CASE OF ISMAYILOV v. RUSSIA
Violation of P1-1;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
5. The applicant was born in 1937 and lives in Moscow. 6. On 17 November 2002 the applicant arrived in Moscow from Baku. He was carrying with him 21,348 US dollars (USD), representing the proceeds from the sale of his ancestral dwelling in Baku. However, he only reported USD 48 on the customs declaration, whereas Russian law required that any amount exceeding USD 10,000 be declared to the customs. A customs inspection uncovered the remaining amount in his luggage. The applicant was charged with smuggling, a criminal offence under Article 188 § 1 of the Criminal Code, and the money was appended to the criminal case as physical evidence (вещественные доказательства). 7. On 8 May 2003 the Golovinskiy District Court of Moscow found the applicant guilty as charged and imposed a suspended sentence of six months’ imprisonment conditional on six months’ probation. As regards the money, it held: “Physical evidence – 21,348 US dollars stored in the Central cash desk of the Sheremetyevo Customs Office – shall revert to the State.” 8. In his statement of appeal the applicant claimed his innocence and submitted that the confiscation order had no basis in the domestic law because Article 188 of the Criminal Code did not provide for confiscation as punishment. 9. On 29 May 2003 the Moscow City Court upheld the conviction on appeal. As regards the money, it noted that the trial court had not ordered confiscation of the money as a penal sanction, but had rather decided on the destiny of the physical evidence. 10. The applicant sent complaints to various Russian authorities. He pointed out that he had been living below the poverty line and that for this reason he had decided to sell the flat in Baku which he had inherited from his mother. He enclosed copies of the will and the flat sale contract. He asked for return of the lawfully acquired money on humanitarian grounds. 11. On 8 September 2003 the Ombudsman of the Russian Federation wrote a letter on the applicant’s behalf to the acting Moscow City prosecutor, asking him to submit a request for institution of supervisory-review proceedings in the part concerning the confiscation order. On 18 September 2003 the deputy Moscow City prosecutor replied to the Ombudsman that there were no reasons to seek institution of supervisory-review proceedings because the confiscation order had been lawful on the basis of paragraph 7 of the USSR Supreme Court’s Resolution of 3 February 1978. 12. On 22 October 2003 the Ombudsman asked the Prosecutor General to apply for institution of supervisory-review proceedings. He wrote, firstly, that, contrary to the requirements of the Code of Criminal Procedure, no procedural document indicated what category of physical evidence the applicant’s money belonged to. That omission entailed an incorrect decision on the destiny of the physical evidence. The applicant’s money had neither been an instrument of the crime – in smuggling cases only a hiding place could be such an instrument – nor had it been criminally acquired. Accordingly, neither paragraph 3 (1) nor paragraph 3 (4) of Article 81 of the Code of Criminal Procedure were applicable in the applicant’s situation and the money should have been returned to the lawful owner pursuant to paragraph 3 (6) of that Article. Otherwise, the confiscation order amounted to a de facto second punishment for the same offence. Finally, the Ombudsman contested the applicability of the USSR Supreme Court’s resolution of 3 February 1978. He pointed out that paragraph 7 expressly provided for application of the “current legislation”. As the new Criminal Code did not provide for confiscation in cases of smuggling, paragraph 7 could not be applied. 13. On 9 December 2003 the deputy Prosecutor General replied to the Ombudsman that the Presidium of the Supreme Court had already opined that the object of smuggling should be treated as the instrument of the offence and be liable to confiscation as such (he referred to the judgment in the Petrenko case, cited in paragraph 23 below). 14. The Ombudsman lodged a constitutional complaint on behalf of the applicant and another person. 15. On 8 July 2004 the Constitutional Court declared the complaint inadmissible (decision no. 251-O). It held that the legal possibility of confiscating the objects recognised as physical evidence in a criminal case, including instruments and proceeds of offences, was compatible with the international obligations of the Russian Federation undertaken under the United Nations Convention against Transnational Organised Crime and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. Hence, Article 81 of the Code of Criminal Procedure did not permit an arbitrary interference with property rights and did not violate, in itself, the complainants’ constitutional rights. The Constitutional Court concluded as follows: “Determination of the status of the objects illegally transported across the customs border of the Russian Federation in the criminal proceedings and decision on whether they fit the description of physical evidence liable to criminal confiscation... are to be made by the court of general jurisdiction trying the criminal case... Lawfulness of, and justification for, the judicial decision on confiscation of physical evidence shall be reviewed by higher courts in criminal proceedings. The Constitutional Court of the Russian Federation is not competent to carry out such a review...” 16. On 24 March 2005 the Constitutional Court refused the Ombudsman’s further request for a clarification of its decision of 8 July 2004. 17. The United Nations Convention against Transnational Organized Crime which concerns the transnational offences and also offences of participation in an organised criminal group, laundering of the proceeds of crime, corruption, and obstruction of justice, ratified by Russia on 26 May 2004, provides as follows: “2. States Parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate negotiable instruments across their borders, subject to safeguards to ensure proper use of information and without impeding in any way the movement of legitimate capital. Such measures may include a requirement that individuals and businesses report the cross-border transfer of substantial quantities of cash and appropriate negotiable instruments.” “1. States Parties shall adopt, to the greatest extent possible within their domestic legal systems, such measures as may be necessary to enable confiscation of: (a) Proceeds of crime derived from offences covered by this Convention or property the value of which corresponds to that of such proceeds; (b) Property, equipment or other instrumentalities used in or destined for use in offences covered by this Convention.” 18. The Criminal Code of the Russian Federation provides that smuggling, that is movement of large amounts of goods or other objects across the customs border of the Russian Federation, committed by concealing such goods from the customs or combined with non-declaration or inaccurate declaration of such goods, carries a penal sanction of up to five years’ imprisonment (Article 188 § 1). 19. The Foreign Currency Act (Federal Law no. 3615-I of 9 October 1992, in force at the material time) provided that Russian residents and non-residents alike had the right to transfer, bring in, and send foreign currency to Russia without any restrictions provided that they have complied with the customs rules (sections 6 § 3 and 8 § 1). 20. The Code of Criminal Procedure of the Russian Federation (“CCrP”) provides as follows: “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...” Similar provisions were previously contained in Article 86 of the RSFSR Code of Criminal Procedure (cited in Baklanov v. Russia, no. 68443/01, § 20, 9 June 2005). 21. The Resolution of the Plenary Supreme Court of the USSR “On judicial practice regarding the offence of smuggling” (no. 2 of 3 February 1978) provided as follows: “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 offence provided that they were equipped with special hiding places for concealing goods or other valuables...” 22. The Resolution of the Plenary Supreme Court of the USSR “On confiscation of the instruments of the offence that were recognised as physical evidence in the case” (no. 19 of 16 August 1984) provided as follows: “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.” 23. The Presidium of the Supreme Court of the Russian Federation in the case of Prosecutor General v. Petrenko (decision no. 446p98pr of 10 June 1998) granted the prosecution’s appeal against the judgment, by which Mr Petrenko had been found guilty of smuggling of foreign currency but the money had been returned to him on the ground that Article 188 of the Criminal Code did not provide for confiscation as a penal sanction. The Presidium held as follows: “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.”