BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF
SILICKIENĖ v. LITHUANIA
(Application
no. 20496/02)
JUDGMENT
STRASBOURG
10
April 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision
In
the case of Silickienė v. Lithuania,
The
European Court of Human Rights (Chamber),
sitting as a Chamber composed of:
Françoise
Tulkens,
President,
Danutė
Jočienė,
Dragoljub
Popović,
Isabelle
Berro-Lefèvre,
András
Sajó,
Işıl
Karakaş,
Guido
Raimondi,
judges,
and
Stanley Naismith,
Section
Registrar,
Having
deliberated in private on 20 March 2012,
Delivers
the following judgment, which was adopted on the
last-mentioned
date:
PROCEDURE
- The
case originated in an application (no. 20496/02)
against the Republic of Lithuania lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by two
Lithuanian nationals, Mr Mindaugas Silickis and Mrs Jurgita
Silickienė (“the applicants”), on 15
May 2002 and 10 September 2003
respectively. On 24 April 2003 Mr M. Silickis died.
- The
applicants were represented before the Court by Mr Ričardas
Girdziušas, a lawyer practising in Kaunas. The Government were
represented by their Agent, Ms Elvyra
Baltutytė.
3. Under
Article 6 of the Convention Mrs J. Silickienė
alleged that the criminal proceedings that resulted in confiscation
of her property were not fair. Invoking Article 1 of Protocol No. 1
to the Convention, she also complained that the deprivation of her
property had been unlawful.
4. By
a decision of 10 November 2009, the Court declared the application,
as concerns the complaints by Mrs J. Silickienė,
admissible. The Court declared inadmissible the application as far as
it concerned Mr M. Silickis (hereinafter – M.S.).
The
name of the case has consequently been changed from Silickis and
Silickienė v. Lithuania to Silickienė v. Lithuania
and hereinafter the term “the applicant” refers to
the second applicant, Mrs J. Silickienė.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1). The parties replied in writing to each other’s
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1971 and lives in Vilnius.
A. The criminal proceedings against the applicant’s
husband
- On
16 August 2000 M.S., the applicant’s husband, a high ranking
tax police officer, was arrested on suspicion of having committed
various offences of fraud. He was remanded in custody.
- Later
that month he was charged with forgery, fraud and inappropriate
commercial activities.
- In
May 2001 M.S. was charged with more serious offences, including that
of smuggling large quantities of alcohol.
- In
February 2002 M.S. was accused of further serious crimes, including
forming and leading a criminal association in order to smuggle
alcohol and cigarettes in large quantities.
- In
2000 a criminal investigator froze certain property belonging to
M.S., his mother and the applicant. The mother appealed against that
decision, pursuant to Article 2441 of the Code of Criminal
Procedure (see the Relevant domestic law and practice part below). As
a result, on
23 July 2002 the District Court of Kaunas City
released some of her
assets – an apartment, a garage and a
plot of land – the seizure of which was deemed to have been
unreasonable. The court noted, however, that the café and
shares in a telecommunications company which had been in the
possession of the mother of M.S. was property acquired as a result of
his criminal activities. The seizure of those items was upheld.
The
applicant did not appeal against the seizure of her property.
- In
August 2002 a prosecutor approved a bill of indictment against M.S.
and three of his accomplices, K.K., J.M. and V.V. The case was
transmitted to the Kaunas Regional Court.
- On
24 April 2003 M.S. committed suicide in the Lukiškės
Remand Prison.
- On
25 and 28 April 2003 the applicant and the mother of M.S. requested
the court to continue the case to enable his rehabilitation. That
same day the Kaunas Regional Court decided to continue the
proceedings in so far as they concerned the activities of the
criminal association organised by the applicant’s late husband.
The court appointed a lawyer to defend the interests of the deceased.
- On
28 May 2003 the Kaunas Regional Court received a request from
the applicant and M.S.’s mother to discontinue the criminal
proceedings. By a ruling of 2 June 2003 the court dismissed that
request, noting that it had already started examining the evidence in
the case. It observed that, without having examined the evidence, the
court could not establish whether grounds existed to rehabilitate
M.S.
- On
22 January 2004 the Kaunas Regional Court adopted its judgment. It
noted that there were no grounds on which M.S. could be exculpated.
On the contrary, the court found sufficient evidence to prove that
the applicant’s husband, being a State official, had indeed
organised and led a criminal association for smuggling purposes
between spring 1999 and March 2000. The offenders had succeeded in
passing contraband on twenty-two occasions. However, in view of
M.S.’s death, the court decided to discontinue the proceedings
against him. Three of his co-accused, K.K., J.M. and V.V., were
convicted and sentenced to prison sentences ranging from three years
six months to six years. Two other co-accused were released from
criminal liability because they had cooperated with the authorities
and contributed to discovering the crimes.
- The
Kaunas Regional Court ordered the confiscation of certain items of
property on the ground that they had been acquired as a result of
M.S.’s criminal activities (Article 72 § 3 (2) of the
Criminal Code). In particular, the court ordered confiscation of the
applicant’s apartment in Vilnius. The court established that
the applicant had bought the apartment in August 1999, having
obtained a sham loan of 80,000 Lithuanian litai (LTL, approximately
23,000 euros (EUR)) from the mother of V.V. The applicant’s
shares in a telecommunications company, to the value of LTL 29,997
(approximately EUR 8,700), were also to be confiscated on the ground
that they had been obtained through an off-shore company which the
criminal organisation used to hide the proceeds of its crimes. The
trial court also ordered confiscation of a café belonging to
M.S.’s mother as well as certain other items. Nonetheless, it
lifted the seizure of a plot of land, a garden house, and some money
and furniture that belonged to the applicant, given that there was no
evidence of the illicit origin of that property. For the same reason,
the seizure of flats and plots of land belonging to M.S.’s
parents was also lifted. Lastly, the trial court ordered confiscation
of V.V.’s car on the ground that it had been used as a means to
smuggle goods (Article 72 § 2 (2) of the Criminal Code).
The
reasons why each item of seized property should or should not be
confiscated were set out in eight pages of the judgment.
- Considering
that the trial court’s judgment was erroneous, M.S.’s
family hired another lawyer, E.J., to prepare an appeal. As the
applicant wrote in her application to the Court, from that moment the
lawyer E.J. “de facto represented all persons [who were
affected by the confiscation measure]”. Appeals were also
lodged by the prosecutor and three convicted persons.
- In
the appeal the lawyer E.J. contended that the criminal proceedings
should have been discontinued after M.S.’s death. He also
argued, mentioning each item of confiscated property, that those
assets had been obtained from legitimate sources and thus the
confiscation was unlawful. As concerns the applicant, E.J. averred
that there was no proof to find that the apartment and shares in the
telecommunications company, both registered in her name, had been
obtained from the proceeds of the crimes. For the lawyer, the trial
court’s conclusions about the circumstances in which the
applicant had acquired the apartment and the shares were factually
and legally erroneous.
- On
25 October 2004 the Court of Appeal upheld the trial court’s
judgment. The appellate court emphasised that the persons convicted
had acted as an organised group (nusikalstamas susivienijimas)
which was the most dangerous form of conspiracy (bendrininkavimas).
The group’s criminal activity had lasted many years, was
conducted systematically and did great harm to the State. The value
of smuggled goods was millions of Lithuanian litai. Taking into
account the scale, its systematic nature and the organisational level
of the criminal activity, the case could be viewed as exceptional.
- On
the issue of confiscated property the Court of Appeal noted that of
all persons whose property had been confiscated, only M.S.’s
parents-in-law had testified before the trial court. Even so,
they could not explain how they had obtained that property.
Furthermore, M.S.’s conspirator V.V. had confirmed that his
parents’ financial situation was not good and he could not
explain financial transactions by his mother.
- As
regards the applicant, the Court of Appeal also noted that she was
well aware of the criminal activities of her husband’s criminal
association:
“Even though M.S.’s wife J. Silickienė
herself has not been charged [in this case], the examined evidence
leaves no doubt that she was well aware of her spouse’s and the
other co-accuseds’ criminal activities. ... J. Silickienė
was informed each time smuggled goods were loaded or unloaded as well
as about the sale of those goods. ... There is evidence that J.
Silickienė herself received money which had been paid for
smuggled goods. ... Consequently, J. Silickienė without any
doubt knew that property which the [trial] court confiscated and
which had been registered in her name previously had been obtained as
a result of criminal activities.”
- The
appellate court also dismissed the argument by the lawyer E.J. that
confiscation was not possible because criminal proceedings against
M.S. had been discontinued. Article 72 of the Criminal Code obliged
the court to confiscate property which was the proceeds of crime, if
third persons to whom the property had been transferred knew about
the unlawful origin of that property. Confiscation was in no way
linked to whether those third persons had been charged with a crime
or convicted. On the contrary, pursuant to the aforementioned
provision, confiscation of the proceeds of the crime had to be
ordered both when imposing a punishment and when a person has been
released from criminal liability and even in the event that he or she
had not even been charged with a crime.
- The
Court of Appeal also held:
“...M.S.’s lawyer has unreasonably linked
the confiscation of all the property listed in the judgment with the
fact that the proceedings had been discontinued against M.S. However,
it has been forgotten that not only M.S. but also other persons had
been charged in the criminal proceedings in question. Those other
persons had smuggled goods together with M.S., and the illicit gains
had been obtained together. Some of those co-accused had been
released from criminal liability, but three of the co-accused, J.M.,
K.K. and V.V., were convicted. For Article 72 § 3 of the
Criminal Code to be applied, it was not important that the third
persons to whom the property had been transferred should be family
members or relatives of the person who committed the crime. Moreover,
even presuming that it was M.S. who had transferred the property to
his wife, his parents and his parents-in-law, it did not mean that
that property had been obtained from the criminal activity of him
alone. In the present case that property had been obtained as a
result of the criminal activities of all co-accused, including those
who had been convicted. Furthermore, V.V., who was M.S.’s
cousin, had played a very important role in the activities of the
criminal organisation. Accordingly, the persons to whom the
confiscated property had been transferred were connected by family
links not only to M.S., who died, but also to V.V., who was
convicted. These circumstances totally rebut the appellant’s
contention that the property had been confiscated after the
proceedings had been discontinued, because in reality confiscation
had been ordered after [the trial court] adopted an accusatory
judgment”.
- Lastly,
the appellate court pointed out that the trial court had
exceptionally thoroughly set out the reasons why particular items had
to be confiscated. In setting out its conclusions the trial court had
relied on extensive analysis of the evidence examined in court,
devoting a whole chapter of the judgment, eight pages in length, to
that. In the appellate court’s view, the trial court’s
findings had been reasonable. Even so, the appellate court again went
through the evidence and upheld the trial court’s findings,
dismissing E.J.’s arguments to the effect that the two
confiscated items in the applicant’s ownership had a lawful
provenance (see paragraph 19 above).
- The
lawyer E.J. submitted an appeal on points of law. He contended,
first, that the criminal proceedings against M.S. should have been
discontinued after his death and that confiscation of property was
possible only if an accusatory judgment had been adopted. Secondly,
he alleged that the property, the confiscation of which had been
ordered by the trial court, including that of the applicant, did not
meet the requirements of
Article 72 § 3 of the Criminal
Code. In his submission, no fault of third person whose property was
confiscated had been established.
- On
17 May 2005 the Supreme Court dismissed the appeal on points of law.
As regards the confiscation of property, the Supreme Court ruled that
confiscation as a penal measure (baudZiamojo poveikio priemonė)
could be applied independently of whether the procedure had been
concluded by acquittal or conviction, and even in cases where a
person had not been charged with a crime (kai asmuo netraukiamas
baudZiamojon atsakomybėn). The Supreme Court emphasised that
it was a court’s duty to confiscate property which fell under
Article 72 §§ 2 and 3 of the Criminal Code. It was noted
that, in its judgment, the trial court had thoroughly reasoned its
choice as to which items of property should be confiscated as being
the proceeds of illegal activities. The Supreme Court acknowledged
that most of that property had been found in the possession of third
persons. However, given the trial court’s conclusion that those
persons knew or should have known about the illicit funding of the
items concerned, it was lawful to confiscate them even though those
persons had not been charged in the criminal proceedings against M.S.
and the criminal organisation.
B. Related criminal proceedings against the applicant
and the mother of M.S.
- By
a judgment of 30 June 2005 of the Kaunas Regional Court the applicant
was convicted of misappropriating property and falsifying documents.
The court established that she was actively involved in organising
unlawful money transfers to off-shore companies used by the criminal
organisation led by her late husband, so that the money was hidden.
She fully confessed that she had committed the crimes with the aim of
helping her husband avoid criminal liability while he was in
detention. The applicant was sentenced to four years’
imprisonment.
- The
mother of the applicant’s late husband was convicted of
falsifying documents and sentenced to six month’s imprisonment.
The court noted that she was merely executing the orders of the
applicant, but that they had the common goal of helping M.S.
- Both
the applicant and her late husband’s mother were pardoned under
an Amnesty Act.
II. RELEVANT DOMESTIC LAW
- The
Code of Criminal Procedure at the relevant time provided that a
pre-trial investigator could freeze the assets of an accused, or
assets which were acquired in a criminal manner but later were in a
third party’s possession, so as to protect a potential civil
claim or confiscation order (Article 195 § 1). Appeals lay
against such orders of investigators to two court instances (Article
2441).
- As
concerns confiscation of property, at the material time the Criminal
Code provided:
Article 72. Confiscation of Property
1. Confiscation
of property shall be the compulsory uncompensated taking into the
ownership of a State of any form of property subject to confiscation
and held by the offender, his accomplice or other persons.
2. Confiscation of
property shall be applicable only in respect of the property used as
an instrument or a means to commit a crime or as the result of a
criminal act. A court must confiscate:
1) the money or other items of material value
delivered to the offender or his accomplice for the purpose of
commission of the criminal act;
2) the money and other items of material
value used in the commission of the criminal act;
3) the money and other items of material
value obtained as a result of the commission of the criminal act.
3. The property
transferred to other natural or legal persons shall be confiscated
regardless of whether or not those persons are subject to criminal
liability, where:
1) the property has been transferred to them
for the purpose of commission of a criminal act;
2) when acquiring the property, they were
aware, or ought to have been aware and could have been aware that
this property, money or the valuables newly acquired by means thereof
have been gained from of a criminal act.
4. The property
transferred to other natural or legal persons may be confiscated
regardless of whether or not a person who has transferred the
property is subject to criminal liability, where this person ought to
and could have been aware that that property may be used for the
commission of a serious or grave crime.
<...>
7. When ordering
confiscation of property, a court must specify the items subject to
confiscation or the monetary value of the property subject to
confiscation.”
III. LAW AND PRACTICE REGARDING CONFISCATION OF PROPERTY IN THE
MEMBER STATES OF THE COUNCIL OF EUROPE
- In
the legal systems of the Council of Europe Member States the concept
of “confiscation” generally refers to a measure the
effect of which is permanent deprivation of property by way of
transfer of that property to the State. Seven countries (Albania,
Germany, Georgia, Moldova, Romania, Sweden and Switzerland) provide
for confiscation orders regardless of conviction. This type of
confiscation order generally covers property that has been acquired
though unlawful activities. As long as the origin cannot be
justified, confiscation of such property may be imposed. Criminal
liability of the offender is not relevant for the purposes of the
confiscation order. For example, in Germany a court may order the
confiscation of the proceeds of the crime despite the fact that the
proceedings have been discontinued, as long as it can be established
that a wrongful act has indeed been committed.
- Five
States (Bulgaria, Estonia, Luxembourg, the Netherlands and the
Russian Federation) in principle require conviction as a prerequisite
for confiscation whilst allowing for some exceptions to the general
rule. In Bulgaria, if it is established or there are reasonable
grounds to believe that the suspect committed the offence,
confiscation of property acquired through that offence is permitted,
even if the suspect is not ultimately convicted because of his or her
death. Estonia and the Russian Federation allow confiscation of
property which constitutes material evidence in limited
circumstances. In the Netherlands, as a rule, a confiscation order
will not be available upon the death of the accused. However,
confiscation of the property that has already been seized can be
imposed if it is plausible that the deceased had indeed committed an
economic crime.
Three
States (Belgium, France and the United Kingdom) strictly rule out the
possibility of confiscation without conviction.
- Confiscation
of property which is the proceeds of a crime may be imposed without
conviction in certain circumstances either against third parties in
general, or against family members in particular (Bulgaria, Estonia,
Germany, Georgia, Moldova, the Netherlands, the Russian Federation,
Switzerland and the United Kingdom). Knowledge of the illicit origin
of the property, failure to justify its origin, the type of crime at
issue and whether or not the third party is a fictitious owner are
four most common circumstances in which a confiscation order may be
made against property belonging to family members of an accused
regardless of their conviction.
IV. RELEVANT INTERNATIONAL INSTRUMENTS
- On
22 December 1994 the Republic of Lithuania ratified the Council
of Europe Convention on Laundering, Search, Seizure and Confiscation
of the Proceeds from Crime (1990). The Convention aimed to facilitate
international co-operation and mutual assistance in investigating
crime and tracking down, seizing and confiscating the proceeds
thereof. Parties undertake in particular to criminalise the
laundering of the proceeds of crime and to confiscate
instrumentalities and proceeds (or property the value of which
corresponds to such proceeds).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 2 OF
THE CONVENTION
- The
applicant alleged that the finding by the trial court of her late
husband’s “criminal acts”, and the ensuing
confiscation of her property on the basis of that finding, amounted
to a fundamental abuse of process. She alleged a breach of Article 6
of the Convention, the relevant parts of which read as follows:
“1. In the determination of his civil
rights and obligations or of any criminal charge against him,
everyone is entitled to a fair ... hearing ... by [a] ... tribunal
...
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.”
A. The parties’ submissions
1. The applicant
- The
applicant argued that Article 6 of the Convention in its criminal
limb was applicable in the present case. By the judgment of
22
January 2004 the Kaunas District Court had clearly found her late
husband responsible for the organisation and execution of criminal
acts, short of pronouncing the word “guilt” or imposing a
sentence.
- The
applicant further alleged that the finding by the trial court of her
late husband’s “criminal acts”, and the
confiscation of their family property on the basis of that finding
was in breach of her procedural rights under Article 6 § 1 of
the Convention. She pointed to the fact that she was not a party to
the criminal proceedings against her late husband. Although she was
questioned as a witness, the procedural rights of witnesses could not
be equated to the procedural rights of the accused. Thus, she could
not question witnesses and submit evidence to prove that the
confiscated property had nothing in common with the crimes attributed
to her late husband. Whilst admitting that she could have objected to
temporary seizure of her property, the applicant submitted that that
measure was not determinative for the final confiscation order.
- Lastly,
relying on Article 6 § 2 of the Convention the applicant noted
that the confiscation of her property was related to the findings of
her late husband’s criminal behaviour. It was not consonant
with the presumption of innocence to direct that a person shall bear
the loss of property in respect of crimes where the case has been
discontinued.
2. The Government
- The
Government submitted at the outset that Article 6 of the Convention
under its “criminal head” was not applicable to the
confiscation procedure at issue. In the criminal proceedings against
the criminal organisation led by M.S., in which the confiscation of
the applicant’s property had been imposed, the applicant was
not accused of any criminal offence and the domestic courts did not
determine any charges in her respect. Neither was Article 6
applicable under its “civil head”, given that no question
concerning the applicant’s property rights in the sense of
civil law had been determined. In the Government’s view, the
confiscation of certain property imposed on the applicant was merely
a preventive measure, aiming at deterrence of serious crimes based on
property reasons. In that connection the Government also noted that
in her application the applicant had made no express reference to
Article 6 in so far as it related to “her civil rights and
obligations”.
- The
Government further argued that the applicant’s interests
related to the confiscated property were duly represented and
defended before the domestic courts. In particular, at the pre-trial
stage she had had the right to appeal to a court against the decision
to seize her property. M.S.’s mother had lodged such an appeal,
as a result of which part of the seized property had been released.
However, the applicant had not made use of that right. For the
Government, the applicant also could have testified as a witness
during the court proceedings in order to explain the sources from
which the property registered in her name was obtained, as did her
parents, but, as the Court of Appeal rightly noted, she chose not to
testify of her own will.
- The
Government’s main argument lay in the fact that M.S.’s
defence counsel had submitted an appeal against the Kaunas Regional
Court’s judgment of 22 January 2004, whereby the confiscation
of the applicant’s property had been imposed. In his appeal,
the lawyer had challenged the confiscation of the applicant’s
property, and claimed that the confiscation of the said property
should be lifted. Accordingly, and if the applicant had any relevant
evidence to provide to the domestic courts in defence of her property
rights, she could have submitted such evidence through the defence
counsel of M.S. Lastly, the Government pointed out that M.S.’s
defence counsel had also submitted an appeal on points of law, in
which he had reiterated the arguments as to unlawfulness of the
confiscation of the property of the applicant. Taking into account
that M.S. had been represented by defence counsels during the
proceedings at all three levels of jurisdiction, and that the
confiscation of the applicant’s and her late husband’s
property had been disputed before the courts of three instances, the
applicant could not claim that her interests had not been defended
before the domestic courts.
- In
the light of the foregoing the Government considered that the
applicant’s procedural rights under Article 6 of the Convention
had not been breached in the present case.
B. The Court’s assessment
1. Applicability of Article 6 of the Convention with
regard to the confiscation
- The Court reiterates that it is master of the
characterisation to be given in law to the facts of the case. It is
not bound by the characterisation given by the applicant or the
Government. By virtue of the iura novit curia principle, it
has, for example, considered of its own motion complaints under
Articles or paragraphs not relied on by the parties and even under a
provision in respect of which the European Commission of Human Rights
had declared the complaint to be inadmissible while declaring it
admissible under a different one. A complaint is characterised by the
facts alleged in it and not merely by the legal grounds or arguments
relied on (see, most recently, G.R. v. the Netherlands,
no. 22251/07, § 36, 10 January 2012).
On the basis of the materials submitted to it the Court notes that
the applicant has undoubtedly complained about the loss of her
property. It considers that the confiscation measure consequential
upon the acts for which the applicant’s late husband was
prosecuted affected in an adverse manner the property rights of the
applicant and thus undoubtedly constituted an interference with her
right to peaceful enjoyment of her possessions (see AGOSI v. the
United Kingdom, 24 October 1986, § 65, Series A no. 108;
Arcuri and Others v. Italy (dec.), no. 52024/99, 5 July
2001).
- 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. The Government’s
objection therefore must be dismissed.
Accordingly,
the question arises whether Article 6 was complied with.
2. Compliance with Article 6 § 1 of the Convention
- The applicant argued that she could not defend her
rights in the framework of the criminal proceedings against her
husband, which resulted in the confiscation of her property. The
Court considers that it is not called upon to examine in abstracto
the compatibility with the Convention of the provisions of the
Lithuanian criminal law, which oblige the court to confiscate money
and property which have been acquired in a criminal manner, including
property transferred to third persons. Instead, the Court must
determine whether the way in which the confiscation was applied in
respect of the applicant offended the basic principles of a fair
procedure inherent in Article 6 § 1 (see, mutatis mutandis,
Salabiaku v. France, 7 October 1988, § 30,
Series A no. 141-A). It must be ascertained whether the procedure in
the domestic legal system afforded the applicant, in the light of the
severity of the measure to which she was liable, an adequate
opportunity to put her case to the courts, pleading, as the case
might be, illegality or arbitrariness of that measure and that the
courts had acted unreasonably (see AGOSI, cited above, §
55; also see, mutatis mutandis, Arcuri and Others,
cited above, and Riela and Others v. Italy (dec.),
no. 52439/99, 4 September 2001). It is not, however, within the
province of the Court to substitute its own assessment of the facts
for that of the domestic courts and, as a general rule, it is for
these courts to assess
the evidence before them (see Edwards
v. the United Kingdom,
16 December 1992, § 34, Series A
no. 247-B).
- The applicant’s main argument lay in the fact
that she had no benefit of fair proceedings, given that she was not a
party to the criminal proceedings. Whilst noting that the applicant
indeed was not a party to the criminal proceedings against the
criminal organisation, the Court considers that the system in
question was not without safeguards. It notes, first, that the
confiscation of the applicant’s property had its origins in a
measure taken by the investigating authorities, namely seizure of her
assets in 2000. The Court considers that it was open to the applicant
to institute judicial review proceedings to challenge the reasons for
that seizure and present evidence that those items of property had
been acquired lawfully. Whilst acknowledging that the seizure was
only a temporary measure, having no conclusive influence over the
subsequent confiscation, the Court is of the view that at that time
the applicant could reasonably foresee that the seizure could result
in confiscation of the property at a later stage of the proceedings.
Accordingly, this was an occasion for the applicant to present her
arguments and thus to obtain the lifting of the seizure. On this last
point the Court also notes that, as it appears from the facts of the
case, M.S.’s mother was successful in her plea that some of the
seized property had been acquired lawfully, given that seizure of
some of the assets was lifted (see paragraph 11 above). Lastly and
even though having certain reservations as to the Government’s
suggestion that the applicant could have explained the origin of her
property had she chosen to testify in the criminal proceedings
against the criminal organisation, the Court nonetheless finds that
that was one more occasion for her to put forward any evidence in
support of her claims. However, according to the Court of Appeal, she
did not avail herself of that opportunity (see paragraph 21 above).
- The
Court also recalls that after the death of the applicant’s
husband, the Kaunas Regional Court appointed counsel to represent his
interests. Furthermore, as the applicant admitted in her application
to the Court, after the trial court adopted its judgment, M.S.’s
family hired another lawyer, E.J., who de facto defended her
interests as well. The Court has particular regard to the fact that
in his appeal and cassation appeal E.J. explicitly raised the matter
of confiscation, arguing that the property belonged to third persons
whose fault had not been established. In particular, E.J. challenged
the confiscation in respect of each item of property, including those
belonging to the applicant (see paragraphs 19 and 26 above). In these
circumstances, the Court shares the Government’s view that if
the applicant had any evidence to adduce to prove that her property
came from legitimate sources, she could have passed that information
on to E.J., the lawyer of her choice (see Bongiorno and Others v.
Italy, no. 4514/07, § 49, 5 January 2010).
- In
the light of the above, while the Court considers that, as a general
principle, persons whose property is confiscated should be formally
granted the status of parties to the proceedings in which the
confiscation is ordered, it accepts that in the particular
circumstances of the present case the Lithuanian authorities de
facto afforded the applicant a reasonable and sufficient
opportunity to protect her interests adequately. Accordingly, it
finds that there was no violation of the applicant’s rights
under Article 6 § 1 of the Convention.
3. Compliance with Article 6 § 2 of the Convention
- The
applicant appears to argue that she was compelled to assume liability
for crimes allegedly committed by her late husband who had not been
convicted. In this context, the Court recalls that it is a
fundamental rule of criminal law that criminal liability does not
survive the person who has committed the criminal act. Imposing
criminal sanctions on the living in respect of acts apparently
committed by the deceased person calls for its careful scrutiny (see
A.P., M.P. and T.P.
v. Switzerland, 29 August 1997, §§ 46
and 48, Reports of Judgments and Decisions 1997-V). The Court
further reiterates that the scope of Article 6 § 2 of the
Convention is not limited to pending criminal proceedings but extends
to judicial decisions taken after a prosecution has been discontinued
(see, most recently, Vulakh and Others v. Russia, no.
33468/03, § 33, 10 January 2012). With
regard to the application of the presumption of innocence, the
Court’s case-law also shows that the autonomous meaning of the
expression “charge” in Article 6 of the Convention means
that a person can be considered to have been “charged”
for the purposes of that Article when that individual’s
situation has been “substantially affected” (see Serves
v. France, 20 October 1997, § 42, Reports of
Judgments and Decisions 1997 VI).
- On
the facts of the present case the Court recalls that because of
M.S.’s death, the criminal proceedings against M.S. were indeed
terminated without his conviction. It notes, however, that contrary
to what has been implied by the applicant, the criminal proceedings
did not end with that procedural step alone. The Kaunas Regional
Court convicted three other persons whom it had found to have formed
a criminal organisation with her late husband. That conviction was
upheld by the appellate and cassation courts.
- Turning
to the matter of confiscation, the Court recalls that, as it was
explained by the Court of Appeal, the property confiscated from the
applicant had not been acquired only through the criminal acts
committed by M.S. alone. It had been obtained from illicit proceeds
of criminal activities of the entire criminal organisation (see
paragraph 24 above). To decide this point the trial court had regard
to the fact that when purchasing the confiscated apartment the
applicant had taken a loan from the mother of the convicted V.V.,
who, in turn, could not explain the provenance of his mother’s
possessions. As to the shares in the telecommunications company, they
had been purchased through the off-shore company that the criminal
organisation used to launder the money gained through passing
contraband. The Court sees no reason to depart from the appellate
court’s findings, which were based on its direct knowledge of
the facts of the case and the domestic law. Accordingly, the Court
holds that the order to confiscate some of the applicant’s
property was not related to any finding of guilt on the part of the
applicant in respect of the crimes allegedly committed by her late
husband. Lastly, the Court cannot fail to observe that the present
case is distinguishable from the facts in A.P., M.P.
and T.P., where new proceedings had
been opened against the applicants, whereas in the instant case the
criminal proceedings against M.S. and his co-accused merely continued
after his death.
- Bearing
in mind the above, the Court finds that the applicant was not
punished for criminal acts committed by her late husband and thus did
not inherit his guilt. For the same reasons, even assuming that the
applicant herself could be regarded as being “charged”
with a criminal offence, the Court also considers that the
confiscation order did not constitute a finding of the applicant’s
personal guilt for any offence. There has accordingly been no
violation of Article 6 § 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicant argued that the confiscation of her property was in breach
of Article 1 to Protocol No. 1 of the Convention, which reads as
follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. The parties’ submissions
- The
applicant complained about the confiscation of her property in the
wake of the criminal proceedings against her late husband and his
accomplices. She contended that she had not been aware of the
unlawful origins of the confiscated property. The applicant admitted
that, as the spouse of M.S., she could have known about the movement
of merchandise; however, the domestic courts had not established that
she was aware that crimes were being committed. Contrary to what has
been suggested by the Government, in the other criminal proceedings
(paragraphs 28-30 above), the applicant was convicted for crimes not
linked to those of M.S. Whilst acknowledging that she had knowledge
of the enterprises that her late husband and the co-accused used in
their operations, the applicant maintained that those enterprises
“had been engaged in lawful activities [in addition to unlawful
ones]”. For the applicant, there was no public interest to
deprive her of her property. Lastly, she contended that the domestic
courts’ decisions had been erroneous in that they had
incorrectly established the evidence proving that the confiscated
property was the proceeds of crime.
- The
Government admitted that confiscation of the property belonging to
the applicant could be considered as an interference under Article 1
of Protocol No. 1 to the Convention. In any event, the
confiscation of part of the family’s property had been in
accordance with domestic law (Article 72 § 3 of the Criminal
Code) and amounted to a justified control of the use of property in
the general interest. Referring to the Court’s case-law
(Raimondo v. Italy, 22 February 1994, Series A
no. 281-A), the Government contended that, in the interests of
crime prevention, the State had a wide margin of appreciation in
controlling property obtained by unlawful means or used for unlawful
purposes. Referring to the decision of the Court of Appeal of 25
October 2004 and the applicant’s conviction on 30 June 2005,
the Government considered that a fair balance between the public and
individual interests had been achieved in the present case,
particularly as the applicant, with her knowledge of her husband’s
criminal activities, must have known full well that the property in
question had been obtained from money gained unlawfully.
- The
Government stressed that both the trial and appellate courts had
scrutinised the evidence relating to the circumstances in which the
confiscated property had been acquired. The unlawfulness of the
origin of the property at issue and the fact that the applicant ought
to have been aware and could have been aware that the disputed
property had been acquired from criminal acts had been proven during
the criminal proceedings, following strict standards of
substantiation. The Government reiterated that when deciding upon
confiscation of the seized items, the Kaunas Regional Court had
lifted seizure of many items – plot of land, house and its
contents – that had been registered in the names of the
applicant and her late husband. The seizure of those items had been
lifted because the trial court had not established that that property
had been acquired as a result of criminal activity. Only two items in
the applicant’s ownership – the apartment and shares in a
telecommunications company – had been confiscated.
- Lastly,
the Government submitted that confiscation of property belonging to
third persons regardless of whether or not criminal proceedings are
instituted against them was also established in the law of other
European countries. As concerns property that was the proceeds of a
criminal act, such practice was in compliance with the guidelines by
the Council of Europe.
B. The Court’s assessment
- The
Court reiterates that Article 1 of Protocol No. 1 to the Convention,
which guarantees in substance the right to property, comprises three
distinct rules. The first, which is expressed in the first sentence
of the first paragraph and is of a general nature, lays down the
principle of peaceful enjoyment of property. The second rule, in the
second sentence of the same paragraph, covers deprivation of
possessions and makes it subject to certain conditions. The third,
contained in the second paragraph, recognises that the Contracting
States are entitled, among other things, to control the use of
property in accordance with the general interest. The second and
third rules, which are concerned with particular instances of
interference with the right to peaceful enjoyment of property, must
be construed in the light of the general principle laid down in the
first rule (see, among many authorities, Immobiliare Saffi v.
Italy [GC], no. 22774/93, § 44, ECHR 1999-V).
- On
the facts of the case the Court recalls that the “possessions”
at issue were the shares in a telecommunication company and an
apartment which were confiscated from the applicant by a judicial
decision. It is not in dispute between the parties that the
confiscation order amounted to an interference with the applicant’s
right to peaceful enjoyment of her possessions and that Article 1 of
Protocol No. 1 is therefore applicable. It remains to be
determined whether the measure was covered by the first or second
paragraph of that Convention provision.
- The
Court reiterates its constant approach that a confiscation measure,
even though it does involve a deprivation of possessions, constitutes
nevertheless control of the use of property within the meaning of the
second paragraph of Article 1 of Protocol No. 1 (see Sun v.
Russia, no. 31004/02, § 25, 5 February 2009 and
case-law cited therein). Accordingly, it considers that the
same approach must be followed in the present case.
- As
the Court has held on many occasions, an interference with property
rights must be prescribed by law and pursue one or more legitimate
aims. In addition, there must be a reasonable relationship of
proportionality between the means employed and the aims sought to be
realised. In other words, the Court must determine whether a balance
was struck between the demands of the general interest and the
interest of the individuals concerned. In doing so it leaves the
State a wide margin of appreciation with regard both to choosing the
means of enforcement and to ascertaining whether the consequences of
enforcement are justified in the general interest for the purpose of
achieving the object of the law in question (see Yildirim v. Italy
(dec.), no. 38602/02, ECHR 2003-IV).
- In
that connection, the Court notes that the confiscation of the
applicant’s property was ordered pursuant to Article 72 §
3 (2) of the Criminal Code. It was therefore an interference
prescribed by law.
- The
Court also recalls that the confiscation affected assets which had
been deemed by the courts to have been unlawfully acquired by the
criminal organisation led by M.S. The measure was effected with a
view to preventing the illicit acquisition of property through
criminal activities. In such circumstances the Court finds that the
confiscation pursued a legitimate aim in the general interest, namely
it sought to ensure that the use of the property in question did not
procure for the applicant pecuniary advantage to the detriment of the
community (see Raimondo, cited above, § 30).
- As
regards the balance between that aim and the applicant’s
fundamental rights, the Court reiterates that, where possessions are
confiscated, the fair balance depends on many factors, including the
owner’s behaviour. It must therefore determine whether the
Lithuanian courts had regard to the applicant’s degree of fault
or care or, at least, the relationship between her conduct and the
offences which had been committed (see AGOSI, cited above, §
54; also see Arcuri and Riela, both cited above).
- On
the facts of the case the Court recalls the finding by the Court of
Appeal that the applicant had directly participated in payments for
the smuggled goods and that she must have known that the confiscated
property could only have been purchased with the proceeds of the
criminal organisation’s unlawful enterprises (see paragraph 22
above). The Court is also particularly struck by the judgment of
30 June 2005 delivered by the Kaunas Regional Court which found
the applicant guilty of the misappropriation of property and the
falsification of documents. In so finding, it noted that the
applicant had fully confessed to having committed the crimes with a
view to helping her husband escape criminal liability, while he was
detained.
- As
to the way the proceedings which resulted in confiscation of the
assets registered in the applicant’s name were held, the Court
notes that the judicial review was conducted by three successive
courts – the Kaunas Regional Court, the Court of Appeal and the
Supreme Court, and concerned both the legality of and the
justification for the confiscation. It also observes that the
Lithuanian courts were debarred from basing their decisions on mere
suspicions. Looking in detail at the steps taken by the courts to
reach the final conclusion as to which pieces of property to
confiscate, the Court notes that in respect of each item to be
confiscated the courts were satisfied, on the basis either of the
submissions by the applicants’ counsel or the evidence adduced
by the prosecution, that the confiscated assets had been purchased by
virtue of reinvestment of the criminal organisation’s unlawful
profits (see, by contrast, Vulakh, cited above, § 46).
In this context the Court also notes that only two items of the
applicant’s property were confiscated, when many more were
seized.
- Lastly,
the Court cannot overlook the particular circumstances which prompted
the Lithuanian courts to take measures against the applicant. In
particular, as the domestic courts noted, the illicit pursuits of the
criminal organisation involved twenty-two episodes of smuggling, the
value of the goods smuggled amounted to millions of Lithuanian litai
and, in view of the scale, systematic nature and organisational level
of the criminal activity, they regarded the case as exceptional. In
such circumstances the confiscation measure complained of may appear
essential in the fight against organised crime (see, mutatis
mutandis, Raimondo, cited above, § 30; M. v.
Italy, no. 12386/86,
Commission decision of 15 April 1991, Decisions and Reports 70,
p. 101; also see the Relevant international instruments part,
paragraph 36 above).
- Bearing
in mind the above and having regard to the margin of appreciation
enjoyed by States in pursuit of a crime policy designed to combat the
most serious crimes, the Court concludes that the interference with
the applicant’s right to the peaceful enjoyment of her
possessions was not disproportionate to the legitimate aim pursued
(see Raimondo and M. v. Italy, both cited
above, paragraph § 30 and p. 102, respectively).
Consequently,
there has been no violation of Article 1 of Protocol No. 1 to
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses
the Government’s objection concerning the applicability of
Article 6 of the Convention;
- Holds that there has been no violation of
Article 6 §§ 1 and 2 of the Convention;
- Holds that there has been no violation of
Article 1 of Protocol No. 1 to the Convention;
Done in English, and notified in writing on 10 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
