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FIRST
SECTION
CASE OF SUN v. RUSSIA
(Application
no. 31004/02)
JUDGMENT
STRASBOURG
5 February
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Sun v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 15 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31004/02) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a national of the People's Republic of China,
Mr Sun Huan Xin (“the applicant”), on 29 July 2002.
- The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev and then by Mrs V. Milinchuk, former
Representatives of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged, in particular, a violation of his right to
peaceful enjoyment of possession on account of confiscation of his
money.
- On
20 January 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Khabarovsk.
- In
2001 the applicant, a salesman by occupation, decided to go to China
to purchase merchandise.
- On
30 July 2001 the applicant arrived at the Khabarovsk International
Seaport. The customs found on him 72,300 United States dollars (USD)
and 760 Chinese yuan (CNY) in cash which he had not reported in his
customs declaration. The applicant was charged with attempted
smuggling of foreign currency, a criminal offence under Articles 30 §
3 and 188 § 1 of the Criminal Code. The money was appended to
the criminal case as physical evidence (вещественные
доказательства).
- On 6 November 2001 the Tsentralniy District Court of
Khabarovsk found the applicant guilty as charged and imposed a
suspended sentence of two years' imprisonment conditional on one
year's probation. As regards the money, the court held that:
“Physical evidence – USD 72,300 and CNY 760
taken from Mr Sun Huan Xin – shall be confiscated by the State
...”
- In
his statement of appeal, counsel for the applicant argued that the
confiscation measure had no basis in domestic law because the offence
of smuggling did not carry such a penalty. She asked that the money
be returned to the applicant as the lawful owner.
- On 29 January 2002 the Khabarovsk Regional Court
upheld the conviction on appeal. As regards the money, the Regional
Court held as follows:
“Pursuant to Article 86 (4) of the RSFSR Code of
Criminal Procedure, criminally acquired money and other valuables
shall be confiscated by the State after conviction.
It appears from the case materials that Mr Sun Huan Xin
did not report USD 72,300 and CNY 760 in his customs declaration when
crossing the customs border of the Russian Federation. Since that
moment, the above-mentioned valuables have become criminally acquired
by Mr Sun Huan Xin and, pursuant to Article 86 (4) of the RSFSR Code
of Criminal Procedure, should be confiscated by the State after
conviction.”
- On 2 March 2006 the first deputy prosecutor of the
Khabarovsk Region lodged an application for supervisory review of the
applicant's conviction. He submitted as follows:
“It was established during the trial that the
money which Mr Sun Huan Xin omitted to declare... USD 6,100 were his
personal property, whereas the remainder was the money destined to
pay for the merchandise he had intended to buy in China. Thus, the
court did not adduce any evidence showing that the seized foreign
currency had been criminally acquired. In these circumstances, the
physical evidence – USD 72,300 and CNY 760 – must be
returned to the lawful owner, Mr Sun Huan Xin. Moreover, the
first-instance and appeal judgments contradict the requirements of
Article 1 of Protocol No. 1 ...”
- On 5 June 2006 the Presidium of the Khabarovsk
Regional Court rejected the prosecutor's application. In a succinct
decision it held, without further details, that “the convict's
acts had been correctly characterised” and that “the
penalty had been determined in accordance with the requirements of
the law”. It did not address in substance the issue raised in
the prosecutor's application. Finally, noting that Article 188 of the
Criminal Code did not provide for confiscation, the Regional Court
considered it necessary to amend the first-instance and appeal
judgments to read “reverted to the profit [of the State]”
instead of “confiscated [by the State]”.
II. 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
RSFSR Code of Criminal Procedure of the Russian Federation (“CCrP”,
in force at the material time) provided as follows:
Article 86. Measures taken in respect of physical
evidence upon completion of a criminal case
“The judgment, interim decision or decision on
discontinuation of proceedings must deal with the destiny of physical
evidence in the following manner:
(1) instruments of the crime belonging to the
accused are liable to confiscation, transfer to competent authorities
or destruction;
(2) objects banned from circulation must be
transferred to competent authorities or destroyed;
(3) unusable objects of no value must be
destroyed...;
(4) criminally acquired money and other
valuables must revert to the State by a judicial decision; any other
objects must be returned to their lawful owners or, if the identity
of the owner cannot be established, transferred to the State...
(5) documents must be kept with the case
file...”
- The
Resolution of the Plenary Supreme Court of the USSR “On
judicial practice regarding the offence of smuggling” (no. 2 of
3 February 1978) provided as follows:
“7. In accordance with the current
legislation, the objects of smuggling are liable to confiscation to
the State as physical evidence. Vehicles and other means of transport
are also liable to confiscation as instruments of the crime provided
that they were equipped with special hiding places for concealing
goods or other valuables...”
- The
Resolution of the Plenary Supreme Court of the USSR “On
confiscation of the instruments of the offence that were recognised
as physical evidence in the case” (no. 19 of 16 August 1984)
provided as follows:
“Having regard to the questions relating to the
possibility of applying Article 86 § 1 of the RSFSR Code of
Criminal Procedure... in cases of negligent criminal offences, the
Plenary USSR Supreme Court resolves -
- to clarify that the objects belonging to the convict
and declared to be physical evidence may be confiscated on the basis
of Article 86 (1) of the RSFSR Code of Criminal Procedure... only if
the convict or his accomplices deliberately used them as the
instruments of the crime with a view to achieving a criminal result.”
- The
Presidium of the Supreme Court of the Russian Federation in the case
of Prosecutor General v. Petrenko (decision no. 446p98pr of
10 June 1998) granted the prosecution's appeal against the
judgment, by which Mr Petrenko had been found guilty of smuggling
foreign currency but the money had been returned to him on the ground
that Article 188 of the Criminal Code did not provide for
confiscation as a penal sanction. The Presidium held as follows:
“Confiscation of property as a penal sanction must
be distinguished from confiscation of smuggled objects which were
recognised as physical evidence. These issues must be addressed
separately in the judgment...
In the meaning of [Article 86 (1) of the RSFSR Code of
Criminal Procedure] and also Article 83 of the CCrP, an instrument of
the offence is any object which has been used for accomplishing
publicly dangerous actions, irrespective of the main purpose of the
object. Accordingly, the notion of an instrument of the offence
comprises the object of the offence.
A mandatory element of a criminal offence under Article
188 of the Criminal Code is an object of smuggling that is being
illegally transported across the customs border... The court found Mr
Petrenko guilty of [attempted smuggling], noting that the US dollars
were the object of the offence. Accordingly, it was required to
decide on the destiny of physical evidence in accordance with Article
86 § 1 of the CCrP – that is, according to the rules on
the instruments of the offence – but failed to do so.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Articles 6 and 7 § 1 of the
Convention and Article 1 of Protocol No. 1 that the confiscation
measure had had no basis in domestic law. The Court considers that
this complaint should be examined solely under Article 1 of Protocol
No. 1, which reads 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.”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Submissions by the parties
- The
applicant maintained firstly that the decision to confiscate his
money had been unlawful. Pursuant to the general provisions of the
Criminal Code, confiscation is a form of an auxiliary penal sanction
which may only be imposed for serious or particularly serious
criminal offences. The offence of smuggling was neither and moreover
Article 188 of the Criminal Code did not provide for confiscation as
a sanction. Furthermore, confiscation could be ordered if the
defendant was given a suspended sentence, as it was in the
applicant's case. The Supreme Court's judgment in the Petrenko
case could not be a lawful basis because it had not been officially
published and had also been issued in breach of the binding
instructions of the Plenary Supreme Court (no. 19 of 16 August
1984).
- Secondly,
the applicant pointed out that the appeal court's finding that the
currency had been criminally acquired did not have a factual basis.
He had earned the money through the lawful exercise of his trade on
Russian territory and was the lawful owner of the confiscated
currency.
- The
Government denied that the applicant had been the lawful owner of the
confiscated currency since he had not presented any documents showing
that he had legally imported currency into Russia. In the
Government's view, irrespective of whether or not the applicant had
legally earned the currency in Russian territory, he was no longer
the “legal holder” of that money after he had entered the
customs control zone located in the Khabarovsk seaport. The
Government maintained that the taking of the currency had been
carried out in accordance with the domestic law.
2. The Court's assessment
(a) The applicable rule
- Article
1 of Protocol No. 1 comprises three distinct rules: the first rule,
set out in the first sentence of the first paragraph, is of a general
nature and enunciates the principle of the peaceful enjoyment of
property; the second rule, contained in the second sentence of the
first paragraph, covers deprivation of possessions and subjects it to
certain conditions; the third rule, stated in the second paragraph,
recognises that the Contracting States are entitled, inter alia,
to control the use of property in accordance with the general
interest. The three rules are not, however, distinct in the sense of
being unconnected. The second and third rules are concerned with
particular instances of interference with the right to peaceful
enjoyment of property and should therefore be construed in the light
of the general principle enunciated in the first rule (see, as a
recent authority, Broniowski v. Poland [GC],
no. 31443/96, § 134, ECHR 2004 V).
- The
“possession” at issue in the present case was an amount
of money in United States dollars and Chinese yuan which was
confiscated from the applicant by a judicial decision. It is not in
dispute between the parties that the confiscation order amounted to
an interference with the applicant's right to peaceful enjoyment of
his possessions and that Article 1 of Protocol No. 1 is
therefore applicable. It remains to be determined whether the measure
was covered by the first or second paragraph of that Convention
provision.
- The
Court reiterates its constant approach that a confiscation measure,
even though it does involve a deprivation of possessions, constitutes
nevertheless control of the use of property within the meaning of the
second paragraph of Article 1 of Protocol No. 1 (see Riela and
Others v. Italy (dec.), no. 52439/99, 4 September 2001;
Arcuri and Others v. Italy (dec.), no. 52024/99, 5 July 2001;
C.M. v. France (dec.), no. 28078/95, 26 June 2001;
Air Canada v. the United Kingdom, judgment of 5 May
1995, Series A no. 316 A, § 34; and AGOSI
v. the United Kingdom, judgment of 24 October 1986, Series A
no. 108, § 34). Accordingly, it considers that the
same approach must be followed in the present case.
(b) Compliance with Article 1 of Protocol
No. 1
-
The Court emphasises that the first and most important requirement of
Article 1 of Protocol No. 1 is that any interference by a public
authority with the peaceful enjoyment of possessions should be
“lawful”: the second paragraph recognises that the States
have the right to control the use of property by enforcing “laws”.
Moreover, the rule of law, one of the foundations of a democratic
society, is inherent in all the Articles of the Convention. The issue
of whether a fair balance has been struck between the demands of the
general interest of the community and the requirements of the
protection of the individual's fundamental rights only becomes
relevant once it has been established that the interference in
question satisfied the requirement of lawfulness and was not
arbitrary (see, among other authorities, Baklanov v. Russia,
no. 68443/01, § 39, 9 June 2005, and Frizen v. Russia,
no. 58254/00, § 33, 24 March 2005).
- Moreover,
the Court reiterates that a norm cannot be regarded as a “law”
within the meaning of the Convention unless it is formulated with
sufficient precision to enable the citizen to regulate his conduct;
an individual must be able – if need be with appropriate advice
– to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail. A
law may still satisfy the requirement of foreseeability even if the
person concerned has to take appropriate legal advice to assess, to a
degree that is reasonable in the circumstances, the consequences
which a given action may entail (see, for example, Chauvy and
Others v. France, no. 64915/01, §§ 43-45, ECHR
2004-VI).
- Turning
to the case before it, the Court observes that the money which had
been discovered on the applicant was recognised as physical evidence
in the criminal case. The first-instance court ordered confiscation
of the entire amount without specifying the legal basis for the
measure. The appeal court filled in the lacuna and indicated that the
money should be confiscated as “criminally acquired” in
accordance with Article 86 (4) of the then effective Code of Criminal
Procedure. The supervisory-review instance upheld that finding but
replaced the word “confiscated” with the expression
“reverted to the State” with a view to bringing the text
of the judgment in line with Article 86 of the Code of Criminal
Procedure.
- In
examining the applicant's case, the domestic courts determined that
the money had become “criminally acquired” from the
moment he had crossed the customs border without reporting it on the
customs declaration. They did not cite any case-law or legal
authority or indicate any factual ground for that finding. The Court
will accordingly examine whether such a development was foreseeable
in the circumstances of the case.
- On
the facts, the Court observes that it has never been claimed that the
applicant's money was the proceeds of any criminal activity (see, by
contrast, Phillips v. the United Kingdom, no. 41087/98,
§§ 9-18, ECHR 2001-VII) or had been unlawfully
acquired (see, by contrast, Riela and Arcuri, both
cited above, or else Raimondo v. Italy, judgment of
22 February 1994, Series A no. 281-A, § 29).
As it transpires from the prosecutor's application for supervisory
review, the trial court unambiguously established that of the total
amount, some 6,100 United States dollars had been the applicant's own
whereas the remainder had been the money that had been destined for
purchasing merchandise in China (see paragraph 11 above). The
applicant did not have a criminal record and he had not been
suspected of, or charged with, any criminal offences prior to the
incident at issue. This lends support to his submission that the
entire amount had been lawfully earned through his commercial
activities on Russian territory.
- It
has thus been established that the applicant's money had had a lawful
origin. That fact was brought by the prosecution to the attention of
the supervisory-review instance which, however, omitted to address
that issue. Through holding that the applicant's offence had received
appropriate legal characterisation, the supervisory-review instance
endorsed the appeal court's finding that the nature of the
applicant's money had changed from “lawfully acquired” to
“criminally acquired” when it crossed the customs border
without being entered into a customs declaration.
- In
this connection the Court considers, firstly, that such an
interpretation appears to be at variance with the ordinary meaning of
the term “criminally acquired”, which implies that the
offender gained possession of the assets through criminal activities.
In the instant case the applicant did not obtain the money as a
result of committing the offence of smuggling, but rather – as
has been noted above – he earned it through the exercise of his
trade. Secondly, the Court observes that the interpretation in
question does not appear to be the result of a gradual clarification
of the rules of criminal liability through judicial interpretation
from case to case (compare K.-H. W. v. Germany [GC],
no. 37201/97, § 45, ECHR 2001-II). The finding
that the smuggled object is “criminally acquired”
represented a departure from the previous case-law of the Russian
courts. In a series of binding resolutions the Supreme Court
clarified that the money or other objects smuggled across the customs
border were the “instruments” or “objects” of
the offence of smuggling. That approach was endorsed by the Supreme
Court's judgment in the Petrenko case, to which the Government
referred, and also followed by ordinary Russian courts in the cases
which have previously come before the Court (see Baklanov,
cited above, § 14). In the applicant's case, however, the courts
did not recognise that the money he had carried was either the
“instrument” or “object” of the offence. On
the other hand, the Government did not cite any other case-law or
legal authority supporting the domestic courts' finding that the
money the applicant had omitted to report on a customs declaration
had been “criminally acquired” from the moment he had
crossed the customs border.
-
In these circumstances, the Court finds that the confiscation measure
issued by the Russian courts in the applicant's case fell short of
the requirement of foreseeability of the law. This finding makes it
unnecessary to examine whether the interference with the applicant's
property right also pursued a general community interest and was also
proportionate to it.
- There
has therefore been a violation of Article 1 of Protocol No. 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The applicant did not submit a claim for just
satisfaction. The Court considers therefore that there is no call to
award him any sum on that account. It observes, however, that Article
413 § 4 (2) of the Code of Criminal Procedure of the Russian
Federation provides for the reopening of the criminal proceedings if
a violation of the Convention has been established. In the present
case the Court found a violation of Article 1 of Protocol No. 1.
Accordingly, it is open to the applicant to request the reopening of
the criminal proceedings in so far as the domestic courts' findings
were incompatible with the requirements of that Convention provision.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1.
Done in English, and notified in writing on 5 February 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
