CASE OF BORZHONOV v. RUSSIA
Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 13+6-1;Violation of Art. 6-1;Violation of Art. 13+P1-1;Violation of P1-1;Pecuniary and non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant was born in 1954 and lives in the town of Ulan-Ude in the Buryatiya Republic. 5. The Russian authorities initiated 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). 6. The above cases were joined on a number of occasions, most recently on 4 June 2001. According to the Government, the charges under Articles 165 and 199 of the Code were abandoned on 5 January 2000 and 4 June 2001 respectively (see, however, paragraph 9 below). 7. According to the Government, the proceedings were suspended on 6 January, 4 February and 17 August 2000, 13 June and 21 September 2001, and 20 January 2003, owing to the applicant’s illness. According to the Government, the applicant and his counsel were advised that the proceedings had been suspended on a number of occasions and subsequently resumed. 8. On 18 August 2004 the applicant sought access to the case file and, in particular, to the above-mentioned decisions to suspend the proceedings. On 27 August 2004 the Prosecutor’s Office of the Buryatiya Republic sent him a letter stating that the case file might be available at the archives of the Tax Authority in Ulan-Ude. On 5 October 2004 the Investigations Department of the Regional Ministry of the Interior informed the applicant that the criminal case against him had been suspended owing to his illness. Upon his renewed request, on 22 December 2004 the applicant received another reply from the Regional Office of the Drugs Control Service stating that the Investigations Department might be able to provide the requested documents. On 8 September 2005 the Drugs Control Service informed the applicant that on 10 July 2003 the criminal case against him had been forwarded to the Prosecutor’s Office of the Buryatiya Republic. 9. On 20 January 2006 the Investigations Department discontinued the proceedings as regards charges under Articles 160, 165, 198, 199 and 201 of the Criminal Code. 10. In August 1997 the applicant bought a PAZ-320500 bus. On 5 November 1999 the investigator in the criminal case against the applicant (see above) authorised seizure of the bus as security for eventual civil claims against him or eventual confiscation as a penalty under Article 160 § 3 (b) of the Criminal Code (see paragraph 16 below). On 9 November 1999 the applicant’s bus was seized. It appears that no civil claims were lodged in the criminal case against the applicant. 11. On an unspecified date the bus was transferred for safekeeping to a Mr Y. 12. In September 2003 the applicant brought proceedings in which he challenged the investigator’s seizure order as unlawful and requested the court to release the bus. 13. On 15 September 2003 the Sovetskiy District Court of Ulan-Ude examined the applicant’s claims with reference to Article 125 of the 2002 Code of Criminal Procedure (see paragraph 19 below) and rejected them as unfounded. The court held as follows: “...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...” 14. On 11 November 2003 the Supreme Court of the Buryatiya Republic upheld the judgment on appeal. The court stated: “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...” 15. On 18 July 2006 the deputy prosecutor of the Buryatiya Republic lifted the order of attachment in respect of the applicant’s bus. The applicant was served with a copy of that decision on 21 March 2007. It appears that the authorities were unable to determine where the bus was kept and thus could not return it to the applicant. 16. Under Article 160 § 3 (b) of the Code, in force at the material time, misappropriation of another’s property committed on a large scale or in view of the person’s hierarchical status was punishable by a sentence of imprisonment of up to ten years with or without confiscation of property. Under the Federal Law of 8 December 2003 (no. 162-ФЗ), confiscation as a penalty was removed from the Criminal Code, including its Article 160 § 3 (b). On 27 July 2006 a new Chapter 15.1 reintroducing the notion of confiscation was inserted into the Code in relation to a number of offences. The offences under Articles 160, 165, 198, 199 and 201 were not concerned. 17. A preliminary investigation in a criminal case had to be completed within two months starting from the date when the proceedings were initiated until the date when a bill of indictment was sent to the prosecutor or when the proceedings were terminated or suspended (Article 133). The preliminary investigation could be suspended if the accused had absconded or if his whereabouts had not been determined or if he was suffering from a mental or other serious disease. The investigator had to issue a reasoned decision (Article 195). Pursuant to Article 218 of the Code, a prosecutor was competent to examine complaints against decisions taken by an inquirer or an investigator. By a ruling of 23 March 1999, the Constitutional Court invalidated this provision in so far as it excluded a possibility of judicial supervision over such decisions, including those relating to suspension of proceedings and imposition of charging orders. 18. Under Article 208 § 1 of the Code, the preliminary investigation can be suspended, inter alia, if the suspect or accused is temporarily suffering from a serious disease which prevents him from participating in the investigation. A victim, civil claimant or respondent and their representatives should be notified accordingly and apprised of their right to appeal against the decision suspending the proceedings (Article 209 § 1). A suspect or accused and counsel should also be informed, if the suspension was caused by his or her illness. 19. Articles 123 and 125 of the Code concern judicial supervision over any (in)action on the part of an inquirer, investigator or prosecutor in so far as such (in)action affects a complainant’s rights or impedes his or her access to a court. The judge either (i) invalidates the impugned (in)action as unlawful or lacking justification and requires the respondent authority to remedy the violation, or (ii) rejects the complaint. 20. A decision terminating the criminal proceedings should be handed over or dispatched to the person concerned (Article 214 § 4). 21. Article 133 § 1 of the Code safeguards a so-called “right to rehabilitation”, including a right to full compensation in respect of pecuniary and non-pecuniary damage caused by criminal prosecution of a person who has been acquitted or in respect of whom the criminal proceedings have been terminated, inter alia, owing to a lack of corpus delicti or because the person had not been involved in the criminal act. The investigator issues a decision in which he or she recognises the person’s right to rehabilitation and also sends notification explaining the procedure for obtaining compensation (Article 134 § 1). 22. A person who has sustained pecuniary damage or loss from a criminal offence has a right to lodge a civil claim against the accused. He or she can exercise this right from the commencement of the criminal proceedings until the opening of the trial (Article 29). 23. If sufficient reasons obtain as to the existence of pecuniary damage caused by a criminal offence, the investigating authority or a court should take measures for securing the existing or eventual civil claim and/or for impeding the accused from hiding his property, if the charges against him carry confiscation as a possible penalty (Article 30). 24. According to Article 175 of the Code, in order to secure civil claims or eventual confiscation of property, the investigator should issue a charging order in respect of an accused’s property; that of persons who are liable by law for the accused or suspect’s actions; that of other persons who are in possession of the property acquired through unlawful actions. Property attached may be impounded or transferred at the attaching official’s discretion for safekeeping to a competent authority or left with the owner or other person who shall be warned about responsibility for keeping the property safe, and the fact shall be mentioned in the relevant record. The investigator lifts the charging order if it is no longer needed. 25. Under Article 115 § 1 of the Code, in order to ensure execution of a judgment in a part pertaining to a civil claim, to satisfy other pecuniary penalties or an eventual confiscation of property, an inquirer or investigator, subject to the prosecutor’s consent, or a prosecutor should apply to a court for a charging order in respect of the suspect’s or accused’s property. The court should examine such request under the procedure set out in Article 165 of the Code. A charge or attachment of property prohibits the proprietor or owner from disposing of, and, if appropriate, using the property; it may require impounding of that property and its transfer for safekeeping to its proprietor or owner or a third person (§§ 2 and 6). A charging order is lifted by the authority dealing with the criminal case when the charge is no longer needed (§ 9). 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. 26. By decision no. 97-O of 10 March 2005 the Constitutional Court held, in the context of proceedings concerning Article 82 of the CCrP on real evidence, that provisional measures such as imposition of a charge on one’s property may be required in criminal proceedings and should not be considered as a violation of constitutional rights and freedoms, including property rights. Judicial scrutiny of such measures as to their lawfulness should also encompass an assessment of whether other measures would be inappropriate, with due regard to the gravity of the charges in relation to which provisional measures have been taken, as well as to the nature of the property under the charge, its importance for its owner or holder and other eventual negative effects that the charge might have. Thus, it is incumbent on the investigator and, subsequently, on the reviewing court to be satisfied that the property under the charge should or should not be returned to its owner for safekeeping until the closure of the criminal proceedings.