CASE OF BENET CZECH, SPOL. S R.O. v. THE CZECH REPUBLIC
No violation of P1-1
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant, Benet Czech, spol. s r.o., is a limited liability company incorporated under Czech law with its registered seat in Prague. 6. In April 2001 criminal proceedings were instituted against Mr B., who was manager of the applicant company until July 2001 and its sole shareholder until October 2008, on suspicion of having committed tax evasion (zkrácení daně, poplatku a jiné povinné platby). According to the Government the damage caused to the State exceeded CZK 200,000,000 (EUR 8,000,000). Mr. B was replaced as manager and shareholder by Mrs. B. 7. On 13 September 2001 the prosecuting authorities seized CZK 8,861,401.13 (EUR 319,942) and USD 41,677.80 (EUR 29,769) deposited in the applicant company's bank accounts on the suspicion that these assets represented the profits of Mr B.'s criminal activities. 8. Mr B. was prosecuted for acts which are not related to the business pursued by the applicant company. On 4 June 2009 Mr B. was acquitted by the Prague Municipal Court (městský soud), and on 30 April 2010 the Prague High Court (vrchní soud) upheld the judgment. During the investigation the prosecuting authorities, inter alia, collected over 100,000 pages of documentary evidence, interviewed several hundred witnesses, including homeless persons with unknown whereabouts whose names the accused had allegedly used in sham transactions to evade customs and other duties, and requested legal assistance from the competent authorities of 16 countries. 9. On 15 November 2002 the applicant company requested that the seizure be lifted. Its request was dismissed by the Prague High Prosecutor (vrchní státní zástupce) on 17 March 2003. In his view, the investigation so far confirmed that there was a reasonable suspicion that the assets represented the profits of Mr B.'s alleged criminal activities. 10. The applicant company appealed to the Prague High Court which dismissed its complaint on 2 July 2003. 11. On 19 September 2003 the applicant company lodged a constitutional appeal (ústavní stížnost) in which it alleged that the reasoning of the High Court's decision was insufficient. It further complained of an excessive length of the seizure of its assets. 12. On 23 February 2005 the Constitutional Court (Ústavní soud) declared the applicant company's constitutional appeal inadmissible for being manifestly ill-founded. It held that unjustified prolonged seizure of assets could in principle constitute a disproportionate interference with property rights. Nevertheless it did not find that the seizure which had lasted over three years to that date was,, disproportionate. It found the challenged decisions to be neither arbitrary nor in any other way unconstitutional. The decision was served on the applicant company's lawyer on 28 February 2005. 13. On 9 October 2006 the Prague High Prosecutor dismissed a further request of the applicant company to lift the seizure, at least in part. The Prague High Court (vrchní soud) upheld the decision on 21 November 2006. On 30 January 2008 the Constitutional Court, however, quashed that decision finding a violation of the applicant company's right to property. The court held that the length of the seizure, over six years, was already unreasonable, which thus disrupted the fair balance between the general interest of fighting serious crime and the protection of the rights of the applicant company. Consequently on 11 March 2008 the Prague High Prosecutor lifted fully the seizure of the applicant company's bank accounts. 14. Pursuant to Article 9, prosecuting authorities shall assess on their own preliminary issues arising in course of proceedings; should a final and binding decision on such an issue be already adopted by a court or another State authority, prosecuting authorities shall be bound by it unless it concerns an issue of guilt of accused. 15. Article 42 provides for rights of a concerned person. According to it anyone whose property was seized, or ought to be seized pursuant to a motion, must be provided with an opportunity to comment on the given case, may attend a hearing, raise own motions, consult the case file within the meaning of Article 65, and file appeals provided for by this law. 16. Article 79a provides for a seizure of financial instruments deposited on a bank account. Under paragraph 1, if the facts indicate that the financial instruments on a bank account are destined for the commission of a crime, or have already been used for such purposes, or represent the profit from criminal activities, a president of a chamber and a prosecutor, or the police authority at the pre-trial stage of criminal proceedings, are empowered to seize them. 17. Pursuant to Article 79a(3), the State authority listed in paragraph (1) lifts or reduces the seizure if such a measure is no more necessary, or it is not necessary to maintain it at the given amount. 18. Under Article 79a(4) the owner of a bank account, whose assets are seized, has the right to request at any time that the seizure be lifted or reduced. A decision on such a request must be given without delay. If the request is dismissed, the owner of the bank account can lodge a new request that does not contain new reasons no sooner than 14 days after the dismissal became final. 19. Article 79a(5) provides that decisions adopted pursuant to paragraphs (1), (3) and (4) may be appealed by a complaint.