CEDH · CASELAW;COMMUNICATEDCASES;ENG — 22 janvier 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s10AB3CA3 { font-family:Arial; color:#222222 } .sC83985A0 { font-family:Arial; font-style:italic; color:#222222 } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sFD69004D { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }     Communicated on 22 January 2016   FIRST SECTION Application no. 19782/13 INVEST KAPA, A.S. against the Czech Republic lodged on 15 March 2013 STATEMENT OF FACTS The applicant, INVEST KAPA, a.s., is a Slovak company, that was established in 1997 and having its seat in Dunajská Lužná (Slovakia). It is represented before the Court by Mr P. Pokorný, a lawyer practising in Všenory. A.     The circumstances of the case The facts of the case, as submitted by the applicant company, may be summarised as follows. On 27 February 2002 the applicant company purchased booked securities ( zaknihované akcie ) of Medical Spa Jáchymov ( Léčebné lázně Jáchymov ) to the value of CZK 299,062,000 (EUR 11,058,300) from a private company having its seat in Cyprus. On 8 May 2002 criminal proceedings were instituted against K.T. and O.B., directors of another private company which had allegedly collected a   large amount of money from physical persons and legal entities, under promise of a profit on the basis of savings. However, they had used the money for their personal purposes to purchase shares from different private companies, including the company which shares the applicant had bought. Apparently, the company from which the applicant company purchased the booked securities had also been previously involved in the business activities of K.T. and O.B. On 27 August 2002 the Police Unit for Combating Corruption and Serious Economic Crime ( Útvar pro odhalování korupce a závažné hospodářské trestné činnosti ) , within the framework of the criminal proceedings ordered, until further notice, to secure all booked securities ( zajistit zaknihované cenné papíry ) including those owned by the applicant company. The order was based on a suspicion that the securities had been acquired as a result of the criminal activities of K.T. and O.B. The police relied in this respect on Article 79c §§ 1-2 and Article 79a § 1 of the Code of Criminal Procedure (“the CCP”), which gave the prosecuting authorities the right to seize booked securities due to their importance for criminal proceedings. On 5 December 2002 the Prague High Court ( vrchní soud ) dismissed appeals brought by K.T., the applicant company and another person against the securing. In a judgment of 21 May 2004 the Bratislava Regional Court ( krajský súd ) decided that the contract concluded on 27 February 2002 was valid and that the applicant company was the owner of 300,000 shares with a nominal value of CZE 1,000 (EUR) issued by Medical Spa Jáchymov. On 7 June 2004 the Prague High Prosecutor ( vrchní státní zástupce ) formally indicted K.T. and O.B. on charges of fraud under Article   250   §§   1   and 4 of the Criminal Code. The indictment was submitted to the Prague Municipal Court on 21 June 2004. The latter transferred it to the Prague High Court ( vrchní soud ) which had to decide which court was competent to examine the case. On 31   August 2004 the High Court decided that the Hradec Králové Regional Court ( krajský soud ) would examine the case. In a decision of 28 April 2005 the Regional Court sent the case back to the High Prosecutor for additional investigation. On 15 December 2005 the High Court upheld this decision. On 2 August 2006 the High Prosecutor submitted a new indictment which was, however, also returned to him by the Regional Court on 13   March 2007, the decision of which was confirmed by the High Court on 8 November 2007. On 6 May 2009 the applicant company requested to terminate the securing of the booked securities ( zajištění cenných papírů ). It objected that the criminal proceedings remained, after seven years, at the preliminary stage and that its property rights to the secured shares were limited. In a decision of 18 May 2009, the High Prosecutor dismissed the applicant company’s request. On 29 May 2009 the applicant company challenged this dismissal before the High Court which, however, rejected its appeal on 15 September 2009 holding, inter alia , that the length of the criminal proceedings was adequate having regard to the exceptional extent of the case. On 25 November 2009 the High Prosecutor indicted K.T. and O.B. on the third time. However, on 29 December 2010, the Reginal Court returned the indictment to the prosecutor for additional investigation. The fourth indictment, dated on 20 February 2012, was submitted to the Regional Court on 8 March 2012. It was, however, again sent back to the High Prosecutor for additional investigation on 20 June 2012. On 10 November 2009 the applicant filed a constitutional appeal in which it challenged the High Prosecutor’s and the High Court’s dismissals of 15 May and 15 September 2009 respectively, alleging that its rights guaranteed by Article 11 (property rights) and Article 36 (right to fair trial) of the Charter of Fundamental Rights and Freedoms ( Listina základních práv a svobod ) were breached. On 11 September 2012 the Constitutional Court ( Ústavní soud ) dismissed the appeal sharing the opinion of the lower instances that the length of the proceedings was adequate to the complexity of the criminal case. On 3 January 2013 the High Prosecutor submitted, under Article   101   §   2(a) of the Criminal Code, a proposal for seizure of the booked securities which had previously been secured including those belonging to the applicant company. On 1 January 2013 the President announced an amnesty to mark the 20 th   anniversary of the independence of the Czech Republic. The amnesty took effect on 2 January 2013 and, inter alia , discontinued all court proceedings which had been ongoing for longer than eight years. It appears that the criminal proceedings against K.T. and O.B. were closed in February 2013, following the Presidential amnesty granted in January 2013, on the grounds that they had been lasting for more than eight years. B.     Relevant domestic law The relevant provisions of the Code of Criminal Procedure provided, at the relevant times, as follows: Article 79a: Securing of financial funds “1. If the facts ascertained indicate that the financial funds on a bank account are intended for commission of a criminal offence or have been used to commit a criminal offence or they are proceeds of crime, the presiding judge and in pre-trial proceedings the public prosecutor or police body may decide to secure the bank account. The police body needs a prior consent of the public prosecutor for such decision. No prior consent of the public prosecutor is needed in urgent cases that must be performed immediately. In such event the police body shall be obliged to submit its decision to the public prosecutor within 48 hours; the public prosecutor shall either approve or cancel the decision. ... 3. If securing of financial means on the account for the purpose of criminal proceedings is not necessary any longer or it is not necessary in the specified amount, the authority responsible for criminal proceedings specified in paragraph 1 shall cancel or reduce the securing. The police body needs a prior consent of the public prosecutor for such decision. The decision to cancel or reduce securing must be served on the bank and account holder. 4. The account holder whose financial means have been secured has the right to ask at any time for cancellation or reduction of the securing. Public prosecutor and in trial before court the presiding judge must decide about such application immediately. If   the application has been dismissed, the account holder may repeat the application only upon expiry of fourteen days from legal force of the decision unless he/she specifies new reasons in the application. 5. A complaint is admissible to be lodged against the decision under paragraphs 1, 3   and 4.” Article 79c: Securing the booked securities 1. If the presiding judge or in pre-trial proceedings the public prosecutor decide to secure the booked securities, the person authorised to keep records of investment tools under special Act or the Czech National Bank shall open a special account for the holder of such securities, on which the securities shall be kept. 2. The police body may also decide to secure the booked securities in exigent cases that must be performed immediately. The police body shall be obliged to submit its decision to the public prosecutor within 48 hours; the public prosecutor shall either approve or cancel the decision. 3. Disposal of the securities covered by the securing is restricted from the moment of service of the decision on securing. The authority responsible for criminal proceedings mentioned in paragraphs 1 a 2 may specify in the decision, depending on the nature and circumstances of the crime, that no other rights may be executed in consequence of securing the book securities. 4. Provisions of Section 79a shall be used as appropriate for the reasons for securing the book securities and procedure on making the decision to secure and cancel or reduce the securing. Article 79c Placing the Account on Hold “1.   Where money held on the account in a bank or in a subsidiary of a foreign bank is materially relevant for criminal proceedings, the presiding judge of a panel or the prosecutor during formal investigation may issue an order to freeze the account.   2.   In cases of emergency, a prosecutor may issue the order pursuant to paragraph 1 also outside of pre-trial proceedings.   Unless such order is confirmed not later than within three days by a judge it becomes null and void. ...” COMPLAINTS The applicant company complains under Article 6 § 1 of the Convention and Article 1 of the Protocol No. 1 that the excessive length of the criminal proceeding resulted in the long term limitation of its property rights to the secured booked securities.   QUESTIONS TO THE PARTIES 1.     Has there been an interference with the applicant company’s right to peaceful enjoyment of possessions within the meaning of Article 1 of Protocol No. 1, stemming from the securing of its booked securities for a   period at least ten years? If so, was/is the collateralization lawful? 2.     Was/is that interference necessary to control the use of property in accordance with the general interest? In particular, did/does it impose an excessive individual burden on the applicant company (see Forminster Enterprises Limited v. the Czech Republic , no. 38238/04, §§ 74-77, 9   October 2008)? 3.     At which stage are currently the criminal proceedings for the needs of which the applicant company’s booked securities have been/are secured?