KOLOBOV v. RUSSIA
Inadmissible
Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
The applicant, Mr Vladimir Ivanovich Kolobov, is a Russian national who was born in 1955 and lives in Magnitogorsk, in the Chelyabinsk Region. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, the then 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. In 1999 the applicant’s son, A. Kolobov, was suspected of several offences, including murder. On 12 March 1999 the applicant’s son was driving the applicant’s car VAZ-2108 when he was stopped by the police. A car inspection record was drawn up on the same day. The car was taken to the district police station car park. The applicant was told that the car was subject to a restraint order (решение о наложении ареста на имущество). On 29 July 1999 an investigator from the Magnitogorsk prosecutor’s office issued an impounding order in respect of the car, worded as follows: “[H]aving examined the criminal case file in respect of A. Kolobov, and given that his criminal activity has caused pecuniary damage to [the victims]; considering that the damage has not been remedied in full, as well as the fact that Kolobov used the car for committing criminal offences; noting that the investigation has established that certain parts of the car were taken as a result of assaults and murders against their owners; for the purpose of returning the property, securing civil claims and confiscating property, and pursuant to Article 175 of the RSFSR Code of Criminal Procedure, I order that the car, owned by V. Kolobov and currently in the possession of A. Kolobov, be impounded and placed in the [police station] car park”. According to the inventory list drawn up on 29 July 1999 after a visual inspection of the car’s exterior (because no key was available), the car was in good condition. In reply to the applicant’s complaint, by a letter of 15 November 1999 the prosecutor informed him as follows: “...the impounding order imposed by the investigator on the car...was lawful and justified because the car was a piece of physical evidence in the case. The seizure did not seek to secure civil claims or a confiscation order in respect of A. Kolobov’s property since he was not the owner of the car in question. A request for lifting the impounding order should be addressed to the court trying the case against A. Kolobov.” On 26 April 2000 the Chelyabinsk Regional Court convicted the applicant’s son of murder and robbery. He was sentenced to a term of imprisonment and ordered to pay compensation to the victims. According to the Government, it could be seen from the judgment that the robbery had been committed with the use of the applicant’s car, as various items taken away from the victims and firearms had been transported in that car. In the same judgment, the trial court lifted the restraint order and ordered the authorities to return the car to the applicant. However, it also held that unspecified “parts of the car body should be destroyed”. The judgment became final on 19 February 2001. In reply to the applicant’s request for the car to be returned, on 18 April 2001 the town prosecutor’s office advised him that he should contact the person in charge of the police station car park for further information. The police station, in their turn, told the applicant that he was obliged to pay a parking fee. The applicant refused. On 15 June 2001 the town prosecutor’s office confirmed that this requirement was unlawful. In reply to the applicant’s further complaint, on 31 July 2001 the regional prosecutor’s office informed him that the car would be returned to him on 3 August 2001. The car was returned to him on that date in a dilapidated condition. According to the applicant and an expert report drawn up on the same date, tyres were damaged and two fog lights were missing. The applicant and Mr K. also alleged that several objects (a stereo and its speakers, a radio scanner, a first-aid kit, a fire extinguisher, floor mats, etc.) were missing. In September 2001 the applicant brought civil proceedings against the town prosecutor’s office and the police department. His claims read as follows: “On 12 March 1999 my car was taken to the Pravoberezhniy district police station car park. However, a restraint order was issued only on 29 July 1999. On the same day, an inventory list was drawn up...As followed from the judgment of 26 April 2000 concerning my son, the car had to be returned to me...The judgment became final on 19 February 2001...The car was not returned to me because the [authorities] told me that I had to be a fee...I sustained pecuniary damage because of the loss or deterioration of several parts of the car...Unreasonable and unlawful actions of the authorities caused moral suffering because I had to spend time and effort to initiate proceedings and complaints...” The case was assigned to a justice of the peace in the First Circuit of the Leninskiy District of Magnitogorsk. He held several hearings and ordered several adjournments, in particular at the applicant’s request, to collect evidence and to hear witnesses. The judge decided that the Pravoberezhniy police station, as well as the federal Ministry of Finances and the Prosecutor General’s Office, were the appropriate defendants in the case. On 14 August 2002 the court established that the car had been considered as physical evidence in the criminal case against the applicant’s son; it had been lawfully placed in the police station car park. The justice of the peace, however, considered that the authorities’ refusal to return the car after February 2001 and the requirement to pay for its safekeeping had been unlawful. With reference to the inventory list drawn up on 29 July 1999, the court considered that the available materials confirmed the loss of the fog lights, the stereo and its speakers, the radio scanner and the floor mats, as well as the damage to the tyres. The court granted the pecuniary claim in part, as well as the court, expert and lawyer’s fees. It awarded the applicant 11,725.37 Russian roubles. The court also held as follows: “As to the claim in respect of non-pecuniary damage, the court reiterates that compensation in respect of moral or physical suffering caused by actions affecting non-property rights or interest may be awarded under Article 151 of the Civil Code. [The applicant] adduced no evidence to confirm that the respondents’ actions had violated his personal non-property rights or interests. Under Article 1099 § 2 of the Civil Code compensation in respect of moral suffering caused by an action or inaction affecting material rights should be awarded, if prescribed by law. The applicable legislation does not provide for compensation in respect of moral suffering caused by the damaging of a car or by the delay in its return to the owner...” The applicant appealed arguing as follows: “The first-instance court wrongly rejected one part of my pecuniary claims...Also, I was refused compensation in respect of non-pecuniary damage...As to moral suffering, from 12 March to 29 July 1999 and from 19 February to 3 August 2001 I could not use my car; I was unlawfully required to pay a parking fee and had to spend my time and effort seeking redress before national authorities...” On 5 February 2003 the Leninskiy District Court of Magnitogorsk upheld the judgment in the following terms: “The court rightly dismissed the claim concerning non-pecuniary damage because [the applicant] had omitted to justify it with reference to any ill health or psychological distress. Instead, he justified it with reference to real losses owing to the impossibility of using the car and the loss of time in reclaiming it.” In November 2003 the applicant received the amount awarded.