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FIRST
SECTION
CASE OF ISMAYILOV v. RUSSIA
(Application
no. 30352/03)
JUDGMENT
STRASBOURG
6 November
2008
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 Ismayilov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly
Kovler,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 16 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30352/03) 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 an Azerbaijani national, Mr Adil
Yunus oğlu İsmayılov (“the applicant”),
on 2 September 2003.
- The
applicant, who had been granted legal aid, was represented by Mr M.
Rachkovskiy and Ms O. Preobrazhenskaya from the International
Protection Centre, a Moscow-based non-governmental organisation. The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian
Federation at the European Court of Human Rights.
- On
20 January 2006 the Court 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
Azerbaijani Government did not exercise their right to intervene in
the proceedings (Article 36 § 1 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1937 and lives in Moscow.
- On
17 November 2002 the applicant arrived in Moscow from Baku. He was
carrying with him 21,348 US dollars (USD), representing the proceeds
from the sale of his ancestral dwelling in Baku. However, he only
reported USD 48 on the customs declaration, whereas Russian law
required that any amount exceeding USD 10,000 be declared to the
customs. A customs inspection uncovered the remaining amount in his
luggage. The applicant was charged with smuggling, a criminal offence
under Article 188 § 1 of the Criminal Code, and the money was
appended to the criminal case as physical evidence (вещественные
доказательства).
- On
8 May 2003 the Golovinskiy District Court of Moscow found the
applicant guilty as charged and imposed a suspended sentence of six
months' imprisonment conditional on six months' probation. As regards
the money, it held:
“Physical evidence – 21,348 US dollars
stored in the Central cash desk of the Sheremetyevo Customs Office –
shall revert to the State.”
- In
his statement of appeal the applicant claimed his innocence and
submitted that the confiscation order had no basis in the domestic
law because Article 188 of the Criminal Code did not provide for
confiscation as punishment.
- On
29 May 2003 the Moscow City Court upheld the conviction on appeal. As
regards the money, it noted that the trial court had not ordered
confiscation of the money as a penal sanction, but had rather decided
on the destiny of the physical evidence.
- The
applicant sent complaints to various Russian authorities. He pointed
out that he had been living below the poverty line and that for this
reason he had decided to sell the flat in Baku which he had inherited
from his mother. He enclosed copies of the will and the flat sale
contract. He asked for return of the lawfully acquired money on
humanitarian grounds.
- On
8 September 2003 the Ombudsman of the Russian Federation wrote a
letter on the applicant's behalf to the acting Moscow City
prosecutor, asking him to submit a request for institution of
supervisory-review proceedings in the part concerning the
confiscation order. On 18 September 2003 the deputy Moscow City
prosecutor replied to the Ombudsman that there were no reasons to
seek institution of supervisory-review proceedings because the
confiscation order had been lawful on the basis of paragraph 7 of the
USSR Supreme Court's Resolution of 3 February 1978.
- On
22 October 2003 the Ombudsman asked the Prosecutor General to apply
for institution of supervisory-review proceedings. He wrote, firstly,
that, contrary to the requirements of the Code of Criminal Procedure,
no procedural document indicated what category of physical evidence
the applicant's money belonged to. That omission entailed an
incorrect decision on the destiny of the physical evidence. The
applicant's money had neither been an instrument of the crime –
in smuggling cases only a hiding place could be such an instrument –
nor had it been criminally acquired. Accordingly, neither paragraph 3
(1) nor paragraph 3 (4) of Article 81 of the Code of Criminal
Procedure were applicable in the applicant's situation and the money
should have been returned to the lawful owner pursuant to paragraph 3
(6) of that Article. Otherwise, the confiscation order amounted to a
de facto second punishment for the same offence. Finally, the
Ombudsman contested the applicability of the USSR Supreme Court's
resolution of 3 February 1978. He pointed out that paragraph 7
expressly provided for application of the “current
legislation”. As the new Criminal Code did not provide for
confiscation in cases of smuggling, paragraph 7 could not be applied.
- On
9 December 2003 the deputy Prosecutor General replied to the
Ombudsman that the Presidium of the Supreme Court had already opined
that the object of smuggling should be treated as the instrument of
the offence and be liable to confiscation as such (he referred to the
judgment in the Petrenko case, cited in paragraph 47 below).
- The
Ombudsman lodged a constitutional complaint on behalf of the
applicant and another person.
- On
8 July 2004 the Constitutional Court declared the complaint
inadmissible (decision no. 251-O). It held that the legal possibility
of confiscating the objects recognised as physical evidence in a
criminal case, including instruments and proceeds of offences, was
compatible with the international obligations of the Russian
Federation undertaken under the United Nations Convention against
Transnational Organised Crime and the Council of Europe Convention on
Laundering, Search, Seizure and Confiscation of the Proceeds from
Crime. Hence, Article 81 of the Code of Criminal Procedure did not
permit an arbitrary interference with property rights and did not
violate, in itself, the complainants' constitutional rights. The
Constitutional Court concluded as follows:
“Determination of the status of the objects
illegally transported across the customs border of the Russian
Federation in the criminal proceedings and decision on whether they
fit the description of physical evidence liable to criminal
confiscation... are to be made by the court of general jurisdiction
trying the criminal case... Lawfulness of, and justification for, the
judicial decision on confiscation of physical evidence shall be
reviewed by higher courts in criminal proceedings. The Constitutional
Court of the Russian Federation is not competent to carry out such a
review...”
- On
24 March 2005 the Constitutional Court refused the Ombudsman's
further request for a clarification of its decision of 8 July 2004.
II. RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE
- The
United Nations Convention against Transnational Organized Crime which
concerns the transnational offences and also offences of
participation in an organised criminal group, laundering of the
proceeds of crime, corruption, and obstruction of justice, ratified
by Russia on 26 May 2004, provides as follows:
Article 7 Measures to combat
money-laundering
“2. States Parties shall consider
implementing feasible measures to detect and monitor the movement of
cash and appropriate negotiable instruments across their borders,
subject to safeguards to ensure proper use of information and without
impeding in any way the movement of legitimate capital. Such measures
may include a requirement that individuals and businesses report the
cross-border transfer of substantial quantities of cash and
appropriate negotiable instruments.”
Article 12 Confiscation and seizure
“1. States Parties shall adopt, to the
greatest extent possible within their domestic legal systems, such
measures as may be necessary to enable confiscation of:
(a) Proceeds of crime derived from offences covered by
this Convention or property the value of which corresponds to that of
such proceeds;
(b) Property, equipment or other instrumentalities used
in or destined for use in offences covered by this Convention.”
- 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 Foreign Currency Act (Federal Law no. 3615-I of 9
October 1992, in force at the material time) provided that Russian
residents and non-residents alike had the right to transfer, bring
in, and send foreign currency to Russia without any restrictions
provided that they have complied with the customs rules (sections 6 §
3 and 8 § 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...”
Similar
provisions were previously contained in Article 86 of the RSFSR Code
of Criminal Procedure (cited in Baklanov v. Russia,
no. 68443/01, § 20, 9 June 2005).
- The
Resolution of the Plenary Supreme Court of the USSR “On
judicial practice regarding the offence of smuggling” (no. 2 of
3 February 1978) provided as follows:
“7. In accordance with the current
legislation, the objects of smuggling are liable to confiscation to
the State as physical evidence. Vehicles and other means of transport
are also liable to confiscation as instruments of the offence
provided that they were equipped with special hiding places for
concealing goods or other valuables...”
- The
Resolution of the Plenary Supreme Court of the USSR “On
confiscation of the instruments of the offence that were recognised
as physical evidence in the case” (no. 19 of 16 August 1984)
provided as follows:
“Having regard to the questions relating to the
possibility of applying Article 86 § 1 of the RSFSR Code of
Criminal Procedure... in cases of negligent criminal offences, the
Plenary USSR Supreme Court resolves -
- to clarify that the objects belonging to the convict
and declared to be physical evidence may be confiscated on the basis
of Article 86 § 1 of the RSFSR Code of Criminal Procedure...
only if the convict or his accomplices deliberately used them as the
instruments of the crime with a view to achieving a criminal result.”
- The Presidium of the Supreme Court of the Russian
Federation in the case of Prosecutor General v. Petrenko (decision
no. 446p98pr of 10 June 1998) granted the prosecution's appeal
against the judgment, by which Mr Petrenko had been found guilty of
smuggling of foreign currency but the money had been returned to him
on the ground that Article 188 of the Criminal Code did not provide
for confiscation as a penal sanction. The Presidium held as follows:
“Confiscation of property as a penal sanction must
be distinguished from confiscation of smuggled objects which were
recognised as physical evidence. These issues must be addressed
separately in the judgment...
In the meaning of [Article 86 § 1 of the RSFSR Code
of Criminal Procedure] and also Article 83 of the CCrP, an instrument
of the offence is any object which has been used for accomplishing
publicly dangerous actions, irrespective of the main purpose of the
object. Accordingly, the notion of an instrument of the offence
comprises the object of the offence.
A mandatory element of a criminal offence under Article
188 of the Criminal Code is an object of smuggling that is being
illegally transported across the customs border... The court found Mr
Petrenko guilty of [attempted smuggling], noting that the US dollars
were the object of the offence. Accordingly, it was required to
decide on the destiny of physical evidence in accordance with Article
86 § 1 of the CCrP – that is, according to the rules on
the instruments of the offence – but failed to do so.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained under Article 1 of Protocol No. 1 that the
authorities had unlawfully taken away the money he had obtained from
the sale of the inherited flat. Article 1 of Protocol No. 1 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 Court notes that this 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
applicant submitted firstly that the confiscation measure had been
unlawful because, on one hand, Article 188 of the Criminal Code did
not provide for confiscation as a sanction for smuggling and, on the
other hand, Article 81 of the Code of Criminal Procedure allowed the
authorities to confiscate only criminally acquired money, whereas the
money taken from him had been the lawful proceeds from the sale of
his late mother's flat in Baku. The applicant pointed out that he had
had no criminal record nor had been suspected of criminal activities
and the United Nations Convention against Transnational Organized
Crime had been irrelevant in his case. He finally maintained that the
confiscation measure had imposed a disproportionate burden on him,
especially taking into account that he had already been punished with
a criminal conviction and a suspended sentence of imprisonment.
- The Government submitted that the money the applicant
had carried had been the instrument of the offence and physical
evidence in the case. It had been confiscated in accordance with the
Article 81 § 3 (1) of the Code of Criminal Procedure and the
Supreme Court's case-law in the Petrenko case. That decision
was compatible with the international-law principles and, in
particular, Article 12 of the United Nations Convention against
Transnational Organized Crime, which provides for a “possibility
to confiscate the proceeds and property of the offence, equipment and
other means, used or meant to be used while committing an offence”.
The confiscation measure had had a lawful basis and had also been
foreseeable for the applicant.
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 US dollars 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 his 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 Riela and
Others v. Italy (dec.), no. 52439/99, 4 September 2001;
Arcuri and Others v. Italy (dec.), no. 52024/99, 5 July 2001;
C.M. v. France (dec.), no. 28078/95, 26 June 2001;
Air Canada v. the United Kingdom, judgment of 5 May
1995, Series A no. 316 A, § 34; and AGOSI
v. the United Kingdom, judgment of 24 October 1986, Series A
no. 108, § 34). 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).
- The
money which had been discovered on the applicant was recognised as
physical evidence in the criminal case against him in accordance with
paragraph 1 of Article 81 of the Code of Criminal Procedure. Pursuant
to paragraph 3 of that Article, upon pronouncement of the judgment,
the trial court was required to decide on the destiny of physical
evidence. It determined that the money was an instrument of the crime
liable to confiscation, an eventuality foreseen in subparagraph 1 of
paragraph 3 of Article 81. Contrary to the applicant's submission
that Article 81 only permitted confiscation of criminally acquired
assets, that provision did not contain qualification as to the lawful
or unlawful origin of the instruments of the offence. As to whether
the non-declared money should have been considered the instrument or
the object of the offence of smuggling, the Court notes that at least
since the Supreme Court's judgment in the Petrenko case (see
paragraph 47 above), the interpretation of the notion of an
“instrument of the offence” as comprising also the
objects of the offence has been entrenched in the Russian law.
Accordingly, the Court finds that the measure had a basis in domestic
law which was sufficiently foreseeable in its application.
- As
regards the general interest of the community which the interference
may have pursued, the Court observes that the States have a
legitimate interest and also a duty by virtue of various
international treaties, such as the United Nations Convention against
Transnational Organized Crime, to implement measures to detect and
monitor the movement of cash across their borders, since large
amounts of cash may be used for money laundering, drug trafficking,
financing of terrorism or organised crime, tax evasion or commission
of other serious financial offences. The general declaration
requirement applicable to any individual crossing the State border
prevents cash from entering or leaving the country undetected and the
confiscation measure which the failure to declare cash to the customs
authorities incurs is a part of that general regulatory scheme
designed to combat those offences. The Court therefore considers that
the confiscation measure conformed to the general interest of the
community.
- The
Court will next assess whether there was a reasonable relationship of
proportionality between the means employed by the authorities to
secure the general interest of the community and the protection of
the applicant's right to the peaceful enjoyment of his possessions
or, in other words, whether an individual and excessive burden was or
was not imposed on the applicant.
- The
criminal offence of which the applicant was found guilty consisted of
failure to declare the 21,300 US dollars in cash which he was
carrying, to the customs authorities. It is important to note that
the act of bringing foreign currency in cash into Russia was not
illegal under Russian law. Not only was it lawful to import foreign
currency as such but also the sum which could be legally transferred
or, as in the present case, physically carried across the Russian
customs border, was not in principle restricted (see paragraph 47
above). This element distinguishes the instant case from the cases in
which the confiscation measure applied either to goods whose
importation was prohibited (see AGOSI, cited above, concerning
a ban on import of gold coins; Bosphorus
Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland
[GC], no. 45036/98, ECHR 2005 VI, concerning the banning of
Yugoslavian aircraft falling under the sanctions regime) or vehicles
used for transport of prohibited substances or trafficking in human
beings (see Air Canada, cited above; C.M. v. France
(dec.), cited above, and Yildirim v. Italy (dec.), no.
38602/02, ECHR 2003-IV).
- Furthermore,
the lawful origin of the confiscated cash was not contested. The
applicant possessed documentary evidence, such as the will and the
sale contract, showing that he had acquired the money through the
sale of a Baku flat which he had inherited from his mother. On that
ground the Court distinguishes the present case from the cases in
which the confiscation measure extended to the assets which were the
proceeds of a criminal offence (see Phillips v. the United
Kingdom, no. 41087/98, §§ 9-18, ECHR
2001-VII), which were deemed to have been unlawfully acquired (see
Riela and Arcuri, both cited above, and Raimondo
v. Italy, judgment of 22 February 1994, Series A
no. 281-A, § 29) or were intended for use in illegal
activities (see Butler v. the United Kingdom (dec.), no.
41661/98, 27 June 2002).
- The
Court further notes that the applicant did not have a criminal record
and that he had not been suspected of, or charged with, any criminal
offences prior to the incident at issue. There is nothing to suggest
that by imposing the confiscation measure on the applicant the
authorities sought to forestall any other illegal activities, such as
money laundering, drug trafficking, financing of terrorism, or tax
evasion. The money he transported had been lawfully acquired and it
was permissible to bring that amount into Russia so long as he
declared it to the customs authorities. It follows that the only
criminal conduct which could be attributed to him was the failure to
make a declaration to that effect to the customs authorities.
- The
Court considers that, in order to be considered proportionate, the
interference should correspond to the gravity of the infringement,
namely the failure to comply with the declaration requirement, rather
than to the gravity of any presumed infringement which had not
however been actually established, such as an offence of money
laundering or tax evasion. The amount confiscated was undoubtedly
substantial for the applicant, for it represented the entirety of the
proceeds from the sale of his late mother's home in Baku. On the
other hand, the harm that the applicant might have caused to the
authorities was minor: he had not avoided customs duties or any other
levies or caused any other pecuniary damage to the State. Had the
amount gone undetected, the Russian authorities would have only been
deprived of the information that the money had entered Russia. Thus,
the confiscation measure was not intended as pecuniary compensation
for damage – as the State had not suffered any loss as a result
of the applicant's failure to declare the money – but was
deterrent and punitive in its purpose (compare Bendenoun v.
France, judgment of 24 February 1994, Series A no. 284,
§ 47). However, in the instant case the applicant had
already been punished for the smuggling offence with a term of
imprisonment conditional on a period of probation. It has not been
convincingly shown or indeed argued by the Government that that
sanction alone was not sufficient to achieve the desired deterrent
and punitive effect and prevent violations of the declaration
requirement. In these circumstances, the imposition of a confiscation
measure as an additional sanction was, in the Court's assessment,
disproportionate, in that it imposed an “individual and
excessive burden” on the applicant.
- There
has therefore been a violation of Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 §§ 1 and 3 of
the Convention that his right to a fair trial within a reasonable
time and his right to question witnesses for the defence had been
breached. Relying on Article 8 § 2 of the Convention, he
maintained that his offence had not impaired any public or State
interests. The Court considers that these complaints have not been
made out and rejects them as manifestly ill-founded.
- Lastly,
the applicant complained under Article 4 § 1 of Protocol No. 7
that confiscation of the money amounted to a second conviction for
the offence for which he had already been punished with deprivation
of liberty. Since both sanctions were issued in the same proceedings,
Article 4 of Protocol No. 7 finds no application. It follows that
this complaint is incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 35 § 3
and must be rejected in accordance with Article 35 § 4.
III. 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 679,346.73 Russian roubles in respect of pecuniary
damage, representing the confiscated amount calculated at the
exchange rate on the date of confiscation. He also claimed EUR
120,000 in respect of non-pecuniary damage, which represented the
current value of a one-room flat in Moscow equivalent to one that he
had intended to buy with the confiscated money.
- The
Government submitted that the claim was manifestly excessive.
- The
Court has found that that amount was confiscated from him in breach
of Article 1 of Protocol No. 1. It accepts therefore the applicant's
claim in respect of pecuniary damage and awards him EUR 20,000 under
this head. 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 5,000 in respect
of non-pecuniary damage, plus any tax that may be chargeable on it.
B. Costs and expenses
- The
applicant did not make a claim for costs and expenses. Accordingly,
there is no call to make an award under this head.
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
- Declares unanimously the complaint concerning an
alleged violation of the applicant's right to peaceful enjoyment of
his possessions admissible and the remainder of the application
inadmissible;
- Holds by six votes to one that there has been a
violation of Article 1 of Protocol No. 1;
- Holds by six votes to one
(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, EUR 25,000
(twenty-five thousand euros), plus any tax that may be chargeable, in
respect of pecuniary and non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 6 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the dissenting opinion of Judge Kovler is
annexed to this judgment.
C.L.R.
S.N.
DISSENTING OPINION OF JUDGE KOVLER
To my
regret I cannot share the conclusions of the Chamber in this case. I
did not agree with the conclusions of the majority in the similar
case of Baklanov v. Russia, no. 68443/01, judgment of 9
June 2005 (which became final on 30 November 2005) in which the Court
concluded that “the interference with the applicant's property
cannot be considered lawful within the meaning of Article 1 of
Protocol 1 to the Convention” (§ 46 of the Baklanov
judgment). In the present case the Court concluded differently: “
... the Court finds that the measure had a basis in domestic law
which was sufficiently foreseeable in its application” (§
32). But for the majority “the imposition of a confiscation
measure as an additional sanction was, in the Court's assessment,
disproportionate...“ (§ 38). Nota bene: lawful but
disproportionate...
As
regards the lawfulness of the interference I refer to the provisions
of Article 188 (“Contraband”) of the Criminal Code of the
Russian Federation and the Foreign Currency Act (reproduced in §§
18-19 of the judgment). These provisions specify in clear terms in
what circumstances the importation of foreign currency in cash was
illegal under Russian law. The judgment (§ 20) also reproduces
Article 81 of the Code of Criminal Procedure of the Russian
Federation, which provides that any object used to commit an offence
may be recognised as physical evidence and that instruments of the
crime belonging to the accused are liable to confiscation, transfer
to the competent authorities or destruction (Article 81 § 3
(1)).
As
mentioned in § 15 of the present judgment, the Constitutional
Court of the Russian Federation in its Decision (Opredeleniye) of
8 July 2004 concluded that the determination of the procedural status
of objects illegally transported across the customs border of the
Russian Federation in criminal proceedings and the decision as to
whether they constitute physical evidence liable to criminal
confiscation are to be made by the court of general jurisdiction
trying the criminal case. Furthermore, it did not establish any
extra-judicial way of confiscation (vnesudebnyy poriadok
konfiskatsiji) of money in Mr. Izmayilov's case.
On
many occasions our Court has observed that the Court's power to
review compliance with domestic law is limited, it being in the first
place for the national authorities, notably the courts, to interpret
and apply that law (see Chappell v the United Kingdom,
judgment of 30 March 1989, Series A no. 152-A, p. 23; The
Traktorer Aktiebolag v. Sweden, judgment of 7 July 1989, Series A
no. 159, p. 23).
The
Golovinskiy District Court of Moscow found the applicant guilty under
Article 188 § 1 of the Criminal Code and held that the illegally
transported money was physical evidence to be transferred into the
State's possession, strictly applying the national law.
As to disproportionality, Article 188 §1 of the Criminal Code of
the Russian Federation carries a penal sanction of up to five years'
imprisonment. Thus, the two years' suspended sentence is not really
disproportionate punishment even in combination with a confiscation
of physical evidence. I do not agree with the interpretation of the
AGOSI case given in § 35 of the present judgment. In the
mentioned case the Court pointed out in general terms, as the
Commission did in the past, that “under the general principles
of law recognised in all Contracting States, smuggled goods may, as a
rule, be the object of confiscation” (AGOSI v. the United
Kingdom, judgment of 24 October 1986, Series A no. 108, §
53). In other words, a margin of appreciation of the States is
recognised by the Court in this delicate matter, and it does not
contravene Article 1 § 2 of the Protocol 1 to the Convention.
In my
dissenting opinion on the Baklanov case I also drew attention
to the international aspects of the case, essentially to the UN and
Council of Europe's Conventions on money laundering where the term
“confiscation” means not only punishment (or “additional
sanction” – the term used by our Court in § 38), but
also “a measure ordered by a court following proceedings in
relation to a criminal offence or criminal offences resulting in the
final deprivation of property” (Article 1 of the Council of
Europe Convention of 8 November 1990), a kind of preventive and
“pedagogical” measure.
Last
but not least, I am really shocked that someone can be awarded a
25,000 Euros prize for illegally transporting money across the
customs border premeditatedly, declaring only 48 US dollars in the
customs declaration and carrying in reality 21,348 US dollars...
Incidentally, in the Baklanov case the applicant, for reasons
which can readily be understood, did not include the forfeited sum in
his claims under Article 41.
