CASE OF ADZHIGOVICH v. RUSSIA
Violation of P1-1;Pecuniary and non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1975 and lives in Moscow. 7. On 8 October 2004 the applicant travelled from Moscow to Simferopol in Ukraine through Sheremetyevo airport. She had on her 13,020 US dollars (USD), 31 Ukrainian hryvnyas (UAH) and 1,100 Russian roubles (RUB). However, she only reported USD 10,000 and UAH 31 in her customs declaration. The customs inspection uncovered the remaining USD 3,020, which the applicant claimed she had forgotten about. She was charged with smuggling, a criminal offence under Article 188 § 1 of the Criminal Code. The money was appended to the criminal case as physical evidence (вещественные доказательства). 8. On 9 December 2004 the Golovinskiy District Court of Moscow found the applicant guilty as charged and imposed a suspended sentence of one year's imprisonment, conditional on one year's probation. As regards the money, it referred to Article 81 of the Code of Criminal Procedure and held that: “Physical evidence – USD 13,020 and UAH 31 held in the evidence storage room of the Sheremetyevo Customs Office – shall revert to the State.” 9. In his statement of appeal, counsel for the applicant contested the lawfulness of the confiscation measure. He submitted that the gravity of the offence should have been determined by reference to the amount the applicant had concealed from the customs, that is USD 3,020, rather than the entire amount she had carried. The money had been the object rather than the instrument of the offence and as such it should have been returned to the lawful owner because it had not been claimed that it had been criminally acquired. 10. On 25 January 2005 the Moscow City Court upheld the judgment by a succinct decision, without examining the counsel's arguments in detail. 11. Counsel for the applicant submitted several applications for supervisory review of the judgments. The applications were rejected by a judge of the Moscow City Court on 22 August 2005, the President of the Moscow City Court on 18 January 2006, and a judge of the Supreme Court of the Russian Federation on 12 April 2006. As regards the confiscation measure, the judicial authorities maintained that the measure had been lawful and compliant with Article 81 of the Code of Criminal Procedure. 12. On 26 April 2007 the Presidium of the Moscow City Court examined yet another application for supervisory review. It held that the applicant had been correctly found guilty of smuggling but amended the judgment in part concerning the confiscation measure, having found as follows: “However, the decision that the authentically declared amount of USD 10,000 and UAH 31 should revert to the State was not founded on sufficient reasons. In deciding that the foreign currency should revert to the State, the court posited that the currency transported by Ms Adzhigovich was the object of the offence. However, since her criminal intent was directed at the breach of the procedure for transferring cash money (currency) across the customs border rather than at their unlawful misappropriation, the cash money (currency) was not the object of the offence and therefore not liable to confiscation under Article 81 [§ 3] (1) of the Code of Criminal Procedure. Moreover, according to Article 81 [§ 3] (4) of the Code of Criminal Procedure, criminally acquired property, money or other valuables must revert to the State. The case file does not contain any evidence to the effect that Ms Adzhigovich obtained the above-mentioned money through criminal means or as the proceeds of criminal activity. In such circumstances, the judgments in the part concerning the decision that the foreign currency should revert to the State may not be considered lawful or justified.” The Presidium held that the judgments would be amended and that USD 10,000 and UAH 31 would be returned to the applicant. 13. On 5 July 2007 a writ of execution was issued and sent to the bailiffs' service for enforcement. 14. On 23 January 2008 the bailiffs determined that the enforcement was impossible because the cash money in the amount of USD 10,000 and UAH 31 was absent from the evidence storage room of the Sheremetyevo Customs Office. That money had been taken away on 4 October 2005 by the bailiffs of the Northern Administrative District of Moscow, which appeared to have made enforcement impossible. 15. 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). 16. 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...”