(Application no. 18274/04)
22 January 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Borzhonov v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 16 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
- on 13 June 1999 under Article 198 § 2 of the Criminal Code (tax evasion by a private person); the applicant was charged on 10 August 1999;
- on 24 June 1999 under Article 201 § 1 of the Code (abuse of power);
- on 29 August 1999 under Article 199 of the Code (tax evasion by a legal entity);
- on 13 October 1999 under Article 160 § 3 (b) (misappropriation of private property);
- on 21 January 2000 under Article 165 (causing pecuniary damage).
B. Seizure and retention of the applicant's bus
“...under Article 175 § 1 of the RSFSR Code of Criminal Procedure in order to secure civil claims or eventual confiscation of property the investigator shall issue an order of attachment in respect of the accused's property which had been unlawfully obtained. Article 160 § 3 of the Criminal Code of the Russian Federation provides for confiscation as a penalty. Besides, the case discloses pecuniary loss [sustained by the victim], and the victim has the right to file a civil claim for damages against the applicant...
The court finds no reasons for leaving the bus with [the applicant] for safekeeping...
The [first instance] court rejected the applicant's arguments to the effect that his property rights over the bus had been breached by the continuing attachment of property and the criminal case is still pending. The case is being suspended owing to the applicant's illness...”
“Under Article 115 § 9 the Code of Criminal Procedure, which is now applicable to issues pertaining to attachment of property, the authority dealing with the criminal case has the power to release the property under the order of attachment, if attachment is no longer needed. As shown by the case file, at present the criminal case against the applicant is being dealt with by the investigating authority, the investigation being suspended. Taking into account the earlier submissions and the requirement of the procedure under Article 125 of the Code of Criminal Procedure, the court is not empowered to decide on the issue of lifting the order of attachment...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal Code
B. Criminal proceedings
1. The 1960 RSFSR Code of Criminal Procedure (RSFSR CCrP)
2. The 2002 Code of Criminal Procedure (CCrP)
1. The 1960 RSFSR CCrP
2. The 2002 CCrP
On 4 July 2003 Article 115 § 1 of the Code was amended to exclude an eventual confiscation of property as a reason for requesting a charging order. A charging order could only concern property acquired by the suspect, accused or another person as a result of criminal activity or by criminal means.
On 8 December 2003 Article 115 § 1 of the Code was amended to reintroduce an eventual confiscation of property as a reason for requesting a charging order; in such circumstances it became incumbent on the court to indicate the relevant circumstances in its decision.
3. Other relevant legislation/jurisprudence
I. ALLEGED VIOLATIONS OF ARTICLES 6 AND 13 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
He also complained about the lack of effective remedies in respect of his above complaint. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
1. Article 13 of the Convention
2. Article 6 § 1 of the Convention
II. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL No. 1 IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION
“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.”
The Court also decides to examine under Article 13 of the Convention (cited above) whether the applicant had an effective remedy in relation to his complaint under Article 1 of Protocol No. 1.
A. Submissions by the parties
A. The Court's assessment
1. Scope of the complaints
(i) from November 1999 to 18 July 2006, the date on which the charging order was lifted; and
(ii) from 18 July 2006 onwards.
The Court will confine its analysis to the compatibility of the prolonged retention of the bus with the requirements of Article 1 of Protocol No. 1.
(a) Compliance with Article 13 in conjunction with Article 1 of Protocol No. 1
(b) Article 1 of Protocol No. 1
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State shall ensure, by appropriate means, that the bus in question be returned to the applicant;
(b) 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 3,000 (three thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(c) 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;
Done in English, and notified in writing on 22 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President