(Application no. 31004/02)
5 February 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 Sun v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 15 January 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“Physical evidence – USD 72,300 and CNY 760 taken from Mr Sun Huan Xin – shall be confiscated by the State ...”
“Pursuant to Article 86 (4) of the RSFSR Code of Criminal Procedure, criminally acquired money and other valuables shall be confiscated by the State after conviction.
It appears from the case materials that Mr Sun Huan Xin did not report USD 72,300 and CNY 760 in his customs declaration when crossing the customs border of the Russian Federation. Since that moment, the above-mentioned valuables have become criminally acquired by Mr Sun Huan Xin and, pursuant to Article 86 (4) of the RSFSR Code of Criminal Procedure, should be confiscated by the State after conviction.”
“It was established during the trial that the money which Mr Sun Huan Xin omitted to declare... USD 6,100 were his personal property, whereas the remainder was the money destined to pay for the merchandise he had intended to buy in China. Thus, the court did not adduce any evidence showing that the seized foreign currency had been criminally acquired. In these circumstances, the physical evidence – USD 72,300 and CNY 760 – must be returned to the lawful owner, Mr Sun Huan Xin. Moreover, the first-instance and appeal judgments contradict the requirements of Article 1 of Protocol No. 1 ...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article 86. Measures taken in respect of physical evidence upon completion of a criminal case
“The judgment, interim decision or decision on discontinuation of proceedings must deal with the destiny of physical evidence in the following manner:
(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) unusable objects of no value must be destroyed...;
(4) criminally acquired money and other valuables must revert to the State by a judicial decision; any other objects must be returned to their lawful owners or, if the identity of the owner cannot be established, transferred to the State...
(5) documents must be kept with the case file...”
“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 crime provided that they were equipped with special hiding places for concealing goods or other valuables...”
“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.”
“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.”
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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 5 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos