GRIGORYEVA v. RUSSIA
Inadmissible
Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
The applicant, Ms Oksana Vasilyevna Grigoryeva, is a Russian national who was born in 1974 and lives in Moscow. She was represented before the Court by Mr V. Rumyantsev, a lawyer practising in Moscow. The respondent Government are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 13 April 2004 the applicant arrived at the Sheremetyevo-2 airport in Moscow with the intention to travel to Munich. The customs found on her 9,750 euros and 11 United States dollars in cash which she had not reported in her customs declaration. The applicant was charged with smuggling of foreign currency, a criminal offence under Article 188 § 1 of the Criminal Code. On 13 September 2004 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. It also ordered that the applicant’s money be reverted to the State. Counsel for the applicant submitted a statement of appeal, in which he argued, in particular, that the money had been reverted to the State unlawfully since it had not been instrument of any offence. On 19 October 2004 the Moscow City Court upheld the conviction on appeal. As regards the money, it noted as follows: “According to a clarification issued by the Supreme Court of the Russian Federation, objects of smuggling include foreign currency.” The City Court did not indicate the legal provision, on which the confiscation measure was based. Counsel filed an application for supervisory review, claiming in particular that the courts had decided on the destiny of physical evidence in breach of the relevant provisions of the Code of Criminal Procedure. On 15 February 2005 the Moscow City Court rejected his application in the following terms: “The argument that the court[s] had breached the requirements of Article 81 § 3 of the Code of Criminal Procedure in making the decision on the destiny of physical evidence – which the currency seized from Ms Grigoryeva was recognised to be – is unsubstantiated because the physical evidence had been reverted to the State in accordance with Article 81 § 3 (4) of the Code of Criminal Procedure.” On 22 September 2005 the Supreme Court of the Russian Federation refused institution of supervisory-review proceedings in the case. On 27 March 2009 a deputy President of the Supreme Court set aside the Supreme Court’s decision of 22 September 2005 and referred the counsel’s complaint for examination to the Presidium of the Moscow City Court. On 17 April 2009 the Presidium of the Moscow City Court reviewed the complaints which had been submitted by the applicant’s counsel and by the first deputy to the Moscow City prosecutor, and held that the conviction and confiscation order had been lawful and justified. On 5 August 2009, following a new application for supervisory review introduced by the deputy Prosecutor General, a judge of the Supreme Court decided to institute supervisory-review proceedings before the Criminal Division of the Supreme Court. On 7 September 2009 the Supreme Court upheld the applicant’s conviction of smuggling under Article 188 § 1 of the Criminal Code but quashed the confiscation order on the ground that the applicant’s money had not been criminally acquired or illegally obtained. The amount confiscated was to be repaid to the applicant. On 31 August 2010 the Court requested the Government to indicate whether the money had been repaid to the applicant. By letter of 12 October 2010, the Government submitted a payment document, according to which the amount of 336,115.79 Russian roubles had been credited to the applicant’s account on 30 September 2010. By letters of 6 October and 8 November 2010, the applicant confirmed that the money had been repaid to her. 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).