CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 17 décembre 2019

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She was represented before the Court by Mr L. Glikman, a lawyer practising in Tallinn. 2.     The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. 3.     The applicant complained that she had been denied access to a court, within the meaning of Article 6 § 1 of the Convention, to assert her ownership rights over property which had been confiscated in criminal proceedings. 4.     On 12 June 2018 notice of the applicant’s complaint under Article 6 §   1 was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The circumstances of the case Criminal proceedings and confiscation order 5.     The facts of the case, as submitted by the parties, may be summarised as follows. 6.     On 16 June 2009 the applicant began renting a safety deposit box from a bank. The contract provided that, in addition to the applicant herself, her daughter, L.K., was also authorised to use the box. 7.     On 2 September 2015 A.K., L.K.’s partner, was detained as a suspect in a criminal case. On the same day the safety deposit box was searched and L.K., who had been included in the proceedings as a third party, was interviewed. She stated, among other things, that the contract with the bank was in the name of her mother, who lived in Finland, that the box was used by her family, and that some of the cash stored there belonged to her parents. 8 .     On 5 October 2015 the Harju County Court issued an interim seizure order in respect of the cash (28,530 euros (EUR) and 200 United States dollars (USD)) found in the safety deposit box, with a view to making an extended third-party confiscation order under Article 83-2 § 2 of the Penal Code ( Karistusseadustik ). The applicant was not named in the order, nor was it served on her. An appeal by L.K. against the order was dismissed on 2 November 2015 by the Tallinn Court of Appeal, which considered her statement that some of the money (EUR 3,000) found in the safety deposit box belonged to her mother to be merely declaratory. No appeal on points of law was lodged. 9.     On 10 February 2016 L.K., as a third party, consented to the confiscation of the cash found in the safety deposit box and to the conclusion of a plea bargain agreement with A.K. 10 .     On 7 March 2016 the Harju County Court convicted A.K. in plea bargain proceedings. The judgment stated that the cash found in the safety deposit box was to be confiscated from L.K. under Article 83-2 § 2 of the Penal Code. The judgment entered into force on 29 March 2016. The applicant was not named in the judgment, nor was it served on her. Subsequent proceedings (a)    Proceedings brought by the applicant before applying to the Court (i)   Court proceedings 11 .     On 21 June 2016 the applicant brought three separate actions regarding the seizure and subsequent confiscation of the cash found in the safety deposit box. 12.     Firstly, she challenged the interim seizure order of 5 October 2015 (see paragraph 8 above). By a decision of 30 June 2016 the Tallinn Court of Appeal refused to examine the appeal as the order had not been made against her. It also held that she could have protected her rights in civil proceedings. The court referred to judgment no. 3-1-1-94-13 of the Supreme Court (see paragraph 31 below), according to which a person not subject to a seizure order, but whose property had been seized nevertheless, could apply for the property to be released via the civil courts. The Tallinn Court of Appeal further noted that by the time its decision had been given, the cash in question had already been confiscated following the decision to convict A.K. It added that in a situation where the judgment in criminal proceedings had become final, submitting a petition for review ( teistmisavaldus ) was the only way to decide whether the proceedings should be reopened. The Supreme Court refused to examine the applicant’s appeal. 13.     Secondly, the applicant submitted a petition for review to the Supreme Court concerning the Harju County Court’s order of 5 October 2015, the Tallinn Court of Appeal’s decision of 2 November 2015 and the Harju County Court’s judgment of 7 March 2016. In addition, she requested that Article 366 and Article 367 § 1 of the Code of Criminal Procedure ( Kriminaalmenetluse seadustik , hereinafter “the CCrP”) be declared unconstitutional in so far as they did not grant persons whose property had been confiscated the right to lodge a petition for review without them being included in the proceedings. On 26 September 2016 the Supreme Court refused to examine the petition. Referring to Article 344 § 3 and Article 367 § 1 of the CCrP, it held that persons who could lodge a petition for review included those from whom assets had been confiscated by a court judgment, but who had not been properly included in the criminal proceedings. It then stated that the applicant did not fall into that category. 14 .     Thirdly, the applicant lodged an appeal against investigative activities ( uurimiskaebemenetlus ) under Article 228 of the CCrP. She complained that she had not been included in the proceedings as a third party. The prosecutor’s office initially refused to examine the appeal as it had been lodged out of time, but on appeal the Office of the Prosecutor General decided that the appeal should instead be rejected. It held that an appeal against investigative activities could only be lodged while pre-trial proceedings were ongoing. As the pre-trial proceedings had already ended by that time, the preliminary investigation judge ( eeluurimiskohtunik ) could no longer resolve the matter raised by the applicant or annul the decision of the trial court. The applicant appealed. The Harju County Court, by a decision of 27 September 2016, rejected the appeal, essentially reiterating the reasoning of the Office of the Prosecutor General. The court also referred to Article 85 § 2 of the Penal Code and judgment no. 3-1-2-3-12 of the Supreme Court (see paragraphs 28 and 33 below), stating that confiscation did not affect the rights of third parties. It explained that the “third parties” referred to in Article 85 § 2 of the Penal Code were those not subject to the order by which assets were confiscated. In the case at hand, the applicant had not been the person against whom the Harju County Court’s judgment of 7 March 2016 had been made, and could thus be considered a “third party” in the sense of Article 85 § 2 of the Penal Code. It further clarified that confiscating the cash from L.K. had not terminated the applicant’s ownership rights ( omandiõigus ), and that ownership had not transferred from the applicant to the State. Hence the applicant, if she was indeed the owner of the confiscated cash, had a claim against the State and could assert her ownership rights by way of general procedure ( üldises korras maksma panema ). (ii)   Application to the Chancellor of Justice 15.     On 6 February 2017 the applicant asked the Chancellor of Justice to initiate constitutional review proceedings with respect to, inter alia , Article 366 of the CCrP, which did not enable persons who had not been included in the criminal proceedings which had resulted in their property being confiscated to request the reopening of the proceedings. 16 .     The Chancellor of Justice did not find the provision in question to be unconstitutional. She explained in a reply dated 13 April 2017 that despite the requirement to include third parties (whose rights might be affected) in criminal proceedings, there could still be occasions where such persons were not included. However, a confiscation order only had legal consequences for the person subject to the order. The rights of third parties, that is to say those not named in the order, were not affected. In that regard, two situations had to be distinguished. Firstly, there were situations where a confiscation order was made against someone who had been properly included in the proceedings, but where in reality property belonging to another person had been confiscated. This was the situation with the applicant. In such circumstances, the person concerned could claim the property back or seek compensation under Article 85 § 2 of the Penal Code. Secondly, there were situations where a confiscation order was made against someone who had not been included in the proceedings. Article 366 § 10 had been inserted in the CCrP on 1 July 2016 to cover such situations. It provided that persons whose assets had been confiscated (that is to say those against whom a confiscation order had been made) but who had not been included in the proceedings had the right to submit a petition for review. The Chancellor of Justice further explained the preconditions for filing a compensation claim under Article 85 § 2 of the Penal Code, stating that such claims had to be lodged with the administrative courts. (b)    Proceedings brought by the applicant after applying to the Court 17.     On 26 February 2018 the applicant lodged a claim with the Harju Administrative Court, seeking compensation in the sum of EUR 28,705.98 for not being included in the criminal proceedings which had resulted in the confiscation of her assets. She relied on Article 85 § 2 of the Penal Code, arguing that in accordance with the Supreme Court’s judgment in case no. 3-2-1-3-12 the dispute fell within the jurisdiction of the administrative courts. 18.     On 18 April 2018 the Harju Administrative Court refused to examine the claim and returned it. It explained that since 1 May 2015, when the Compensation for Damage Caused in Offence Proceedings Act ( Süüteomenetluses tekitatud kahju hüvitamise seadus ) had entered into force, the competent courts to adjudicate the applicant’s claim had been the county courts. The applicant appealed. 19.     On 24 May 2018 the Tallinn Court of Appeal rejected the applicant’s appeal. The applicant appealed to the Supreme Court. 20 .     On 8 October 2018 the Supreme Court rejected the applicant’s appeal. It explained that the legislature had intended matters concerning compensation for damage arising out of offence (that is, criminal or misdemeanour) proceedings to be comprehensively regulated in the Compensation for Damage Caused in Offence Proceedings Act as of 1 May 2015. There was no indication that a procedure for the compensation for certain damage would lie outside that Act. This meant, among other things, that instead of the administrative courts, the courts of general jurisdiction ( üldkohus ) were competent to decide such claims. The Supreme Court admitted that the Act did not itself set out grounds for making a claim under Article 85 § 2 of the Penal Code. It considered, however, that the Act did not preclude relying on a substantive ground clearly laid down elsewhere in law, stating that Article 85 § 2 of the Penal Code constituted a special ground. The fact that a substantive ground for a claim was to be found outside the Act did not alter the procedure set out therein, which required all such claims to be lodged with the courts of general jurisdiction. As the applicant had not been included in the criminal proceedings in the relevant county court, the respective claim had to be lodged with the appellate court. 21.     On 15 October 2018 the applicant lodged a claim with the Tallinn Court of Appeal and asked for the time-limit for lodging an appeal to be reset. On 23 October 2018 the court granted the request. It admitted that prior to the decision of the Supreme Court of 8 October 2018 it had been unclear whether or not the applicant’s claim would be decided under the Compensation for Damage Caused in Offence Proceedings Act. 22 .     On 28 November 2018 the Tallinn Court of Appeal allowed the applicant’s claim in part. The court considered that the prosecutor’s office had been aware during the criminal proceedings that the safety deposit box had been rented by the applicant. It could not be ruled out that the applicant had in reality used the safety deposit box. L.K. had also mentioned that some of the cash in the box had belonged to the applicant. The court held, referring to the Supreme Court’s judgment in case no. 3-1-2-3-12, that, under Article 40-1 § 1 of the CCrP, the body conducting criminal proceedings had to include in the proceedings anyone who could, with considerable probability ( arvestatava tõenäosusega ), be the owner of the assets to be confiscated. The court admitted that the failure to include the applicant in the proceedings as a third party had unjustifiably left her unable to explain the use and contents of the safety deposit box. The court proceeded to find that the applicant was a third party in the sense of Article 85 § 2 of the Penal Code and, after conducting a thorough analysis of the applicant’s financial situation over the years, concluded that EUR 2,200 found in the safety deposit box could have belonged to her. It ordered the State to compensate the applicant. 23.     The applicant appealed to the Supreme Court on 13 December 2018. On 16 April 2019 it refused to examine the appeal. Relevant domestic law and practice Relevant domestic law (a)    Code of Criminal Procedure 24.     Article 40-1 regulates the inclusion of third parties in criminal proceedings. Article 40-1 § 1, as in force before 1 July 2016, provided that the body conducting the proceedings could involve a third party if the rights or freedoms of that person could be adjudicated in the given proceedings. 25 .     Before 1 July 2016, Article 344 § 3 in conjunction with 367 § 1 provided that the prosecutor’s office, defence counsel (who had to be a lawyer ( advokaat )) and other parties to the proceedings, through a lawyer ( advokaat ), could submit a petition for review. 26 .     On 1 July 2016 certain amendments to the CCrP entered into force. Article 366 § 10 lists “confiscation of assets from a person who was not involved in the criminal proceedings” as an additional ground for review of criminal proceedings where a judgment has become final. Article 367 § 1 provides that, in addition to persons mentioned in Article 344 § 3 of the CCrP (see paragraph 25 above), those from whom assets were confiscated by a judgment, but who were not properly included in the criminal proceedings, also have the right to submit a petition for review. 27 .     Under Article 228 § 1, parties to criminal proceedings, as well as persons not party to proceedings, had the right, before the relevant statement of charges was prepared, to lodge an appeal with the prosecutor’s office against a procedural action or order of an investigating body if they believed that non-compliance with procedural requirements in the performance of the procedural action or in the preparation of the order had resulted in their rights being violated. Under Article 228 § 2, before the statement of charges was prepared, the same persons had the right to appeal to the Office of the Prosecutor General against an action or order of the prosecutor’s office. (b)    Penal Code 28 .     Article 83-2 § 2, as in force at the material time, laid down rules for the extended confiscation of assets from third parties. It stated that a court could, in exceptional circumstances, confiscate assets belonging to third parties at the time of the making of a judgment or decision if the assets had been acquired, in full or in substance, from the offender, as a gift, or in any other manner for a price considerably lower than the normal market price, or if the third party knew that the assets had been transferred to him or her in order to avoid confiscation. 29.     Article 85 § 1, as in force at the material time, provided that the confiscated objects were to be transferred into State ownership or, in the situations provided for in an international agreement, returned. However, the first sentence of Article 85 § 2 specified that in the event of confiscation, the rights of third parties remained in force. The second sentence added that the State had to pay compensation to third parties, except in the situations listed in Articles 83 §§ 3 and 4, 83-1 § 2 and 83-2 § 2. (c)    Explanatory notes to legislation amending the Code of Criminal Procedure 30 .     On 17 December 2015 Parliament ( Riigikogu ) introduced certain amendments to the CCrP (see paragraph 26 above). The President signed the amendments into law on 22 December 2015 and they entered into force on 1 July 2016. The explanatory notes to the relevant draft legislation amending the CCrP ( eelnõu seletuskiri ), available on the Parliament’s website, clarified that the aim of expanding the list of persons entitled to lodge a petition for review under Article 367 § 1 of the CCrP was to include persons whose property had been confiscated by a court judgment (that is, those against whom the confiscation order had been made), but who had not been included in the criminal proceedings. It was noted that such persons would otherwise have no opportunity to protect their rights since they were not the persons whose rights remained in force under Article 85 § 2 of the Penal Code and who could reclaim their property from the State or seek compensation. Relevant domestic case-law (a)    On challenging seizures 31 .     In judgment no. 3-1-1-94-13 of 31 October 2013 the Supreme Court addressed a situation where property – in this case a car – had been seized in criminal proceedings. Subsequently a person not named in the seizure order challenged the decision and claimed that the car belonged to him instead. The Supreme Court explained that seizure proceedings were not suitable for resolving possible ownership disputes. Accordingly, a seizure order concerned only the person against whom it was made and did not affect the rights of a person not subject to the order. Against that background, the man claiming that the car was his did not have the right to challenge the seizure. However, he did still have the right to request that the seized property be released. (b)    On challenging confiscation 32 .     In judgment no. 3-1-1-97-10 of 11 April 2011 the Supreme Court explained that, under the first sentence of Article 85 § 2 of the Penal Code, the rights of third parties remained in force in the event of confiscation. This meant, for example, that if an item not belonging to the person subject to the confiscation order was erroneously confiscated, the ownership of that item did not transfer to the State upon confiscation and, as a rule, the owner could reclaim the item from the State. If for some reason the item had not been preserved after confiscation, under the second sentence of Article 85   §   2 of the Penal Code, the owner had the right to claim compensation from the State. 33 .     In judgment no. 3-1-2-3-12 of 30 April 2013 the Supreme Court en banc assessed the admissibility of a petition for review lodged by a company which had not been involved in the criminal proceedings but whose property (a tank vehicle and trailer) had been confiscated. The court refused to examine the petition for review and refused to declare the absence of grounds to reopen the proceedings unconstitutional. The court found that the company could protect its rights by using the existing legal remedies. It explained that, under Article 85 § 2 of the Penal Code, a third party should be understood as a person not subject to a confiscation order. The person against whom such an order was made had to be clearly named in the operative part of the court judgment. Confiscation meant that ownership or other rights were transferred from one person (the person named in the decision to confiscate) to another (the State); it did not mean that property was transferred to the State regardless of who owned it. It transpired that, in accordance with Article 85 § 2 of the Penal Code, the confiscation order only had legal consequences for the person subject to the order. If the confiscated property belonged to someone not named in the confiscation order, the rights of that person remained in force and could be enforced in general proceedings by submitting a claim for recognition of ownership rights and reclamation of the item from unlawful possession ( vindikatsioonihagi ) or by claiming compensation. The court added that such claims, as they arose from public law relationships and the law did not provide any other procedure for resolving such claims, had to be lodged with the administrative courts. 34.     The Supreme Court further explained, with reference to Article 40-1 § 1 of the CCrP, that the body conducting the criminal proceedings should include in the proceedings everyone who could – with considerable probability – be considered the owner of the property to be confiscated. That way the question of ownership could be resolved in the framework of the criminal proceedings and would be binding on everyone involved. If someone had been included as a third party in criminal proceedings as a potential owner but his claim of ownership proved unfounded, the decision made was binding on him and he could not in any subsequent proceedings rely on the fact that he was the owner. However, if the body conducting the proceedings had to include in the proceedings absolutely everyone who claimed to be the owner of the property that was about to be confiscated, it could lead to procedural abuses and thus undermine the criminal proceedings. 35 .     In judgment no. 3-1-1-44-14 of 10 October 2014 the Supreme Court adjudicated a complaint by a third party who had not been involved in plea bargain proceedings as a result of which a vehicle assumed to belong to the accused had been confiscated. The third party claimed that the vehicle belonged to him instead and asked for the time-limit for lodging an appeal against the judgment to be reset. The Supreme Court held that there was no reason to reset the time-limit for appeal because the plea bargain agreement did not concern the rights of that third party. The Supreme Court reiterated the principle – expressed in the judgment in case no. 3-1-2-3-12 (see paragraph 33 above) – that a confiscation order did not concern the rights of a third party not subject to the order. The person could reclaim his vehicle from the State and, if the vehicle had already been transferred, claim compensation for damage under Article 85 § 2 of the Penal Code. Compensation could be claimed even if the body conducting the criminal proceedings was not aware and ought not to have been aware that the property to be confiscated did not belong to the person named in the planned confiscation order. The confiscation order did not have to be annulled for a compensation claim under Article 85 § 2 of the Penal Code to succeed. COMPLAINT 36.     The applicant complained under Article 6 § 1 of the Convention that she had not had an adequate opportunity to put her case to the domestic courts to prove her claim regarding the ownership of the cash found in the bank safety deposit box and challenge its confiscation. THE LAW Alleged violation of Article 6 § 1 37.     The applicant complained of a violation of Article 6 § 1, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” The parties’ submissions (a)    The Government 38.     The Government argued, firstly, that the applicant had abused the right of application as she had not informed the Court that after lodging her complaint with the Court she had initiated compensation proceedings under Article 85 § 2 of the Penal Code. She would have known about the need to do so as the Court had specifically asked the parties about the remedy of claiming compensation referred to in judgment no. 3-2-1-3-12 of the Supreme Court. 39.     Secondly, the Government submitted that the applicant had never been the victim of a violation of Article 6 § 1. As she was not the person against whom the judgment of 7 March 2016 had been made, the confiscation order had not terminated her alleged ownership rights. It was already evident from the Supreme Court’s judgment in case no. 3-2-1-3-12 that she had had a claim arising from Article 85 § 2 of the Penal Code. Since the aforementioned Supreme Court judgment, it had only been the jurisdiction of such claims which had shifted from the administrative courts to the courts adjudicating criminal matters following the entry into force of the Compensation for Damage Caused in Offence Proceedings Act. The applicant had had throughout access to a court to prove her claim regarding the ownership of the cash, and she had made use of that in the proceedings by which she had claimed compensation from the State under Article 85 § 2 of the Penal Code. The actual outcome of the compensation proceedings was irrelevant. 40.     Thirdly, the Government argued that the applicant’s complaint was manifestly ill-founded since, given the arguments above, her right of access to a court had clearly not been violated. They argued that it had been precisely the compensation proceedings under Article 85 § 2 of the Penal Code which had provided her with access to a court to prove her claim about the ownership of the confiscated cash. From the applicant’s perspective – and as it had been cash that had been confiscated – there had not been much difference between being included in the original criminal proceedings or lodging a claim for compensation in separate proceedings. Either way she had had to prove that the money belonged to her. 41.     Fourthly, the Government asserted that the applicant had not exhausted the available domestic remedies. One the one hand, the three actions brought by her on 21 June 2016 (see paragraphs 11 to 14 above) had had no prospects of success (either because they had been submitted out of time or because the confiscation order had not been made against her) and could thus not be interpreted as exhaustion of proper remedies. They specified that asking for the reopening of the proceedings would have been a proper remedy for someone subject to a confiscation order but who had not been included in the criminal proceedings. This had not been the case with the applicant. On the other hand, at the time of submitting the Government’s observations, the proceedings initiated by the applicant pursuant to Article 85 § 2 of the Penal Code – which could be considered an appropriate remedy – had still been pending. These proceedings had finished on 16 April 2019 when the Supreme Court had refused to examine the applicant’s appeal on points of law. (b)    The applicant 42.     The applicant stated that her rights under Article 6 § 1 of the Convention had been breached because she had not been included in the criminal proceedings as a result of which her property had been confiscated. 43 .     In her application to the Court, she maintained that the use of vindikatsioonihagi – reclamation of property from unlawful possession – was only possible in cases of non-monetary claims and had thus not been applicable in her case, which had concerned the confiscation of cash. Moreover, she claimed that lodging such a claim would have in any event been futile as no civil court could have overturned the confiscation order, which would still have been in force. 44.     In her observations submitted to the Court the applicant asserted that the proceedings initiated under Article 85 § 2 of the Penal Code had focused only on compensation for the violation of her ownership rights. They had not addressed the subject matter of the complaint submitted to the Court in the case at hand, that is to say the violation of her procedural right to be included in the criminal proceedings. Thus, the compensation proceedings had not rectified the violation of Article 6 § 1 of the Convention and had not been an effective remedy to be exhausted. Moreover, as the compensation proceedings had not addressed the alleged violation of Article 6 § 1, she had had no obligation to notify the Court of them. 45.     The applicant considered that by lodging the three separate actions on 21 June 2016 she had exhausted the domestic remedies which could have rectified the violation. She remained a victim of a violation of Article 6 § 1 even after her compensation claim had been allowed, and her complaint was thus not ill-founded. The Court’s assessment 46.     The Court notes that the Government has raised preliminary objections to the admissibility of the applicant’s complaints concerning the abuse of the right of application, the applicant’s victim status and the complaint being inadmissible due to non-exhaustion of domestic remedies. The Court finds that it is not necessary to examine these grounds of inadmissibility since the applicant’s complaints are in any event inadmissible as manifestly ill-founded. 47.     For the sake of comprehensiveness, the Court finds it necessary to firstly address the remedies that the applicant made use of before lodging her application with the Court. The Court will then turn to assessing the remedy under Article 85 § 2 of the Penal Code, the use of which resulted in having part of the confiscated cash being returned to the applicant. (i)   Remedies used by the applicant before lodging an application 48.     The Court observes that the applicant attempted to use different remedies after finding out about the confiscation. In that connection, the Court reiterates that the obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances (see Vučković and Others , cited above, §§ 71 and 74, and Balogh v. Hungary , no. 47940/99, § 30, 20   July 2004). When making use of the domestic remedies, applicants must comply with the requirements and time-limits laid down in domestic law (see Vučković and Others , cited above, § 72). 49.     For the reasons discussed below, the Court agrees with the Government that the remedies that the applicant unsuccessfully tried to make use of before lodging an application with the Court could not, considering the timeframe of events and the specific circumstances of her case, be considered effective within the meaning of Article 35 § 1 of the Convention. 50.     Firstly, assuming that an appeal against investigative activities could have potentially led to the applicant being included in the impugned criminal proceedings, it was clear that under domestic law such an appeal could only be lodged while the pre-trial proceedings were ongoing (see paragraph 27 above). The applicant lodged it after the conviction of A.K. had become final and thus not within the time-limit laid down in domestic law. 51.     Secondly, the Tallinn Court of Appeal refused to examine the applicant’s appeal against the seizure order of 5 October 2015, explaining that as the order had not been made against her, she did not have the right to appeal. Instead, she should have used a different remedy in accordance with the civil court procedure. However, the court noted that by that time the money had not only been seized, it had already been confiscated by a judgment which had become final. In the light of the above, the Court concludes that although under domestic law it appears, in principle, to have been open for the applicant to challenge the seizure of her property, she should have used a different procedure to the one used. In any event, the Court doubts whether a different claim would have been effective in the specific circumstances of her case, considering that by the relevant point in time the confiscation had already become final. 52.     Thirdly, the applicant submitted a petition for review in respect of two decisions and a judgment which had become res judicata . Her aim was to have the criminal proceedings, particularly the part concerning confiscation, reopened. The Court reiterates in this connection that the Convention does not guarantee a right to reopen proceedings in a particular case, nor is an applicant normally required to avail himself or herself of an extraordinary remedy for the purposes of the exhaustion rule under Article   35 § 1 (see Coniac v. Romania , no. 4941/07, § 36, 6 October 2015, and Kiiskinen v. Finland (dec.) no. 26323/95, ECHR 1999-V). However, given the specific circumstances of the present case, the Court considers that these proceedings call for closer analysis. 53.     The Supreme Court refused to examine the petition on 26 September 2016 on the grounds that the domestic law did not grant someone in the applicant’s situation the right to request the reopening of the proceedings. In that connection, the Court points out that the Supreme Court referred to Article 367 § 1 of the CCrP, which, as of 1 July 2016, granted persons from whom assets had been confiscated by a judgment, but who had not been properly included in the criminal proceedings, the right to lodge a petition for review. Although the Supreme Court did not explain further how it had reached such a conclusion, it appears from the explanatory notes to the draft legislation amending the CCrP that that outcome was in accordance with the intention of the legislature. It is clear from the explanatory notes that the aim of the legislature was not to give the right to lodge a petition for review to persons in the applicant’s situation, but rather to those subject to a confiscation order who had not been included in the relevant criminal proceedings (see paragraph 30 above). In contrast, the explanatory notes clarified that persons in the applicant’s position had a remedy under Article 85 § 2 of the Penal Code. The same was reiterated in the Chancellor of Justice’s response to the applicant (see paragraph 16 above). 54.     It is to be noted that the applicant lodged a petition for review on 21   June 2016, that is, after the above-mentioned amendments had been adopted and signed into law, but before they entered into force (see paragraph 26 above). As the law stood at that time, it was clear from the earlier Supreme Court’s case-law (see paragraph 33 above) that in the applicant’s circumstances a petition for review would not be allowed. It appears that the applicant herself also acknowledged that, as she submitted a request to institute constitutional review proceedings together with a petition for review. 55.     The Court also observes that the Tallinn Court of Appeal made reference in its decision of 30 June 2016 to the possibility of submitting a petition for review (see paragraph 31 above). The Court considers, however, that this was a general reference, not a specific instruction to the applicant as to what remedy she should use in the circumstances of her case. In any event, this decision was given after she had already submitted a petition for review to the Supreme Court and could thus – even if seen as a procedural instruction – not have affected her decision to do so. 56.     In the light of the analysis above, the Court concludes that although the applicant attempted to make use of three different remedies, none of them were actually available to her, given the circumstances of her case and the time-limits laid down in domestic law. The domestic law, as interpreted by the Supreme Court with respect to the possibility of reopening proceedings (see paragraph 31 above), did not leave any doubt in that regard. The Court, accordingly, concludes that the remedies that the applicant attempted to make use of had no prospects of success and thus cannot be considered to have been “effective remedies” to be used with the aim of exhausting domestic remedies under Article 35 § 1 of the Convention. (ii)   Whether an effective remedy existed 57.     The Court notes that the key reason why the applicant could not challenge the seizure order or lodge an appeal against investigative activities – regardless of whether these remedies would have granted her the outcome she sought – was precisely because she had not been included in the criminal proceedings against A.K. and could therefore not decide in time whether she would have liked to use those remedies. 58.     The question that accordingly arises is whether, in circumstances where the investigating authorities did not include a possibly affected third party in time, there was any remedy under the domestic law that could have afforded the applicant a chance to assert her right of ownership before the domestic courts. 59.     The Court finds that the answer is affirmative. It is clear from the settled case-law of the Supreme Court (see paragraphs 32 to 35 above) that the judgment by which the cash found in the safety deposit box was confiscated, but which was not made against the applicant, did not end her alleged ownership. In such circumstances, she had a remedy under Article   85 § 2 of the Penal Code to prove her claim regarding the ownership of the cash in question and claim compensation for it. The applicant would have been aware of that remedy before lodging her application with the Court as the Harju County Court specifically referred to it in its judgment of 27 September 2016 (see paragraph 14 above). The applicant herself also mentioned the remedy in her application (see paragraph 43 above). The Court observes that it was indeed unclear at the domestic level which courts had jurisdiction to adjudicate claims lodged under Article 85 § 2 of the Penal Code (see paragraphs 16, 20, and 33 above). However, the grounds for the existence of such a claim were never questioned. 60.     The Court considers it important to distinguish the present case from the cases of Rummi v. Estonia (no. 63362/09, 15 January 2015) and Veits v. Estonia (no. 12951/11, 15 January 2015). In these cases, the Government’s non-exhaustion objection with reference to the remedy under Article 85 § 2 of the Penal Code, as addressed in the Supreme Court’s judgment in case no. 3-1-2-3-12, was rejected. In both instances, the Supreme Court’s judgment, which was given in 2013, post-dated the facts and thus the Court doubted its relevance. In addition, in the case of Rummi (cited above) the Court found that the applicant, whose appeal against the confiscation order had been examined on the merits, had already pursued an effective and sufficient remedy and was thus not obliged to try another remedy. In the case of Veits (cited above) the Court noted that the factual and legal circumstances of that case were different from those in case no. 3-1-2-3-12 (see paragraph 33 above). Moreover, in the case of Veits the domestic courts had been fully aware that the property being confiscated belonged to the applicant in that case. 61.     Turning to the facts of the instant case, the Court notes that the applicant argued in her application that a vindikatsioonihagi (see paragraph 33 above) could not be considered effective in her case as it was designed for non-monetary claims. However, it is clear from the wording of Article 85 § 2 of the Penal Code and from the Supreme Court’s case-law that the remedy under that provision also includes a compensation claim in the event that it is impossible to reclaim the property from the State. The same was confirmed in the proceedings that the applicant initiated in the domestic courts after lodging her application with the Court. 62.     The Court notes that the core of the applicant’s complaint before the domestic authorities and courts was that, since she had not been included in the criminal proceedings, she had been deprived of the opportunity to prove that she was the owner of the cash found in the safety deposit box and could not challenge its confiscation. She repeated the same concern in her application to the Court. 63.     The Court acknowledges that the applicant’s inclusion in the criminal proceedings – had it been done – would have served the exact purpose of giving her the possibility to protect her alleged property. At the same time, the Court is unable to establish that her possible inclusion in the criminal proceedings had some other, self-standing purpose that could only have been served within the framework of the same criminal proceedings. Against that background, the Court is unable to agree with the applicant’s claim that the remedy under Article 85 § 2 of the Penal Code could not address or rectify the violation of her not being included in the criminal proceedings. Quite the contrary – in the proceedings lodged under that provision the Tallinn Court of Appeal conducted a thorough analysis of the applicant’s claim of ownership, determined that part of the money in the safety deposit box could indeed have belonged to her and ordered its compensation. In these proceedings, the court also admitted that the failure to include the applicant in the criminal proceedings had not been justified (see paragraph 22 above). The judgment of that court became final when the Supreme Court refused to examine the applicant’s appeal on points of law on 16 April 2019. 64.     Given the reasoning above, the Court considers that the domestic law provided the applicant with access to a court to assert her right of ownership and have the confiscated cash – in so far as it was proven to have belonged to her – returned to her. 65.     The Court accordingly considers that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 23 January 2020.   Stanley Naismith   Robert Spano   Registrar   President