TIMINSKIY v. RUSSIA
Inadmissible
Snejana Botoucharova
The applicant, Mr Avel Vitalyevich Timinskiy, is a Russian national who was born in 1969 and lives in Kurgan. He was represented before the Court by Mr I. Shirmanov, a lawyer practising in Nizhnevartovsk. The respondent Government were represented by Mr P. Laptev, 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. The applicant is a commercial agent involved in the grain trade and is established as an independent entrepreneur. On 15 May 1998 the applicant submitted to the tax authorities his official income declaration for 1997 whereby he declared a gross revenue of 6,490,869.92 roubles (RUR). After deductions, his taxable income was RUR 941,073.53, in respect of which the applicant was due to pay RUR 323,015.73 as income tax. On 15 July 1998 the payment of the 1997 income tax was due. However the applicant did not have sufficient funds on his account and did not pay the full amount. The outstanding amount was RUR 319,412.23. The Federal Service of the Tax Police charged him with tax evasion under Article 198 § 2 of the Criminal Code (tax evasion concerning a particularly large sum of money). It was stated that the applicant had committed the offence by “other means” as opposed to a failure to declare or a false declaration of income. On 4 October 2000 the Kurgan Town Court examined the case and acquitted the applicant having found that the lack of funds on the applicant’s account on the payment day was partially caused by his contractors’ failure to transfer money under the contracts. The prosecutor’s office appealed against the acquittal. On 21 November 2000 the Kurgan Regional Court, composed of three judges, quashed the acquittal having found that the circumstances established by the first instance court did not constitute a valid justification for a failure to comply with the statutory duty to pay tax. It stated that it was the applicant’s obligation to manage his assets so as to secure funds for meeting the forthcoming tax payments. The appeal court remitted the case to the town court for a fresh determination with the following instructions: “When rehearing the case, the [town] court must examine the evidence comprehensively, fully and objectively. [It must also] determine correctly the question of [the applicant’s] guilt.” On 22 January 2001 the town court re-examined the case and found that the applicant, having received commercial income, dissipated the whole amount including the part that he should have saved for paying tax. It also found that the applicant knew or should have known of his statutory duty to pay tax and was aware what amount he would be required to pay, and that he spent his funds for other purposes knowing that that might prevent him from complying with the tax duty. Having thus established his intentional failure to pay tax, the court found him guilty of tax evasion under Article 198 § 2 of the Criminal Code. The applicant was sentenced to two years’ imprisonment but was immediately discharged from serving the sentence under the 2000 Amnesty Act. The applicant appealed against the conviction asserting, inter alia, that Article 198 was inappropriately vague because the phrase “by other means” was open to misinterpretation. He claimed that he did intend to pay tax but did not have money at the right time. On 15 March 2001 the Kurgan Regional Court dismissed the applicant’s appeal and upheld the conviction. Two out of three judges in the court composition were the same as on 21 November 2000. According to the applicant, the appeal hearing lasted for ten minutes. The applicant was represented in the proceedings by legal counsel. Article 198 of the Criminal Code, in force at the material time, read, in so far as relevant, as follows: “Tax evasion committed through non-declaration of income ..., or by false declaration, or by other means ... shall be punishable...” On 8 December 2003 the Law no. 162FZ “On Amendments and Addenda to the Criminal Code of the Russian Federation” excluded the phrase “or by other means” from Article 198 of the Code.