CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 janvier 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sB1AFDE2D { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:14pt } .s2348ECBC { width:232.5pt; display:inline-block } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s67017A4B { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-after:avoid } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s64E792FA { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .sF4F12EF6 { width:180.75pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FIRST SECTION               CASE OF RUMMI v. ESTONIA   (Application no. 63362/09)                 JUDGMENT     STRASBOURG   15   January 2015     FINAL   15/04/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Rummi v. Estonia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Paulo Pinto de Albuquerque,   Linos-Alexandre Sicilianos,   Erik Møse, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 16   December 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 63362/09) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Ms Karol Rummi (“the applicant”), on 22 November 2009. 2.     The applicant was represented by Mr M. Susi. The Estonian Government (“the Government”) were represented by their Agent, Ms   M.   Kuurberg, of the Ministry of Foreign Affairs. 3.     The applicant alleged that the confiscation of her late husband’s property had breached her right to a fair trial and peaceful enjoyment of the property, and that the length of the proceedings had been excessive; there had been no effective remedy in this respect. 4.     On 19 December 2012 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1962 and lives in Harju County. She is the widow of R. 6.     On 20 February 2001 M. attempted to smuggle 105 kilograms of waste containing precious metals into Estonia. The waste was hidden in the fuel tank of his car. However, it was found at the border and seized by the Estonian authorities. M. was arrested. J., a suspected organiser of the smuggling, fled to Russia. 7.     Investigating authorities asked R., an expert in geology, to give an expert opinion in respect of the content of precious metals in the waste. According to the expert opinion, dated 1 March 2001, the value of the metals was 19,620.90 kroons (EEK) (approximately corresponding to 1,254   euros (EUR)). This value was above the limit of a “significant amount” as defined in criminal law. P. who apparently had certain interests in the matter, approached R. and asked him to prepare another expert opinion, which would state that the value of the metals was lower. R. drew up another report, dated 6   March 2001, which stated that the value of the seized metals was EEK   13,356 (EUR 854), which was below what was designated as a “significant amount”. Smuggling of less than a “significant amount” of goods would not have been a criminal offence but a misdemeanour. P. sought to pass, through an intermediary, the new expert opinion, along with a sum as a bribe, to an officer dealing with the matter. However, the intermediary was apprehended when handing over the money and the second expert opinion. 8.     On 11 March 2001 R. was arrested. His home and later his workplace were searched. A large amount of various substances containing precious metals as well as pure precious metals was seized, including 150 kilograms of silver, one kilogram of gold, thirty-one silver bars, five diamonds and eighteen silver-coloured spoons. 9.     On 12 March 2001 R. committed suicide in the detention facility. He was taken to hospital in a state of clinical death, and died there on 17 March 2001. 10.     In the case file there are two decisions of the police concerning the discontinuance of criminal proceedings in respect of R. 11.     In a decision of 27 March 2001 the above situation was described, including the fact that two expert opinions had been drawn up by R. It was concluded that he had knowingly given a false expert opinion and had thereby committed an offence under Article 175 § 1 of the Criminal Code ( Kriminaalkoodeks ). The criminal proceedings against him were terminated because of his death. 12.     In a decision of 9 April 2001, firstly, it was stated that the applicant had committed the offence under Article 175 § 1 of the Criminal Code. 13.     Secondly, the decision stated that it had been established that since 1995 R. had been giving unofficial expert opinions concerning substances containing precious metals. Knowing that such substances were not found in Estonia and that they were being smuggled from Russia, he had committed an offence of smuggling as an accomplice (Article 17 § 6 and Article 76 §   3   (2) of the Criminal Code). 14.     Thirdly, in respect of the silver, gold and diamonds the decision stated as follows: “During the search of [R.’s] home and workplace a large amount of pure precious metals ([about] 150 kg of silver granules, 31 silver bars, [about] 1 kg of gold, five diamonds) [and] other items made of precious metals were found, which refer to purchasing items made of precious metals from the population, and substances containing precious metals [were also found], which were similar to the substance found in a hiding place in [M.’s] car. Therefore it can be concluded that [R.] was involved in the smuggling of substances containing precious metals as an accomplice who analysed the substances; he was probably also engaged in purchasing, purifying and marketing substances containing precious metals. Under Regulation No. 142 of 29 July 1994 of the Minister of Finance, items made of precious metals, precious scrap metal and precious stones may only be purchased and remelted by legal persons whose purchasing point is registered by the Estonian Assay Office ( Eesti Proovikoda ) and who have an operating licence for the purchasing of precious metals and precious stones and items containing them. Thus, [R.], who did not have the required licences, committed a large-scale violation of the rules for purchasing metals, and thereby committed an offence under Article 152-3 § 3 of the Criminal Code. [R.’s] official income according to his tax return for 2000 was [EEK] 18,564 [EUR   1,186] after the deduction of income tax, which indicates that he could not have legally acquired such a quantity of precious metals. [R.’s] wife, [the applicant], is also unaware of the origin of these items. Nor is it possible to obtain additional evidence in relation to the crimes committed by [R.], because after his arrest ... [he] committed suicide...” 15.     The investigator decided to discontinue the criminal proceedings under Article 175 § 1, Article 17 § 6 and Article 76 § 3 (2), and Article   152 ‑ 3 § 3 of the Criminal Code because of R.’s death. The precious metals and substances containing precious metals found at R.’s home and workplace were ordered to be deposited in a police storage facility since the identity of their legal owner had hot been established and it was unclear to whom they belonged. 16.     By an order dated 9 April 2001 the police declared the substances and items seized from the car (see paragraph 6 above) and from the applicant’s home and place of work (see paragraph 8 above) to be evidence and it was decided that they should be deposited in a police storage facility. The evidence was inspected on the same day. 17.     On 10 May 2001 the applicant enquired of the police about the death of her husband, R., in the police custody, about the charges against him and about the return of the items which were not rare earth, such as the silver granules, diamonds, gold and silver bars that had been seized during the search. 18.     On 28 May 2001 the police responded that a decision on the return of the seized items would be made by the officer in charge of the investigation after clarification of their origin. 19.     In the meantime, on 14 May 2001 the police ordered an expert examination of the seized substances. According to an expert opinion delivered on 22 May 2001 the packages analysed contained galvanic mud from which metals could be separated by the use of special technology and equipment. Some of the samples contained precious metals. 20.     According to an intestate succession certificate issued by a notary on 16 August 2001 the applicant and her two sons were R.’s heirs, each inheriting one-third of his property. 21.     An expert opinion in respect of further items and substances seized from R.’s home and workplace was commissioned on 21 September 2001. According to an expert opinion given on 5 November 2001 some of the analysed substances were galvanic waste not known to be generated in Estonia, and certain further samples contained precious metals probably bought from the population. 22.     In the meantime, on 27 September 2001 K., R.’s colleague, was interviewed as a witness. He submitted that they carried out about 500   expert analyses per year; the number of official analyses had been about ten per year. He described the powder and “mud” the content of which they had analysed. The “mud” was a by-product of nickel production; it was brought from Russia. They did not have equipment in their laboratory for separating precious metals from the “mud”, they could only analyse its content. K. gave details about persons to whom he had communicated the results of the expert examinations. According to K., R. had also purchased equipment for the laboratory with his own money, the cost of which was about EEK 500,000 (EUR 32,000). K. had suspected that by doing the analyses R. had been involved in something illegal and that he also got paid for this. He referred to R.’s new cars and construction of a house as something that he could not have afforded on his salary. According to K., the substances and items taken from a table in their workplace were samples they had examined. K. could not tell anything about the origin of the items found in R.’s cupboard and locked drawer. 23.     On 10 October 2001 the applicant was interviewed as a witness. According to the report on the interview drawn up by the police, the applicant stated that she did not know anything about the items seized from their garage and their home. These items had been acquired by R., who put his money into precious metals since he apparently had no trust in bank accounts. In respect of the diamonds she could not say anything; these had been, like the other substances and items, acquired by R. The money matters of the family had been handled by R.; the applicant even did not know how much he earned in salary. 24.     On 25 July 2002 the police applied to the Narva City Court to authorise the confiscation of the items and substances that had been declared as physical evidence in the criminal case. In respect of the items and substances taken from R.’s home and workplace during the search, it was stated as follows: “On 9 April 2001 the items and substances found during the search carried out at [R.’s] home and workplace were declared to be evidence (vol. 2, pp. 154-172), as this property had been obtained through crime. Information gathered in the criminal proceedings about [R.’s] income (vol. 2, pp. 179-80 and pp. 182-83) and statements by [R.’s] colleague [K.] also refer to this fact, that is [to the fact that] the property [had been] obtained through crime. [R.’s] wife, [the applicant], was unable to give explanations about the items and substances seized during the search (vol. 2, p. 185). Having regard to the above, it is expedient to request from a court confiscation of the evidence mentioned above, that is of property obtained through crime and prohibited for natural persons in accordance with the “Rules for the import and export of precious metals and precious stones and products made of them” (vol. 1, pp.   49 ‑ 51).” 25.     On 19 August 2002 the Narva Prosecutor’s Office approved the statement of charges. It was noted that the evidence taken from R. was in the police storage facility. On 22 August 2002 M. and J. were prosecuted. 26.     On 20 January 2004 the Narva City Court convicted M. of attempted smuggling of prohibited goods. J. was convicted as an accomplice. In the judgment, reference was made to statements by anonymous witnesses to the effect that J. had for years been smuggling substances containing precious metals into Estonia; samples of the substances had been analysed in R.’s laboratory. No decision was made in respect of the items seized from R. On appeal, J.’s counsel L. did not make reference to these items. 27.     On 14 April 2004 the Viru Court of Appeal quashed the City Court’s judgment for insufficient reasoning. It noted, inter alia , that the anonymous witnesses had not been heard at the court hearing and that their statements had been of a general nature. It was also noted that the County Court should have indicated what to do with the physical evidence and other seized items. The case was remitted to the first-instance court for a new examination. 28.     In the meantime, on 11 March 2004, the applicant again enquired about the return of the items in question. On 15 April 2004 the police responded that these items were part of the physical evidence in the criminal case and that it was for the judge examining the matter to rule on the measures to be taken in respect of the evidence. 29.     At the Viru County Court hearing of 10 March 2009 the prosecutor requested discontinuance of the criminal proceedings in respect of M. and J. under Article 168-1 of the Code of Criminal Procedure ( Kriminaalmenetluse koodeks ) because of the lack of public interest. The defendants agreed. The prosecutor asked the court to confiscate the substances and metals seized from R.’s home and workplace. J.’s counsel L. thought that it would be better to leave the latter question open since the applicant could have claims in this respect. 30.     On 17 March 2009 the Viru County Court discontinued the proceedings as requested, finding that there was no public interest in continuing the proceedings. It ordered M. and J. to pay the court costs and certain additional lump sums to the State. A separate decision was to be made in respect of the physical evidence found at R.’s home and workplace. 31.     On 24 March 2009 the Viru County Court ordered the confiscation of the substances containing precious metals and the pure precious metals in question. It relied on Article 63 (3) of the Code of Criminal Procedure, under which property received as a result of a criminal offence and whose legal owner could not be established was to be transferred to the State. It gave the following reasons for the confiscation: “The court, having examined the evidence in the criminal case, finds that the materials containing precious metals and the pure precious metals which were found at [R.’s] home and workplace and which are held in the police depository must be confiscated and transferred to the State.” A copy of the decision was sent to the applicant. 32.     On 31 March 2009 the Viru County Court amended its order of 24   March 2009 by providing an exact list of the substances and items to be confiscated. 33.     The applicant, represented by counsel L., lodged an appeal against the County Court decision of 24 March 2009. She argued that the decision contained no reasoning. It had not been established that the substances found at R.’s home and workplace had been obtained through crime. Nor had it been established that the identity of their legal owner had not been ascertained. It had only been clear that R. had been in possession of the property in question. She also complained that the court had made a decision about her rights in written proceedings without inviting her to take part in the proceedings or hearing her, and that she had only received the County Court’s decision by post. She asserted that she was R.’s widow and heir, together with their two sons. The applicant requested that the County Court’s decision be annulled and the case remitted for re-examination to the County Court. 34.     The Viru Circuit Prosecutor’s Office in its reply to the applicant’s appeal submitted that the applicant was not a party to the proceedings and therefore her appeal had to be dismissed. If she considered herself to be the legal owner of the property, Article 62 § 8-1 of the Code of Criminal Procedure applied, under which in cases of seized property whose legal owner could not be identified, the legal owner whose identity was established later had the right to reclaim the amounts received from the sale of the seized property from the State. 35.     On 25 May 2009 the Tartu Court of Appeal, in written proceedings, dismissed the appeal. It noted that the applicant was not a party to the proceedings. She had been questioned on 10 October 2001 as a witness (see paragraph 23 above). The County Court had had no obligation to involve her in the determination of what should happen to physical evidence. However, since the applicant’s rights had allegedly been violated by the confiscation of the property in question, the Court of Appeal decided to examine her appeal. 36.     The Court of Appeal stated as follows: “The Court of Appeal finds, on the basis of the evidence in the criminal case, that the items found at [R.’s] home and workplace that were declared physical evidence constitute property obtained through crime, and that the identity of the lawful owner thereof has not been established. On the basis of the material of the criminal case there were sufficient grounds to believe that [R.] had been involved in smuggling; for that reason his home was searched on 11 March 2001 and eighteen items were seized (vol. 2 pp. 147-49). On 12   March 2001 his workplace was searched and thirty-four items were seized (vol. 2 pp. 151-53). Some of the seized items were declared to be evidence and were inspected (vol. 2 pp. 154-73). A chemical expert examination was carried out in respect of the physical evidence (vol. 2 pp. 174-78). The Court of Appeal notes that the list provided in the County Court’s ... decision of 31 March 2009 corresponds to the list provided in the decision of 9 April 2001 concerning the evidence (vol. 2 p.   154). The criminal proceedings under Article 175 § 1, Article 17 § 6 and Article 76 §   3   (2), and Article 152-3 § 3 of the Criminal Code in respect of [R.] were discontinued on 9 April 2001 because of his death (he died on 17 March 2001). No appeal was lodged against that decision. According to the decision concerning the discontinuance of the criminal proceedings (vol. 2 pp. 191-92) the precious metals and substances containing precious metals that had been declared evidence had been obtained through crime (Article 152-3 § 3 of the Criminal Code) and the identity of their legal owner had not been established. Proceeding on the basis of the above, an investigator requested confiscation of these items of physical evidence on 25 July 2002, because it was property obtained through crime. In the [investigator’s] request (vol. 3 pp. 41-42) evidence was set out demonstrating that the property had been obtained through crime. The evidence included, inter alia , statements by witness [K.] (vol. 2 pp. 188-90) and [the applicant] (vol. 2 p. 185). The Court of Appeal notes that [the applicant], in whose interests the present appeal was lodged, was interviewed as a witness on 10 October 2001. It follows from that interview that she knew nothing about the items that had been seized during the search of 11 March 2001. She did not know the origin of the items. She knew that they had been obtained by [R.], who had placed his money in precious metals. In respect of the diamonds she could say nothing; these had also been obtained by [R.]. As can be seen from the above, [the applicant] has not declared that also she had title to some of the items declared as evidence or that they had belonged to [her and R.] as common property. Since it had been established that the property had been obtained through crime, it had to be confiscated, which was ordered by the County Court decision of 24 March 2009.” 37.     On 14 April 2010 the police submitted to the assay office of the company Metrosert Estonia the substances containing precious metals, as well as the pure precious metals, confiscated by the court rulings in the criminal proceedings at hand. The list also includes substances and precious metals confiscated from R. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Relevant domestic law 38.     The relevant provisions of the Criminal Code ( Kriminaalkoodeks ), as in force until 31 August 2002, provided as follows: Article 33 – Confiscation ( erikonfiskeerimine ) “(1)     The court may apply confiscation ( erikonfiskeerimine ) of the means or objects used for the commission of a criminal offence, as well as of property obtained through crime.” Article 76 – Smuggling “(1)     Smuggling, that is illegal transfer across the customs frontier of goods or other value in a significant amount which are subject to customs control, by hiding them from customs control or avoiding customs control or by any other fraudulent means, shall be punished by a fine or detention or up to three years’ imprisonment. (2)     Smuggling of prohibited goods or other value, or goods or value requiring special permit  radioactive or explosive materials, narcotic or psychotropic substances or their precursors, non-narcotic medicines or poisonous substances, strategic goods, firearms or ammunition – shall be punished by one to six years’ imprisonment. (3)     The activity mentioned in paragraphs 1 and 2 of this Article if carried out: 1.     by an official misusing their position, or 2.     by a group of people  shall be punished by three to eight years’ imprisonment.” Article 152-3 – Violation of the rules for purchase, export, re-export or trading of metals “(3)     Violation of the rules for purchase, export, re-export or trading of ferrous or non-ferrous metal or scrap metal on a large scale shall be punished by one to five years’ imprisonment.” Article 175 – False statement, false opinion or false translation “(1)     Making a knowingly false statement by a witness or victim, or giving a knowingly false expert opinion by an expert, as well as a false translation or interpretation by a translator or interpreter either in court or during pre-trial investigation, if those concerned have been informed of the penalties for such activity, shall be punished by a fine or detention or up to one year’s imprisonment.” 39.     The relevant part of the Penal Code ( Karistusseadustik ), which entered into force on 1 September 2002, in the wording in force since 1   February 2007, provided as follows: Article 83-1 Confiscation ( konfiskeerimine ) of assets acquired through offence “(1)     A court shall confiscate ( konfiskeerib ) assets acquired through an intentional offence if these belong to the offender at the time of the making of the judgment or decision. (2)     As an exception, a court shall confiscate the assets specified in paragraph 1 of this Article if these belong to a third person at the time of the making of the judgment or decision, and if: 1.     these were acquired, completely or in substance, on account of the actions of the offender, as a gift or in any other manner for a price which is considerably lower than the normal market price, or 2.     the third person knew that that the assets were transferred to him or her in order to avoid confiscation. (3)     The court may decide not to confiscate, in part or in full, property acquired through crime if, taking account of the circumstances of the offence or the situation of the person, confiscation would be unreasonably burdensome or if the value of the assets is disproportionably small in comparison to the costs of storage, transfer or destruction of the property. The court may, for the purpose of satisfaction of a civil action, decrease the amount of the property or assets to be confiscated by the amount of the object of the action.” Article 85 – Effect of confiscation “(1)     Confiscated objects shall be transferred into State ownership or, in cases which fall under an international agreement, shall be returned. (2)     In the case of confiscation, the rights of third persons remain in force. The State shall pay compensation to third persons, except in the cases provided for in Article 83 §§ 3 and 4, Article 83-1 § 2 and Article 83-2 § 2 of this Code.” 40.     The relevant provisions of the Code of Criminal Procedure ( Kriminaalmenetluse koodeks ), as in force until 30 June 2004, provided as follows: Article 5 – Issues preventing conduct of proceedings in criminal matters “(1)     Criminal proceedings shall not be commenced, and criminal proceedings shall be terminated ... 8.     upon the death of the person, except if it is necessary to conduct proceedings in a criminal matter for the rehabilitation of the deceased person, or upon detection of new facts, for the resumption of criminal proceedings with regard to another person;” Article 62 – Inspection and storage of physical evidence and application of other   measures with regard to physical evidence “(8)     Confiscation ( erikonfiskeerimine ) by a decision of a judge during criminal proceedings may be applied with regard to property subject to confiscation which was declared as physical evidence, or with regard to property which was received as a result of a criminal offence ( kuriteo läbi saadud vara ) and the legal owner of which cannot be identified. (8-1)     In the case of property confiscated by a court judgment or by a decision of a judge and of which the legal owner cannot be identified, the legal owner of that property who is identified later has the right to reclaim the amounts received from the sale of the confiscated property from the State, after the costs of storage, forwarding, investigation and sale of the property have been deducted. The amounts shall be returned by the Ministry of Finance following a written request from the entitled person with a certified transcript of the court ruling annexed thereto.” Article 63 – Measures applied with regard to physical evidence and confiscated ( erikonfiskeeritud ) property “Measures to be applied with regard to physical evidence and confiscated ( erikonfiskeeritud ) property shall be indicated in an order by an investigator or by a decision of a judge or in a court judgment, and ... 3.     property received as a result of a criminal offence ( kuriteo läbi saadud vara ), the legal owner of which cannot be identified, shall be transferred to the State .. 7.     the remaining objects or substances the ownership of which is not disputable shall be transferred to its legal owners.” 41.     The relevant provisions of the Code of Criminal Procedure ( Kriminaalmenetluse koodeks ), as in force from 1 July 2004, provided as follows: Article 384 – Right to appeal against decisions “(1)     Parties to court proceedings and persons not participating in court proceedings have the right to appeal against a decision of a county court if the ruling restricts their rights or lawful interests.” 42.     Section 90 (1) of the Property Act ( Asjaõigusseadus ) stipulates that a possessor of movable property is deemed the owner of the thing during the possessor’s possession until the contrary is proved. Section 34 (2) of the Property Act provides that possession is deemed lawful until the contrary is proved. 43.     “Rules on the purchase of precious metals and precious stones and products made from them”, approved by Regulation No. 142 of 29 July 1994 of the Minister of Finance (valid until 20 September 2008) provided as follows: 1.     Definitions “The purchase from natural or legal persons of items made from precious metals that have been in use, scrap precious metals and individual precious stones which are destined for remelting, restoration or museums shall be deemed to be purchase of precious metals and precious stones. Precious metals are gold, platinum and the platinum group metals (palladium, rhodium, iridium, ruthenium, osmium). Precious stones are diamond, ruby, emerald, sapphire. Buying up of precious metals and precious stones is permitted only for legal persons who have a reception point registered with the Estonian Assay Office and who have an operating licence for the purchase of precious metals and precious stones and products containing them.” 44.     The “Procedure for the import and export of precious metals and precious stones and products made from them”, approved by Regulation No. 56 of 15 July 1999 of the Minister of Finance, as amended by Regulation No. 19 of 4 February 2000 of the Minister of Finance (valid until 30 June 2002), provided as follows: “4.     Legal persons or self-employed persons registered under the procedure applicable in Estonia may engage in the import and export of those goods... This point does not extend to: (1)     a single product carried or sent across the border for non-commercial purposes; (2)     inherited estate ... 5.     The person must hold an operating licence issued by the Ministry of Finance for the making, purchase and sale of items made of precious metals and precious stones or items containing them ... . 7.     Imported goods must be accompanied by documents proving their origin and quality as well as an entry declaration. The documents for proof of quality include a delivery note, certificate of materials, a certificate issued by the Estonian Assay Office or by a laboratory approved by it. The quality of the goods may also be attested to by a purity mark. Where there is a purity mark the accompanying documents of the goods need not contain information on the quality of the goods.” B.     Case-law of the Supreme Court 45.     In a decision of 30 April 2013 (case no. 3-1-2-3-12), the Supreme Court, sitting in plenary session, dealt with a case where confiscation in criminal proceedings of property allegedly belonging to a person not involved in criminal proceedings was at issue. The Supreme Court referred to Article 85 § 2 of the Penal Code, and stated that if property was confiscated from a person who had not been involved in the proceedings and who was allegedly the owner of the property but not the object of the decision to confiscate, the person did not lose ownership when the decision to confiscate entered into force, as in such a case ownership does not transfer to the State. Confiscation meant that property or other rights were transferred from one person (the object of the decision to confiscate) to another person (the State); it did not mean that the property was transferred to the State regardless of who had been its owner. The Supreme Court also noted that the object of a decision to confiscate had to be unequivocally clear in the operative part of the court ruling. 46.     A person claiming to be the actual owner of the confiscated property who was not the object of the decision to confiscate could assert his ownership under the Property Act in civil proceedings, or claim compensation for the loss of the property in administrative court proceedings. If the person had been involved as a third party in criminal proceedings as a potential owner but his claim of ownership proved unfounded in the criminal proceedings, the decision made in the criminal proceedings was binding on him and the above-mentioned civil and administrative law remedies could not be called upon by him. III.     RELEVANT INTERNATIONAL INSTRUMENTS 47.     Pursuant to the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (CETS No.   141), the parties undertake to adopt such legislative and other measures as may be necessary to enable them to confiscate instrumentalities and proceeds, that is any economic advantage from criminal offences, or property the value of which corresponds to such proceeds. This Convention entered into force in respect of Estonia on 1 September 2000. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE COMPLAINTS CONCERNING ACCESS TO COURT AND FAIRNESS OF THE PROCEEDINGS 48.     The applicant complained that her right of access to court had been violated. In substance she also complained that the confiscation proceedings had not been fair. The Court will examine this complaint under Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 49.     The Government contested that argument. A.     Admissibility 1.     The parties’ submissions (a)     The Government 50.     The Government argued that Article 6 § 1 of the Convention under its civil head was not applicable to the impugned criminal proceedings as far as the applicant was concerned. The applicant was not a party to these criminal proceedings. The Government noted that for the first time a court decided the issue of the property in question in the decision of 24 March 2009, which was sent to the applicant and could be contested by her as a person not party to the proceedings. Until that time the issue of the items seized from R. had not been discussed in the criminal case. The Government considered that the fact that the applicant had sent letters to the investigator had not made her a party to the proceedings or brought about the applicability of Article 6 § 1 of the Convention in respect of the applicant in criminal proceedings where her civil rights were not factually determined. 51.     The Government considered that the applicability of Article 6 § 1 under its civil head to the proceedings from the date of the County Court’s decision of 24 March 2009 until that of the Court of Appeal’s decision of 25   May 2009 was disputable. The applicant had appealed against the County Court’s decision but had failed to do so in an appropriate and effective manner; she had not presented any explanations or evidence concerning the acquisition and ownership of the items. Therefore, it could be claimed that Article 6 did not apply to the appeal proceedings, as this appeal did not indicate a “dispute of a genuine and serious nature”. 52.     The Government further argued that the applicant had not exhausted domestic remedies. 53.     Firstly, the applicant had not contested the decision of 9 April 2001 on the discontinuance of the criminal proceedings in respect of R. The Government pointed out that the criminal proceedings had been discontinued because of R.’s death, not because of the absence of elements of a criminal offence. Considering the reference in the decision to the acts committed by R., it would have been possible to contest the decision and seek rehabilitation for him. Instead of doing so, the applicant had affirmed during a subsequent interview that she did not know anything about the seized items. The Government concluded that the seized substances and items had not been in the applicant’s possession or ownership at the time they were seized; since in the decision of 9 April 2001 it had been found that the items constituted property obtained through crime – in respect of which the question of ownership does not arise – the applicant could not later have acquired any rights to it unless she could prove its legal origin. 54.     Secondly, the applicant had failed to make effective use of her rights by appealing against the decision of 24 March 2009 within the criminal proceedings. In this connection, the Government argued that the applicant had not been the object of the decision to confiscate, and there had never been any grounds for her to be involved in the proceedings. At the same time, the applicant had made use of her right to appeal under Article 384 § 1 of the Code of Criminal Procedure, but had failed to do so effectively. L., who had acted as J.’s counsel from the beginning of the proceedings, had been aware that the applicant’s rights needed to be proved when deciding the issue of the items seized from R. However, he had not submitted any evidence for the protection of the applicant’s rights, neither before nor after the decision of 17 March 2009, nor after the decision of 24 March 2009. Considering that by appealing against the decision of 24 March 2009 the applicant for the first time had intervened in a criminal case to which she was not a party, she should have submitted documents in support of her claims together with the appeal. As this had not been done, the Government argued that the applicant had failed to exhaust legal remedies. 55.     Thirdly, under Article 85 § 2 of the Penal Code (previously Article   62 § 8-1 of the Code of Criminal Procedure) the applicant had had (and still had) the opportunity to submit a claim for the return of the confiscated property or a claim for damages against the state in a civil or administrative court. The prosecutor’s office, in its reply to the appeal against the decision of 24 March 2009, had also referred to that possibility, and this was confirmed by pertinent case-law under which the rights of third parties remained in force even after wrongful confiscation of property, and in such a case a person could reclaim the property from the State or obtain compensation. The Government added that the alleged owner should prove his or her right to the property. However, the applicant had not brought an action with a civil court or a complaint under Article 85 § 2 of the Penal Code. The Government considered that the possibility of bringing an action or an administrative complaint could not be considered an alternative right of appeal which need not to be exhausted – it constituted an additional guarantee to persons not parties to proceedings in situations where property legally belonging to them had been erroneously confiscated. Thus, it could not be claimed that in this case the applicant was not required to use any alternative remedies suggested by the Government. 56.     Fourthly, the Government submitted that when lodging an appeal against the Viru County Court’s decision of 24 March 2009 the applicant could have also submitted a claim of unconstitutionality if she had found that the right of complaint under Article 384 § 1 of the Code of Criminal Procedure, and the procedure for the handling of appeals against decisions, did not sufficiently ensure her rights. Such a claim could also have been made in administrative court proceedings had she believed that Article 85 §   2 of the Penal Code was not sufficient for the protection of her rights which she alleged had been violated. 57.     The Government concluded that the applicant had not exhausted domestic remedies and asked the Court to declare the application inadmissible on that ground. (b)     The applicant 58.     The applicant considered that Article 6 § 1 of the Convention was applicable to the confiscation proceedings since those proceedings determined property rights. 59.     In reply to the Government’s arguments on non-exhaustion, the applicant submitted the following. 60.     Firstly, as regards the Government’s argument that the decision of 9   April 2001 on the discontinuance of criminal proceedings in respect of R. had not been contested, the applicant noted that R. could not make such a request and the Government had not referred to any norms of procedure or case-law on the basis of which the next of kin of a deceased person would have been able to request the continuation of criminal proceedings for rehabilitation purposes. The applicant also noted that while in the decision in question it had been stated that R. could not have acquired the property, the decision had been made by the police and not by a competent court. Nor was the order sufficiently reasoned; it was only concluded on the basis of R.’s just one year’s income that he did not have the means to acquire the property. The applicant also contended that when interviewed by the police on 10 October 2001 she had affirmed that the items in question had belonged to her husband R. The applicant argued that the Government wished to reverse the burden of proof: in the applicant’s argument it was for the authorities to prove that the property seized from her husband had been acquired illegally; the applicant was not required to prove that it had been acquired legally. 61.     Secondly, the applicant disagreed with the Government’s argument that she had not made effective use of her right to appeal against the decision of 24 March 2009. According to the applicant, the Government again wished to reverse the burden of proof and ask the applicant to prove that the property in question had been obtained legally. She contended that as long as it had not been proved that the property had been acquired through crime, she had had no obligation to prove its legal origin. This position had been advanced in the applicant’s appeal against the decision: her counsel had argued that the decision lacked reasoning as to why the seized property had been acquired through crime, and why in the opinion of the court the identity of its owner remained unknown. Presentation of proof concerning the legal ownership might have been relevant in compensation proceedings; however, in confiscation proceedings it had been for the authorities to prove that the property had not been acquired legally or that it had not been owned by the applicant’s late husband. It was reasonable for the applicant to expect that the question of the return of the property would be decided in the course of the criminal proceedings and in accordance with Convention principles, without the applicant being required to initiate any separate proceedings. 62.     Thirdly, in respect of the Government’s argument that the applicant should have brought a claim for the return of the property to a civil or administrative court, the applicant referred to the Supreme Court’s decision of 30 April 2013, which held that Article 85 of the Penal Code protected the rights of owners of property who were not involved in criminal proceedings. In the present case the applicant had been able to file a request and subsequently an appeal in the criminal proceedings in which the property had been confiscated. She did not need to prove her ownership of the property, since it had been taken from her home and garage and had evidently belonged to her husband, and later to her through inheritance. The applicant insisted that she did not need to try more than one avenue of redress. 63.     Fourthly, in respect of the Government’s argument that she could have raised the issue of unconstitutionality, the applicant claimed that there was no individual right of constitutional appeal in Estonia, and that the Supreme Court had consistently refused to decide upon individual constitutional complaints. 2.     The Court’s assessment 64.     As regards the question of applicability of Article 6 § 1 of the Convention, the Court considers that the seizure and confiscation of the property of the applicant’s late husband had adversely affected the property rights of the applicant, who was one of his heirs along with their children. Property rights being civil rights within the meaning of Article 6 § 1 of the Convention, that provision was applicable under its civil head and the applicant was consequently entitled to have the dispute over her civil right determined by a tribunal. Therefore, the Government’s objection must be dismissed (see, for example, Silickienė v. Lithuania , no. 20496/02, §§   45 ‑ 46, 10 April 2012, and Yildirim v. Italy (dec.), no. 38602/02, ECHR   2003-IV). 65.     In relation to the Government’s plea of non-exhaustion, the Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, inter alia , Civet v.   France [GC], no. 29340/95, § 41, ECHR 1999 ‑ VI). Whereas Article 35 §   1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It normally also requires that complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France , 19 March 1991, § 34, Series A no. 200; Elçi and Others v. Turkey , nos.   23145/93 and 25091/94, §§ 604 and 605, 13   November 2003; Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010; and, more recently, Vučković and Others v. Serbia [GC], no. 17153/11, § 72, 25 March 2014). 66.     The Court notes that in the present case the Government raised four arguments related to the alleged non-exhaustion of domestic remedies by the applicant. The Court will address these in turn. 67.     Firstly, as regards the argument that the decision of 9 April 2001 was not challenged, the Court observes that the decision in question mainly concerned the discontinuance of criminal proceedings against R. because of his death. R. cannot be said to have been proved guilty according to law by this decision taken by the police. Thus, it is questionable what purpose it would have served for the applica