The freezing of bank accounts for 3.5 years violated the right to property
Filkin v. Portugal 03.03.2020 (no. 69729/12)
Right to property and the public interest. Freezing of the applicant’s bank accounts for 3.5 years without being an accused.
The applicant was ordered to freeze his bank accounts because it was considered that the money was derived from an illegal economic activity, namely drug trafficking. The investigation by the domestic Courts took several years due to its complexity, since it had to be completed in co-operation with the authorities of other countries. Due to a lack of data the accounts were released without the applicant being informed.
The Court recalled that a temporary restriction on the use of citizens’ property falls within the competence of the States but must be done in the general interest or to ensure the payment of taxes or other levies or fines.
In the present case, the ECtHR found that the measure was ordered to investigate a serious crime and the investigation was complicated because authorities from other States were involved. However, as the applicant did not benefit from the procedural guarantees to contest the length of the proceedings, the imposition of the measure was considered excessive.
The ECtHR concluded that a fair balance had been struck between the legitimate general interest pursued by the authorities and the right of every citizen to enjoy his property in a peaceful manner. Violation of the right to property (Article 1 of the First Protocol).
Article 1 of the First Protocol
The applicant, Mr Evgeny Filkin, is a Russian national who was born in 1955 and lives in Vienna
The case concerned the freezing of the applicant’s bank account in criminal proceedings concerning
suspected money laundering.
In February 2011 the Central Criminal Investigation and Action Department opened a criminal
investigation into suspicious banking transactions possibly linked to money laundering, registered on
accounts held with the BANIF bank in Valença. The investigating judge at the Central Court of
Criminal Investigation ordered the accounts to be frozen until 2 May 2011. The bank informed
Mr Filkin that he could not use his account in accordance with the judge’s decision. The measure was
extended several times. The steps taken by Mr Filkin and his appeals to lift the freezing order were
In a decision of 23 July 2014 the investigating authority discontinued the case on the grounds that it
was impossible to ascertain the origin of the suspicious funds or to decide whether they were the
proceeds of illegal activities. On 24 July 2014 the investigating judge lifted the measure freezing
Mr Filkin’s account without informing him.
Relying in particular on Article 1 of Protocol No. 1 (protection of property) to the European
Convention on Human Rights, the applicant submitted that the freezing of his bank account had
breached his right to the peaceful enjoyment of his possessions.
THE DECISION OF THE COURT…
The Court reiterates that a temporary restriction on the use of property falls within the jurisdiction of States to regulate it in the general interest or to ensure the payment of taxes or other levies or fines.
To be compatible with Article 1 of the First Protocol, an interference with the right to property must be made “in the public interest” and “subject to the conditions provided for by the law and by the general principles of international law”.
Consequently, the interference with the rights provided for in Article 1 of the First Protocol cannot be lawful, in the absence of any contravention of the principle of equality of arms, which makes it possible to discuss aspects of relevance to the outcome of the case. In order to ensure compliance with this condition, the applicable procedures should be considered in general terms.
Application of these principles to the case
The Court then observed that the contested act had been ordered because the domestic authorities had suspected that the money transferred to the applicant’s bank account was derived from criminal activities, in particular drug trafficking.
Consequently, the measure at issue was ordered to prevent the crime of money laundering and was therefore aimed at pursuing the public interest, the importance of which has already been emphasized in various judgments of the Court. The question therefore arises whether, in the circumstances of the present case, the measure was proportionate to the aim pursued, in other words, whether it struck a fair balance between the requirements of the general interest and the applicant’s right to peaceful enjoyment of his property rights in particular through an effective court guarantee.
The Court noted that, since the applicant was not a defendant or supporter of the charge, he was unable to request the acceleration of the procedure under Article 108 of the CCP, a precautionary measure designed at national level to respond to alleged periods of inactivity. criminal procedure. However, the measure was implemented on 03.02. 2011 and was not recalled until 24.07.2014, about three years and five months later, so the applicant did not know when he could re-allocate his funds. Uncertainty is further aggravated by the absence of a deadline for such a precautionary measure.
In view of its case-law on the length of the proceedings, the Court held that the criminal investigation which led to the adoption of the contested act was quite complex, having regard to the offenses in question and its international dimension. It notes in particular that, in order to determine the origin of the disputed funds, the internal authorities had to cooperate, with applications, with the German, Russian and Spanish authorities on 26.01.2012, 29.02.2012, 19.06 2012 and 11.09.2013. The fact remains that the prosecutor was not informed by the Russian authorities until one year after the investigation was launched. The Court also noted that on 26.12.2013 the Portuguese authorities had not yet translated the reply they received on 16.04.2013. Admittedly, it is difficult to impose a measure due to foreign authorities in the context of international judicial cooperation, but considers that the Portuguese authorities have been able to send replies. There were also no replies from the German authorities until 19.06.2013 and the authorities are still waiting for their reply to their request on 26.01.2012.
As to the applicant’s conduct, the Court held that, since the criminal proceedings were conducted without him being informed, it was not reasonable to expect any cooperation from him. Contrary to the Government’s submission, the applicant cannot be held responsible for the extending length of the proceedings.
Therefore, while recognizing that the investigation is quite complex, the Court considers that the Portuguese authorities are responsible for extending the length of the criminal proceedings, which has resulted in an excessive extension of the duration and extension of the measure.
Since the applicant did not benefit from the procedural guarantees that would enable him to effectively challenge the measure in question and having regard to its long period of application, the Court concluded that the applicant had been subjected to a ‘special and outrageous charge’, which overturned the a fair balance that must be struck between the legitimate general interest pursued by the authorities and the applicant’s right to peaceful enjoyment of his property.
Violation of Article 1 of the First Protocol of the ECHR.
Just satisfaction: Mr Filkin did not claim non-pecuniary damage. The court awarded him € 5,490 for costs and expenses.