Information Note on the Court’s case-law No. 89
September 2006
Dogmoch v. Germany (dec.) - 26315/03
Decision 18.9.2006 [Section V]
Article 6
Article 6-1
Civil rights and obligations
Attachment of assets in the context of criminal investigation aimed at safeguarding claims of aggrieved parties: article 6 inapplicable
In 2000, in the investigation proceedings against third persons suspected of large-scale commercial delinquency, a district court ordered that the applicant’s assets amounting to more than DEM 60 million be frozen. The frozen sum was later reduced to DEM 39 million by a regional court. The courts voiced strong suspicions that the applicant, a businessman, had knowingly received money derived from fraudulent transactions and had committed money-laundering. In the courts’ decisions the applicant was explicitly named as a person charged with a criminal offence. The attachment order was motivated by the risk that the applicant would try to conceal and transfer the assets abroad in order to prevent the execution of claims brought out later by aggrieved third parties. The courts rejected the applicant’s request to be heard personally. As the applicant’s point of view had been clearly and unambiguously submitted in writing, an oral hearing was neither legally prescribed nor necessary in order to safeguard the applicant’s right to a fair trial. In 2003, the public prosecutor issued an indictment against the applicant. In 2006, the criminal proceedings against the applicant were suspended because of his inability to plead. The attachment of the applicant’s assets remains in force.
The Court noted that the attachment order was a provisional measure taken in the context of criminal investigations and primarily aimed at safeguarding claims which might later on be brought out by aggrieved third parties. If such claims did not exist, the order could, furthermore, safeguard the later forfeiture of the assets. Such forfeiture would, however, have to be determined in separate proceedings following a criminal conviction. There was no indication that the attachment order as such had had any impact on the applicant’s criminal record. In these circumstances, the impugned decisions as such could not be regarded as a “determination of a criminal charge” against the applicant. Therefore, Article 6(1) under its criminal head did not apply.
With respect to the applicability of Article 6(1) under its civil limb, the attachment order had been aimed at safeguarding third parties’ claims to the applicant’s assets. It had not included any determination of such claims, the existence of which would have to be settled in separate proceedings. Neither had it allowed any third party to dispose of the assets in question. It followed that the attachment of the applicant’s assets had been of a purely provisional nature which did not coincide with or forestall any final decision in the main proceedings. Accordingly, Article 6(1) under its civil head was not applicable either: incompatibleratione materiae.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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