CASE OF VEITS v. ESTONIA
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)
Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1990 and lives in Tallinn. 6. In 1995 the applicant’s grandmother N. privatised (bought on favourable terms from the public authorities) an apartment at 9 Mahtra Street in Tallinn. In 1996 she gave the apartment to the applicant, who was represented by her mother V. in the transaction. 7. On 21 April 2003 Zh. signed a power of attorney, witnessed by a notary, whereby he authorised N. to sell his apartment at 33 Punane Street in Tallinn. On 20 May 2003 N., acting on behalf of Zh., sold the apartment to her daughter V. For Zh., N. bought an apartment in the countryside worth about a twentieth of the value of the apartment at Punane Street. 8. It appears that on 7 August 2003 V. asked the social security service of the local municipality to approve the sale of the then thirteen-year-old applicant’s apartment at 9 Mahtra Street. She submitted that she had bought another apartment at 33 Punane Street by means of a loan. She wished to pay back the loan with the money to be received from the sale of her daughter’s apartment and give the newly acquired apartment to her daughter. It appears that the approval was granted by the social security service and the apartment at Mahtra Street was sold. On 28 October 2003 V. gave the apartment at Punane Street to the applicant, while V. herself acted as the applicant’s legal representative in the transaction. 9. On different dates several sets of criminal investigations into the circumstances of the sale of several apartments by various persons, including Zh., were initiated. The persons concerned had sold their apartments in Tallinn and in some cases acquired cheaper apartments in rural areas. For various reasons, such as mental health problems or alcohol abuse, these individuals had had difficulties in understanding the true nature of their transactions. Some of the individuals in question died soon after the transactions. Thus, Zh. died on 3 January 2004 of ethylene glycol poisoning. Criminal investigations into these deaths were also opened. 10. In the meantime, on 27 November 2003, an investigator ordered the attachment of the apartment at 33 Punane Street. The attachment order was quashed on 6 February 2004 and the criminal proceedings concerning the apartment at Punane Street were discontinued on 13 January 2005. 11. In the spring of 2007 a fresh criminal investigation was opened in respect of transactions concerning an apartment, and several other sets of criminal proceedings which had been discontinued in the meantime were reopened and joined to the criminal case. On 5 April 2007 the Harju County Court remanded N. in custody. 12. On 14 June 2007 the Harju County Court attached at the prosecutor’s request two apartments, including the one at 33 Punane Street. The County Court noted that the apartment at Punane Street had been acquired by N. and V., whereas V. had been registered as its owner immediately after the apartment had been obtained fraudulently from Zh. The court found that there was reason to believe that with the aim of avoiding transfer of the property it was deliberately registered in the name of the applicant, although its actual owner was V. The court noted that the apartments had to be attached in order to ensure the protection of the interests of the victims and to prevent them from being sold. In ordering the attachment of the apartments the court relied on Article 142 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik), and on Article 83-1 §§ 1 and 2 of the Penal Code (Karistusseadustik). The court added that in this case it could be suspected that the financial means of the suspects derived from crime, and therefore a possible outcome was confiscation of the property as received through crime; securing the confiscation by any other measure than attachment was not possible. In accordance with the County Court’s decision copies of the decision were to be sent to V. and the applicant for information. The copy of the decision on file bears V.’s signature next to a notice that she had received a copy of it. It was noted in the decision that an appeal against it could be lodged within ten days. 13. On 31 July 2007 the applicant was interviewed as a witness. She said that she did not remember the details of the purchase of the apartment at Punane Street, as she was still a young child in 2003. She further said that she and her mother had sold the apartment at 9 Mahtra Street, and the apartment at Punane Street had been bought with the money received. She affirmed that she knew that the apartment was in her name but she had never lived there, it was undergoing repair, and her mother was paying for the apartment. 14. On 28 September 2007 the Prosecutor’s Office approved the statement of charges and on 2 October 2007 N. and V., with two others, were committed for trial by the Harju County Court. N. was charged with a number of offences, including the murder of Zh. and the attempted murder of another person, as well as several counts of fraud. V. was charged with several counts of fraud and aiding and abetting an attempted murder. 15. On 27 April 2008 the applicant reached the age of eighteen. 16. The episode concerning the apartment at Punane Street was dealt with at several hearings. In particular, at the hearing on 6 May 2009 the accused N. submitted that the apartment at Punane Street had been meant for the applicant from the very beginning, but as she was a child at the time she had not been told any details. The deed of gift had been drawn up after the applicant’s apartment at 9 Mahtra Street had been sold and V. had paid her debt. N. gave explanations about the origin of the money allegedly paid by N. to Zh. for the apartment. 17. At the hearing on 8 June 2009 the accused V. gave statements about the origin of the money with which the apartment had allegedly been bought. She submitted that she had received permission from the social security service to sell her daughter’s (the applicant’s) apartment at 9 Mahtra Street and to buy her the apartment at Punane Street. 18. At the hearing on 23 November 2009 V.’s counsel noted that, as concerned the apartment belonging to the applicant, Article 83-1 §§ 2 and 3 of the Penal Code was applied only if the property had been acquired completely or in substance on account of the actions of the offender as a gift, emphasising that confiscation would not necessarily be applied if it would be unreasonably burdensome on the person. When the deed of gift was drawn up the applicant was still a minor; confiscation would therefore be unjustified. 19. By a judgment of 12 January 2010 N. and V. were convicted as charged. N. was sentenced to fifteen years and V. to eight years’ imprisonment. In respect of the transactions related to the apartment at 33 Punane Street, the County Court established, relying on a psychiatric expert opinion, that Zh., who had been suffering from paranoid schizophrenia, had not understood the meaning of his actions when he signed the power of attorney for the sale of the apartment. Zh. had died by the time of the court hearing, but according to the statements he made during the preliminary investigation N. had promised to pay him for the apartment and also to buy him another apartment. She had told him to sign a confirmation that he had received the money, but in fact he had got no money. The court found implausible the allegation of the accused, supported by N.’s husband, that V. had borrowed some of the money to pay for the apartment from N.’s husband, who had sold his apartment five years before and kept the cash at home. It noted that according to N. the money from the sale of her husband’s apartment had been used to buy yet another apartment. The court also noted that V. had been unable to explain the origin of the second half of the money allegedly paid to Zh. for the apartment at Punane Street, and established that Zh. had received no money. Relying on Article 83 § 3 (2) of the Penal Code, the court ordered the confiscation of the apartment at 33 Punane Street, belonging to the applicant, as property obtained through crime committed against Zh. The court noted that the apartment had been transferred from Zh.’s ownership against his will, and that the applicant, who was thirteen years old in 2003, could not have been a bona fide acquirer, because the transaction had been concluded by her mother V. on her behalf. The transaction had been concluded a couple of months after the purchase of the apartment in order to prevent it from being confiscated. 20. V. and N. appealed. V. argued, inter alia, that the apartment at 33 Punane Street belonged to the applicant. In order to buy the apartment, another apartment at 9 Mahtra Street had been sold, with the approval of the social security service. Thus, the apartment at Punane Street had not been obtained through crime and it was not subject to confiscation. 21. By a judgment of 14 June 2010 the Tallinn Court of Appeal dismissed the appeals. In respect of the confiscation of the applicant’s apartment at Punane Street, the Court of Appeal noted that she had obtained the apartment when she was a minor, and was not capable of understanding the transaction at the time. The apartment had been the object of the commission of an offence (a fraud) by the accused, and was liable to be confiscated under Articles 83 § 3 (2) and 83-1 § 2 of the Penal Code. The Court of Appeal noted that the apartment had not been obtained legally but on account of the actions of the offenders N. and V. 22. On 18 August 2010 the Supreme Court decided not to examine the appeals lodged by N.’s and V.’s counsel, and the lower courts’ judgments became final.