POSTOVA BANKA, A.S. v. SLOVAKIA
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
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.