CEDH · CASELAW;COMMUNICATEDCASES;ENG — 6 février 2017

.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 } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA36B60A1 { font-family:Arial; font-style:italic }   Communicated on 6 February 2017   THIRD SECTION Application no. 60039/13 Bohuslav UKROPEC against Slovakia lodged on 17 September 2013 STATEMENT OF FACTS 1.     The applicant, Mr Bohuslav Ukropec, is a Slovak national who was born in 1977 and lives in Záhorská Bystrica. He is represented before the Court by Mr M. Benedik, a lawyer practising in Bratislava. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, 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. It was based on the conclusions 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. 5.     In August 2005 the applicant was indicted to stand trial in the Bratislava Regional Court on the above charge. 6.     In late 2011 the applicant asked the Office of the Prosecutor General (“the OPG”) to review the lawfulness of the injunction of 23 July 2002 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. 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 the applicant lodged a complaint 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 property was the Regional Court. He therefore directed the complaint against that court, alleging a violation of his property rights under Article 1 of Protocol No. 1 and its constitutional equivalent. In particular, the applicant argued that the duration of the freezing of his property under the injunction of 23 July 2002 had been excessive and asked the Constitutional Court to annul that injunction. In support of his complaint, the applicant relied on a judgment of the Constitutional Court in an unrelated case (no. I. ÚS 23/11), in which a violation of the complainants’ rights had been found on account of an excessive duration of the restrictions on their use of their property in the form of a suspension of planning permission that they had been previously issued and which had previously become final and binding. 10.     On 21 February 2013 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. It pointed out that the applicant had invoked only his substantive fundamental rights. In other words, he had not alleged any violation of the rules of procedure. In that regard, however, the Constitutional Court referred to its established case ‑ law, pursuant to which a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a   substantive nature unless there had been a constitutionally relevant violation of the rules of procedure. As no such violation had been alleged, this alone was reason to reject the applicant’s complaint. As to the particular constitutional judgment relied on by the applicant (in the case no. I. ÚS 23/11), the Constitutional Court considered that it had expressed and confirmed the above premises in that, in that judgment, the Constitutional Court had found not only a violation of the complainants’ property rights but also a violation of their rights in relation to the underlying procedure. Lastly, the Constitutional Court remarked 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. The decision was served on the applicant on 19 March 2013. 11.     It appears that the criminal proceedings against the applicant are still pending and that the freezing of his property is still in effect. B.     Relevant domestic practice 12.     The above-mentioned case no. I. ÚS 23/11 before the Constitutional Court concerned complainants who were the owners of a family house. They obtained final and binding planning permission for an extension and were in the process of realising it. At that stage a third party challenged the planning permission in an administrative tribunal, which suspended the effects of the planning permission pending the outcome of the proceedings only to dismiss the challenge one and a half years later. In the admissible part of their complaint before the Constitutional Court, the complainants argued that the administrative tribunal had arbitrarily omitted to enable them to take part in the proceedings. In addition, they contended that the duration of the suspension of their planning permission had been excessive and as such in violation of their property rights. In a judgment of 15 July 2003 the Constitutional Court found that the complainants had been arbitrarily deprived of their constitutional right to be a party to the proceedings before the administrative tribunal and that there had been a   violation of their property rights. With regard to the latter point, “... taking into account its finding that the complainants had been prevented from asserting their rights in the administrative tribunal”, the Constitutional Court acknowledged that there had been an   interference with their property rights in that, as a   result of the suspension of their planning permission, they had been prevented from completing the reconstruction of their house. At the same time, it found that in view of the duration of the suspension the interference had been disproportionate and in violation of Article 1 of Protocol No. 1 and its constitutional equivalent. In that context, the Constitutional Court went on to note that the constitutional protection of property implied a minimum level of procedural protection and held that “the essence of the violation [of the applicant’s property rights] in the circumstances of the given case [lay] in that for a year and a   half they had [had] no legal remedy at their disposal for the protection of their [property rights]...” 13.     In a judgment of 14 December 2012 in an unrelated case (no. IV. ÚS   448/2012) the Constitutional Court found a violation of the rights of a publisher under Article 10 of the Convention in connection with judgments of the ordinary courts in a libel case ordering the complainant to publish an apology and pay the claimant damages. This finding was not based on or complemented by any finding of a violation of any of the complainant’s procedural rights. COMPLAINTS 14.     The applicant complains under Article 1 of Protocol No. 1 that the freezing of his property constitutes an interference with his property rights and that that in view of its duration this interference has been disproportionate. 15.     In substance, the applicant also complains, under Article 13, that the Constitutional Court arbitrarily dismissed his complaint. QUESTIONS TO THE PARTIES 1.     Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No.   1, stemming from the freezing of his property by virtue of the injunction of 23   July 2002?   If so, given that the underlying criminal proceedings were still pending, did the initial interference remain 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 applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V and, more specifically, Forminster Enterprises Limited v.   the   Czech Republic , no. 38238/04, § 77, 9 October 2008)?   2.     Given the response of the Regional Court of 12 December 2011 and the rejection by the Constitutional Court of his complaint under Article 127 of the Constitution, did the applicant have at his disposal an effective domestic remedy for his complaint under Article 1 of Protocol No. 1, as required by Article   13 of the Convention?