Communicated on 10 November 2016
THIRD SECTION
Application no. 70288/13
Stephan VISY
against Slovakia
lodged on 5 November 2013
STATEMENT OF FACTS
1. The applicant, Mr Stephan Visy, is an Austrian national who was born in 1964 and lives in Vienna (Austria). He is represented before the Court by Mr J. Čarnogurský, a lawyer practising in Bratislava (Slovakia).
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
3. The applicant is a businessman working for a bank incorporated in Austria. That bank seconded him to another entity, A., incorporated in Slovakia.
4. In 2008 the Austrian authorities commenced an investigation into various transactions involving the bank. Although no formal charges have been brought, the applicant faces accusations in that investigation.
5. In connection with the underlying transactions, business premises were rented in Bratislava. They were located at one address and were used by A. and other entities which appear to belong to the group.
6. Those premises included a separate and lockable room that was sub‑let by A. to the bank and was used exclusively by the applicant as his office. It included a built-in safe belonging to the bank.
7. On completion of his secondment, the applicant remained in Bratislava working for the bank, using the above-mentioned office. In the office, in particular in the safe, he kept various items and documents relating to the bank’s business and his own affairs, as well as his private correspondence.
2. Search and seizure
8. By a letter rogatory received by the Slovakian authorities on 23 December 2008, a prosecutor in Vienna asked for a search of non‑residential premises in Bratislava identified as being located at a given address and belonging to A. and certain other associated entities. At the same time, the Austrian authorities asked for the seizure of documents identified in general terms as being relevant for their investigation. Neither the applicant nor the bank was named and no specific documents or other items were identified.
9. On 16 February 2009 the Bratislava I District Police Directorate issued a warrant for a search and seizure pursuant to the above request. It was endorsed by a prosecutor at the Bratislava I district office of the Public Prosecution Service (“the PPS”) on 17 February 2009.
10. A search under the warrant took place on 18 February 2009. It extended to the office and safe and resulted in the seizure of a number of documents and electronic storage media from there and elsewhere. The information seized included communications between the applicant and his colleagues and legal advice, which the applicant considers to be protected by lawyer-client privilege.
11. The applicant and the bank subsequently complained about the search and seizure to all levels of the PPS, contending in particular that the search had unlawfully extended to the applicant’s office; that the people carrying out the search had wrongfully used a threat of force to gain access to the safe; and that they had arbitrarily seized documents and other items from it that belonged to the applicant and had nothing to do with the companies targeted by the warrant.
The PPS dismissed all those claims unfounded, of which the applicant was eventually informed by a letter from the Prosecutor General of 15 June 2009.
12. Meanwhile, on 23 April 2009, the Slovakian authorities had handed over the material seized on 18 February 2009 to their Austrian counterparts.
3. Constitutional judgment of 7 December 2010
13. In a judgment of 7 December 2010 the Constitutional Court decided on an individual complaint previously lodged by the applicant and the bank under Article 127 of the Constitution.
In so far as the applicant was concerned, the Constitutional Court found that the search and seizure and the subsequent response of the PPS to his complaints had violated his rights to the peaceful enjoyment of his possessions, respect for his private life, and judicial or other legal protection.
In terms of a remedy, the Constitutional Court quashed what it described as the position the PPS had taken in response to the applicant’s complaints and ordered the PPS to stop its violation of the applicant’s rights.
14. The Constitutional Court found it established that the scope of the warrant had been limited to company A. and another entity and that neither the applicant nor the bank had been targeted by it. It found that in terms of the law, the office had been subject to the right to be used by the bank and that the safe was owned by the bank, and that in practice they had been used by the applicant. As to the applicant and the bank therefore, the search and the seizure had exceeded the terms of the warrant. No justification for that could be found by relying on the need for urgency in the matter or otherwise. To that extent therefore, the search and seizure had been unlawful. In addition, the Constitutional Court found that the PPS had failed to give a relevant answer to the complainants’ arguments concerning the above‑mentioned essential aspects of the case. As the Constitutional Court had ruled on the matter itself, it was no longer necessary to remit the matter to the PPS for a new examination. However, it was the PPS’s duty, stemming from the Constitutional Court’s findings, immediately to ask the Austrian authorities for the return of the items seized in the office and from the safe.
4. Subsequent developments
15. On 9 February 2011 the PPS informed the Austrian authorities of the constitutional judgment of 7 December 2010 and asked that the unlawfully seized items be returned with a view to their ultimate restitution to the applicant. At the same time, the PPS asked that any copies of the material that had to be returned, whether on paper or in electronic form, be destroyed.
16. On 14 April 2011 the PPS met with their Austrian counterparts in Vienna. At that meeting the latter returned a number of items originating from the search of 18 February 2009 to the PPS and, at the same time, submitted a new letter rogatory aimed at again seizing those items from the applicant after they had been restored to him.
17. On 1 February 2012 the District Police Directorate issued a decision to restore to the applicant the items returned by the Austrian authorities. These were identified as being six units of electronic storage media.
18. The applicant appealed, arguing that the police decision had not extended to all the items belonging to him that had been unlawfully seized on 18 February 2009 and that the PPS had failed to ensure that all copies of the items made by the Austrian authorities had been destroyed. On 27 February 2012 the PPS dismissed the appeal as unfounded.
19. On 7 March 2012 at 9.10 a.m. the items identified in the decision of 1 February 2012 were restored to the applicant’s lawyer and, at 9.15 a.m. the same day, they were all seized again from him, with reference to the request by the Austrian authorities of 14 April 2011.
20. In response to the new seizure of the items, the applicant’s lawyer stated on the record that he protested, arguing that the seizure was an obstruction to the implementation of the constitutional judgment of 7 December 2010, and saying that further reasons would be added to the protest later.
In the subsequent reasoning it was argued in particular that the Austrian authorities had got to know of the existence and identity of the items returned by them through the breach of the applicant’s rights established by the Constitutional Court.
In so far as the request of the Austrian authorities of 14 April 2011 had been aimed specifically at seizing those items again, it had been based on unlawfully obtained information and should accordingly have been denied because it contradicted the object and purpose of the constitutional judgment of 7 December 2010.
In addition, some of the electronic storage media that had been seized again contained information protected by lawyer-client privilege and were consequently protected from seizure. Once such material had been restored to the applicant’s lawyer, it had been the lawyer’s duty to protect that information and any order to him to disclose it had been by definition unlawful.
21. All of the applicant’s submissions were dismissed, of which he was eventually informed by a letter from the Prosecutor General of 31 December 2012.
In sum, the PPS found, inter alia, that that the Slovakian authorities had in no way failed to implement the constitutional judgment of 7 December 2010. As the items in question had been restored to the applicant, the previous unlawfulness of their seizure had been rectified and there had been no obstacle to seizing them again under the national statue and the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union. Moreover, it was noted that, in so far as the applicant had any objections concerning the Austrian authorities, it was up to him to pursue them in Austria.
5. Final domestic decision
22. On 11 March 2013 the applicant lodged a fresh complaint under Article 127 of the Constitution, arguing that by failing to ensure full compliance with the constitutional judgment of 7 December 2010 and seizing the restored items again, the Slovakian authorities had been responsible for a violation of a number of his rights, including respect for his private life and correspondence, the peaceful enjoyment of his possessions and of failing to provide an effective remedy. In substance, he advanced similar arguments as mentioned above.
23. On 16 May 2013 the Constitutional Court declared the complaint inadmissible. In the pertinent part of its decision, it found no constitutionally relevant arbitrariness or other shortcoming in the position the PPS had taken in his matter.
A written version of the decision was served on the applicant’s lawyer on 15 July 2013 and no appeal lay against it.
COMPLAINTS
24. Arguing that the fresh seizure of the items on 7 March 2012 concerned private and legally privileged material, the applicant complains that it was unlawful and disproportionate and, as such, in violation of his right under Article 8 of the Convention to respect for his private life and correspondence.
25. Pointing out, inter alia, that the implementation of the Austrian letters rogatory in Slovakia and the examination of his complaints against it were under the sole authority of the PPS, without any judicial control, and that in its decision of 16 May 2013 the Constitutional Court failed to give any response to aspects of his case that he considers crucial, the applicant also complains under Article 13 that he was denied an effective remedy in relation to his complaints under Article 8 of the Convention.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for his private life or correspondence, contrary to Article 8 of the Convention?
2. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 8 of the Convention, as required by Article 13?
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