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FIRST
SECTION
CASE OF DENISOVA AND MOISEYEVA v. RUSSIA
(Application
no. 16903/03)
JUDGMENT
STRASBOURG
1
April 2010
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 Denisova and Moiseyeva v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 11 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16903/03) 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 two Russian nationals, Ms Nataliya Mikhaylovna
Denisova and Ms Nadezhda Valentinovna Moiseyeva (“the
applicants”), on 8 July 2002.
- The
applicants were represented by Ms K. Kostromina, a lawyer with
International Protection Centre in Moscow. The Russian Government
(“the Government”) were represented by Mr P. Laptev,
former Representative of the Russian Federation at the European Court
of Human Rights.
- The
applicants alleged, in particular, a violation of their right to
peaceful enjoyment of possessions.
- On
9 September 2005 the Court decided to communicate the complaint
concerning the alleged violation of the applicants' property rights
to the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1949 and 1978 respectively and live in
Moscow. They are wife and daughter of Mr Valentin Moiseyev, who was
also an applicant before the Court (see Moiseyev v. Russia,
no. 62936/00, 9 October 2008).
A. Criminal proceedings against Mr Moiseyev
- On
3 July 1998 the Investigations Department of the Federal Security
Service of the Russian Federation (the FSB) opened criminal
proceedings against Mr Moiseyev. At 11.30 p.m. a search was conducted
at the applicants' flat. Foreign currency, the keys and registration
papers for a VAZ car, and the second applicant's personal computer
were seized. Simultaneously a search was carried out at Mr Moiseyev's
office. In total, the investigators seized 5,747 US dollars.
- On
10 July 1998 the investigator seized from the first applicant the
keys to garage no. 178.
- On
13 July 1998 Mr Moiseyev was formally charged with high treason, an
offence under Article 275 of the Criminal Code.
- On
22 July 1998 the investigator ordered a charge to be placed on the
VAZ car with a view to “securing possible forfeiture of the
defendant's property in accordance with Article 175 of the RSFSR Code
of Criminal Procedure”.
- On
1 September 1998 the investigator informed the director of the
SBS-Agro bank of the freezing of Mr Moiseyev's foreign currency and
Russian rouble accounts.
- On
16 September and 12 November 1998 the investigator issued charging
orders in respect of the garage and the computer. On 16 November
1998 the computer was physically removed from the applicants' flat
and placed in the material evidence room of the Federal Security
Service.
- On
29 March 1999 the second applicant asked the investigator to return
the computer, which was her personal property. On 12 April 1999 the
investigator replied that the computer had been seized with a view to
securing possible forfeiture of Mr Moiseyev's property and that
certain files edited by Mr Moiseyev had been discovered on the hard
disc. The second applicant was informed that, if necessary, her text
files would be copied and handed over to her.
- On
8 June 1999 the investigator ordered attachment of the seized 5,747
US dollars as a material exhibit. On 15 June 1999 the Finance and
Planning Department of the “USSR State Security Committee”
issued a receipt for the money.
- On 14 August 2001 the Moscow City Court convicted Mr
Moiseyev of high treason committed between 1992 and 1998, sentenced
him to four years and six months' imprisonment and issued a
confiscation order in respect of his property. The parts of the
judgments relevant to the determination of the property matters read
as follows:
“Mr Moiseyev's pre-trial deposition that he had
received remuneration for information transmitted to a representative
of a foreign state has been confirmed by the search records, noting
the discovery of US dollars both in his office and at his place of
residence. The witness B. confirmed that the search had uncovered
4,647 US dollars sorted into non-standard envelopes.
Both Mr Moiseyev and his wife Ms Denisova who was
interviewed as an additional witness at trial, had been present
during the search but raised no objections. Accordingly, the court
considers that the decision attaching the 1,100 US dollars seized in
Mr Moiseyev's office, the 4,647 US dollars, and seven envelopes as
material exhibits was justified...
Having regard to the public dangerousness of the
committed crime, the court orders confiscation of Mr Moiseyev's
property. The court decides on the destiny of the material exhibits
in accordance with Article 86 of the RSFSR Code of Criminal
Procedure...
A confiscation order is issued in respect of the
property that has been seized: [the VAZ car, foreign currency and
Russian rouble bank accounts, garage no. 178, and the computer], as
well as the cash funds of 5,747 US dollars which have been criminally
acquired.”
- On
3 January 2002 the first applicant asked the Supreme Court to order
the return of her spousal property and to remove the garage from the
list because it was rented rather than owned. She did not receive a
response to her request.
- On
9 January 2002 the Supreme Court upheld the conviction.
B. Enforcement of the confiscation order
- On 4 March 2002 the Moscow City Court sent an excerpt
from the judgment of 14 August 2001 to the FSB's Finance and Economic
Department for enforcement of the confiscation order in respect of
the cash funds. The covering letter read as follows:
“Confiscation order to be executed in respect of
Mr Moiseyev's cash funds in the amount of [unreadable] US dollars as
having been criminally acquired and stored at the Department
[according to] receipt no. 1013 of 15 June 1999.”
- On 18 March 2002 the Moscow City Court issued five
writs of execution for enforcement of the confiscation order in
respect of Mr Moiseyev's property at his place of residence, the
VAZ car, the garage, the bank accounts and the computer.
- On
27 March 2002 the cash funds in the amount of 5,747 US dollars were
received by the Vneshtorgbank from the FSB's Finance and Economic
Department and credited to the State.
- On
25 May 2002 a bailiff discontinued enforcement in respect of
Mr Moiseyev's property located in his flat because no chargeable
items had been found.
- By
a decision of 20 June 2002, a bailiff ordered the removal and sale of
the computer and declared enforcement completed. On 31 July 2002 the
computer was evaluated at 2,500 Russian roubles (RUB) and
subsequently sold for RUB 1,609.05.
- On
17 September 2002 a bailiff discontinued enforcement in respect of Mr
Moiseyev's foreign currency and Russian rouble bank accounts. He
determined that no accounts in his name were listed in the bank's
database.
- On
27 November 2003 a bailiff determined that the garage was in fact a
collapsible metal structure located on a rented plot, in respect of
which the rent agreement had expired. Accordingly, he held that its
removal or sale were impossible.
- Following
the amendments of the Criminal Code (see paragraph 34 below), Mr
Moiseyev asked the Moscow City Court to relieve him from the
auxiliary penal sanction in the form of the confiscation order. On
14 February 2005 the Moscow City Court found that the
enforcement of the confiscation order had been discontinued or
terminated in respect of everything but the VAZ car. Since the
auxiliary penal sanction of confiscation had been removed from the
Criminal Code, the City Court decided to return the car to Mr
Moiseyev. On 6 July 2005 the Supreme Court of the Russian
Federation upheld that judgment on appeal.
C. Civil proceedings for return of family property
- On
13 May 2002 the first applicant sued the court bailiffs and the
Federal Security Service before the Khoroshevskiy District Court of
Moscow, seeking to have the charging orders lifted and to have her
right to one half of the marital property, excluding the bank
deposits, recognised. She submitted that she had been married to Mr
Moiseyev since 1978 and that the Civil and Family Codes provided for
equality of spouses' portions of the marital property. Relying on Mr
Moiseyev's pay statements, she argued that from 1992 to 1998 he had
earned more than five thousand dollars and thus the amount of 5,747
US dollars could not be considered to have been unlawfully acquired.
She indicated that the garage had been rented in 1988, and that the
computer had been the second applicant's property.
- On
11 October 2002, 14 and 27 February 2003 the court heard the parties.
As the first applicant withheld consent to the substitution of the
Federal Property Fund for the FSB and to Mr Moiseyev as co-defendant,
Mr Moiseyev joined the proceedings as a third party.
- On 27 February 2003 the Khoroshevskiy District Court
delivered a judgment. The entire reasoning read as follows:
“Having assessed the collected evidence, the court
dismisses [the first applicant's] claim because the judgment of the
Moscow City Court established that the contested property had been
criminally acquired, which makes it impossible to recognise the
plaintiff's right to one half of the seized property, and also
[because] the FSB is not a proper defendant in this case. Neither
[the first applicant] nor Mr Moiseyev have been deprived of an
opportunity to appeal against the conviction in the part concerning
the contested property.”
- On
18 June 2003 the Moscow City Court upheld the judgment on appeal,
noting that the claimed property had been found to have been
criminally acquired by the Moscow City Court's judgment of 14 August
2001.
- On
20 November 2003 the applicants sued the Federal Property Fund of the
Russian Federation, seeking the lifting of the charging orders and
recognition of the first applicant's right to one half of the spousal
property and the second applicant's ownership of the computer.
- On 9 August 2005 the Khoroshevskiy District Court of
Moscow dismissed their claim, finding as follows:
“It follows from the judgment of 14 August 2001
that the cash funds in the amount of 5,747 US dollars had been
criminally acquired... On 19 March 2002 they were deposited with the
Vneshtorgbank bank with a view to confiscation and credit to the
State... Accordingly, the court cannot agree with Ms Denisova's claim
to one half of the spousal part of the said cash funds. No other
judicial documents relating to the origin of the contested cash funds
have been produced before the court, whereas, pursuant to Article 61
§ 2 of the Code of Civil Procedure, the facts established by a
final judicial decision in an earlier case bind the court.
As to Ms Moiseyeva's claims for recognition of her
ownership of the computer and peripherals, it cannot likewise be
satisfied because they have not been corroborated during the
examination of the merits of the case. At present the said property
has been confiscated and sold, which is confirmed by the bailiffs'
information about the enforcement of the confiscation order in that
respect.”
- On
13 October 2005 the Moscow City Court upheld, in a summary fashion,
the City Court's judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Spousal and donated property
- Property acquired by spouses in marriage is presumed
to be jointly owned (Article 256 § 1 of the Civil Code, Article
34 § 1 of the Family Code). A child owns property which he or
she has received as a gift (Article 60 § 1 of the Family Code).
Giving does not require a written agreement, handover of the gift
being sufficient (Article 574 § 1 of the Civil Code).
B. Criminal law and procedure
- The Criminal Code provides that “penalty shall
be imposed on a person found guilty of commission of a crime”
(Article 44). Confiscation of property is a form of penal sanction
which is auxiliary to the main sanction and defined as “compulsory
withdrawal, in whole or in part, without compensation, of the
property owned by the convicted person” (Article 52). On 8
December 2003, Article 52 was removed from the Criminal Code.
- As worded at the time of Mr Moiseyev's conviction,
Article 275 of the Criminal Code provided that high treason carried a
punishment of up to twenty years' imprisonment that may or may not be
accompanied by a confiscation order in respect of the convict's
property. On 8 December 2003 the reference to the possibility of
issuing a confiscation order was deleted.
- The RSFSR Code of Criminal Procedure, as worded at the
time of Mr Moiseyev's conviction, provided as follows:
Article 86. Measures taken in respect of the exhibits
in criminal proceedings
“The judgment... must decide on the destiny of the
exhibits, and:
(1) instruments of crime which belong to the
accused shall be confiscated and passed on to a competent agency or
destroyed;
...
(4) criminally acquired money and other
assets shall be confiscated to the profit of the State; other items
shall be returned to their lawful owners, or, if the owners cannot be
established, shall become the State's property. In case of a dispute
over the ownership of such items, the dispute shall be resolved in
civil proceedings...”
Article 175. Charging of property
“With a view to securing a civil claim or a
possible confiscation order, the investigator must charge the
property of the suspect, defendant... or of the other persons who
keep criminally acquired property... If necessary, the charged
property may be impounded...”
C. Rules of civil procedure
- Article
442 § 2 of the Code of Civil Procedure provides:
“A dispute over the ownership of the charged
property initiated by persons who were not parties to the case shall
be examined as a civil claim.
A claim for having the charging order lifted shall be
made against the debtor and creditor. If the property has been
charged or seized in connection with a confiscation order, the person
whose property is to be confiscated, and the competent State
authority shall be co-defendants...”
- Resolution no. 7 of the Plenary Supreme Court of the
USSR “On the case-law concerning confiscation of property”
(of 29 September 1953, as amended on 29 August 1980) provided:
“4. ...The court should bear in mind that in case
of confiscation of the convict's property in its entirety, the
confiscation order should only apply to his or her personal property
and to his or her part of the jointly owned property, it may not
extend to the part of other persons who own that property jointly
with the convict. Rights and lawful interests of the convict's family
members living with him, must be respected...
9. The courts should bear in mind that even
if the criminal judgment contained a list of specific property items
liable to confiscation, third parties still may claim their title to
that property in civil proceedings... The courts must consider such
claims and the criminal judgment does not bind the civil court in its
determination of the dispute over the contested property.
However, if the criminal judgment established that the
listed property items had been criminally acquired or paid for with
criminally acquired assets, but registered in other persons' names
with a view to concealing them from confiscation... then the claim
for lifting of the charging order shall be dismissed.”
- Resolution no. 4 of the Plenary Supreme Court of the
USSR “On legal requirements for examination of claims for
lifting of charging orders” (of 31 March 1978, as amended
on 30 November 1990) provided:
“9. When considering a spouse's claim
for lifting the charging order in respect of his or her part in the
joint marital property, the court must bear in mind that... the
property acquired in marriage is jointly owned by the spouses and in
case of division their parts are presumed equal...
The court must determine the actual size of the spouse's
portion of the marital property and the specific items allocated to
him or her, having regard to the entirety of the jointly acquired
property, including the property that is not – by operation of
law or otherwise – liable to confiscation. Each spouse's
portion shall include both the property liable to confiscation and
that not liable to confiscation...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicants complained under Article 1 of Protocol No. 1 that their
property rights had been violated as regards the domestic courts'
refusal to lift the charging order in respect of the spousal portion
of the first applicant and of the computer owned by the second
applicant. Article 1 of Protocol No. 1 provides 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 parties did not comment on the admissibility of
the complaint.
- The Court notes that the 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
(a) The applicants
- The
applicants submitted that the finding of the criminal origin in the
judgment of 14 August 2001 had related solely to the cash funds
rather than to all the other property objects mentioned in the text.
This was evident from the use of the plural form in the text (“cash
funds... which have been criminally acquired”);
otherwise, the sentence should have been in the singular
(“property... which has been criminally acquired”)
(see paragraph 14 above). Furthermore, the writs of execution issued
by the Moscow City Court had not mentioned that the property items –
as opposed to the cash funds – had been criminally acquired.
Finally, the applicants pointed out that the garage had been rented
in 1988, that is before the beginning of Mr Moiseyev's alleged
criminal activities, and that his accounts at the Sbs-Agro bank had
only been used to withdraw the salary paid by the Ministry of Foreign
Affairs.
- The
applicants pointed out that the Khoroshevskiy District Court had not
given them an effective opportunity to vindicate their property
rights because it had merely referred back to the criminal judgment,
without carrying out an independent assessment of the facts. The
District Court had failed to indicate which authority – the
Federal Security Service or the Federal Property Fund – had
been the proper defendant.
- The
applicants disputed the legal basis for the domestic courts'
decisions and emphasised that Resolution no. 7 of the Plenary Supreme
Court of the USSR required the courts to confine the scope of
confiscation measures to the convict's personal property and to take
into account the lawful interests of the convict's family members.
However, the Russian courts had refused to exempt the first
applicant's spousal portion and the second applicant's personal
property from confiscation.
(b) The Government
- The
Government claimed that, according to the operative part of judgment
of 14 August 2001, all of Mr Moiseyev's property, including the cash
funds, car, garage, and computer had been criminally acquired. In
support of their claim they referred to the last paragraph of the
judgment cited in paragraph 14 above. The Government maintained that
the value of the cash funds and computer as the items which had
actually been confiscated had not exceeded the amount of 14,000 US
dollars, which Mr Moiseyev had received in remuneration for his
spying activities.
- The
Government submitted that there had been no violation of the
applicants' property rights. The confiscation order had been issued
in strict compliance with the domestic law provisions. In case of
mercenary crimes there existed the presumption of the criminal origin
of the defendant's property and a confiscation order could be issued
without examination of further evidence of its criminal origin. As
the property had been criminally acquired, the Khoroshevskiy District
Court had correctly refused the first applicant's claim for
recognition of her spousal portion.
2. The Court's assessment
(a) Whether the applicants had a
legitimate claim to property
- The
Court reiterates that the concept of “possessions” in the
first part of Article 1 of Protocol No. 1 has an autonomous meaning
which is not limited to ownership of physical goods and is
independent from the formal classification in domestic law: the
concept of “possessions” is not limited to “existing
possessions” but may also cover assets, including claims, in
respect of which the applicant can argue that he has at least a
reasonable and “legitimate expectation” of obtaining
effective enjoyment of a property right or a proprietary interest
(see Öneryıldız v. Turkey [GC], no. 48939/99,
§ 124, ECHR 2004 XII, and Prince Hans-Adam II of
Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR
2001-VIII). Where the proprietary interest is in the nature of a
claim it may be regarded as an “asset” only where it has
a sufficient basis in national law, for example where there is
settled case-law of the domestic courts confirming it (see Kopecký
v. Slovakia [GC], no. 44912/98, §§ 52, ECHR 2004-IX;
Draon v. France [GC], no. 1513/03, § 68, 6 October
2005; Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01,
§ 65, 11 January 2007).
- On
the facts, it is noted that in the course of criminal proceedings
against Mr Moiseyev a large number of household items, including cash
currency, keys and registration papers of a passenger car, keys to
the garage and a computer, were seized by the investigation and
subsequently confiscated pursuant to the confiscation order issued by
the Moscow City Court on 14 August 2001 (see paragraph 14 above).
Enforcement of the order proved to be impossible in respect of the
garage (see paragraph 23 above) or was discontinued, owing to
legislative changes, in respect of the car (see paragraph 24 above).
The confiscation measure was eventually carried out in respect to the
cash funds and the computer which had been sold by the bailiffs.
- As
regards the cash funds, it transpires from the Moscow City Court's
judgment that the amount of 1,100 US dollars was seized in
Mr Moiseyev's office and the remaining amount of 4,467 US
dollars in the Moiseyevs family's home. The computer had been removed
from the second applicant's room and the parties did not dispute that
she had been its primary user.
- The
first applicant argued that she had been entitled to the spousal
portion of the confiscated money and the second applicant asserted
her ownership of the computer. The crux of the applicants' complaint
was that the domestic courts had not provided them with an effective
opportunity to claim their ownership to that property. Accordingly,
in determining the existence of an interference with the right
guaranteed by Article 1 of Protocol No. 1, the Court is called upon
to verify in the light of the above-cited case-law whether the
applicants had at least a reasonable and legitimate expectation to
regain possession of the confiscated property.
- The
Court observes, firstly, that the Russian Civil and Family Codes
stipulated joint ownership of property acquired by spouses in
marriage. In the absence of evidence of any other arrangement between
the first applicant and her husband in relation to the marital
property, this default legal regulation was applicable in their case.
Furthermore, by virtue of the relevant provisions of the Family and
Civil Codes, children were legitimate owners of the objects which
they had received from their parents as gifts. The change of
ownership occurred at the moment of handing over the gift and there
was no requirement of a written form (see paragraph 32 above). Thus,
the first applicant could legitimately assert her entitlement to a
portion of the family property equal to that of her husband and the
second applicant to the computer which had been given to her by her
parents.
- The
domestic case-law, as codified in the binding resolutions of the
Supreme Court, indicated that confiscation orders could not “extend
to the part of other persons who own [the] property jointly with the
convict” and required the courts of general jurisdiction to
respect the “rights and lawful interests of the convict's
family members living with him”. Only if it was found in
subsequent civil proceedings – irrespective of the findings
made in the criminal proceedings – that the property was
criminally acquired but registered in other persons' names with a
view to concealing it from confiscation, the claim was to be rejected
(see paragraph 37 above). In the instant case the intention to
mislead the courts as to the actual ownership of the property for the
purpose of avoiding its confiscation was not established in any
proceedings.
- A
further resolution by the Supreme Court required the civil courts to
have regard to the entirety of the marital property and, taking
account of the presumption of equality of spouses' portion, determine
the actual size of each spouse's portion which was to include both
items liable to confiscation and those not liable to confiscation
(see paragraph 38 above). It therefore appears that the first
applicant could legitimately rely on those provisions to claim an
equal share of the marital property.
- In
the light of the above considerations, the Court finds that the first
applicant's claim to the spousal portion and the second applicant's
claim to the computer had a basis in the statutory law, such as
provisions of the Russian Civil and Family Codes, and the case-law
codified by the Supreme Court. They could reasonably and legitimately
argue that the confiscation order of 14 August 2001 amounted to an
interference with their right to peaceful enjoyment of possessions
and the Court is called upon to determine whether their claim was
examined by the domestic courts in compliance with the requirements
of Article 1 of Protocol No. 1.
(b) Whether the applicants' claim was
examined in accordance with the requirements of Article 1 of Protocol
No. 1
- 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 (see, as a recent authority, Broniowski v. Poland
[GC], no. 31443/96, § 134, ECHR 2004 V). The
parties did not take a clear stance on the question of the rule of
Article 1 of Protocol No. 1 under which the case should be examined.
The Court considers that there is no need to resolve this issue
because the principles governing the question of justification are
substantially the same, involving as they do the legitimacy of the
aim of any interference, as well as its proportionality and the
preservation of a fair balance.
- 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 fundamental principles 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 Court notes that the specific legal provisions for the
confiscation measure were not mentioned in the Moscow City Court's
judgment of 14 January 2001 or in any other domestic decisions.
This omission requires it to conjecture as to the legal basis for the
interference. However, even though the decision itself did not refer
explicitly to the provisions that formed its basis, it may be
understood that the confiscation order was imposed as an auxiliary
penal sanction on the basis of Articles 52 and 275 of the Criminal
Code, read in conjunction with Article 86 § 4 of the RSFSR Code
of Criminal Procedure (see paragraphs 33, 34 and 35 above). The
interference at issue may therefore be regarded as “lawful”.
- The
Court considers that the confiscation measures in criminal
proceedings pursue a general interest of the community because the
forfeiture of money or assets obtained through illegal activities or
paid for with the proceeds from crime is a necessary and effective
means of combating criminal activities (see Raimondo v. Italy,
judgment of 22 February 1994, Series A no. 281-A, p. 17, §
30). Such confiscation measures are in keeping with the goals of the
Council of Europe Convention on Laundering, Search, Seizure and
Confiscation of the Proceeds from Crime, which requires State Parties
to introduce confiscation of instrumentalities and proceeds from
crime in respect of serious offences (Article 3 § 3). Thus,
the making of a confiscation order in respect of criminally acquired
property operates in the general interest as a deterrent to those
considering engaging in criminal activities and also guarantees that
crime does not pay (compare Phillips v. the United Kingdom,
no. 41087/98, § 52, ECHR 2001 VII, and Dassa
Foundation and Others v. Liechtenstein (dec.), no. 696/05,
10 July 2007).
- The
Court further reiterates that, although the second paragraph of
Article 1 of Protocol No. 1 contains no explicit procedural
requirements, it has been its constant requirement that the domestic
proceedings afford the aggrieved individual a reasonable opportunity
of putting his or her case to the responsible authorities for the
purpose of effectively challenging the measures interfering with the
rights guaranteed by this provision. In ascertaining whether this
condition has been satisfied, a comprehensive view must be taken of
the applicable procedures (see Jokela v. Finland,
no. 28856/95, § 45, ECHR 2002-IV, and AGOSI v. the
United Kingdom, judgment of 24 October 1986, Series A no. 108,
§ 55).
- In
the instant case the seizure and subsequent confiscation were ordered
and carried out in the framework of criminal proceedings against Mr
Moiseyev. The applicants were not party to those proceedings and had
no standing to lodge requests or make any submissions in them. When
issuing the confiscation order, the sentencing court did not examine
whether any property objects affected by the seizure order could have
belonged to the first and/or second applicant. The first applicant
made representation to the appeal court for removal of her spousal
portion and the garage from the confiscation order but she did not
receive any reply or an opportunity to take part in the appeal
proceedings (see paragraph 15 above). The Khoroshevskiy District
Court's judgment of 27 February 2003 indicated that the first
applicant had had an opportunity to appeal against the criminal
judgment in the part concerning the contested property, but it did
not refer to any legal provisions which would have allowed a person
who had no standing in criminal proceedings to lodge such an appeal.
The Government, for their part, did not indicate any provisions of
the Russian law that would have enabled the spouse or daughter of the
convicted person to make submissions to the trial or appeal court.
- In
a situation where the ownership of property subject to a confiscation
order was contested by persons who were not parties to the criminal
proceedings, Article 442 of the Code of Civil Procedure allowed such
persons to vindicate their property rights in civil proceedings. The
applicants availed themselves of that remedy by introducing two civil
claims, firstly against the bailiffs' service and the Federal
Security Service, the latter having been the prosecuting authority in
Mr Moiseyev's case, and subsequently against the Federal Property
Fund. In examining their claims, the courts should have directed
their attention to the possibility that the confiscated property
items could have belonged to family members rather than to Mr
Moiseyev himself and should have examined whether the applicants
could have been their owners. However, the civil courts refused to
take cognisance of the merits of the vindication claims or make any
independent findings of fact, and they merely referred back to the
judgment in Mr Moiseyev's criminal case. Thus, on 27 February
2003 the Khoroshevskiy District Court dismissed the first applicant's
claim on the ground that the Moscow City Court had already
established that “the contested property had been criminally
acquired” (see paragraph 27 above). On 9 August 2005 the same
District Court dismissed her renewed claim, by holding that the
“facts established by a final judicial decision in an earlier
case bind the court”, and rejected the second applicant's claim
because the computer had already been “confiscated and sold”
(see paragraph 30 above).
- The
Khoroshevskiy District and the Moscow City Courts' persistent failure
to take cognisance of the merits of the applicants' claim for
vindication of their property was at variance with the requirements
of the Russian law. In a series of binding rulings the Plenary
Supreme Court consistently reminded the courts of general
jurisdiction that a confiscation order may only apply to the
convict's portion of the jointly owned property and may not affect
the property rights of cohabiting family members, unless it has been
established that the property was criminally acquired and registered
in family members' names with a view to avoiding confiscation. To
achieve the proper balance of interests, the courts examining claims
for release of the spousal portion from confiscation were required to
determine the portion of each spouse by reference to the family
property in its entirety, so that each spouse's portion comprises
both confiscated and non-confiscated property items (see paragraphs 37
and 38 above). The first applicant supported her claim to one half of
the spousal property with evidence capable of showing the legitimate
origin of at least a part of the family property, such as Mr
Moiseyev's pay statements from the Ministry of Foreign Affairs and
the rental agreement in respect of the car garage. Although the
domestic courts did not declare that evidence inadmissible, it was
not mentioned in their judgments, which moreover did not contain any
analysis of the composition of the family property. It follows that
the domestic courts did not carry out a global assessment of the
family property and the balancing exercise of the rights of family
members, which were both required under the applicable domestic law
provisions.
- After
Mr Moiseyev had regained possession of the car following a
legislative amendment of Russian criminal law and after the bailiffs
had determined that confiscation of bank assets, personal property
and the garage was not physically possible, the first applicant
reintroduced her claim for the spousal portion of the contested cash
funds and the second applicant sought to vindicate her right to the
computer. However, the second civil claim was likewise dealt with in
a summary fashion. The domestic courts did not give heed to the
evidence and submissions by the applicants or make a global
assessment of the family property with a view to determining the
spousal portions. As to the second applicant's claim to the computer,
it was likewise dismissed without any explanation why her submission
that the computer had been given to her by her parents as a gift
appeared implausible. The Khoroshevskiy District and Moscow City
Courts did not mention or refer in their judgments to any provisions
of the Civil or Family Code.
- In the light of the foregoing considerations, the
Court finds that the applicants “bore an individual and
excessive burden” which could have been rendered legitimate
only if they had had the opportunity to challenge effectively the
confiscation measure imposed in the criminal proceedings to which
they were not parties; however, that opportunity was denied them in
the subsequent civil proceedings and therefore the “fair
balance which should be struck between the protection of the right of
property and the requirements of the general interest” was
upset (compare Hentrich v. France, judgment of
22 September 1994, Series A no. 296 A, § 49).
- Accordingly,
there has been a violation of Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
first applicant further complained under Article 8 of the Convention
about the night search of their flat on 3 July 1998. The applicants
also complained under Article 6 § 1 of the Convention that the
proceedings that lasted from 3 July 1998 to 18 June 2003 had exceeded
a “reasonable time”.
- The
Court reiterates that it has already dismissed the complaint about
the search at Mr Moiseyev's flat on 3 July 1998 for non-exhaustion of
domestic remedies (see Moiseyev v. Russia (dec.), no.
62936/00, 9 December 2004). It finds no reason to depart from
that conclusion in the present case.
- The
Court further observes that there was no continuous set of
proceedings that lasted from 3 July 1998 to 18 June 2003. The
applicants were not parties to the criminal proceedings against Mr
Moiseyev and the first applicant introduced her first civil claim
only on 13 May 2002. That claim was finally dismissed on 18 June
2003, that is one year and one month later. That period was short and
there was no appearance of a violation of the “reasonable time”
requirement.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
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.”
- The
first applicant claimed the following amounts in respect of pecuniary
damage:
6,657.50 euros (EUR)
for the loss of rental income from the car garage and the land tax
she was liable to pay on it;
EUR 2,712.60 for one
half of the depreciation cost of the VAZ car and the transport tax
she was liable to pay on it; and
EUR 3,537.80 for one
half of the cash funds plus interest at the statutory lending rate.
- The
second applicant claimed EUR 800, representing the approximate
value of a computer similar to hers.
- The
applicants further claimed EUR 30,000 and EUR 20,000
respectively in respect of non-pecuniary damage. Finally, they
claimed jointly EUR 374.60 for legal fees in the domestic
proceedings, EUR 122.20 for court fees and EUR 3,000 for
their representation before the Court.
- The
Government pointed out that the obligation to pay taxes, such as land
and transport tax, was a corollary of the right of ownership. Neither
Mr Moiseyev's nor the first applicant's right of ownership to the car
garage and the car itself had ever been disputed and they had been
therefore liable to tax imposition. The claim for rental income was
speculative and the depreciation cost of the car was not supported
with any documents. The second applicant's claim for the computer
value was excessive, in view of the small amount which the sale of
the computer fetched. Finally, the Government considered that the
claim in respect of non-pecuniary damage was unreasonable as to
quantum and that the applicants had not submitted appropriate
documents in support of their claims for costs and expenses.
- The
Court considers that the question of the application of Article 41
is not ready for decision. Accordingly, it shall be reserved and the
subsequent procedure fixed having regard to any agreement which might
be reached between the Government and the applicants (Rule 75 §
1 of the Rules of Court).
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint concerning an
alleged violation of the applicants' property rights 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, that the
question of the application of Article 41 is not ready for
decision and accordingly:
(a) reserves
the said question;
(b) invites
the Government and the applicants to submit, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written
observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 1 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Ms N. Vajić
is annexed to this judgment.
C.L.R.
A.M.W.
DISSENTING OPINION OF JUDGE Vajić
I am
unable to find that there has been a violation of the applicants'
property rights under Article 1 of Protocol No. 1 to the Convention
in the present case.
According
to national law a criminal court in Russia has the power to
confiscate criminally acquired property; the finding as to its
criminal origin is of a factual nature. In the present case that
question was examined in the criminal proceedings, which determined
the matter (see paragraphs 14-16 of the judgment) and simply
precluded any further claims. In this regard, Resolution no. 7 of the
Plenary Supreme Court of the USSR states as follows: “However,
if the criminal judgment established that the listed property items
had been criminally acquired or paid for with
criminally acquired assets, but registered in other
persons' names with a view to concealing them from confiscation ...
then the claim for lifting of the charging order shall be
dismissed” (see paragraph 37 of the judgment).
(emphasis added)
As in
most countries, Russian civil law basically denies any legal
protection to criminally acquired property.
It
follows that in the given circumstances the applicants could not and
had not become the owners of the property in question and thus could
not claim their share of the property, as their claim had no basis in
domestic law (contrary to the assertion in paragraph 52 of the
judgment). This was also stated by the national courts (see
paragraphs 27-28 and 30 of the judgment). Therefore, in view of the
Court's case-law, the applicants – contrary to the majority's
view (see paragraphs 51-54 of the judgment) – did not have a
sufficiently established claim to qualify as an asset protected by
Article 1 of Protocol No. 1.
For
the above-mentioned reasons it is my opinion that the applicants did
not have a right or a legitimate expectation that was protected by
the Convention and I do not agree with the majority that there has
been a violation of Article 1 of Protocol No. 1.
