CASE OF RUMMI v. ESTONIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
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 1523 § 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. 4951).” 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.