CASE OF LAVRECHOV v. THE CZECH REPUBLIC
Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
5. The applicant was born in 1952 and lives in Udomlya, Russia. 6. He was a representative of a Russian company, T., which bought a share of a Czech company, S. The applicant was a member of the Board of Directors of company S. from 8 August 1995, and its chairman from 27 February 1996. He was unable, however, to exercise his powers between 24 September and 3 December 1996, having been illegally dismissed from the Board of Directors by its Czech members. Company S. later became insolvent. 7. On 11 June 2001 the applicant was charged with insider trading and fraud, in particular with concluding contracts disadvantageous to company S. and causing pecuniary damage of 88,000,000 Czech korunas (CZK) (3,520,000 euros (EUR)). On 20 June 2001 he was placed in pre-trial detention. 8. On 8 January 2002 the applicant requested to be released on bail and offered to pay security of CZK 4,000,000 (EUR 160,000). The request contained a declaration that he was aware of the contents of Article 73 § 3 of the Code of Criminal Procedure, which set out the conditions under which bail could be forfeited. On 17 January 2002 the Ostrava Regional Court granted the applicant bail against payment of security in the amount of CZK 10,000,000 (EUR 400,000). It justified the amount of the security by the exceptional gravity of the charges and the significance of the reasons for taking him into custody originally, in particular the high risk that he would abscond. 9. On 31 January 2002 the applicant authorised his lawyer to pay the security in the amount set by the court. He also undertook to stay at his address in the Czech Republic and to attend hearings in his case, and declared that he was aware that the security would be forfeited if he did not comply. On 22 February 2002 he was released on bail. One of the conditions was that he stay at his address in the Czech Republic and receive mail there. 10. On 7 June 2002 the Regional Court authorised the applicant to leave the Czech Republic for Russia until 18 June 2002, on condition that he attended the first hearing, scheduled for 19 to 21 June 2002. This was the fourth time such a request by the applicant had been granted. The applicant had made three previous trips to Russia, between February and June 2002, and had always returned. 11. On 17 June 2002 the applicant informed his lawyer that on 14 June 2002 his passport, with an entry visa to the Czech Republic, had been stolen in Moscow and that he was arranging for a new passport. As a result the hearing was adjourned to 7 to 9 August 2002. 12. A summons to the new hearing was sent to the applicant at his address in the Czech Republic but returned as undelivered. The Regional Court also attempted to serve the summons on the applicant through his lawyer. 13. On 8 July 2002 the lawyer sent certain documents to the Regional Court, including a confirmation from the Russian authorities that the applicant’s official registered address in Russia was in Udomlya. 14. On 30 July 2002 the lawyer informed the Regional Court that he did not have direct contact details for the applicant in Russia and that he had sent the summons for the hearing to the address given to him by one of the applicant’s co-accused. 15. As the applicant had still not received a new passport and he objected to the hearing being held in his absence, the hearing planned for 7 to 9 August 2002 was cancelled. 16. On 12 March 2003 the Regional Court, having received no information from the applicant, made enquiries of Interpol and the trade representation of the Russian Federation in the Czech Republic as to whether the applicant had applied for a new passport. 17. The date the applicant received a new passport from the Russian authorities is disputed between the parties. The Government claimed that it was on 28 February 2003, but according to the applicant it was not until 2 April 2003. The applicant did not inform the Regional Court that he had obtained a new passport. 18. The Regional Court scheduled another hearing for 6 to 8 September 2004 and, on 22 March 2004, summoned the applicant through the Ministry of Justice at an address in the city of Podolsk in Russia, which was registered in the case file as the applicant’s place of residence in Russia. It also warned the applicant that the fact that he had not applied for a Czech visa, had remained in Russia and had not been in contact with the court was incompatible with his bail conditions, could be qualified as avoiding the criminal proceedings and could lead to the forfeiture of the sum deposited as security. The applicant was also advised of the possibility that criminal proceedings against him would be conducted in absentia. 19. The Russian Ministry of Justice informed the Czech authorities that the applicant was not registered and did not live at the address in Podolsk, and that his current place of residence had not been established. It was thus not possible to deliver the summons to the hearing. 20. Nevertheless, the applicant found out about the scheduled hearing and obtained a short-term visa allowing him to visit the Czech Republic between 2 and 12 September 2004. 21. On 2 September 2004, however, the applicant sent a fax to the Regional Court requesting adjournment of the hearing, referring to unspecified health problems and stating that he now had new lawyers, who would need time to study the case. He did not give his address in Russia. Consequently, the Regional Court was obliged to adjourn the trial once again. 22. On 28 February 2005 the Regional Court asked the Ministry of Justice to request the Russian authorities to deliver a summons to the applicant to a hearing scheduled for 21 to 23 November 2005, at the address in Podolsk or in Udomlya. However, the summons for the trial was not served on the applicant until 16 January 2006, in Udomlya. On 21 November 2005 the Regional Court again cancelled the hearing. 23. On 6 December 2005 the Regional Court decided to conduct the criminal proceedings against the applicant in absentia. It stated that the applicant had been avoiding the criminal proceedings by staying out of the country, that he had not returned to the Czech Republic since June 2002 and that he had created serious difficulties for the conduct of the trial by staying in Russia. The court also found the applicant’s excuse for not attending the hearing on 2 September 2004, namely that he had health problems, totally inadequate. It further observed that the applicant was not respecting the bail conditions he had agreed to, namely that he would appear at hearings and that he would stay at his place of residence in the Czech Republic. 24. On 27 to 29 March, 5 to 7 June, 11 September and 23 October 2006 hearings took place before the Regional Court in the proceedings against the applicant in absentia. 25. On 23 October 2006 the Regional Court fully acquitted the applicant, holding that he had not committed any criminal offence but had merely engaged in standard and transparent business activities. 26. On 28 June 2007 the Olomouc High Court upheld that judgment. 27. On 1 November 2007 the Regional Court, at the applicant’s request, ruled that the bail should be returned to the applicant, as he had not been duly informed about the consequences of not complying with the conditions of bail. Moreover, none of the situations envisaged by Article 73a § 4 of the Code of Criminal Procedure for forfeiting the bail was applicable. 28. On 5 December 2007 the High Court quashed that decision and ruled that the bail was forfeited. It held that the applicant must have known about the possibility of forfeiture of the bail even though he had not been formally informed about it because his requests for release on bail had contained declarations that he had been aware of the possibility of forfeiture should he break the bail conditions. It also held that it was true that for some time the applicant had been unable to return to the Czech Republic because he had lost his passport and the Czech authorities had taken time to issue him with a new visa. However, the applicant had failed to collect correspondence at the address in Podolsk, which was one of the addresses he had given to the prosecuting authorities, and thus letters from the court could not be delivered to him in time. It was also clear from the applicant’s behaviour that he was avoiding criminal prosecution by remaining out of the country. Nor had he kept in contact with the Regional Court, even though he had known about the proceedings. The conditions for forfeiture of the bail under Article 73a § 4 of the Code of Criminal Procedure were thus fulfilled, and in particular the applicant had been in hiding, had failed to inform the relevant authorities of his place of residence, and had thus frustrated delivery of an official letter. 29. The applicant lodged a constitutional appeal against that decision, arguing that it was unjust that such a large sum should be forfeited, even though he had not committed any crime. He also disputed the findings of the High Court. 30. On 3 June 2008 the Constitutional Court dismissed the appeal as manifestly ill-founded. 31. Article 73a §§ 1 and 2 of the Code of Criminal Procedure provides that individuals in pre-trial detention may be released on bail with a minimum security of CZK 10,000, the actual amount being determined by the court, depending on the particular circumstances of the accused and the case. 32. Under Article 73a § 4 (§ 3 at the relevant time) of that provision bail will be forfeited, inter alia, if the accused absconds, goes into hiding or does not inform the relevant authorities of a change of place of residence, and thus frustrates delivery of an official letter. Under Article 73a § 9 (§ 6 at the relevant time) the accused must be informed in advance of the conditions under which bail may be forfeited.