FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 18720/05
by Oksana GRIGORYEVA
against Russia
The European Court of Human Rights (First Section), sitting on 6 January 2011 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Dean Spielmann,
Giorgio Malinverni,
George Nicolaou, judges,
Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 22 March 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
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.
A. The circumstances of the case
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.
B. Relevant domestic law and practice
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).
THE LAW
1. The applicant complained under Article 7 of the Convention that she had been convicted of an act that did not constitute a criminal offence because Article 188 of the Criminal Code concerned only the smuggling of goods, whereas she had transported foreign currency. The relevant part of Article 7 reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed...”
The Court notes that there existed a long-standing case-law of Russian courts which interpreted Article 188 of the Criminal Code as including the smuggling of foreign currency (see Baklanov v. Russia, no. 68443/01, 9 June 2005; Sun v. Russia, no. 31004/02, 5 February 2009, and Adzhigovich v. Russia, no. 23202/05, 8 October 2009). This interpretation was confirmed in the Moscow City Court’s judgment of 19 October 2004 (cited above).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant also complained under Article 1 of Protocol No. 1 that the decision on reverting her money to the State had not had a legal basis because Article 188 of the Criminal Code did not provide for confiscation as penalty and because Article 81 § 3 (4) of the Code of Criminal Procedure only concerned the money that had been “criminally acquired”, whereas her money had had a lawful origin. Article 1 of Protocol No. 1 provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Court observes that on 7 September 2009 the Supreme Court of the Russian Federation reversed the judgments in the applicant’s case in the part concerning confiscation of her money, finding that there was no indication of its unlawful origin. In October 2010, the applicant confirmed that the amount that had been previously confiscated, had been credited to her account.
It is a well-established principle of the Court’s case-law that an applicant may lose his or her victim status if two conditions are met: first, the authorities must have acknowledged, either expressly or in substance, the breach of the Convention and, second, they must have afforded redress for it (see, most recently, Sakhnovskiy v. Russia [GC], no. 21272/03, § 67, 2 November 2010).
In the instant case the Supreme Court expressly acknowledged that the confiscation measure was devoid of a legal basis because the unlawful origin of the applicant’s money had not been proved. Repayment of her money was a form of redress of the violation she had complained about. Since the applicant did not allege that the redress was insufficient in quantitative terms or complain about any inflation-related or conversion-rate losses or about an excessive delay in the enforcement of the Supreme Court’s decision, the Court considers that the repayment of the sum constituted adequate redress in the circumstances of the case. Accordingly, the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breach of Article 1 of Protocol No. 1.
It follows that the applicant can no longer claim to be a “victim” of the alleged violation of Article 1 of Protocol No. 1 within the meaning of Article 34 of the Convention and that this complaint must be rejected pursuant to Articles 34 and 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy