5.  The applicant was born in 1964 and lives in Vienna (Austria).
6.  The applicant is a businessman associated with a major Austrian financial and industrial group. Under a complex corporate and contractual arrangement, he had an office in Bratislava (Slovakia). It was situated at the same address as premises of other entities belonging to the group.
7.  Although no formal charges were brought against him, an investigation into various transactions involving the applicant was carried out in Austria on suspicion of, inter alia, investment fraud, breach of confidence and insider trading. In the context of this investigation, the Austrian prosecution service asked their Slovakian counterparts to search the above-mentioned premises and to seize documents relevant to the investigation.
8.  The search took place in 2009 and business documents and electronic storage media were seized, including from the applicant’s office, and later handed over to the Austrian authorities.
9.  In a judgment of 7 December 2010 the Constitutional Court found that the warrant issued in Slovakia for the search and seizure did not extend to the applicant and his office and that the terms of the warrant had therefore been exceeded, in violation of the applicant’s rights to the peaceful enjoyment of his possessions, respect for his private life, and judicial and other legal protection. Accordingly, the Public Prosecution Service of Slovakia (“the PPS”) was ordered to stop violating the applicant’s rights and to ask the Austrian authorities for the return of the unlawfully seized items with a view to their restitution to the applicant.
10.  On 6 September 2011 the PPS asked the law firm representing the applicant in Slovakia to specify whether they were entitled to receive on his behalf the items that had meanwhile been returned by the Austrian authorities. A power of attorney to that effect was submitted on 12 September 2011.
11.  On 1 February 2012 the Bratislava I District Police Directorate issued a decision restoring those items to the applicant, identifying them as six specific units of electronic storage media.
12.  The applicant claims, and this has not been disputed by the Government, that the media to be returned to the applicant contained, inter alia, legal advice protected by lawyer-client privilege.
13.  On 27 February 2012 the PPS summoned the applicant’s lawyer to its premises on 7 March 2012 with a view to restoring the above-mentioned possessions to the applicant.
14.  On 7 March 2012 at 9.10 a.m. those items were restored to the applicant’s lawyer and, at 9.15 a.m., they were all seized from him again with reference to a letter rogatory from the Vienna office of the Prosecution Service of Austria of 14 April 2011. That letter sought specifically the seizure of the same items as were to be restored to the applicant and referred to the European Convention on Mutual Assistance in Criminal Matters, the Schengen Implementing Convention, and the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union.
15.  The record of this operation indicates that the applicant’s lawyer was informed that under Article 89 § 1 of the Code of the Criminal Procedure (“the CCP”) he was under a duty to surrender the objects in question and that he had been warned that if he did not do so, they could be taken from him under Article 91 of the CCP and he could face a fine under Article 70 of the CCP and a referral for disciplinary proceedings by a competent body, in response to which he surrendered the items voluntarily. However, he added that he protested on the grounds that he considered the re-seizure to be an obstruction of implementation of the Constitutional Court’s judgment of 7 December 2010 and stated that further reasons would be added to the protest later.
16.  The applicant lodged a series of requests, complaints and repeated complaints with all levels of the PPS raising two groups of arguments.
First, he complained as regards execution of the Constitutional Court’s judgment of 2010. In particular, he argued that the PPS had failed to execute that judgment properly in that (i) not all of his documents unlawfully seized in 2009 had been restored to him and (ii) the PPS had failed to ensure that the Austrian authorities returned or destroyed all the copies they had made of the material unlawfully seized and transmitted to them.
Second, the applicant challenged the re-seizure of 7 March 2012, arguing that he had only learned of the decision to dismiss his complaint against the decision of 1 February 2012 restoring the items in question the day before their scheduled restoration and re-seizure. Accordingly, he had had no possibility of being present in person. As the items had been seized again immediately after having been returned to his lawyer, the applicant had not had time to verify their condition and to confer with his lawyer on how to respond. In that regard, his lawyer could not, even in theory, have checked the condition of some of the material concerned because it was encrypted. Moreover, it was protected from seizure by lawyer-client privilege. Lastly, the applicant argued that the Austrian authorities knew about the items they had asked to be seized again exclusively from the results of their unlawful initial seizure. Therefore, the re-seizure had served the sole purpose of rectifying the initial seizure, which was against the object and purpose of the Constitutional Court’s judgment of 2010, and for which his lawyer had been arbitrarily exploited.
17.  All the complaints were dismissed, of which the applicant and his lawyer were ultimately informed by letters of the Office of the Prosecutor General of 10 August and 31 December 2012. The reasons given were as follows:
All the seized items, of which the applicant was unquestionably the owner, had been returned to him. There was no duty to return all of the items at once. Should he demonstrate his ownership in respect of other items, these could still be restored to him at a later stage. As regards the restoration or destruction of any copies made by the Austrian authorities, the Constitutional Court’s judgment of 2010 did not specify any duties on the part of the PPS. In any event, it was open to the applicant to assert his rights in that respect before the relevant Austrian authorities.
As the items in question had been returned to the applicant on 7 March 2012, the previous unlawfulness of their seizure had been rectified and there had been no obstacle to seizing them again. The re-seizure complied with all the requirements under the applicable statute and the relevant international rules and as such was lawful and justified. As the applicant had authorised a lawyer to receive on his behalf the items to be returned to him, it had been apparent that he had had no intention of participating personally in the dealings with the PPS. Had he manifested any wish to do so, this would have been taken into account. Accordingly, he could not complain of being unable to defend his rights and interests adequately in relation to the re‑seizure.
18.  On 11 March 2013 the applicant lodged a fresh complaint under Article 127 of the Constitution, arguing that by failing to ensure full compliance with the Constitutional Court’s judgment of 7 December 2010 and seizing the restored items again, the Slovakian authorities had been responsible for a violation of a number of his rights, including respect for his private life and correspondence and the peaceful enjoyment of his possessions and of failing to provide an effective remedy. In substance, he advanced similar arguments to those mentioned above, including, in particular, that the items that had been seized again contained legal advice protected from seizure by lawyer-client privilege.
19.  On 16 May 2013 the Constitutional Court declared the complaint inadmissible. In the pertinent part of its decision, it quoted extensively from the letter of the Office of the Prosecutor General of 31 December 2012, pointed out that its task was to review the constitutionality but not the legality as such of the challenged decisions, and found no constitutionally relevant arbitrariness or other shortcoming in the position the PPS had taken in his case.
A written version of the decision was served on the applicant’s lawyer on 15 July 2013 and no appeal lay against it.
20.  On 18 April 2012 the Constitutional Court declared inadmissible a complaint by which the applicant’s then lawyer had challenged in his own name the re-seizure of 7 March 2012.
21.  The complaint had been lodged on 9 March 2012 and included, inter alia, claims of a violation of the lawyer’s own rights under Articles 8 and 13 of the Convention.
In particular, he complained that he, as the applicant’s representative, had not been given access to the letter rogatory underlying the seizure and that he had been granted no time to confer with the applicant. He had thereby been prevented from exercising his profession as a lawyer in relation to his instructions from the applicant. Moreover, he was bound by the duty of confidentiality as regards the affairs of the applicant as his client and this duty had not been lifted. Forcing him, on pain of sanctions, to surrender the applicant’s documents had therefore interfered not only with his own personal integrity but also with his constitutional function as an advocate.
Being aware that the re-seizure was reviewable by the PPS and that a constitutional complaint was admissible only upon exhaustion of ordinary remedies, he asked to be exempted from the obligation to exhaust such remedies on account of special circumstances. These, in his view, lay in particular in the attitude of the PPS until then regarding execution of the Constitutional Court’s judgment of 2010 and the imminent risk of the re‑seized items being handed over to the Austrian authorities.
22.  The Constitutional Court found no merit, however, in the lawyer’s plea for an exemption from the requirement of exhaustion of available ordinary remedies and, accordingly, rejected his complaint for his failure to do so.