CASE OF DENISOVA AND MOISEYEVA v. RUSSIA
Remainder inadmissible;Violation of P1-1;Just satisfaction reserved
Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
5. The applicants were born in 1949 and 1978 respectively and live in Moscow. They are wife and daughter of Mr Valentin Moiseyev, who was also an applicant before the Court (see Moiseyev v. Russia, no. 62936/00, 9 October 2008). 6. On 3 July 1998 the Investigations Department of the Federal Security Service of the Russian Federation (the FSB) opened criminal proceedings against Mr Moiseyev. At 11.30 p.m. a search was conducted at the applicants' flat. Foreign currency, the keys and registration papers for a VAZ car, and the second applicant's personal computer were seized. Simultaneously a search was carried out at Mr Moiseyev's office. In total, the investigators seized 5,747 US dollars. 7. On 10 July 1998 the investigator seized from the first applicant the keys to garage no. 178. 8. On 13 July 1998 Mr Moiseyev was formally charged with high treason, an offence under Article 275 of the Criminal Code. 9. On 22 July 1998 the investigator ordered a charge to be placed on the VAZ car with a view to “securing possible forfeiture of the defendant's property in accordance with Article 175 of the RSFSR Code of Criminal Procedure”. 10. On 1 September 1998 the investigator informed the director of the SBS-Agro bank of the freezing of Mr Moiseyev's foreign currency and Russian rouble accounts. 11. On 16 September and 12 November 1998 the investigator issued charging orders in respect of the garage and the computer. On 16 November 1998 the computer was physically removed from the applicants' flat and placed in the material evidence room of the Federal Security Service. 12. On 29 March 1999 the second applicant asked the investigator to return the computer, which was her personal property. On 12 April 1999 the investigator replied that the computer had been seized with a view to securing possible forfeiture of Mr Moiseyev's property and that certain files edited by Mr Moiseyev had been discovered on the hard disc. The second applicant was informed that, if necessary, her text files would be copied and handed over to her. 13. On 8 June 1999 the investigator ordered attachment of the seized 5,747 US dollars as a material exhibit. On 15 June 1999 the Finance and Planning Department of the “USSR State Security Committee” issued a receipt for the money. 14. On 14 August 2001 the Moscow City Court convicted Mr Moiseyev of high treason committed between 1992 and 1998, sentenced him to four years and six months' imprisonment and issued a confiscation order in respect of his property. The parts of the judgments relevant to the determination of the property matters read as follows: “Mr Moiseyev's pre-trial deposition that he had received remuneration for information transmitted to a representative of a foreign state has been confirmed by the search records, noting the discovery of US dollars both in his office and at his place of residence. The witness B. confirmed that the search had uncovered 4,647 US dollars sorted into non-standard envelopes. Both Mr Moiseyev and his wife Ms Denisova who was interviewed as an additional witness at trial, had been present during the search but raised no objections. Accordingly, the court considers that the decision attaching the 1,100 US dollars seized in Mr Moiseyev's office, the 4,647 US dollars, and seven envelopes as material exhibits was justified... Having regard to the public dangerousness of the committed crime, the court orders confiscation of Mr Moiseyev's property. The court decides on the destiny of the material exhibits in accordance with Article 86 of the RSFSR Code of Criminal Procedure... A confiscation order is issued in respect of the property that has been seized: [the VAZ car, foreign currency and Russian rouble bank accounts, garage no. 178, and the computer], as well as the cash funds of 5,747 US dollars which have been criminally acquired.” 15. On 3 January 2002 the first applicant asked the Supreme Court to order the return of her spousal property and to remove the garage from the list because it was rented rather than owned. She did not receive a response to her request. 16. On 9 January 2002 the Supreme Court upheld the conviction. 17. On 4 March 2002 the Moscow City Court sent an excerpt from the judgment of 14 August 2001 to the FSB's Finance and Economic Department for enforcement of the confiscation order in respect of the cash funds. The covering letter read as follows: “Confiscation order to be executed in respect of Mr Moiseyev's cash funds in the amount of [unreadable] US dollars as having been criminally acquired and stored at the Department [according to] receipt no. 1013 of 15 June 1999.” 18. On 18 March 2002 the Moscow City Court issued five writs of execution for enforcement of the confiscation order in respect of Mr Moiseyev's property at his place of residence, the VAZ car, the garage, the bank accounts and the computer. 19. On 27 March 2002 the cash funds in the amount of 5,747 US dollars were received by the Vneshtorgbank from the FSB's Finance and Economic Department and credited to the State. 20. On 25 May 2002 a bailiff discontinued enforcement in respect of Mr Moiseyev's property located in his flat because no chargeable items had been found. 21. By a decision of 20 June 2002, a bailiff ordered the removal and sale of the computer and declared enforcement completed. On 31 July 2002 the computer was evaluated at 2,500 Russian roubles (RUB) and subsequently sold for RUB 1,609.05. 22. On 17 September 2002 a bailiff discontinued enforcement in respect of Mr Moiseyev's foreign currency and Russian rouble bank accounts. He determined that no accounts in his name were listed in the bank's database. 23. On 27 November 2003 a bailiff determined that the garage was in fact a collapsible metal structure located on a rented plot, in respect of which the rent agreement had expired. Accordingly, he held that its removal or sale were impossible. 24. Following the amendments of the Criminal Code (see paragraph 34 below), Mr Moiseyev asked the Moscow City Court to relieve him from the auxiliary penal sanction in the form of the confiscation order. On 14 February 2005 the Moscow City Court found that the enforcement of the confiscation order had been discontinued or terminated in respect of everything but the VAZ car. Since the auxiliary penal sanction of confiscation had been removed from the Criminal Code, the City Court decided to return the car to Mr Moiseyev. On 6 July 2005 the Supreme Court of the Russian Federation upheld that judgment on appeal. 25. On 13 May 2002 the first applicant sued the court bailiffs and the Federal Security Service before the Khoroshevskiy District Court of Moscow, seeking to have the charging orders lifted and to have her right to one half of the marital property, excluding the bank deposits, recognised. She submitted that she had been married to Mr Moiseyev since 1978 and that the Civil and Family Codes provided for equality of spouses' portions of the marital property. Relying on Mr Moiseyev's pay statements, she argued that from 1992 to 1998 he had earned more than five thousand dollars and thus the amount of 5,747 US dollars could not be considered to have been unlawfully acquired. She indicated that the garage had been rented in 1988, and that the computer had been the second applicant's property. 26. On 11 October 2002, 14 and 27 February 2003 the court heard the parties. As the first applicant withheld consent to the substitution of the Federal Property Fund for the FSB and to Mr Moiseyev as co-defendant, Mr Moiseyev joined the proceedings as a third party. 27. On 27 February 2003 the Khoroshevskiy District Court delivered a judgment. The entire reasoning read as follows: “Having assessed the collected evidence, the court dismisses [the first applicant's] claim because the judgment of the Moscow City Court established that the contested property had been criminally acquired, which makes it impossible to recognise the plaintiff's right to one half of the seized property, and also [because] the FSB is not a proper defendant in this case. Neither [the first applicant] nor Mr Moiseyev have been deprived of an opportunity to appeal against the conviction in the part concerning the contested property.” 28. On 18 June 2003 the Moscow City Court upheld the judgment on appeal, noting that the claimed property had been found to have been criminally acquired by the Moscow City Court's judgment of 14 August 2001. 29. On 20 November 2003 the applicants sued the Federal Property Fund of the Russian Federation, seeking the lifting of the charging orders and recognition of the first applicant's right to one half of the spousal property and the second applicant's ownership of the computer. 30. On 9 August 2005 the Khoroshevskiy District Court of Moscow dismissed their claim, finding as follows: “It follows from the judgment of 14 August 2001 that the cash funds in the amount of 5,747 US dollars had been criminally acquired... On 19 March 2002 they were deposited with the Vneshtorgbank bank with a view to confiscation and credit to the State... Accordingly, the court cannot agree with Ms Denisova's claim to one half of the spousal part of the said cash funds. No other judicial documents relating to the origin of the contested cash funds have been produced before the court, whereas, pursuant to Article 61 § 2 of the Code of Civil Procedure, the facts established by a final judicial decision in an earlier case bind the court. As to Ms Moiseyeva's claims for recognition of her ownership of the computer and peripherals, it cannot likewise be satisfied because they have not been corroborated during the examination of the merits of the case. At present the said property has been confiscated and sold, which is confirmed by the bailiffs' information about the enforcement of the confiscation order in that respect.” 31. On 13 October 2005 the Moscow City Court upheld, in a summary fashion, the City Court's judgment. 32. Property acquired by spouses in marriage is presumed to be jointly owned (Article 256 § 1 of the Civil Code, Article 34 § 1 of the Family Code). A child owns property which he or she has received as a gift (Article 60 § 1 of the Family Code). Giving does not require a written agreement, handover of the gift being sufficient (Article 574 § 1 of the Civil Code). 33. The Criminal Code provides that “penalty shall be imposed on a person found guilty of commission of a crime” (Article 44). Confiscation of property is a form of penal sanction which is auxiliary to the main sanction and defined as “compulsory withdrawal, in whole or in part, without compensation, of the property owned by the convicted person” (Article 52). On 8 December 2003, Article 52 was removed from the Criminal Code. 34. As worded at the time of Mr Moiseyev's conviction, Article 275 of the Criminal Code provided that high treason carried a punishment of up to twenty years' imprisonment that may or may not be accompanied by a confiscation order in respect of the convict's property. On 8 December 2003 the reference to the possibility of issuing a confiscation order was deleted. 35. The RSFSR Code of Criminal Procedure, as worded at the time of Mr Moiseyev's conviction, provided as follows: “The judgment... must decide on the destiny of the exhibits, and: (1) instruments of crime which belong to the accused shall be confiscated and passed on to a competent agency or destroyed; ... (4) criminally acquired money and other assets shall be confiscated to the profit of the State; other items shall be returned to their lawful owners, or, if the owners cannot be established, shall become the State's property. In case of a dispute over the ownership of such items, the dispute shall be resolved in civil proceedings...” “With a view to securing a civil claim or a possible confiscation order, the investigator must charge the property of the suspect, defendant... or of the other persons who keep criminally acquired property... If necessary, the charged property may be impounded...” 36. Article 442 § 2 of the Code of Civil Procedure provides: “A dispute over the ownership of the charged property initiated by persons who were not parties to the case shall be examined as a civil claim. A claim for having the charging order lifted shall be made against the debtor and creditor. If the property has been charged or seized in connection with a confiscation order, the person whose property is to be confiscated, and the competent State authority shall be co-defendants...” 37. Resolution no. 7 of the Plenary Supreme Court of the USSR “On the case-law concerning confiscation of property” (of 29 September 1953, as amended on 29 August 1980) provided: “4. ...The court should bear in mind that in case of confiscation of the convict's property in its entirety, the confiscation order should only apply to his or her personal property and to his or her part of the jointly owned property, it may not extend to the part of other persons who own that property jointly with the convict. Rights and lawful interests of the convict's family members living with him, must be respected... 9. The courts should bear in mind that even if the criminal judgment contained a list of specific property items liable to confiscation, third parties still may claim their title to that property in civil proceedings... The courts must consider such claims and the criminal judgment does not bind the civil court in its determination of the dispute over the contested property. However, if the criminal judgment established that the listed property items had been criminally acquired or paid for with criminally acquired assets, but registered in other persons' names with a view to concealing them from confiscation... then the claim for lifting of the charging order shall be dismissed.” 38. Resolution no. 4 of the Plenary Supreme Court of the USSR “On legal requirements for examination of claims for lifting of charging orders” (of 31 March 1978, as amended on 30 November 1990) provided: “9. When considering a spouse's claim for lifting the charging order in respect of his or her part in the joint marital property, the court must bear in mind that... the property acquired in marriage is jointly owned by the spouses and in case of division their parts are presumed equal... The court must determine the actual size of the spouse's portion of the marital property and the specific items allocated to him or her, having regard to the entirety of the jointly acquired property, including the property that is not – by operation of law or otherwise – liable to confiscation. Each spouse's portion shall include both the property liable to confiscation and that not liable to confiscation...”