FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 22736/06
by POŠTOVÁ BANKA, A.S.
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 20 October 2010 as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić,
Vincent Anthony de Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 26 May 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant company,
Having deliberated, decides as follows:
THE FACTS
The applicant, Poštová banka, a.s., is a private banking company, limited by shares. It was set up under the laws of Slovakia in 1992 and has its registered office in Bratislava. The applicant company was represented before the Court by Mr J. Havlát, a lawyer practising in Bratislava. The respondent Government were represented by Ms M. Pirošíková, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 November 2000 the applicant company filed a criminal complaint (trestné oznámenie) with the Bratislava Regional Office of Investigation. It concerned a transaction involving the forced sale for an allegedly inadequate price by a judicial enforcement officer, via a stock-exchange broker, of shares of a private company for the settlement of an acknowledged debt to the applicant company. It was submitted that the sale had been manipulated in favour of the buyer and that, as a result, the debtor’s capacity to discharge its other obligations towards the applicant company had been impaired. The complaint was aimed at bringing a criminal prosecution against four individuals and securing the shares in question. The applicant company later submitted further information and precisely quantified its claim for damages.
On 7 March 2002 the investigator set the case aside on the ground that there was no indication that an offence had been committed. The decision indicated that it could be challenged by means of an interlocutory appeal (sťažnosť) within three days of its notification.
The applicant company was informed of the decision of 7 March 2002 by a letter delivered on 13 March 2002. The decision as such, however, was not served on the applicant company at that time.
In June 2002 the police investigator informed the applicant company’s representative that he was not entitled to consult the file. The proceedings were at the preliminary investigation stage and the file therefore contained no evidence which could be used in subsequent criminal proceedings. The possibility of inspecting criminal files extended exclusively to files which contained such evidence.
The applicant subsequently unsuccessfully sought service of the decision of 7 March 2002 and access to the file by making complaints to the public prosecution service at various levels.
On 5 August 2004 the applicant company lodged a complaint with the Constitutional Court against the public prosecution service, contending that its measures had denied the applicant company’s procedural rights as a victim in that the decision of 7 March 2002 had not been served on the applicant company and the company had not been allowed to consult the file. The applicant company relied, inter alia, on Articles 6 (§ 1) and 13 of the Convention and sought that the contested measures be quashed and that its costs and expenses be reimbursed.
In a letter of 8 August 2005 in response to the applicant company’s constitutional complaint, the Deputy Prosecutor General acknowledged that the applicant company’s complaint was justified. The applicant company, in its procedural capacity as victim, had been entitled to be served with the impugned decision and to inspect the file. Concrete measures were being taken with a view to swiftly serving the investigator’s decision on the applicant company and allowing its representative to inspect the file at any time. In his conclusion, the Deputy Prosecutor General expressed the conviction that the reasons for the applicant company’s constitutional complaint had thereby fallen away.
On 19 October 2005 the Constitutional Court dismissed the complaint as manifestly ill-founded. The decision stated that the investigator had set the case aside because no damage had been caused to the applicant company. Thus, the latter had not acquired the status of victim within the meaning of Article 43 § 1 of the Code of Criminal Procedure. Accordingly, no breach of the procedural rights accruing to victims could have occurred in respect of the applicant company. The Constitutional Court’s decision was served on the applicant company on 28 November 2005.
In the meantime, on 16 September 2005 the decision of 7 March 2002 had been served on the applicant company, which had subsequently lodged an interlocutory appeal contesting the investigator’s factual and legal findings.
On 3 October 2005 the applicant company’s legal representative consulted the file. The applicant company subsequently made a substantial submission setting out the reasons for the appeal.
In their observations on the admissibility and merits of the application, the Government submitted a copy of a decision of the Bratislava Regional Office of Public Prosecution of 14 November 2005 whereby it had dismissed the applicant company’s appeal as unfounded, holding that despite extensive inquiry no elements had been established which justified a conclusion that any particular individual had committed a criminal offence.
COMPLAINTS
The applicant company relied on Article 6 § 1 and Article 13 of the Convention, complaining that the decision to set the case aside had not been served on its representative, that the latter had not been allowed to consult the file, and that the Constitutional Court had dismissed its complaint and the applicant company had thereby been deprived of an effective remedy in respect of a procedure in which its property rights were at stake.
THE LAW
1. The applicant company complained that the decision of 7 March 2002 to set the case aside had not been served on its representative, that the latter had not been allowed to consult the file, and that the Constitutional Court had dismissed its complaint. It relied on Article 6 § 1 of the Convention, the relevant part of which provides as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal.”
The Government contested in particular the applicability of Article 6 § 1 of the Convention to the applicant company’s complaints. They submitted that the complaint was manifestly ill-founded since all the provisions of domestic law had been respected and the applicant company had essentially been claiming procedural rights in respect of a victim status which did not appertain to it. Alternatively, in view of the developments following the letter of the Deputy Prosecutor General of 8 August 2005, the Government considered that the applicant company could no longer claim to be the victim of a violation of its rights under Article 6 § 1 of the Convention.
The applicant company disagreed on all points and considered that the arguments of the Government were contrary to the essence of the protection enshrined in Article 6 § 1 of the Convention. In particular, they submitted that although the inquiry initiated by their criminal complaint had taken place within an initial and preliminary procedural framework, it nevertheless constituted an integral part of criminal proceedings which were protected by guarantees under the Code of Criminal Procedure. The applicant company had undoubtedly qualified for the procedural status of victim within those proceedings and, as such, had had the right to be served with the impugned decision and to inspect the file.
The applicant company specifically contested the Government’s proposition in respect of the applicant company’s victim status in the domestic proceedings.
Lastly, the applicant company argued that it had not lost its victim status under the Convention for the following reasons: the Constitutional Court had dismissed its complaint as manifestly ill-founded, the investigator’s decision had not been served on its representative and he had not been allowed to inspect the file until three years later, only a short time before the expiry of the criminal liability limitation period, and – in any event – the applicant company had not been afforded any compensation in respect of the non‑pecuniary damage it had sustained.
The Court observes that both at the national level and in Strasbourg there has been major disagreement between the applicant company and the authorities over the applicant company’s procedural status of victim and the procedural rights attached to that status in the proceedings initiated by its criminal complaint.
The Court notes, in particular, the applicant company’s procedural conduct at the domestic level, including the fact that it made no challenge to the decision of 14 November 2005 to uphold the decision to set the case aside, and its argumentation under the Convention, including the first of its arguments outlined above concerning its status under Article 34 of the Convention, from which it may appear that, rather than the substance, it is the formal recognition of its victim status for the purposes of the proceedings initiated by its criminal complaint that is at the centre of the interests asserted by the applicant company.
The Court, however, finds it necessary to make a clear distinction between, on the one hand, the essentially domestic-law category of victim in the context of criminal proceedings and, on the other, the legal protection available to the applicant company under the Convention in respect of proceedings concerning its civil rights and obligations.
The Court considers that, in the Convention perspective, the applicant company’s complaints fall most naturally to be examined from the point of view of its right of access to a court. It observes that the application primarily raises a question as to the applicability of Article 6 § 1 of the Convention ratione materiae to those complaints, in view in particular of the applicant company’s specific procedural position at what was a relatively early stage of the proceedings initiated by its criminal complaint, set against the general procedural framework for such complaints, and in view of the other means potentially available to the applicant company in the Slovakian legal order for the assertion of its right (see Perez v. France [GC], no. 47287/99, ECHR 2004 I, and also Krumpel and Krumpelová v. Slovakia, no. 56195/00, 5 July 2005; Bíro v. Slovakia (no. 2), no. 57678/00, 27 June 2006 and Duchoňnová v. the Czech Republic (dec.), no. 29858/03, 2 October 2006).
Nevertheless, for reasons of procedural economy and since the complaint is in any event inadmissible on the grounds set out below, the Court does not deem it necessary to rule separately on the applicability issue.
In the present case the applicant company lodged a claim against four individuals for compensation for damage allegedly caused to it by their criminal behaviour. The claim was raised in the context of criminal proceedings against those individuals which were initiated by the applicant company’s criminal complaint of 20 November 2000. The case was however set aside, on 7 March 2002, without the decision being served on the applicant company and without its representative having been allowed to consult the case file.
The Court reiterates that the right of access to a court is an inherent aspect of the safeguards of a fair trial enshrined in Article 6. It secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (for recapitulation of the relevant case-law see, for example, Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93 and Markovic and Others v. Italy [GC], no. 1398/03, §§ 98‑99, ECHR 2006‑XIV).
The Court also reiterates that, in certain circumstances, restrictions on access to a case file may be incompatible with the principles of a fair trial including access to a court (see, for example, K.H. and Others v. Slovakia, no. 32881/04, §§ 64-69, ECHR 2009‑... (extracts) and, mutatis mutandis, Turek v. Slovakia, no. 57986/00, §§ 115-116, ECHR 2006‑II (extracts) and Rasmussen v. Poland, no. 38886/05, § 54-56, 28 April 2009).
In the applicant company’s case, however, the impugned decision of 7 March 2002 was eventually served on the applicant company on 16 September 2005 and the applicant company’s representative was allowed to consult the file on 3 October 2005, following the intervention by the Deputy Prosecutor General announced in his letter of 8 August 2005.
The Court concludes that it remains to be seen whether, in these circumstances, the applicant company can still claim to be a victim of the violations alleged.
In support of that claim, the applicant company submitted, first of all, that its constitutional complaint had been arbitrarily dismissed. In this respect, the Court considers that Article 6 of the Convention cannot be interpreted as guaranteeing, as such, a right to be recognised as a victim in the context of criminal proceedings. The Court also considers that the object and purpose of the Convention is to guarantee rights that are practical and effective, and this demands that matters be judged on their substance rather than sheer form. The objection thus cannot be sustained.
The applicant company’s second argument concerning its status under Article 34 of the Convention concerns the fact that the impugned decision was served – and access to the file was allowed – too late in view of the impending expiry of the criminal liability limitation period. Leaving aside that the applicant company’s contention has not been fully substantiated, the Court notes that neither the Slovakian legal order nor the Convention confer any right to have a criminal prosecution instituted against another individual (see, among may other authorities, Helmers v. Sweden, 29 October 1991, § 29, Series A no. 212 A, and Bíro v. Slovakia (no. 2), cited above, § 44). The alleged practical repercussions of the late exercise of its procedural rights on the criminal liability asserted by the applicant company are therefore of no direct consequence.
The applicant company’s final objection concerns the fact that it was afforded no compensation in respect of non-pecuniary damage. In this respect, the Court observes that in its complaint of 5 August 2004 under Article 127 of the Constitution the applicant company claimed no such compensation. The Court also observes that in his letter of 8 August 2005 the Deputy Prosecutor General expressly acknowledged that the applicant company’s complaint was justified, and he provided assurances that measures had been put in place for the impugned decision to be served swiftly on the applicant company and for its representative to access the file at any time. As transpires from the facts, his words were honoured.
In view of all the information in its possession, including the corporate and commercial nature of the dispute underlying the applicant company’s claims, the Court considers that the acknowledgment of the breach of the applicant company’s procedural rights by the Deputy Prosecutor General and the subsequent substantive remedy obtained by the applicant company constitute sufficient redress in terms of the Convention.
The Court therefore concludes that the applicant company can no longer claim to be a “victim”, within the meaning of Article 34 of the Convention, of the alleged violation of its rights under Article 6 § 1 of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant company complained that it had not had the benefit of an effective remedy in respect of its other complaints. It relied on Article 13 of the Convention, which provides that:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court observes that it has been open for the applicant company at all times to assert the substance of its civil rights and obligations in the ordinary courts and, as the case may be, ultimately, before the Constitutional Court. To the extent the application has been substantiated, there has been neither any allegation nor indication that the relatively late realisation of the applicant company’s procedural rights has impaired the effective enjoyment by the applicant company of any of its substantive rights under the Convention.
Accordingly, the applicant company cannot maintain that it has been denied an effective remedy.
It follows that the remainder of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy