FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38354/06
by BENET PRAHA, SPOL. S R.O.
against the Czech Republic
The European Court of Human Rights (Fifth Section), sitting on 28 September 2010 as a Chamber composed of:
Peer Lorenzen, President,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Ganna Yudkivska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 18 September 2006,
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
The applicant, Benet Praha, spol. s r.o., is a limited liability company incorporated under Czech law with its registered seat in Prague. It was represented before the Court by Mr P. Klimeš, a lawyer practising in Prague. The respondent Government were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In April 2001 criminal proceedings were instituted against a former manager of the applicant company on the suspicion of having committed tax evasion. Within the framework of the criminal proceedings a search of the applicant company's premises was carried out on 24 April 2001. Cash in several currencies in the total amount of approximately CZK 20 mil. (EUR 770,000) and several documents such as financial files, books of accounts and business documents were seized. According to the applicant company these documents and most of the cash have not yet been returned to it.
On 25 and 27 April 2001, the prosecuting authorities seized all of the applicant company's assets deposited on its five bank accounts on the suspicion that they constituted a profit from criminal activities of the manager. The seizure orders, which were notified to the applicant company on 8 October 2001, did not specify what assets had been seized, nor to what amount. This was remedied on 28 November 2001 by the Prague High Prosecutor (vrchní státní zástupce) who amended the original decisions by writing in the sums to be seized. While doing so, he froze all assets deposited on the applicant company's accounts on that day, i.e. inclusive of payments which had come in after 25 April 2001 and 27 April 2001, respectively. The applicant company's assets amounting to CZK 101,909,105 (EUR 3,919,580) were thus seized.
The criminal proceedings against the former manager of the applicant company are currently pending before an appellate court. On 4 June 2009 the Prague Municipal Court acquitted the manager. The prosecutor, however, appealed. During the investigation the prosecuting authorities, inter alia, collected over 100,000 pages of documentary evidence, interviewed several hundred witnesses and requested legal assistance from the competent authorities of 16 countries.
Meanwhile, numerous tax and custom proceedings were brought against the applicant company in regard of a suspected retrenchment. They all were later discontinued as no tax and customs evasion by the applicant company was detected.
On 25 March 2005 the applicant company lodged a request with the police, seeking to have the seizure of its bank accounts lifted.
On 11 April 2005 the request was transferred to the High Prosecutor who, on 24 June 2005, dismissed it, stating that the reasons for the seizure continued. The High Prosecutor added that the fact that the tax proceedings brought against the applicant company had been discontinued was irrelevant to the seizure.
On 14 July 2004 the applicant company appealed to the Prague High Court (vrchní soud) which dismissed the appeal on 11 August 2005.
On 16 November 2005 the applicant company lodged a constitutional appeal against the High Court's decision of 11 August 2005. In the appeal, the applicant company claimed that the seizure of its assets was disproportionate due to its excessive length.
On 9 March 2006 the Constitutional Court (Ústavní soud) declared the appeal inadmissible, finding that a fair balance between the general interest of the society and those of the applicant company arising from its fundamental rights had been struck. The decision was served on the applicant company's lawyer on 16 March 2006.
On 30 January 2008 the Constitutional Court found a violation of the right to property of a company Benet Czech, spol. s r.o., which was in a similar position as the applicant company. It held that the length of the seizure, over six years, was unreasonable, which thus disrupted the fair balance between the general interest of fighting serious crime and the protection of the rights of the applicant company. The applicant company lodged another request for the seizure of its bank accounts to be lifted referring to this decision of the Constitutional Court. On 6 March 2008 the High Prosecutor lifted the seizure of the applicant company's bank accounts holding that the conclusions of the Constitutional Court applied also to the applicant company.
COMPLAINTS
1. The applicant company complained under Article 1 of Protocol No. 1 and Articles 4, 6 and 11 of the Convention that its property rights had been impaired by the disproportionately long seizure of its assets and business documents lasting for over five years, and by consequent financial losses caused by a major decrease of its liquid assets and the costs of the discharge of duties imposed on it.
2. Further, relying on Article 6 of the Convention the applicant company complained of the unfairness of the proceedings before the Constitutional Court.
THE LAW
The Court recalls that by virtue of Article 35 § 4 of the Convention, it may declare a complaint inadmissible at any stage of the proceedings and that the six-month rule is a mandatory one which the Court has jurisdiction to apply of its own motion (see Assanidze v. Georgia [GC], no. 71503/01, § 160, ECHR 2004‑II). Moreover, it is not open to the Court to set aside the application of the six months' rule solely because a Government have not made a preliminary objection based on it (see Walker v. the United Kingdom (dec.), no. 34979/97, 25 January 2000). Consequently, and despite the absence of observations from the Government on the question of the six months' rule, the Court must examine whether the applicant company complied with it in the present case.
The Court reiterates that the six-month period begins to run on the day after the date on which the final domestic decision was pronounced orally in public or, if not so pronounced, was communicated to the applicant or the applicant's lawyer. This means that time starts to run when the applicant's representative receives notification of a decision, even if the applicant is not informed until later (see Otto v. Germany (dec.), no. 21425/06, 10 November 2009; Çelik v. Turkey (dec.), no. 52991/99, ECHR 2004-X; Pejić v. Croatia (dec.), no. 66894/01, 19 December 2002). In the present case, the Constitutional Court's decision of 9 March 2006, which is the final decision in the present case, was served on the applicant company's lawyer on 16 March 2006. The Court is thus satisfied that the six-month period started to run on the next day and expired on Saturday, 16 September 2006 (see Otto, cited above). The applicant company's first letter introducing the application, dated 16 September 2006, was sent by fax on 18 September 2006, which date must be considered to be the date on which the present application was lodged (see Růžičková v. Czech Republic (dec.), no. 15630/05, 16 September 2008, and Otto, cited above).
As the last day of the six-month period, that is, 16 September 2006, fell on a Saturday, and the applicant may well have believed that this meant that the deadline was extended to the next working day, namely Monday 18 September 2006, the Court reiterates that the compliance with the six-month deadline is determined using criteria specific to the Convention, not those of each respondent State's legislation (see Otto, cited above). Moreover, the Court does not find any exceptional circumstances why the applicant company could not have complied with the six-month time-limit.
The Court finds, therefore, that the application has been introduced out of time and is inadmissible under Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible,
Claudia Westerdiek Peer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy