ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 09.06.2005<ДЕЛО БАКЛАНОВ (baklanov) ПРОТИВ РОССИИ> [англ.]


EUROPEAN COURT OF HUMAN RIGHTS
FORMER FIRST SECTION
CASE OF BAKLANOV v. RUSSIA
(Application No. 68443/01)
JUDGMENT <*>
(Strasbourg, 9.VI.2005)
--------------------------------
<*> 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 Baklanov v. Russia,
The European Court of Human Rights (Former First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mr G. Bonello,
Mrs F. Tulkens,
Mrs N. {Vajic} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Mr A. Kovler,
Mr V. Zagrebelsky, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 16 September 2004 and on 19 May 2005,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (No. 68443/01) 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 Latvian national, Mr Viktor Mikhaylovich Baklanov ("the applicant"), on 23 March 2001.
2. The applicant was represented by Mr A. N. Gurov, a lawyer practising in Moscow. The Russian Government ("the Government") were represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged that he was deprived of his money by a judgment which contained no legal grounds for the forfeiture.
4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. By a decision of 6 May 2003, the Court declared the application admissible.
6. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1), but this case remained with the Chamber constituted within Former First Section.
7. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other"s observations. In addition, third-party comments were received from the Latvian Government, which had exercised its right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (b)). The respondent Government replied to those comments (Rule 44 § 5).
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1957 and lives in Riga.
9. In 1997 he decided to move from Latvia to Russia. He negotiated a real estate deal with a Moscow-based agent.
10. On 20 March 1997 the applicant withdrew from his bank accounts 250,000 US dollars ("USD") in cash and asked his acquaintance, B., to deliver the money to Moscow.
11. B. arrived in the Sheremetyevo-1 airport later the same day. He failed to declare the money at the customs checkpoint and was charged with smuggling.
12. On 13 September 2000, the Golovinskiy District Court of Moscow found B. guilty of smuggling under Article 188-1 of the Criminal Code and sentenced him to two years" suspended imprisonment. With regard to the money, the court said in the operative part of the judgment:
"USD 250,000, deposited with the Sheremetyevo Customs Board, are to be forfeited to the Treasury as an object of smuggling."
13. In his appeal against the judgment, B."s lawyer submitted that the Golovinskiy District Court had failed to indicate any legal ground for the confiscation order. He argued that the money had been included in the case-file as evidence and that no relevant law provided for its confiscation. Moreover, lawfully obtained assets were to be returned to their owners. B."s lawyer also claimed that Article 188-1 of the Criminal Code did not provide for such a sanction as confiscation.
14. On 25 October 2000, the Moscow City Court refused the appeal. With regard to the money, the court said:
"USD 250,000, which was the object of the smuggling, was rightfully forfeited to the Treasury."
15. On 1 July 2002 a Deputy President of the Supreme Court lodged an application for supervisory review against the judgments. He claimed that the smuggled money could only be confiscated if proven to have been acquired criminally.
16. On 18 July 2002 the Presidium of the Moscow City Court refused the application on the ground that a Ruling of the Plenary Supreme Court of the USSR issued in 1978 permitted the confiscation of smuggled goods which had been attached to case-files as exhibits.
17. On 15 August 2002 the Deputy President of the Supreme Court lodged another application for supervisory review claiming, among other things, that the Ruling of 1978 was inconsistent with later superseding legislation. However, on an unspecified date the Deputy President of the Supreme Court withdrew his application.
II. Relevant domestic law
18. Article 169-1 of the Criminal Code of 1960, as in force from 15 July 1994 to 31 December 1996, provided:
"The carrying across the [State] border of considerable amounts of goods or other items... in evasion of customs controls... or without declaring [them] or with untrue declarations... shall be penalised by imprisonment of up to five years... and by forfeiture of the goods and other items carried across the border..."
18. Article 188-1 of the Criminal Code of 1996 ("CrC") provides:
"Smuggling, i.e. transportation across the customs border of the Russian Federation of considerable amounts of goods and other items... without due customs control, or in evasion of such control, or with fraudulent use of documents or identification means, or in violation of rules of declaration, shall be penalised by imprisonment of up to five years."
Нумерация разделов дана в соответствии с источником опубликования. 19. Article 279 of the Customs Code of 1993, as in force at the material time, provided:
"Failure to declare or an inadequate declaration of goods... carried across the customs border... which disclose no appearance of smuggling... shall be punished by a fine of 100 to 200 per cent of the cost of the goods which are the object of the offence, with or without their forfeiture..."
20. The Code of Criminal Procedure of 1960 ("CCrP"), in force at the relevant time, provided as follows:
Article 83. Exhibits
"Exhibits include items which served as instruments of crime, or which have retained traces of the crime, or against which the crime was directed. [Exhibits also include] criminally acquired money and other valuables earned by crime, and any other items which can help detect the crime, establish factual circumstances, reveal the guilty or refute the charges or lessen the responsibility."
Article 86. Destiny of exhibits in criminal proceedings
"The destiny of exhibits used in criminal proceedings must be determined in a judgment..., and:
1. instruments of the crime which belong to the accused shall be confiscated and passed to a competent agency or destroyed;
2. items prohibited for circulation shall be passed to a competent agency or destroyed;
3. items of no value or use shall be destroyed or returned to interested persons or agencies if they so wish;
4. criminally acquired money and other assets shall be forfeited; other items shall be returned to their lawful owners, or, if the owners are not established, shall become the State"s property. In the event of a dispute concerning the ownership of such items, the dispute shall be resolved in civil proceedings;
5. documents which serve as exhibits shall be kept in the case file as long as the case file is archived or shall be passed to interested agencies".
21. The Ruling of the Plenary Supreme Court of the USSR No. 2 of 3 February 1978 ("the Ruling of the Supreme Court", "the Ruling") provides:
"...With a view to ensure a uniform and correct application of laws in proceedings concerning smuggling, the Plenary Supreme Court decides [that]:...
7. In accordance with the legislation in force, smuggled items must be forfeited as exhibits..."
22. Article 243-1 of the Civil Code of 1994 ("CivC") provides:
"In cases established by law, a person may be deprived of his property without compensation pursuant to a court judgment as a sanction for a crime or other offence (confiscation)..."
23. On 10 June 1998 the Presidium of the Supreme Court exercised supervisory review of the criminal case against a certain Mr Petrenko, who had been convicted of smuggling a considerable amount of foreign currency into Russia. After conviction, the trial court returned the money - which had been included in the file as evidence - to its owner, Mr Petrenko. The Supreme Court overturned the judgment having found that the money should have been considered as an instrument of the crime and, as such, it should have been confiscated pursuant to Article 86-1 of the CCrP.
24. On 8 July 2004, the Constitutional Court held that Article 86-1 of the Code of Criminal Procedure was constitutional, even though it permitted to confiscate instruments of crime, for example smuggled money, belonging to other than the accused. In particular, the Constitutional Court said:
"The rule set out in... Article 86-1 of the Code of Criminal Procedure... helps Russia implement its international-law obligations in criminal proceedings, does not overrule criminal laws which permit confiscation as a punishment, and, hence, allows the procedural law to regulate confiscation with regard to [international instruments on money laundering and crime control].
...
It is a [criminal] court... who may determine the procedural status of [smuggled items] under Article 86-1 of the Code of Criminal Procedure...."
THE LAW
I. Alleged violation of Article 1 of Protocol No. 1
25. The applicant complained under Article 1 of Protocol No. 1 to the Convention that the Golovinskiy District Court forfeited his, an innocent party"s, money without any basis in law. 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. Arguments of the parties
1. The Government
26. In their pre-admissibility submissions on the admissibility and merits of the case, the Government made no comments on either admissibility or merits, but informed the Court that the Deputy President of the Supreme Court had "taken steps towards the restoration of the applicant"s rights presumably violated" and that the domestic proceedings had been resumed.
In the proceedings on the merits, the Government submitted that the applicant"s money was seized pursuant to the laws which made smuggling a criminal offence. The Government referred to the case of AGOSI v. the United Kingdom (judgment of 24 October 1986, Series A No. 108) claiming that such laws may be regarded as a legitimate control of the use of the property. The balance between the means employed by the State in exercising such control and the interests of the applicant was not upset. Furthermore, when handing the money over to B., the applicant knew perfectly well, or should have known, that moving large amounts of cash across the border was subject to special regulations. Hence, he was at least guilty of negligence.
27. The Government maintained that the applicant"s money was attached to the case-file as an exhibit, pursuant to Article 83 of the CCrP. The Golovinskiy District Court found that the money had been smuggled and was the object of the offence. Therefore the court reasonably forfeited the money to the Treasury as an object of smuggling. Such a practice was confirmed by the recommendations contained in the Ruling of the Supreme Court of 1978, according to which, objects of smuggling, as evidence, should be forfeited to the Treasury. The Ruling should be regarded as "law" for the purposes of the Convention.
28. Furthermore, the applicant"s money should be considered as "criminally acquired" within the meaning of Article 86-4 of the CCrP because it found itself in the territory of Russia as a result of B."s offence. Owners of criminally imported items lose their rights to them.
29. The Government referred to the case of the Russian Federation v. Petrenko (paragraph 22 above) claiming that the confiscation of smuggled items used as evidence in criminal proceedings is an established judicial practice.
30. Last, the Government asserted that the Constitutional Court"s judgment of 8 July 2004 supported their arguments.
2. The applicant
31. The applicant accepted that forfeiture of smuggled items may be regarded as a control of the use of property. However, such a control must have a basis in law. Russian law in force at the time of B."s offence and the forfeiture of the applicant"s money did not provide for such a measure. Indeed, the judgment of the Golovinskiy District Court did not specify on what legal basis the money was to be confiscated.
32. The applicant accepted furthermore that the money was included in the case-file as an exhibit. Under Article 86 of the CCrP, criminally acquired money and other assets must be forfeited; other items must be returned to their lawful owners. The court did not find that the money had been criminally acquired. Hence, it should have been considered as "other items" and returned to the applicant, its lawful owner.
33. The applicant claimed that the Government"s reference to the Ruling of the Supreme Court was misplaced. According to him, Soviet criminal laws in force in 1978 did provide for the forfeiture of smuggled items. However, Russian criminal laws in force at the time of B."s offence contained no such provision. Furthermore, the Plenary Supreme Court is not a law-making body. It may only clarify existing laws without distorting their substantive meaning. Therefore, the

"СОГЛАШЕНИЕ МЕЖДУ ПРАВИТЕЛЬСТВОМ РОССИЙСКОЙ ФЕДЕРАЦИИ И ПРАВИТЕЛЬСТВОМ ДЕМОКРАТИЧЕСКОЙ СОЦИАЛИСТИЧЕСКОЙ РЕСПУБЛИКИ ШРИ ЛАНКА О КУЛЬТУРНОМ И НАУЧНОМ СОТРУДНИЧЕСТВЕ"(Заключено в г. Коломбо 26.01.1999)  »
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