FOURTH SECTION

DECISION

Application no . 43352/02 Isārijs FINBERGS and others against Latvia

The European Court of Human Rights (Fourth Section), sitting on 3 September 2013 as a Chamber composed of:

David Thór Björgvinsson , President,

Ineta Ziemele,

Päivi Hirvelä ,

George Nicolaou ,

Paul Mahoney,

Krzysztof Wojtyczek ,

Faris Vehabović , judges ,

and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 29 November 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants are four Latvian nationals, Mr Isarijs Finbergs , Mr Romans Finbergs , Mr Igors Zikovs and Mrs Tatjana Finberga (“the applicants”). The applicants were represented by Mr U. Beinarovičs , a lawyer practising in Riga.

2 . The Latvian Government (“the Government”) were represented by their former Agent, Mrs I. Reine , and subsequently by their present Agent, Mrs K. Līce .

A. The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The applicants were born in 1957, 1980, 1981 and 1961 respectively. The second and the third applicants are the sons of the first and the fourth applicants. The applicants live in Riga.

5 . On 3 May 2000 criminal proceedings were instituted against all of the applicants on suspicion of negligent storage of firearms, circumvention of the law ( patvarība ), extortion, narcotics offences and unlawful deprivation of liberty.

6 . On 8 August 2000 the public prosecutor G. issued a restraint order ( lēmums par aresta uzlikšanu mantai ) in respect of the first applicant ’ s property. In the order it was stated that “in order to secure the possible confiscation of property”, a restraint order had to be issued in respect of the first applicant ’ s property, which included, among other things, a piece of land and a two- storey residential building located in Riga, on D. Street. A restraint order was also issued in respect of other properties owned by the first applicant – three plots of land and two buildings.

7 . On 11 November 2000 the preliminary investigation in the criminal case was completed and on 2 January 2001 the case was transferred to the Riga Regional Court.

8 . On 5 December 2001 the Riga Regional Court adopted a judgment in the case. The first applicant was convicted of negligent storage of firearms, circumvention of the law, extortion, and unlawful deprivation of liberty and was sentenced to a prison term of four years. The second and the third applicants were both convicted of extortion and unlawful deprivation of liberty and given suspended prison sentences. Confiscation of property was not imposed on any of the applicants. The restraint order in respect of the first applicant ’ s property was revoked.

9 . After the first three applicants lodged an appeal, on 17 April 2002 the Supreme Court adopted a judgment in which it upheld their convictions and increased the first applicant ’ s prison sentence to five years. The Supreme Court also decided to quash the first-instance court ’ s decision to revoke the restraint order in respect of the first applicant ’ s property (“ atcelt aresta noņemšanu mantai ”) and ordered the confiscation of his property.

10 . On 30 May 2002 the first applicant appealed on points of law, complaining, among other things, that the Supreme Court had ordered the confiscation of property that had been lawfully acquired by him and his family members.

11 . On 3 June 2002 the Senate of the Supreme Court, at a preliminary meeting ( rīcības sēde ), adopted a decision to reject the applicants ’ appeal on points of law.

12 . On 25 June 2002 the Supreme Court issued a writ of execution concerning the confiscation of the first applicant ’ s property.

13 . On 20 August 2002 a prosecutor from the Prosecutor General ’ s Office replied to complaints lodged by the second, third and fourth applicants concerning the restraint order in respect of the property located on D. Street. In his reply he indicated that the judgment of the Supreme Court in the criminal case against the first three applicants had become final and therefore the restraint order could only be challenged by way of an extraordinary appeal lodged by a prosecutor but that, according to the prosecutor ’ s interpretation of applicable law, there was no reason to lodge such an appeal, as the restraint order had been issued fully in accordance with the law.

14 . On 19 July 2002 the second, third and fourth applicants submitted a civil claim to the Riga City Zemgale District Court. The claim named the first applicant, the prosecution service and the State Revenue Service as respondents. The claim asked the court to exclude from the itemised list of the first applicant ’ s property subject to confiscation (“ mantas izslēgšana no aprakstes akta ”) the property on D. Street, which had been included in the list pursuant to the 8 August 2000 restraint order, and to stay the execution of the confiscation order in respect of that property. The claim argued that section 175 of the Code of Criminal Procedure and Appendix No. 1 thereof did not allow a restraint order to be issued in respect of the property in question, as it was a single family home, in which the claimants were permanently residing along with the first applicant.

15 . On 20 November 2002 the Zemgale District Court upheld the claim and ordered that the execution of the confiscation order be stayed in respect of the first applicant ’ s property on D. Street. No appeal was lodged against that decision and it became final on 23 December 2002.

16 . On the basis of the above decision, on 3 January 2003 the record in the land register concerning the restraint order that had been issued in respect of the property on D. Street was struck out.

17 . On 14 February 2003 the first applicant executed a deed of gift ( dāvinājuma līgums ), by which he transferred the title to the property on D. Street to the fourth applicant. The deed was later duly recorded in the land register.

B. Relevant domestic law

18 . At the material time the issuing of restraint orders in respect of property in the course of criminal proceedings was governed by section 175 of the former Code of Criminal Procedure, which remained in force until 1 October 2005. Section 175 provided that the potential confiscation of a suspected or accused person ’ s property required a restraint order to be issued in respect of that property. The same article provided that a “[r] estraint order shall not be issued in respect of objects of basic necessity which are used by the person in respect of whose property a restraint order is issued, [or] by this person ’ s family members and dependants . Appendix No. 1 of this Code shall provide for a list of such objects”. Appendix No. 1 provided that a restraint order should not be issued in respect of, inter alia , a single family home (“ viendzīvokļa dzīvojamā māja ”), if the suspect or the accused and his family permanently resided there.

19 . As in force at the relevant time, section 633 of the Civil Procedure Law provided for the ability to complain of unlawful actions by bailiffs ( tiesu izpildītāji ). More specifically, paragraph 3 of that section provided for the ability for third parties to ask civil courts to exclude from an itemised list of property subject to criminal confiscation property that had been included there in contravention of the law ( pieļaujot likuma pārkāpumu ).

COMPLAINTS

20 . The applicants complained under Article 1 of Protocol No. 1 to the Convention about the restraint order issued in respect of the property located on D. Street with a view to its potential confiscation.

21 . They also submitted numerous other complaints under various paragraphs and subparagraphs of Articles 3, 5, 6, 8 and 9 of the Convention and also under Article 1 of Protocol No. 1.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL N o . 1 TO THE CONVENTION

22 . The applicants complained about the prosecutor ’ s decision to issue a restraint order in respect of their house with a view to its potential confiscation. They relied upon Article 1 of Protocol No. 1 to 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. Victim status of the second, third and fourth applicants

23 . The Government submitted that the second, third and fourth applicants could not claim to be victims of the alleged violation of Article 1 of Protocol No. 1. In this regard the Government relied upon the Court ’ s case-law to the effect that a person complaining of a violation of his or her right to property must first show that such a right existed (see, for example, Pištorová v. the Czech Republic , no. 73578/01, § 38, 26 October 2004 ). The Government underlined that at the time the prosecutor had issued the restraint order in respect of the property on D. Street the only officially registered owner of that property had been the first applicant.

24 . The applicants did not submit any observations in this regard.

25 . The Court notes that the first applicant was the only officially registered owner of the property on D. Street. The second, third and fourth applicants have not submitted any information or arguments to the contrary that would enable the Court to conclude that the property on D. Street was their “possession” within the meaning of Article 1 of Protocol No. 1.

26 . For the foregoing reasons, the Court considers that the second, third and fourth applicants ’ complaints under Article 1 of Protocol No. 1 are incompatible ratione personae with the provisions of the Convention for the purposes of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

B. Victim status of the first applicant, whether the matter has been resolved and admissibility

27 . The Government argued that at the time the present application was submitted to the Court, the first applicant could no longer claim to be a “victim” of a violation of Article 1 of Protocol No. 1 or, alternatively, that the matter complained of had been resolved within the meaning of Article 37 § 1 (b) of the Convention . In this regard the Government referred to the Court ’ s case-law to the effect that i t is not possible to claim to be a “victim” of an act which is deprived, temporarily or permanently, of any legal effect ( Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 92, ECHR 2007 ‑ I ). The Government conceded that when the prosecutor had issued a restraint order on 8 August 2000 there had been an interference with the first applicant ’ s right to the peaceful enjoyment of his possessions. However, by the decision adopted by the Riga City Zemgale District Court on 20 November 2002 (see paragraph 15 above) the effects of the restraint order had been removed and as of 3 January 2003, when the corresponding record was struck from the land register (see paragraph 16 above), the first applicant had been free to use his property as he saw fit.

28 . In support of the argument that the matter had been resolved the Government argued that the circumstances complained of by the first applicant no longer obtained and that the effects of the alleged violation of the Convention had been redressed (the Government referred to Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 48, 7 December 2007 ). With regard to the former consideration the Government reiterated that the decision of the Zemgale District Court of 20 November 2002 had removed the effects of the restraint order. With regard to redressing the effects of the alleged violation, the Government argued that during the time that the restraint order had remained in force the value of the first applicant ’ s property had not diminished; therefore quashing the restraint order in itself had restored the first applicant ’ s rights in full and ad integrum .

29 . The first applicant did not submit any observations in this regard.

30 . The Court does not find it necessary to examine whether the first applicant may be considered a victim or whether the matter may be considered to be resolved. From the arguments submitted by the Government the Court attaches particular weight to two facts. Firstly, the Court agrees with the Government that the decision of 20 November 2002 of the Riga City Zemgale District Court put an end to the alleged violation. Secondly, the first applicant has not disputed the Government ’ s assertion that the value of his house did not diminish during the time the restraint order was in operation. In addition, the first applicant has never argued that he had attempted, planned or even intended to sell or otherwise transfer the ownership of the house during that time. Thirdly, the Court attaches importance to the fact that in his appeal on points of law of 30 May 2002 (see paragraph 10 above) the first applicant did not complain that the restraint order imposed in respect of the property on D. Street was unlawful. Rather, he argued that the property could not be subject to criminal confiscation because it had been acquired lawfully.

31 . To sum up, the applicant has failed to demonstrate to the Court that the restraint order in respect of the property on D. Street had any real adverse impact on his property rights. The civil proceedings concerning the unlawfulness of the restraint order that were initiated by the second, third and fourth applicants and which were ultimately successful were not only unusual in that a civil court overruled a decision taken by a prosecutor in the course of criminal proceedings but also because the first applicant was named as a respondent. The above considerations, in sum, lead the Court to conclude that the first applicant ’ s compla int under Article 1 of Protocol No. 1 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

II . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

32 . T he applicants submitted numerous other complaints under various paragraphs and subparagraphs of Articles 3, 5, 6, 8 and 9 of the Convention and also under Article 1 of Protocol No. 1. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos David Thór Björgvinsson Registrar President