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FIRST
SECTION
CASE OF ADZHIGOVICH v. RUSSIA
(Application
no. 23202/05)
JUDGMENT
STRASBOURG
8 October
2009
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 Adzhigovich v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and André
Wampach, Deputy Section Registrar,
Having
deliberated in private on 17 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23202/05) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Ms Yuliya Grigoryevna
Adzhigovich (“the applicant”), on 21 June 2005.
- The
applicant was represented by Mr V. Fomin, a lawyer practising in the
Moscow Region. The Russian Government (“the Government”)
were initially represented by Mr P. Laptev and Ms V. Milinchuk,
former Representatives of the Russian Federation at the European
Court of Human Rights, and subsequently by their Representative, Mr
G. Matyushkin.
- The
applicant alleged in particular a violation of her property rights on
account of confiscation of her money.
- On
20 January 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3 of the Convention).
- The Ukrainian Government did not exercise their right
to intervene in the proceedings (Rule 36 § 1 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and lives in Moscow.
- On
8 October 2004 the applicant travelled from Moscow to Simferopol in
Ukraine through Sheremetyevo airport. She had on her 13,020 US
dollars (USD), 31 Ukrainian hryvnyas (UAH) and 1,100 Russian roubles
(RUB). However, she only reported USD 10,000 and UAH 31 in her
customs declaration. The customs inspection uncovered the remaining
USD 3,020, which the applicant claimed she had forgotten about. She
was charged with smuggling, a criminal offence under Article 188 §
1 of the Criminal Code. The money was appended to the criminal case
as physical evidence (вещественные
доказательства).
- On
9 December 2004 the Golovinskiy District Court of Moscow found the
applicant guilty as charged and imposed a suspended sentence of one
year's imprisonment, conditional on one year's probation. As regards
the money, it referred to Article 81 of the Code of Criminal
Procedure and held that:
“Physical evidence – USD 13,020 and UAH 31
held in the evidence storage room of the Sheremetyevo Customs Office
– shall revert to the State.”
- In
his statement of appeal, counsel for the applicant contested the
lawfulness of the confiscation measure. He submitted that the gravity
of the offence should have been determined by reference to the amount
the applicant had concealed from the customs, that is USD 3,020,
rather than the entire amount she had carried. The money had been the
object rather than the instrument of the offence and as such it
should have been returned to the lawful owner because it had not been
claimed that it had been criminally acquired.
- On
25 January 2005 the Moscow City Court upheld the judgment by a
succinct decision, without examining the counsel's arguments in
detail.
- Counsel for the applicant submitted several
applications for supervisory review of the judgments. The
applications were rejected by a judge of the Moscow City Court on 22
August 2005, the President of the Moscow City Court on 18 January
2006, and a judge of the Supreme Court of the Russian Federation on
12 April 2006. As regards the confiscation measure, the judicial
authorities maintained that the measure had been lawful and compliant
with Article 81 of the Code of Criminal Procedure.
- On 26 April 2007 the Presidium of the Moscow City
Court examined yet another application for supervisory review. It
held that the applicant had been correctly found guilty of smuggling
but amended the judgment in part concerning the confiscation measure,
having found as follows:
“However, the decision that the authentically
declared amount of USD 10,000 and UAH 31 should revert to the State
was not founded on sufficient reasons.
In deciding that the foreign currency should revert to
the State, the court posited that the currency transported by Ms
Adzhigovich was the object of the offence. However, since her
criminal intent was directed at the breach of the procedure for
transferring cash money (currency) across the customs border rather
than at their unlawful misappropriation, the cash money (currency)
was not the object of the offence and therefore not liable to
confiscation under Article 81 [§ 3] (1) of the Code of Criminal
Procedure.
Moreover, according to Article 81 [§ 3] (4) of the
Code of Criminal Procedure, criminally acquired property, money or
other valuables must revert to the State. The case file does not
contain any evidence to the effect that Ms Adzhigovich obtained the
above-mentioned money through criminal means or as the proceeds of
criminal activity.
In such circumstances, the judgments in the part
concerning the decision that the foreign currency should revert to
the State may not be considered lawful or justified.”
The
Presidium held that the judgments would be amended and that
USD 10,000 and UAH 31 would be returned to the applicant.
- On
5 July 2007 a writ of execution was issued and sent to the bailiffs'
service for enforcement.
- On
23 January 2008 the bailiffs determined that the enforcement was
impossible because the cash money in the amount of USD 10,000 and UAH
31 was absent from the evidence storage room of the Sheremetyevo
Customs Office. That money had been taken away on 4 October 2005 by
the bailiffs of the Northern Administrative District of Moscow, which
appeared to have made enforcement impossible.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
Criminal Code of the Russian Federation provides that smuggling, that
is movement of large amounts of goods or other objects across the
customs border of the Russian Federation, committed by concealing
such goods from the customs or combined with non-declaration or
inaccurate declaration of such goods, carries a penal sanction of up
to five years' imprisonment (Article 188 § 1).
- The
Code of Criminal Procedure of the Russian Federation (“CCrP”)
provides as follows:
Article 81. Physical evidence
“1. Any object may be recognised as
physical evidence -
(1) that served as the instrument of the
offence or retained traces of the offence;
(2) that was the target of the criminal acts;
(3) any other object or document which may be
instrumental for detecting a crime or establishing the circumstances
of the criminal case.
...
3. On delivery of a conviction... the destiny
of physical evidence must be decided upon. In such a case –
(1) instruments of the crime belonging to the
accused are liable to confiscation, transfer to competent authorities
or destruction;
(2) objects banned from circulation must be
transferred to competent authorities or destroyed;
(3) non-reclaimed objects of no value must be
destroyed...;
(4) criminally acquired money and other
valuables must revert to the State by a judicial decision;
(5) documents must be kept with the case
file...;
(6) any other objects must be returned to
their lawful owners or, if the identity of the owner cannot be
established, transferred to the State...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Article 6 of the Convention and Article 1
of Protocol No. 1 that the confiscation measure did not have a
sufficient and clear basis in domestic law. The Court considers that
this complaint will be more appropriately examined under Article 1 of
Protocol No. 1, 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. Admissibility
- The Government firstly claimed that the Russian
authorities had taken measures at the domestic level to remedy the
alleged violations of the applicant's rights. They did not specify
the nature of those measures.
- The applicant replied that the Presidium's judgment of
26 April 2007 had only concerned the return of the amount of USD
10,000 and UAH 31. It had not specified the legal basis for the
decision that the remaining USD 3,020 should revert to the
State. Moreover, the amount to be returned had not been paid back to
her.
- In so far as the Government's submission may be
understood as a challenge to the applicant's status as a “victim”
of the alleged violation, the Court will deal with it in the
admissibility part. It is recalled that a decision or measure
favourable to an applicant is not in principle sufficient to deprive
him of his status as a “victim” unless the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for, the breach of the Convention (see Amuur
v. France, 25 June 1996, § 36, Reports of Judgments
and Decisions 1996 III, and Dalban v. Romania [GC],
no. 28114/95, § 44, ECHR 1999-VI). In the instant case the
applicant complained that the legal basis for the confiscation
measure was unclear. Even though the Presidium of the Moscow City
Court acknowledged certain deficiencies in the confiscation order,
its decision only extended to a part of the money that had been
seized from the applicant. Furthermore, the amount to be returned was
not repaid to the applicant because it was missing from the
Sheremetyevo Customs Office. In these circumstances, the Court finds
that the applicant was not afforded acknowledgement of, and redress
for, the alleged violation of her property rights, and may still
claim to be a “victim”.
- The Government also claimed that the applicant had not
applied to the Supreme Court of the Russian Federation for
supervisory review of the judgments. The Court notes that counsel for
the applicant made a number of applications for supervisory review to
the Moscow City Court and the Supreme Court, all of which had been
rejected before the case was communicated to the Government (see
paragraph 11 above). In any event, it reiterates that applications
for supervisory review are not a remedy to be made use of for the
purposes of Article 35 § 1 of the Convention (see Tumilovich
v. Russia (dec.), no. 47033/99, 22 June 1999, and Berdzenishvili
v. Russia (dec.), no. 31697/03, 29 January 2004).
Accordingly, the Government's objection as to the non-exhaustion of
domestic remedies must be dismissed.
- The Court notes that the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Submissions by the parties
- The
Government submitted that the applicant's property rights had been
restricted as a result of her having committed a criminally
reprehensible act. The money which she had illegally transported
across the customs border had been confiscated in accordance with
Article 81 § 3 of the Code of Criminal Procedure. According to
existing judicial practice, the money was considered an “instrument”
of the offence of smuggling and was covered by a broader notion of
the “object” of the offence.
- The
applicant contended that the Government failed to specify the
paragraph of Article 81 § 3 which had been applied in her case.
The domestic courts had never indicated that the money was an
“instrument” of the offence of smuggling. Their decisions
justifying the application of the confiscation measure had been
inconsistent and could not have amounted to established judicial
practice.
2. The Court's assessment
(a) The applicable rule
- Article
1 of Protocol No. 1 comprises three distinct rules: the first rule,
set out in the first sentence of the first paragraph, is of a general
nature and enunciates the principle of the peaceful enjoyment of
property; the second rule, contained in the second sentence of the
first paragraph, covers deprivation of possessions and subjects it to
certain conditions; the third rule, stated in the second paragraph,
recognises that the Contracting States are entitled, inter alia,
to control the use of property in accordance with the general
interest. The three rules are not, however, distinct in the sense of
being unconnected. The second and third rules are concerned with
particular instances of interference with the right to peaceful
enjoyment of property and should therefore be construed in the light
of the general principle enunciated in the first rule (see, as a
recent authority, Broniowski v. Poland [GC],
no. 31443/96, § 134, ECHR 2004 V).
- The
“possession” at issue in the present case was an amount
of money in United States dollars and Ukrainian hryvnyas which was
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, in respect of a
similar measure, Sun v. Russia,
no. 31004/02, § 25, 5 February 2009, and Ismayilov v.
Russia, no. 30352/03, § 30, 6 November 2008, with further
references). Accordingly, it considers that the same approach must be
followed in the present case.
(b) Compliance with Article 1 of Protocol
No. 1
-
The Court emphasises that the first and most important requirement of
Article 1 of Protocol No. 1 is that any interference by a public
authority with the peaceful enjoyment of possessions should be
“lawful”: the second paragraph recognises that the States
have the right to control the use of property by enforcing “laws”.
Moreover, the rule of law, one of the foundations of a democratic
society, is inherent in all the Articles of the Convention. The issue
of whether a fair balance has been struck between the demands of the
general interest of the community and the requirements of the
protection of the individual's fundamental rights only becomes
relevant once it has been established that the interference in
question satisfied the requirement of lawfulness and was not
arbitrary (see, among other authorities, Baklanov v. Russia,
no. 68443/01, § 39, 9 June 2005, and Frizen v. Russia,
no. 58254/00, § 33, 24 March 2005).
- Moreover,
the Court reiterates that a norm cannot be regarded as a “law”
within the meaning of the Convention unless it is formulated with
sufficient precision to enable the citizen to regulate his conduct;
an individual must be able - if need be with appropriate advice - to
foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail. A law may still satisfy
the requirement of foreseeability even if the person concerned has to
take appropriate legal advice to assess, to a degree that is
reasonable in the circumstances, the consequences which a given
action may entail (see, for example, Chauvy and Others v. France,
no. 64915/01, §§ 43-45, ECHR 2004-VI).
- Turning
to the case before it, the Court observes that the money which had
been discovered on the applicant was recognised as physical evidence
in the criminal case. In ordering confiscation of the entire amount,
the first-instance court mentioned Article 81 of the Code of Criminal
Procedure, without, however, indicating the part of that provision
which was applicable in the applicant's particular case. The appeal
court and three supervisory-review decisions did nothing to fill the
lacuna, as they referred generally to Article 81 rather to a specific
ground or grounds for the confiscation measure of the many such
foreseen in part 3 of that Article.
- In
accordance with paragraph 3 of Article 81, only instruments of the
criminal offence mentioned in sub-paragraph 1 and criminally acquired
valuables referred to in sub-paragraph 4 were liable to confiscation
or reversion to the State. All other objects which were not banned
from circulation had to be returned to their lawful owners pursuant
to sub-paragraph 6 of Article 81 § 3. Examining the applicant's
request for supervisory review, on 26 April 2007 the Presidium of the
Moscow City Court determined that the money which the applicant had
carried across the customs border had been neither the object of the
offence of smuggling nor proceeds from any criminal activities. It
was therefore not liable to confiscation under either sub-paragraph 1
or sub-paragraph 4 of Article 81 § 3. It is remarkable in
this connection that, in making such a finding in a general manner,
the Presidium's decision could only be read as being applicable to
the entire amount of money carried by the applicant. However, for
unexplained reasons it only ordered the return of USD 10,000 and UAH
31 to the applicant, whereas it upheld the confiscation order in
respect of the remaining USD 3,020.
- Since
the Presidium held that the object of the offence was the procedure
of customs declaration rather than the money as a physical object and
also found on the facts that the applicant's money had not been
criminally obtained, it remains unclear what legal provision could be
applied to the maintenance of the confiscation order in respect of
the remaining amount. In fact, as regards that amount, the
Presidium's decision did nothing to remedy the lacunae in the legal
reasoning of the first-instance, appeal and supervisory-review
courts. In this connection the Court emphasises that the existence of
public-interest considerations for the contested measure, however
relevant or appropriate they might have appeared, did not dispense
the domestic authorities from the obligation to cite a specific legal
basis for such decision (see Frizen, cited above, §
34).
- As
regards the amount which the Presidium determined should be returned
to the applicant, the Court notes that the authorities did not invoke
any legal grounds for its continued retention beyond a reference to
the fact that it was “missing from the evidence storage room at
the Sheremetyevo airport”.
- Having
regard to the Russian authorities' consistent failure to indicate a
legal provision that could be construed as the basis for the
confiscation of the applicant's property and their refusal to return
the money which the Presidium determined should be repaid to the
applicant, the Court finds the impugned interference with the
applicant's property rights cannot be considered “lawful”
within the meaning of Article 1 of Protocol No. 1. This finding makes
it unnecessary to examine whether a fair balance has been struck
between the demands of the general interest of the community and the
requirements of the protection of the individual's fundamental
rights.
- There
has therefore been a violation of Article 1 of Protocol No. 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed USD 13,020 and UAH 31 in respect of pecuniary
damage, representing the confiscated amount. She also claimed USD
10,000 in respect of non-pecuniary damage.
- The
Government considered that the claim should be rejected because it
was not the Court's task to review to national authorities' decision
to bring criminal charges against the applicant.
- As
regards the claim for the pecuniary damage, the Court has found that
the amount claimed was confiscated from the applicant in breach of
Article 1 of Protocol No. 1. Furthermore, despite the Presidium of
the Moscow City Court's decision of 25 April 2007 to return part of
the money to the applicant, the enforcement thereof appears to have
been made impossible. The Court therefore accepts the claim in
respect of the pecuniary damage in its entirety and awards the
applicant EUR 10,240, plus any tax that may be chargeable. It
considers, however, that the claim in respect of non-pecuniary damage
is excessive. Making its assessment on an equitable basis, the Court
awards the applicant EUR 1,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable on it.
B. Costs and expenses
- The
applicant also claimed RUB 61,000 for legal fees and RUB 2,660.90
for postal expenses. She submitted a copy of a legal services
agreement and postal receipts.
- The
Government did not make any comments.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,500 for costs and
expenses, plus any tax that may be chargeable to the applicant.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
10,240 (ten thousand two hundred forty euros), plus any tax that may
be chargeable, in respect of pecuniary damage;
(i) EUR
1,000 (one thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,500 (one thousand five hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 8 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention
and Rule 74 § 2 of the Rules of Court, the concurring opinion of
Judge Kovler is annexed to this judgment.
N.A.V.
A.M.W.
CONCURRING OPINION OF JUDGE KOVLER
I
agree with the conclusions reached by the Chamber. Nevertheless, I
feel I should clarify the reasons for my decision.
Unlike
in some similar cases (for example, Baklanov v. Russia,
no. 68443/01, 9 June 2005, and Ismaylov v. Russia, no.
30352/03, 6 November 2008), where the national courts admitted
all money carried across the customs border without a customs
declaration as physical evidence in the criminal case, ordering the
confiscation of the entire amount (as did the first-instance court in
the present case), the Presidium of the Moscow City Court, after
examining the applicant's request for supervisory review, again found
her guilty of smuggling, but declared that the amount of 10,000
United States dollars (USD) and 31 Ukrainian hryvnias (UAH)
should be returned to her (see paragraph 12 of the judgment) because
this part of the sum had been declared to the customs authorities.
I
disagree, in view of this evident fact, with the contradictory
conclusions of the Chamber in paragraphs 31-32 of the judgment,
especially with the statement that “on 26 April 2007 the
Presidium of the Moscow City Court determined that the money which
the applicant had carried across the customs border had been neither
the object of the offence of smuggling (sic! – A.K.)
nor proceeds from any criminal activities” (§ 31).
The Moscow City Court's order to return “only” USD 10,000
and UAH 31 to the applicant was not based on “unexplained
reasons”, but instead was logical because it separated the
“smuggled” part of the total amount (USD 3,020), which
was not declared to the customs authorities and consequently was
confiscated, from the “legally carried” part of the
amount, which was declared to the customs authorities and was thus
confiscated illegally. This judgment was in line with the decision
(определение)
of the Constitutional Court of the Russian Federation of 8 July 2004,
in which money smuggling was qualified as a criminal offence in the
light of the Council of Europe Convention on Laundering, Search,
Seizure and Confiscation of the Proceeds from Crime (8 November
1990). I regret that the present judgment did not mention the
provisions of that instrument.
But I
accepted the final decision of the Chamber because of the truly
outrageous fact of the “mysterious” disappearance of the
money confiscated from the evidence storage room of the Sheremetyevo
Customs Office by the bailiffs long before the final judgment of the
national court! For this reason I also agree with the amount awarded
for pecuniary damage.
