Communicated on 30 June 2015
FIRST SECTION
Application no. 69729/12
Evgeny FILKIN
against Portugal
lodged on 12 October 2012
STATEMENT OF FACTS
The applicant, Mr Evgeny Filkin, is a Russian national, who was born in 1955 and lives in Vienna (Austria). He is represented before the Court by Mr B. Reis, a lawyer practising in Lisbon.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 3 January 2011 the applicant opened a bank account with the Banif Bank in Portugal. On 13 January 2011 company A. transferred 201,520.00 euros (EUR) into the applicant’s account. On 1 February 2011 the sum of EUR 2,000,000 was transferred to the applicant’s account.
On an unknown date of 2011 the Central Criminal Department for Investigation and Prosecution (Departamento Central de Investigação e Ação Penal, hereinafter “DCIAP”) started a criminal inquiry (inquérito) into company A.’s activities (domestic proceedings no. 119/11.2TELSB). On 3 February 2011, following the transfer of EUR 201,520.00 into the applicant’s bank account and upon the public prosecutor’s request, the investigating judge (juiz de instrução criminal do Tribunal Central de Investigação Criminal), on 3 February 2011, ordered the applicant’s bank account to be frozen pursuant to section 17 §§ 1 to 4 of the Act on the Fight against Money Laundering (Lei do combate ao branqueamento de capitais) in conjunction with section 4 § 4 of the Act on the Fight against Organised Crime and Economic/Financial Crime (Medidas de combate à criminalidade organizada), on the suspicion that the sums transferred into the applicant’s account could derive from criminal activities.
On an unknown date of February 2011 the Banif Bank informed the applicant that he was prevented from making any transaction as his bank account had been frozen in the framework of criminal proceedings no. 119/11.2TELSB started by DCIAP.
On 16 February 2012 the applicant lodged a request with DCIAP seeking to consult the case-file. On 22 February 2012 the applicant was notified of the DCIAP’s reply in which it stated that:
“The present case is subject to the secrecy of the investigation [segredo de justiça], .... Thus, it is not yet possible for the applicant to consult the case-file, thereby his request shall be rejected.”
On 27 February 2012 the applicant lodged a second request to the investigating judge, complaining that it had already passed one year since his bank account had been frozen without the DCIAP giving him any reasons justifying the measure. He also complained that he had neither been constituted a defendant (arguido) in the proceedings nor had he been charged of the practice of any crime. The applicant argued that the investigation proceedings should have already ended and that the secrecy of the investigation should have been lifted.
On 12 March 2012 the applicant was notified of a decision (despacho) of the investigating judge of 6 March 2012 informing that the criminal inquiry had started on 3 February 2011 and was therefore subject to the secrecy of the investigation and that its time-limits for the inquiry had been extended for fourteen months, thus ending on 3 April 2012. The investigating judge also informed the applicant that the ongoing criminal inquiry was in respect of an allegedly practice of the crimes of money laundering and aggravated fraud.
On 25 April 2012 the applicant lodged a second request with the investigating judge seeking the lift of the secrecy of the investigation and requesting authorisation to consult the case-file. The applicant also required the immediate unfreeze of his bank account.
On 18 July 2012 the applicant lodged a request with the
Attorney-General (procuradora-geral da República) seeking to accelerate the proceedings (pedido de aceleração processual), the lift of the secrecy of the investigation and permission to consult the case-file, including the freezing order.
On 2 August of 2012 the applicant was notified of a decision of 30 July dismissing his request on the grounds of his lack of standing since he was not a party to the proceedings.
On an unknown date of 2012 the public prosecutor requested assistance into the investigation to the German and Russian authorities.
On 4 February 2013 the applicant requested the investigating judge to discharge the freezing his bank account, to give him permission to consult the case-file and to lift the secrecy of the investigation.
On 19 February 2013 the investigating judge issued a decision in which he stated:
“As a preventive measure in the framework of the instant criminal inquiry, it was ordered the freezing of the referred bank accounts, including the one owned by the applicant, which should remain effective until 2 May 2013 as all the factual and legal assumptions justifying the initial order remain valid and actual and there is still no evidence capable of departing from the initial suspicions.”
On 20 March 2013 the applicant appealed before the Lisbon Court of Appeal against the investigating judge’s decision. On a non-specified date, the public prosecutor submitted observations in reply to the applicant’s appeal. On 2 September 2013 the applicant was notified of the Lisbon Court of Appeal’s decision dismissing his appeal and confirming the investigating judge’s decision. The applicant challenged this decision before the Supreme Court of Justice claiming that the information used by the public prosecutor in the observations had not been available to him because of the secrecy of the investigation. On an unknown date the Supreme Court of Justice dismissed the applicant’s appeal confirming the previous decisions.
On 16 April 2013 the Russian authorities submitted their rogatory letter to the case-file.
On 24 April, 30 July and 2 October 2013 the public prosecutor made three requests for the extension of the freezing order on the grounds of the need to translate the Russian rogatory letter. The three requests were granted and the investigating judge extended the application of the freezing order.
On 5 November 2013 the applicant was given access to the case-file, after the expiry of the time-limits of the secrecy of the investigation.
On 13 December 2013 the applicant requested the investigating judge to unfreeze his bank account, which was dismissed on 26 December 2013.
On 3 February 2014 the applicant challenged the investigating judge’s decision before the Lisbon Court of Appeal. On an unknown date of 2014 the Lisbon Court of Appeal dismissed the applicant’s appeal confirming the investigating judge decision.
On 2 February 2014 the bank account freezing order was extended.
On 24 July 2014 the investigating judge, upon the public prosecutor’s request, discontinued the criminal inquiry and decided to discharge the freezing order of the applicant’s bank account.
B. Relevant international instruments
The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime of 8 November 1990 (CETS No. 141) came into force in respect of Portugal on 1 February 2009. Its relevant provisions read as follows:
Article 3
Investigative and provisional measures
“Each Party shall adopt such legislative and other measures as may be necessary to enable it to identify and trace property which is liable to confiscation pursuant to Article 2, paragraph 1, and to prevent any dealing in, transfer or disposal of such property.”
Article 5
Legal remedies
“Each Party shall adopt such legislative and other measures as may be necessary to ensure that interested parties affected by measures under Articles 2 and 3 shall have effective legal remedies in order to preserve their rights.”
C. Relevant domestic law
1. Act on the Fight against Organised Crime and Economic/Financial Crime (Law no. 5/2002 of 11 January 2002)
Law no. 5/2002 of 11 January, as amended by Law-Decree nos. 317/2009 of 30 October, 242/2012 of 7 November and 60/2013 of 23 August, establishes measures to be adopted in order to fight against organized and economic/financial crime, including the freezing and forfeiture of the direct and indirect proceeds of crime (sections 1 and 7). Section 4 of the Law, in force at the relevant time, reads as follows:
“...
2. The control of a bank account or of a payment account is authorised or ordered, as appropriate, by a judge when the measure is relevant to discover the truth of the facts.
3. The freezing order referred to in the preceding paragraph must identify the account or accounts covered by the measure, the period of its duration and the judiciary authority or the police authority responsible for monitoring.
4. The order provided for in paragraph 2 may also include the obligation to freeze the movement specified therein, when it becomes necessary in order to prevent the practice of the crime of money laundering.”
2. The Act on the Fight against money laundering (Law no. 25/2008 of 5 June 2008)
Law no. 25/2008 of 5 June, as amended by Law no. 46/2011 of 24 June and Law-Decrees nos. 242/2012 of 7 November and 18/2013 of 6 February, makes provision for preventive and repressive anti-money laundering benefits of proceeds of crime, by transposing into national law EU Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. Section 17 of the Law, in force at the relevant time, read as follows:
“1. The relevant entity must refrain from performing any operation whenever they are aware or suspect it to be related to the practice of money laundering of terrorist financing.
2. The relevant entity shall immediately inform the General Attorney and the Financial Intelligence Unit that it has failed to perform the operation, upon which the former may determine the freezing of the suspicious transaction by notifying, to this end, that entity.
3. The frozen operation may, however, be performed if the freezing order is not confirmed by the investigating judge within two days of the communication made by the relevant entity in accordance to the preceding paragraph.”
3. The relevant provisions of the Portuguese Code of Criminal Procedure:
Article 86
Public hearing and secrecy of the investigation [segredo de justiça]
“...
2. The investigating judge may ... determine the subjection of the case-file, during the criminal inquiry stage, to judicial secrecy, when he believes that its publicity harms the rights of ... or the parties to the proceedings.”
Article 276
Maximum time-limits of the criminal inquiry
“1. The public prosecutor closes the inquiry, by discontinuing it or by making charges, in the maximum period of six months if there are defendants in pre-trial detention or under house arrest, or of eight months if not.
...”
COMPLAINTS
Relying on Article 6 § 1 the applicant complains about the unfairness of the proceedings relating to the freezing order. In particular he contends: a) that he was neither heard by the public prosecutor or the investigating judge before the freezing order was issued and thereafter extended, nor was he notified of those decisions; b) that the proceedings were not in conformity with the adversarial and the equality of arms principles in so far as the observations submitted in the appeal before the Lisbon Court of Appeal in 2013, the public prosecutor used information from the case-file which was not available to the applicant because of the secrecy of the investigation. He also claims that he was not notified of the public prosecutor’s reply; c) the applicant complains about the secrecy of the investigation and his lack of status of party to the proceedings and the inability to challenge the freezing order.
Under Article 6 § 1 the applicant further complained about the length of proceedings.
Under Article 6 § 2 the applicant complained that the freezing of his bank account in the absence of criminal proceedings against him or a final conviction establishing his guilt amounted to an encroachment upon the principle of presumption of innocence.
The applicant complains that the freezing of his bank account had breached his right to the peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1 to the Convention.
QUESTIONS TO THE PARTIES
1. Was Article 6 of the Convention applicable to the proceedings in the present case under its civil or criminal head?
1.1. In the affirmative, was the freezing order of the applicant’s bank account and its continued application in compliance with the applicant’s right under Article 6 § 1 of the Convention? In particular: a) was the applicant duly informed of the freezing order and its extensions?; b) was the applicant provided reasoned decisions concerning the freezing order?; and c) was the applicant notified of the public prosecutor’s observations to his appeal before the Lisbon Court of Appeal in 2013 in respect of the right to adversarial proceedings?
1.2. Did the applicant have access to court in conformity with Article 6 with regard to the challenge of the freezing order?
1.3. Was the length of the criminal inquiry compatible with the “reasonable time” requirement?
1.4. Did the applicant asked to be constituted a defendant (arguido) in the proceedings? If not, does this failure amount to non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention?
2. Was Article 6 § 2 applicable to the proceedings in the present case? In the affirmative, was the applicant’s presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case?
3. Was the freezing of the applicant’s bank account a lawful and proportionate interference with the peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1 (Raimondo v. Italy, no. 12954/84, 22 February 1994, Series A no. 281‑A ; Luordo v. Italy, no. 32190/96, ECHR 2003‑IX, mutatis mutandis ; Capital Bank AD v. Bulgaria, no. 49429/99, 24 November 2005 ; and Borzhonov v. Russia, no. 18274/04, 22 January 2009)?
4. The parties are requested to submit copies of the decisions of the Lisbon Court of Appeal of 2 September 2013 and 2014 and the decision of the Supreme Court of Justice of 2013.
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