Published on 9 October 2023

FIRST SECTION

Application no. 12862/22 Zuzana PAPAJOVÁ and Zuzana PAPAJOVÁ Jr. against Slovakia lodged on 21 February 2022 communicated on 18 September 2023

SUBJECT MATTER OF THE CASE

The application concerns seizure (and subsequent de facto retention) of cash which the applicants, a mother (“the first applicant”) and a daughter (“the second applicant”), claim is theirs in the course of a search on 6 March 2017 of a house inhabited by them and the partner (A) of the second applicant in the context of criminal investigation into drug-related organised crime that A and his brother (B) were suspects of. The applicants submit that the amounts involved are 9,000 euros (EUR) (the first applicant) and some EUR 20,000 (the second applicant).

The applicants requested several times that the amounts in question be restored to them. These requests were addressed to the investigator and, once A and B were indicted to stand trial, to the trial court. In support, they submitted statements of A, pay slips, solemn declarations and other documentation, and argued that they had nothing to do with the offences under investigation.

The requests were responded to by way of letters, the investigator considering that the seized amounts were linked to the investigated offences and therefore had to remain a part of the case-file and the court explaining that it would entertain the issue later once the evidence-taking was completed.

The applicants then further pursued their claims for the return of the said amounts before the Constitutional Court by complaints lodged on 29 October 2019 (the first applicant) and 15 January 2020 (the second applicant).

On 23 September 2020 A and B were found guilty and on 7 July 2021 their appeal was dismissed. Among other sanctions, they were sentenced to forfeiture of their entire fortune ( prepadnutie majetku ). In that regard, the courts noted that the forfeiture concerned all financial means seized in the course of the proceedings as there were no doubts that these belonged to A and B. No details and no reply to the applicants’ claims was offered. However, the judgment specified that the ownership of the forfeited fortune was transferred to the State.

On 14 October 2021 the Constitutional Court declared the complaints inadmissible. It noted that the primary purpose of the underlying criminal proceedings was to determine issues of criminal liability and sentence. The criminal courts’ approach to the applicants’ ownership claims implied a preliminary assessment. The sentence of forfeiture of entire fortune was to be followed by bankruptcy proceedings concerning the estates of A. and B. and it was open to the applicants to seek definitive resolution of their claims in such proceedings. The decision was served on the applicants on 24 November 2021.

Relying on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, the applicants complain that the seizure and retention of the amounts in question was arbitrary and that they were denied access to court and an effective remedy in that regard.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

In particular, in view of all the circumstances, including but not limited to the fact that the ownership of the forfeited fortune was transferred to the State, was the possibility for the applicants to pursue their claims in bankruptcy proceedings concerning the estate of A and B an effective remedy within the meaning of this provision?

2. Did the applicants have access to a court for the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? Having regard to the manner how the authorities responded to the applicants’ requests for the restoration of the funds in question, was such access available throughout the duration of their retention?

3. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?

If so, was that interference necessary to control the use of property in accordance with the general interest?

In particular, did that interference impose an excessive individual burden on the applicants (see Immobiliare Saffi v. Italy , [GC], no. 22774/93, § 59, ECHR 1999-V)?

4. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 1 of Protocol No. 1, as required by Article 13 of the Convention? Having regard to the manner how the authorities responded to the applicants’ requests for the restoration of the funds in question, was such remedy available throughout the duration of their retention?