CASE OF FRIZEN v. RUSSIA
Violation of P1-1
Christos Rozakis
8. The applicant was born in 1951 and lives in Krasnoyarsk. 9. In January 1995 a limited liability company, Telemediaservice (“TMS”), hired the applicant as an accountant. 10. In 1996 TMS granted the applicant an interest-free loan for the purchase of a Toyota Land Cruiser car. The terms and conditions of the loan were set out in a loan agreement of 10 June 1996 signed by the applicant and the director-general of TMS, Mr Yevseyev. The loan was for 266,847,000 Russian roubles* (“RUR”) over a period of eighty-four months. On 13 June 1996 the total amount was transferred directly to the bank account of the car dealer. 11. On 30 September 1996 the State Road Inspectorate of the Krasnoyarsk Region registered the purchased car in the applicant's name. 12. According to an undated certificate signed by the new TMS director-general, Ms Yakovleva, the applicant reimbursed seven instalments of RUR 3,200 (after denomination) between June 1996 and January 1997 and one additional instalment of RUR 490 in May 1999, to the total of RUR 22,890. 13. On 27 November 1998 the Tsentralniy District Court of Krasnoyarsk convicted Mr Yevseyev and the applicant's husband, Mr Frizen, of large-scale fraud. The applicant was a witness at the trial. It was established that the accused, while holding managerial positions in the State telecommunication company MTTS, had founded the TMS company that acted as a broker in the procurement of telecommunication equipment for MTTS. They used the MTTS's funds to make advance payments under the contracts for the purchase of telephones signed by TMS and then sold these telephones to MTTS at inflated prices. The court found: “Being managers of MTTS, Frizen and Yevseyev... used their position... to take advantage of the cash flow of [the MTTS] for their personal gain. Moreover, relatives of the defendants were simultaneously employees of the TMS and MTTS and they received a salary from both companies. It was established by the court... that the salary of the TMS employees, loans and dividends were paid out of money that had been taken from [the MTTS]”. 14. The court noted that the applicant had not shown the loan agreement to the investigator and held: “As it was established by the court that the loans for the purchase of cars had been granted to Yevseyev and [the applicant] unlawfully, at the expense of [the MTTS], without appropriate documentation, the court considers it necessary to order forfeiture of the cars as compensation for the damage (обратить в возмещение ущерба)”. 15. The court sentenced both Mr Frizen and Mr Yevseyev to four years' imprisonment and issued confiscation orders in respect of their property. It also recovered RUR 4,076,387 from them and ordered forfeiture of the TMS company's cash funds and the applicant's and Mr Yevseyev's cars as compensation for the damage. 16. In December 1997 the applicant's car was seized. On 12 April 1999 certain household items in the applicant's flat were also seized. 17. The applicant brought a civil action, seeking to lift the seizure order in respect of her household items and the car. 18. On 23 August 1999 the Oktyabrskiy District Court of Krasnoyarsk granted the applicant's action in respect of the household items but upheld the seizure of the car, finding as follows: “The court has established that on 10 June 1996 the TMS company and [the applicant] concluded a loan agreement, by the terms of which [the applicant] was granted a loan of RUR 266,847,000... It is true that, according to the sale certificate of 9 July 1996 and a copy of the vehicle registration card, the car at issue was registered in [the applicant's] name. However, the court considers that the plaintiff's arguments to the effect that she is the legal owner of the car... are unsubstantiated because the judgment of the Tsentralniy District Court of Krasnoyarsk of 27 November 1998... had established that the loan for the purchase of that car had been granted unlawfully and, accordingly, the car had been forfeited as compensation for damage.” 19. On 6 October 1999 the Civil Division of the Krasnoyarsk Regional Court, on an appeal by the applicant, upheld the judgment of 23 August 1999. The court justified the seizure of the car in the following terms: “The [first-instance] court correctly refused [the applicant's] claim... because the circumstances showing that [the applicant] had purchased the car from her own (borrowed) money had not been confirmed... [T]here is no evidence that the borrowed funds were used for the purchase of the car, the loan was only reimbursed from [the applicant's] salary and the last instalment was paid on 1 January 1997”. 20. The Civil Code of the Russian Federation provides: 1. Where the law so provides, property may upon a court decision be taken away from its owner without compensation by way of punishment for commission of a crime or another offence (confiscation). 2. Where the law so provides, a confiscation order may be issued in administrative proceedings. The decision on confiscation made in the administrative proceedings may be appealed against to a court.” 21. The Criminal Code of the Russian Federation provides that “punishment shall be imposed on a person found guilty of commission of a crime”. Article 44 (g) provides that confiscation is a form of punishment. Article 52 defines confiscation of property as the “compulsory withdrawal, in whole or in part, without compensation, of the property owned by the convicted person”. 22. The RSFSR Code on Administrative Offences (in force at the material time) provided for the confiscation of things by means of which the administrative offence had been committed or which had been the object of the offence. 23. The RSFSR Code of Criminal Procedure (in force at the material time) provided that instruments of the crime which belonged to the defendant (Article 86 § 1) and criminally acquired money and other valuables were to be forfeited whereas other items were to be returned to their lawful owner (Article 86 § 4).