(Application no. 23202/05)
8 October 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Adzhigovich v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 17 September 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“Physical evidence – USD 13,020 and UAH 31 held in the evidence storage room of the Sheremetyevo Customs Office – shall revert to the State.”
“However, the decision that the authentically declared amount of USD 10,000 and UAH 31 should revert to the State was not founded on sufficient reasons.
In deciding that the foreign currency should revert to the State, the court posited that the currency transported by Ms Adzhigovich was the object of the offence. However, since her criminal intent was directed at the breach of the procedure for transferring cash money (currency) across the customs border rather than at their unlawful misappropriation, the cash money (currency) was not the object of the offence and therefore not liable to confiscation under Article 81 [§ 3] (1) of the Code of Criminal Procedure.
Moreover, according to Article 81 [§ 3] (4) of the Code of Criminal Procedure, criminally acquired property, money or other valuables must revert to the State. The case file does not contain any evidence to the effect that Ms Adzhigovich obtained the above-mentioned money through criminal means or as the proceeds of criminal activity.
In such circumstances, the judgments in the part concerning the decision that the foreign currency should revert to the State may not be considered lawful or justified.”
The Presidium held that the judgments would be amended and that USD 10,000 and UAH 31 would be returned to the applicant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
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...”
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
“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.”
1. Submissions by the parties
2. The Court's assessment
(a) The applicable rule
(b) Compliance with Article 1 of Protocol No. 1
II. 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 is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 10,240 (ten thousand two hundred forty euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 8 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Kovler is annexed to this judgment.
CONCURRING OPINION OF JUDGE KOVLER
I agree with the conclusions reached by the Chamber. Nevertheless, I feel I should clarify the reasons for my decision.
Unlike in some similar cases (for example, Baklanov v. Russia, no. 68443/01, 9 June 2005, and Ismaylov v. Russia, no. 30352/03, 6 November 2008), where the national courts admitted all money carried across the customs border without a customs declaration as physical evidence in the criminal case, ordering the confiscation of the entire amount (as did the first-instance court in the present case), the Presidium of the Moscow City Court, after examining the applicant's request for supervisory review, again found her guilty of smuggling, but declared that the amount of 10,000 United States dollars (USD) and 31 Ukrainian hryvnias (UAH) should be returned to her (see paragraph 12 of the judgment) because this part of the sum had been declared to the customs authorities.
I disagree, in view of this evident fact, with the contradictory conclusions of the Chamber in paragraphs 31-32 of the judgment, especially with the statement that “on 26 April 2007 the Presidium of the Moscow City Court determined that the money which the applicant had carried across the customs border had been neither the object of the offence of smuggling (sic! – A.K.) nor proceeds from any criminal activities” (§ 31). The Moscow City Court's order to return “only” USD 10,000 and UAH 31 to the applicant was not based on “unexplained reasons”, but instead was logical because it separated the “smuggled” part of the total amount (USD 3,020), which was not declared to the customs authorities and consequently was confiscated, from the “legally carried” part of the amount, which was declared to the customs authorities and was thus confiscated illegally. This judgment was in line with the decision (определение) of the Constitutional Court of the Russian Federation of 8 July 2004, in which money smuggling was qualified as a criminal offence in the light of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (8 November 1990). I regret that the present judgment did not mention the provisions of that instrument.
But I accepted the final decision of the Chamber because of the truly outrageous fact of the “mysterious” disappearance of the money confiscated from the evidence storage room of the Sheremetyevo Customs Office by the bailiffs long before the final judgment of the national court! For this reason I also agree with the amount awarded for pecuniary damage.