CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 décembre 2012

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s85D2D43C { margin-top:0pt; margin-bottom:36pt; text-align:center } .s76CF415B { page-break-before:always; clear:both } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid }       FIRST SECTION Application no. 63362/09 Karol RUMMI against Estonia lodged on 22 November 2009 STATEMENT OF FACTS The applicant, Ms Karol Rummi, is an Estonian national, who was born in 1962 and lives in Harju County. She is represented before the Court by Mr   M. Susi. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is the widow of R. 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 on boarder and seized by the Estonian authorities. M. was arrested. J., a suspected organiser of the smuggling, fled to Russia. 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 according to which the value of the metals was lower. P. drew up another report, dated 6   March 2001, according to which the value of the seized metals was EEK   13,356 (EUR 854) which was below the limit of a “significant amount”. Smuggling of goods in less than a “significant amount” 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 of bribe, to an officer dealing with the matter. However, the intermediary was apprehended when handing over the money and the second expert opinion. 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 brilliants and eighteen silver-coloured spoons. On 11 March 2001 R. committed suicide in the detention facility. He was hospitalised in the stage of clinical death and died on 17 March 2001 in a hospital. In the case file there are two decisions of the police concerning the discontinuation of criminal proceedings in respect of R. In a decision of 27 March 2001 the above facts were described, including drawing up two expert opinions by R. It was concluded that he gave a knowingly false expert opinion and thereby committed an offence under Article 175 § 1 of the Criminal Code ( Kriminaalkoodeks ). The criminal proceedings in respect of him were terminated because of his death. In a decision of 9 April 2001, firstly, reference was also made to the commission by the applicant of the offence under Article 175 § 1 of the Criminal Code. Secondly, according to the decision, it had been established that since 1995 R. had given 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 accomplice (Article 17 § 6 and Article 76 § 3 (2) of the Criminal Code). Thirdly, items made of precious metals and a large amount of pure precious metals found from the applicant’s home and workplace (including 150 kilograms of silver granules, thirty-one silver bars, one kilogram of gold and five brilliants) indicated that R. had dealt with buying items made of precious metals from the population. Since R. had had no licence that was required for such activities, he had breached the pertinent regulations (Article 152-3 § 3 of the Criminal Code). On the basis of R.’s tax return for 2000, it was concluded that he could not have obtained such amount of precious metals by lawful means. Nor was his widow, the applicant, aware of the origin of the items in question. It was noted in the decision that since R. had committed suicide, it was not possible to obtain additional evidence for the establishment of his crimes. 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 in respect of R. because of his death. It was ordered that the precious metals and substances containing precious metals found from R.’s home and workplace were to be deposited in a police storage facility since their lawful possessor had hot been established and it was unclear to whom they belonged. On 10 May 2001 the applicant inquired from the police about the death of his husband, R., in the police custody, about the charges against him and about the return of items not being rare earth such as silver granules, brilliants, gold and silver bars that had been seized during the search. On 28 May 2001 the police responded that the return of the seized items would be decided by the officer in charge of the investigation after the clarification of their origin. On 20 January 2004 the Narva City Court convicted M. of attempted smuggling of prohibited goods. J. was convicted as accomplice. In the judgment, reference was made to statements of anonymous witnesses according to which J. had for years smuggled substances containing precious metals to Estonia; samples of the substances had been analysed in R.’s laboratory. 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 their statements had been of a general nature. The case was remitted to the first-instance court for a new examination. In the meantime, on 11 March 2004, the applicant again inquired about the return of the items in question. On 15 April 2004 the police responded that these items were part of physical evidence in the criminal case and it was for the judge examining the matter to rule on the measures to be taken in respect of the evidence. At the Viru County Court’s hearing of 10 March 2009 the prosecutor requested the 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 requested 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. 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 that M. and J. pay the court fees and certain additional lump sums into public revenues. A separate decision was to be made in respect of the evidence found from R.’s home and workplace. On 24 March 2009 the Viru County Court ordered the confiscation of the substances containing precious metals and pure precious metals in question. It relied on Article 63 (3) of the Code of Criminal Procedure according to which the property received as a result of a criminal offence, the legal possessor of which could not be established, was to be transferred into public revenues. 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. The applicant, represented by counsel L., filed an appeal against the County Court’s decision of 24 March 2009. She argued that the decision contained no reasoning. It had not been established that the substances found from R.’s home and workplace had been obtained through crime. Nor had it been established that their legal possessor had not been established. 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 she had only received the County Court’s decision by post. She asserted that she was R.’s widow and successor together with their two sons. 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 interrogated as witness on 10 October 2001. The County Court had had no obligation to invite a witness to the proceedings concerning the destiny of 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. The Court of Appeal considered that the items found from R.’s home and workplace constituted a property obtained through crime and that the lawful possessor thereof had not been established. Based on the materials of the criminal case there were sufficient grounds to think that R. had participated in smuggling. For that reason his workplace had been searched and the items in question had been seized. These items had been declared evidence; they had been examined and an expert opinion had been obtained. The criminal proceedings in respect of R. had been discontinued on 9 April 2001; no appeal against the pertinent decision had been lodged. According to that decision the items in question had been obtained through crime and their lawful possessor had not been established. Furthermore, on 25 July 2002 an investigator had requested confiscation of these items of physical evidence as property obtained through crime. The investigator had set out relevant evidence in this respect, including, inter alia , statements of witnesses K. and the applicant. The Court of Appeal noted that the applicant had stated as witness that she knew nothing about the seized items except that they had been obtained by R. who placed his funds into precious metals. The same applied to the brilliants. The Court of Appeal concluded that the applicant had not declared that she was the owner of any of the seized items of evidence or that they had formed her and R.’s common property. Since it had been established that the property in question had been obtained through crime, its confiscation had been lawful. COMPLAINTS The applicant complains under Article 6 § 1 of the Convention that her right of access to court was violated. She further complains about a violation of Article 1 of Protocol No. 1 to the Convention arguing that she was deprived of the possessions which had belonged to her husband and which would have become her possessions through succession. Lastly, she complains under Article 6 § 1 and Article 13 of the Convention that the length of the proceedings in which her civil right was determined was excessive and that there was no effective remedy in this respect.     QUESTIONS TO THE PARTIES 1.     Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case? Did the applicant have an effective access to court in accordance with Article 6 § 1 of the Convention? Did the applicant have a fair hearing in the determination of her civil rights, in accordance with Article 6 § 1 of the Convention? Did she have a possibility to effectively participate in the proceedings? Was the Viru County Court’s decision of 24 March 2009 sufficiently reasoned? Was the fact that the applicant’s civil rights were determined in written proceedings compatible with Article 6 § 1?   2.     Was the length of the proceedings in which the applicant’s civil rights were determined in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?   3.     Did the applicant have at her disposal an effective domestic remedy for her length-of-proceedings complaint under Article 6 § 1, as required by Article 13 of the Convention?   4.     Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No.   1? If so, was that interference necessary to control the use of property in accordance with the general interest? By which decisions and on the basis of which evidence was it established that the property in question was obtained through crime and that its lawful possessor had not been established? What steps were undertaken by the authorities to establish the lawful possessor or owner of the property?