Communicated on 28 August 2017
FIRST SECTION
Application no. 66654/12
Elena KALYAKINA and Vera KALYAKINA
against Armenia
lodged on 30 September 2012
STATEMENT OF FACTS
The applicants, Ms Elena Kalyakina (the first applicant) and Ms Vera Kalyakina (the second applicant), are Russian nationals, a mother and daughter who were born in 1962 and 1983 respectively and were detained in Abovyan prison at the time when they lodged the present application with the Court. They are represented before the Court by Mr T. Khurshudyan, a lawyer practising in Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
At the relevant time the applicants, originally from Volgograd, Russia, were involved in the nightclub business in Yerevan.
The applicants owned certain property in Armenia. In particular, the first applicant had acquired a semi-basement at 41 Raffi Street in Yerevan. Also, the first and second applicants had made deposits in an Armenian bank in the amount of AMD 12,500,000 (approximately EUR 28,000) and AMD 6,500,000 (approximately EUR 14,500) respectively. The second applicant had also put 110 pieces of jewellery in a safe deposit box in another Armenian bank.
On 22 July 2008 the police instituted criminal proceedings against the applicants under Article 132.1 § 2 (3) and (4) of the Criminal Code (the CC) (engagement of a person in prostitution or other forms of sexual exploitation, forced labour or services or slavery or putting such a person in a condition similar to slavery or keeping them in such a condition). The applicants were suspected of having had brought to Armenia a number of young women from Russia who were then exploited as strippers in various nightclubs in Yerevan.
On 7 May 2009 the applicants were charged with aggravated human trafficking under Article132 § 3 (1) and (2), aggravated exploitation and forced labour under Article 132.1 § 2 (3) and (4) and money laundering in large amounts under Article 190 § 3 (1) of the CC.
In the course of the investigation the police seized two computer processors from the first applicant: one during the search of her rented apartment in Yerevan and the other during the search of her apartment in Volgograd. The investigating authority seized the following property belonging to the first applicant: the semi-basement at 41 Raffi street, her bank deposit in the amount of AMD 12,500,000, AMD 1,150,000, a couple of USD banknotes, 5 Iranian banknotes for 10,000 Iranian Rials, two gold necklaces, gold earrings, AMD 15,530 (approximately EUR 35) and RUB 129 (approximately EUR 4) in cash. The second applicant’s bank deposit in the amount of AMD 6,500,000 and 110 pieces of jewellery that had been kept in a safe deposit box at the bank were also seized. All this property was admitted as material evidence in the case against the applicants.
As a result of the amendments to the CC of 1 March 2011, Article 132.1 was abrogated. Therefore, in the course of the applicants’ trial the prosecution brought charges against the applicants in conformity with the new law and charged them with aggravated human trafficking and money laundering under Article 132 § 2 (1) and (2) and Article 190 § 3 (1) of the CC.
By a judgment of 3 October 2011 of the Kentron and Nork-Marash District Court of Yerevan (the District Court) the applicants were convicted of aggravated human trafficking and acquitted of money laundering. The first and the second applicants were sentenced to 9 and 7 years’ imprisonment, respectively. As regards the issue of the material evidence, the District Court stated that the two computer processors seized from the first applicant should be returned to her. Furthermore, the first applicant’s movable property, including her monetary assets and jewellery, should be returned to her within one month after the entry into force of the judgment while the seizure of her bank deposit in the amount of AMD 12,500,000 and her property situated at 41 Raffi street in Yerevan should be lifted within one month after the entry into force of the judgment. The District Court also ruled that the seizure of the second applicant’s bank deposit in the amount of AMD 6,500,000 and 110 pieces of jewellery should be lifted within one month after the entry into force of the judgment.
The applicants and the prosecution lodged appeals against the District Court’s judgment. The applicants sought full acquittal, while the prosecution sought their conviction also on account of money laundering, with confiscation of property. The prosecution also made a request for the material evidence to be treated in accordance with the requirements of Article 119 of the Code of Criminal Procedure (the CCP).
On 26 January 2012 the Criminal Court of Appeal fully upheld the District Court’s judgment as regards the applicants’ conviction and sentences. At the same time, the Court of Appeal stated in its decision that the prosecution’s appeal in its part concerning the treatment of material evidence should be granted in accordance with Articles 115 and 119 of the CCP. It amended the District Court’s judgment as regards the treatment of material evidence and decided that the seized material evidence in its entirety should be transferred to the State.
The applicants lodged an appeal on points of law arguing, inter alia, that the decision of the Court of Appeal concerning the treatment of material evidence constituted an arbitrary interference with their property rights.
The prosecution also lodged an appeal on points of law.
On 30 March 2012 the Court of Cassation declared the appeals on points of law lodged by the applicants and the prosecution inadmissible for lack of merit.
It appears that the applicants’ property was not confiscated based on the Court of Appeal’s judgment of 26 January 2012.
It further appears that on 23 May 2015 the District Court issued a writ of execution, according to which the material evidence listed in the Court of Appeal’s judgment of 26 January 2012 was to be confiscated.
On 27 March 2015 the Department for Enforcement of Judicial Acts (the DEJA) started enforcement proceedings and ordered that the applicants’ assets in question be frozen.
On 8 April 2015 the applicants disputed the actions of the DEJA, arguing that the writs of execution had been issued and submitted for enforcement in breach of the time-limits set by law.
On 21 April 2015 the Malatia-Sebastia District Court of Yerevan admitted the applicants’ claim against the DEJA for examination.
In the meantime, by decisions of 16 April 2015, the head of the relevant division of the DEJA annulled the bailiff’s decisions of 27 March 2015, namely to start enforcement proceedings and order the freezing of the applicants’ relevant assets on the ground that the time-limits for the enforcement of the Court of Appeal’s judgment of 26 January 2012 had expired.
On 14 May 2015 the General Prosecutor’s Office applied to the District Court with a request to restore the time-limits for submission of a writ of execution for enforcement on the ground that there had been structural changes in the General Prosecutor’s Office, as a result of which certain departments had not undertaken the functions of their predecessors.
It appears that by decision of 26 May 2015 the District Court granted the application of the General Prosecutor’s Office.
On 18 June 2015 the applicants lodged an appeal, arguing that the General Prosecutor’s Office had failed to substantiate with a valid reason the failure to respect the time-limits for enforcement of the confiscation order in respect of their property.
B. Relevant domestic law
Criminal Code
Article 132 § 2 (1) and (2) provide that human trafficking or exploitation of two or more persons and committed by prior agreement by a group of persons shall be punishable by 7 to 12 years’ imprisonment with or without confiscation of property, deprivation of the right to hold certain positions or conduct certain activities for a maximum period of 3 years or without it.
Article 132.1 § 2 (3) and (4) (no longer in force) provided that engagement of a person in prostitution or other forms of sexual exploitation, forced labour or services or slavery or putting such a person in a condition similar to slavery or keeping a person in such a condition was punishable by 7 to 12 years’ imprisonment, with or without confiscation of property.
According to Article 190 § 3 (1) legitimisation of illegally obtained property (money laundering) in especially large amounts shall be punishable by 6 to 12 years’ imprisonment, with or without confiscation of property.
Code of Criminal Procedure
Article 115 provides that material evidence includes objects which have been used as instruments of a crime or bear traces of a crime or have been objects of criminal activity as well as illegally obtained money, other valuables and all other objects that could serve to clarify factual circumstances of a case, identify those responsible, rebut the charges or mitigate responsibility.
Article 119 sets out the rules concerning the treatment of material evidence upon completion of the criminal proceedings. Instruments of a crime are seized and transferred to relevant State agencies or are destroyed if they do not have any value. Items of no value are destroyed or given to those interested upon their request (Article 119 § 1(1) and (2)). Money, other valuables and other items, which have gone out of legal possession as the result of a crime, are given to the owners or their successors (Article 119 § 1(3)). Illegally obtained money, other valuables and other items are, by a court judgment, directed towards compensation of judicial costs, damages suffered as a result of a crime and, if the person who has suffered damage is not known, are transferred to the State as income (Article 119 § 1(4)).
The Law on Enforcement of Judicial Acts (as in force at the relevant time)
Article 23 § 1 (1) and (3) provide that a writ of execution may be submitted for enforcement for the first time within a period of one year from the date when the judicial act has become final or the date of a court decision whereby the missed time-limits for submission of a writ of execution for enforcement have been restored.
Article 28 § 6 provides that the bailiff’s decisions are quashed or amended by a court judgment or the bailiff’s superior.
COMPLAINT
The applicants complain that the decision to confiscate their property constituted an unlawful interference with their rights guaranteed by Article 1 of Protocol No. 1 to the Convention.
QUESTION TO THE PARTIES
Was the domestic courts’ decision concerning the confiscation of the applicants’ property in the criminal proceedings against them compatible with the requirements of Article 1 of Protocol No. 1?
The Government are requested to provide copies of all relevant documents concerning the enforcement proceedings in respect of the judgment of the Criminal Court of Appeal of 26 January 2012.
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