CASE OF FORMINSTER ENTERPRISES LIMITED v. THE CZECH REPUBLIC
Violation of P1-1;Just satisfaction reserved
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 29 January 1997 the applicant company entered into a purchase agreement with Královéhradecká brokerská a.s., a joint stock company incorporated under Czech law (“KHB”). Under the agreement it bought 384,971 book-entry shares representing 55.71% of the registered capital of KOTVA a.s., a joint stock company incorporated under Czech law. The shares were registered with Prague Securities Centre (Středisko cenných papírů), which acted as a central securities depository. 8. In March 1997 criminal proceedings were instituted against H., a member of KHB’s board of directors, for illegal disposal of shares and other securities to the detriment of two Czech investments funds, TREND a.s. and MERCIA a.s., which joined the criminal proceedings as civil parties seeking damages. 9. On 11 March 1997 the Hradec Králové Deputy Regional Prosecutor (náměstek krajského státního zástupce), within the framework of the criminal proceedings, ordered the Securities Centre to register the suspension of the applicant company’s right to dispose of all shares deposited in its account (příkaz k registraci pozastavení výkonu práv majitele veškerých cenných papírů) until the end of the criminal proceedings. The order was based on a suspicion that the shares had been acquired illegally and that it was necessary to freeze them in order to secure claims from the victims of the transaction. The prosecutor relied on section 27(3)(d) of the Securities Act (no. 591/1992), which entitled State authorities to order such suspension where empowered to do so by a specific law, and on Article 78 § 1 of the Code of Criminal Procedure (“the CCP”), which gave the prosecuting authorities the right to seize items of importance for criminal proceedings. 10. In a letter of 25 April 1997 addressed to the Ministry of Finance, the Regional Prosecutor stated as follows: “In order to clarify the criminal activities of [H. and others] and establish facts important for the criminal proceedings, and in an effort to prevent illegal transfers of securities, I decided to apply section 27(3)(d) of the Securities Act (no. 591/1992) ... However, this procedural step which, I discovered, was based on Articles 78 and 79 of the CCP, is very problematic and untenable in the case of bookentry shares. Under these circumstances, the Securities Centre will be ordered, by 16 May 1997 at the latest, to cancel the registration of the suspension of disposal rights over the book-entry shares held by the following companies: ... (f) Forminster Enterprises Limited. Securities owned by persons who are not facing criminal charges, which are in the portfolio of the aforesaid companies and are not relevant to the criminal activities, can no longer be impounded under criminal law because the existing criminal procedural regulations provide only for the seizure of tangible items of importance for the criminal proceedings under Article 78 of the [CCP] which can be surrendered or, pursuant to Article 79, seized. [In addition,] the application of Article 79a of the [CCP] in respect of securities is excluded. To proceed under section 27(3)(d) of the Securities Act is possible only when a specific law so provides. [However,] the [CCP] does not provide for such a procedural step ...” 11. On 12 May 1997 the Deputy Regional Prosecutor informed the Securities Centre that his order of 11 March 1997 was cancelled. Relying on section 27(3)(d) of the Securities Act read in conjunction with Article 79 § 1 of the CCP, he again ordered the suspension of the applicant company’s right to dispose of its 384,971 KOTVA shares pending the criminal proceedings. He considered, inter alia: “In the field of financial and commercial law, book-entry shares are not considered to be items, unlike in criminal law, where they are considered as rei sui generis, and are clearly regarded as ‘items’, as the use of the term ‘item’ in Article 89 § 16 of the Criminal Code shows. With regard to the specific characteristics of such items and the manner in which they are dealt with on the capital markets, it is necessary to apply ... Article 79 § 1 of the [CCP] by analogy and impound the securities in question ... under section 27(3)(d) of Act no. 591/1992.” 12. On 15 May 1997 the Securities Centre implemented the order. 13. On 27 June 1997 the applicant company challenged this measure before the Prague Senior Prosecutor (vrchní státní zástupce) who, on 8 August 1997, held that the Deputy Regional Prosecutor had proceeded in accordance with the law. 14. On 30 January 1998 the applicant company lodged a constitutional appeal (ústavní stížnost) alleging, inter alia, that its property rights guaranteed by Article 11 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) had been violated by the Deputy Regional Prosecutor’s decision of 12 May 1997. 15. On 20 May 1998 the applicant company lodged an application with the Regional Prosecutor’s Office seeking the restoration of its KOTVA shares under Article 80 of the CCP. On 2 October 1998 it was told by the prosecutor’s office that on 30 September 1998 H. and others had been officially indicted before the Hradec Králové Regional Court (krajský soud) which was, therefore, competent to deal with the company’s application. The indictment contained more than 7,000 pages. 16. On 11 November 1998 the Constitutional Court (Ústavní soud) rejected the applicant company’s constitutional appeal, contesting the seizure, as having been introduced outside the sixty-day statutory time-limit provided for by the Constitutional Court Act. According to the court, the time-limit had already been triggered by the adoption of the Deputy Regional Prosecutor’s decision to seize the shares, as the company’s complaints to the Senior Public Prosecutor’s Office and the Prosecutor General’s Office had not constituted effective remedies within the meaning of the Constitutional Court Act. 17. On 10 March 1999 the Regional Court remitted the criminal case against H. and others to the Regional Prosecutor’s Office for further consideration. 18. On 28 April 1999 the applicant company renewed its application for restoration of its rights to the KOTVA shares under Article 80 of the CCP, this time before the Regional Court; the latter was, however, no longer competent to consider it, as the criminal case had been returned to the Regional Prosecutor. 19. On 17 April 2000 the applicant company urged the Regional Prosecutor to decide on its application of 20 May 1998 for restoration of its rights to the KOTVA shares. On 21 April 2000 it was informed that the case was currently under the supervision of the Olomouc Senior Public Prosecutor’s Office and it was therefore open to the applicant company to challenge the impoundment before that authority. 20. On 7 February 2003 the applicant company requested the Senior Public Prosecutor’s Office to annul the impoundment of the KOTVA shares under Article 79c of the CCP. On 17 February 2003 the prosecutor refused the request, finding it unsubstantiated. 21. On 10 March 2003 the Prague High Court (vrchní soud) rejected the applicant’s complaint of 24 February 2003 in which it was argued that the impounding had been ordered sine lege and was no longer necessary in the light of the objectives of the criminal proceedings. The court ruled that the impounding had been justified by the reasonable suspicion that the shares had represented the profit obtained by Mr H. from his illegal transactions. According to the court, that suspicion had not yet been dispelled. 22. On 5 May 2003 the applicant company challenged this decision before the Constitutional Court. Referring to Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, it contended that the seizure of its shares had been ordered sine lege, that its property rights were restricted for more than seven years and that the seizure had been unlawful and was no longer necessary to achieve the aims of the criminal proceedings. 23. On 15 April 2004 the Constitutional Court declared the appeal inadmissible as manifestly ill-founded, stating, inter alia: “... the Regional Prosecutor proceeded in accordance with the national law then in force. While at the relevant time the criminal law included neither Article 79c of the [CCP], which expressly provides for the impoundment of book-entry shares (this provision was introduced by Act no. 265/2001 which entered into force on 1 January 2002), nor Article 89 § 13 of the Criminal Code which subsumes securities under the notion of ‘item’ ... [introduced by Act no. 253/1997 which entered into force on 1 January 1998], there is no doubt that the criminal law ..., in respect of serious economic crime cases, considered book-entry shares as items within the meaning of the criminal law even before 1 January 1998. The Regional Prosecutor’s order of 12 May 1997 ... was issued under section 27(3)(d) of Act no. 591/1992 as amended and under Article 79 of the [CCP]. At the relevant time, the criminal law did not require any particular form for such an order. No appeal against it was therefore available ... However, any order suspending the right to dispose of securities was subject to supervision by the competent prosecutors’ offices. ” 24. H. and ten others accused of various economic crimes were reindicted on 8 August 2003. In January 2004 their case was subsequently remitted once again by the Regional Court to the Regional Prosecutor’s Office for further consideration. 25. On 15 July 2005 the indictment was filed by the Regional Prosecutor for the third time. 26. On 15 June 2006 the Regional Court decided under Article 79c § 3 of the CCP to extend the seizure until the end of the criminal proceedings, as the reasonable suspicion that the shares had constituted the profit obtained by H. as a result of his illegal transaction had not yet been dispelled. It further decided to suspend the voting rights connected with the seized shares. 27. On 24 July 2006 the High Court, on a complaint by the applicant company, upheld this decision. 28. In July 2006 the joint stock companies K-T-V Invest a.s. and Česká investiční a správcovská a.s. merged. Following that merger, 384,971 seized KOTVA book-entry shares with a nominal value of 1,000 Czech korunas (CZK) (35.19 euros (EUR)), held by the applicant company, were converted into the same number of share certificates issued by the company Česká investiční a správcovská a.s., with a nominal value of CZK 920 (EUR 32.37). 29. On 5 February 2007 the share certificates for Česká investiční a správcovská a.s. were deposited with the Regional Court pursuant to section 113(9) of the Capital Markets Act (Law no. 256/2004) and on a request made under Article 78 § 1 of the CCP. 30. The applicant company’s constitutional appeal challenging these decisions is pending before the Constitutional Court. The criminal proceedings are still pending and the applicant company’s securities remain seized. Seventeen hearings, each lasting several days, were held by the court, during which a large volume of evidence was taken. The case file contains more than 14,500 pages. The Regional Court heard or is still due to hear several dozens of witnesses, some of them abroad. Moreover, several experts were heard and expert reports commissioned. The damage caused according to the indictment amounts to CZK 1,191,922,741 (EUR 41,941,642) 31. MERCIA and TREND challenged the acquisition of the KOTVA shares by the applicant company, not only as civil parties seeking damages in the criminal proceedings but also through their respective civil actions disputing the transfer of the shares to the applicant company. 32. On 9 September 1998 the Prague Regional Commercial Court (krajský obchodní soud), before which MERCIA had contested the title to 251,497 KOTVA shares (out of a total of 384,971 KOTVA shares) in civil proceedings brought against the applicant company, approved a friendly settlement concluded between the applicant company and MERCIA. 33. On 21 December 1999 the applicant company and TREND concluded a friendly settlement of their civil dispute concerning the ownership of the 384,971 KOTVA shares. This settlement was contested by an action for nullity filed on an unspecified date by minority shareholders of TREND seeking the return of the KOTVA shares to TREND. 34. On 17 May 2000 the Czech Securities Commission (Komise pro cenné papíry), a State regulatory authority, approved the settlements. As a consequence, all civil proceedings concerning KOTVA shares brought by MERCIA and/or TREND against the applicant company were discontinued. Moreover, these joint stock companies waived their status as civil parties in the criminal proceedings. They informed the State authorities acting in the criminal case of their respective settlements and stated that, as the instigators of the impoundment of the shares, they no longer insisted on seizure. 35. Under Section 72(1)(a) an individual alleging an impairment of his or her rights guaranteed by constitutional law may lodge a constitutional appeal with the Constitutional Court. 36. Until 31 December 1997, Article 89 § 16 read as follows: “Controllable natural resources, too, shall be regarded as items.” 37. Another sentence was inserted into that provision on 1 January 1998. It provided as follows: “The provisions governing items shall also apply to securities.” 38. After Act no. 238/1999 entered into force on 1 January 2000, this provision became Article 89 § 13. 39. Article 78 governs the obligation to hand over items of importance for criminal proceedings. Under paragraph 1, persons possessing such items are required to submit them to a court, prosecutor or police authority at the latter’s request. If the item is being seized for the purposes of the criminal proceedings, the person concerned must surrender it to the prosecuting authorities at their request. 40. Pursuant to Article 79 § 1, if the person concerned does not surrender the item of importance for the criminal proceedings, it must be taken from him/her and seized on an order from the president of a chamber during the trial or by the prosecutor, investigator or police authority at the pre-trial stage of the proceedings. The investigator or police authority may do so only with the authorisation of a prosecutor. 41. Article 80 § 1 provides, inter alia, that items which are no longer needed for the criminal proceedings and whose confiscation or seizure can be ruled out should be returned to the person concerned. Under Article 80 § 3 a decision on this matter at the pre-trial stage of the criminal proceedings is adopted by a prosecutor. Such a decision may be challenged by means of a complaint. 42. According to Article 119 § 2 rulings of prosecutor, investigator and police have the form of decision. 43. Article 141 § 1 states that a complaint is a remedy against a decision. 44. Under Article 141 § 2 a first-instance decision adopted by a court or a prosecutor may be challenged by means of a complaint only where the law explicitly so provides. 45. Article 79a provides for the seizure of financial assets deposited in a bank account. Under paragraph 1, if the facts indicate that the financial assets in a bank account are destined for the commission of a crime, or have already been used for such purposes, or constitute the proceeds of criminal activities, the president of a chamber or a prosecutor, or the police authority at the pre-trial stage of the criminal proceedings, are empowered to impound them. Paragraph 5 provides that such seizure may be challenged by means of a complaint. 46. The newly introduced Article 79c governs the seizure of book-entry shares. Under paragraph 1, should the president of the chamber, or the prosecutor at the pre-trial stage of the criminal proceedings, decide on a seizure of book-entry shares, the Securities Centre, a legal person empowered to keep records and exercise other activities of the Securities Centre under a specific law, or the Czech National Bank must open a special bank account in which the seized securities are deposited. Paragraph 3 provides, inter alia, that the authorities mentioned in paragraph 1 may suspend the rights connected with seized shares. According to paragraph 4, Article 79a applies mutatis mutandis to the procedure governing decisions to seize book-entry shares and to reduce the terms of or lift such seizures. 47. Article 146a, which provided for a review by a court of seizures of property by a prosecutor, was substantially amended, bringing within its ambit, inter alia, decisions on seizures of book-entry shares under Article 79c, financial assets, real estate and other assets. However, seizures of items under Article 79 do not fall within its scope. 48. Section 12a (3) provides that a decision adopted by a prosecutor may be reviewed by a superior prosecutor unless the Act or another law provides otherwise. 49. Under section 1(2) a share certificate may be substituted by a bookentry share, that is, by entry in a record of shares as provided for by law. 50. Section 27 provided for suspension of the right to dispose of bookentry shares. Under paragraph 3d, a suspension order was to be issued by the competent State authority, under a specific law (for instance, section 313 of the Code of Civil Procedure). The provision was repealed by Act no. 257/2004, which entered into force on 1 May 2004. 51. Section 97 provides for suspension of the owner’s disposal rights over book-entry investment instruments. Under paragraph 1(b), an order registering the suspension of the owner’s disposal rights is granted by the competent court or administrative authority, if it is necessary in connection with the issuing of a preliminary measure, for the purposes of judicial or administrative proceedings, or if a specific law so provides. 52. The Prosecutor General directed that book-entry shares were to be considered as items within the meaning of criminal law and could therefore be seized on the basis of Articles 78 and 79 of the CCP. This was according to him possible even before the enactment of Act no. 253/1997, which entered into force on 1 January 1998. 53. The Criminal Code – A Commentary by Šámal, P., Púry, F. and Rizman, S., 3rd edition, 1998, C.H. Beck, p. 548, reads as follows: “According to the majority opinion in [domestic] practice, ... [as of] ... 1 January 1998 ... it is also possible to seize book-entry securities as items ... on the basis of Articles 78 et seq. of the Code of Criminal Procedure governing the seizure of items. What continues to cause problems is the inadequate and inappropriate nature of Articles 78 and 79 of the [CCP] in respect of [such seizures], as the seizure of bookentry shares does not constitute the seizure or taking of an ‘item’ within the proper meaning of that term.” 54. The Criminal Code – A Commentary by Šámal, P., Púry, F. and Rizman, S., 4th edition, 1998, C.H. Beck, pp. 472 and 865, reads: “An order to seize an item [under Article 79 § 1] is a decision sui generis ... No complaint can be lodged against it, as it is not a decision [within the meaning of Article 141 et seq.].” “A prosecutor supervising the pre-trial stage of criminal proceedings is in principle empowered to decide on complaints challenging decisions adopted therein by [the prosecuting authorities]. The exception to this principle is a situation where the prosecutor assented to or initiated the decision and is thus not in a position to review the complaint impartially.” 55. The Code of Criminal Procedure – A Commentary by Růžička, M. and others, ASPI, 13 January 2003, in a chapter entitled “The seizure of book securities – Article 79c”, reads as follows: „Until the end of 2001, [domestic] practice relied on the idea that even book-entry securities constituted items within the meaning of criminal law. The provisions of Article 89 § 13 of the Criminal Code (inserted by amendment no. 253/1997) extended the scope of application of the term ‘item’ to include, inter alia, all types of securities. Nevertheless, it had been possible to arrive at the same conclusion even before that amendment entered into force ... It was therefore possible to seize [book-entry shares] (Article 79 of the [CCP]) ...”