constitutional Court, the applicant was represented by a lawyer and that the Constitutional Court itself specifically informed the applicant that it was open to him to assert his rights anew by making a proper complaint.

27. However, there is no indication that either of these arguments were raised before the Constitutional Court in conjunction with the applicant ’ s property complaint and, to the extent the application has been substantiated, the Court has found no reasons for exempting him from the requirement of so doing.

28. Accordingly, the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 November 2018 .

Fatoş Aracı Dmitry Dedov Deputy Registrar President