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FIRST
SECTION
CASE OF BORZHONOV v. RUSSIA
(Application
no. 18274/04)
JUDGMENT
STRASBOURG
22 January 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 Borzhonov 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,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and André
Wampach, Deputy Section Registrar,
Having
deliberated in private on 16 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18274/04) 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 Russian national, Mr Yevgeniy Dmitriyevich
Borzhonov (“the applicant”), on 20 April 2004.
- The
applicant was represented by Mr A. Bazarov, a lawyer practising
in Ulan-Ude. The Russian Government (“the Government”)
were represented by Mr P. Laptev, former Representative of the
Russian Federation at the European Court of Human Rights.
- On
9 May 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in the town of Ulan-Ude in the
Buryatiya Republic.
A. Criminal proceedings against the applicant
- The
Russian authorities initiated criminal proceedings against the
applicant:
- on
13 June 1999 under Article 198 § 2 of the Criminal Code (tax
evasion by a private person); the applicant was charged on 10 August
1999;
- on
24 June 1999 under Article 201 § 1 of the Code (abuse of power);
- on
29 August 1999 under Article 199 of the Code (tax evasion by a legal
entity);
- on
13 October 1999 under Article 160 § 3 (b) (misappropriation of
private property);
- on
21 January 2000 under Article 165 (causing pecuniary damage).
- The
above cases were joined on a number of occasions, most recently on 4
June 2001. According to the Government, the charges under Articles
165 and 199 of the Code were abandoned on 5 January 2000 and 4 June
2001 respectively (see, however, paragraph 9 below).
- According
to the Government, the proceedings were suspended on 6 January,
4 February and 17 August 2000, 13 June and 21 September
2001, and 20 January 2003, owing to the applicant's illness.
According to the Government, the applicant and his counsel were
advised that the proceedings had been suspended on a number of
occasions and subsequently resumed.
- On
18 August 2004 the applicant sought access to the case file and, in
particular, to the above-mentioned decisions to suspend the
proceedings. On 27 August 2004 the Prosecutor's Office of the
Buryatiya Republic sent him a letter stating that the case file might
be available at the archives of the Tax Authority in Ulan-Ude. On
5 October 2004 the Investigations Department of the Regional Ministry
of the Interior informed the applicant that the criminal case against
him had been suspended owing to his illness. Upon his renewed
request, on 22 December 2004 the applicant received another
reply from the Regional Office of the Drugs Control Service stating
that the Investigations Department might be able to provide the
requested documents. On 8 September 2005 the Drugs Control Service
informed the applicant that on 10 July 2003 the criminal case against
him had been forwarded to the Prosecutor's Office of the Buryatiya
Republic.
- On 20 January 2006 the Investigations Department
discontinued the proceedings as regards charges under Articles 160,
165, 198, 199 and 201 of the Criminal Code.
B. Seizure and retention of the applicant's bus
- In
August 1997 the applicant bought a PAZ-320500 bus. On 5 November
1999 the investigator in the criminal case against the applicant (see
above) authorised seizure of the bus as security for eventual civil
claims against him or eventual confiscation as a penalty under
Article 160 § 3 (b) of the Criminal Code (see paragraph 16
below). On 9 November 1999 the applicant's bus was seized. It
appears that no civil claims were lodged in the criminal case against
the applicant.
- On
an unspecified date the bus was transferred for safekeeping to a
Mr Y.
- In
September 2003 the applicant brought proceedings in which he
challenged the investigator's seizure order as unlawful and requested
the court to release the bus.
- On 15 September 2003 the Sovetskiy District Court of
Ulan-Ude examined the applicant's claims with reference to Article
125 of the 2002 Code of Criminal Procedure (see paragraph 19 below)
and rejected them as unfounded. The court held as follows:
“...under Article 175 § 1 of the RSFSR Code
of Criminal Procedure in order to secure civil claims or eventual
confiscation of property the investigator shall issue an order of
attachment in respect of the accused's property which had been
unlawfully obtained. Article 160 § 3 of the Criminal Code of the
Russian Federation provides for confiscation as a penalty. Besides,
the case discloses pecuniary loss [sustained by the victim], and the
victim has the right to file a civil claim for damages against the
applicant...
The court finds no reasons for leaving the bus with [the
applicant] for safekeeping...
The [first instance] court rejected the applicant's
arguments to the effect that his property rights over the bus had
been breached by the continuing attachment of property and the
criminal case is still pending. The case is being suspended owing to
the applicant's illness...”
- On 11 November 2003 the Supreme Court of the Buryatiya
Republic upheld the judgment on appeal. The court stated:
“Under Article 115 § 9 the Code of Criminal
Procedure, which is now applicable to issues pertaining to attachment
of property, the authority dealing with the criminal case has the
power to release the property under the order of attachment, if
attachment is no longer needed. As shown by the case file, at present
the criminal case against the applicant is being dealt with by the
investigating authority, the investigation being suspended. Taking
into account the earlier submissions and the requirement of the
procedure under Article 125 of the Code of Criminal Procedure, the
court is not empowered to decide on the issue of lifting the order of
attachment...”
- On
18 July 2006 the deputy prosecutor of the Buryatiya Republic lifted
the order of attachment in respect of the applicant's bus. The
applicant was served with a copy of that decision on 21 March 2007.
It appears that the authorities were unable to determine where the
bus was kept and thus could not return it to the applicant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal Code
- Under Article 160 § 3 (b) of the Code, in force
at the material time, misappropriation of another's property
committed on a large scale or in view of the person's hierarchical
status was punishable by a sentence of imprisonment of up to ten
years with or without confiscation of property. Under the Federal Law
of 8 December 2003 (no. 162-ФЗ),
confiscation as a penalty was removed from the Criminal Code,
including its Article 160 § 3 (b). On 27 July 2006 a new Chapter
15.1 reintroducing the notion of confiscation was inserted into the
Code in relation to a number of offences. The offences under Articles
160, 165, 198, 199 and 201 were not concerned.
B. Criminal proceedings
1. The 1960 RSFSR Code of Criminal Procedure (RSFSR
CCrP)
- A preliminary investigation in a criminal case had to
be completed within two months starting from the date when the
proceedings were initiated until the date when a bill of indictment
was sent to the prosecutor or when the proceedings were terminated or
suspended (Article 133). The preliminary investigation could be
suspended if the accused had absconded or if his whereabouts had not
been determined or if he was suffering from a mental or other serious
disease. The investigator had to issue a reasoned decision (Article
195). Pursuant to Article 218 of the Code, a prosecutor was
competent to examine complaints against decisions taken by an
inquirer or an investigator. By a ruling of 23 March 1999, the
Constitutional Court invalidated this provision in so far as it
excluded a possibility of judicial supervision over such decisions,
including those relating to suspension of proceedings and imposition
of charging orders.
2. The 2002 Code of Criminal Procedure (CCrP)
- Under Article 208 § 1 of the Code, the
preliminary investigation can be suspended, inter alia, if the
suspect or accused is temporarily suffering from a serious disease
which prevents him from participating in the investigation. A victim,
civil claimant or respondent and their representatives should be
notified accordingly and apprised of their right to appeal against
the decision suspending the proceedings (Article 209 § 1). A
suspect or accused and counsel should also be informed, if the
suspension was caused by his or her illness.
- Articles 123 and 125 of the Code concern judicial
supervision over any (in)action on the part of an inquirer,
investigator or prosecutor in so far as such (in)action affects a
complainant's rights or impedes his or her access to a court. The
judge either (i) invalidates the impugned (in)action as unlawful or
lacking justification and requires the respondent authority to remedy
the violation, or (ii) rejects the complaint.
- A decision terminating the criminal proceedings should
be handed over or dispatched to the person concerned (Article 214 §
4).
- Article 133 § 1 of the Code safeguards a
so-called “right to rehabilitation”, including a right to
full compensation in respect of pecuniary and non-pecuniary damage
caused by criminal prosecution of a person who has been acquitted or
in respect of whom the criminal proceedings have been terminated,
inter alia, owing to a lack of corpus delicti or
because the person had not been involved in the criminal act. The
investigator issues a decision in which he or she recognises the
person's right to rehabilitation and also sends notification
explaining the procedure for obtaining compensation (Article 134 §
1).
C. Attachment of property in criminal proceedings
1. The 1960 RSFSR CCrP
- A person who has sustained pecuniary damage or loss
from a criminal offence has a right to lodge a civil claim against
the accused. He or she can exercise this right from the commencement
of the criminal proceedings until the opening of the trial (Article
29).
- If sufficient reasons obtain as to the existence of
pecuniary damage caused by a criminal offence, the investigating
authority or a court should take measures for securing the existing
or eventual civil claim and/or for impeding the accused from hiding
his property, if the charges against him carry confiscation as a
possible penalty (Article 30).
- According to Article 175 of the Code, in order to
secure civil claims or eventual confiscation of property, the
investigator should issue a charging order in respect of an accused's
property; that of persons who are liable by law for the accused or
suspect's actions; that of other persons who are in possession of the
property acquired through unlawful actions. Property attached may be
impounded or transferred at the attaching official's discretion for
safekeeping to a competent authority or left with the owner or other
person who shall be warned about responsibility for keeping the
property safe, and the fact shall be mentioned in the relevant
record. The investigator lifts the charging order if it is no longer
needed.
2. The 2002 CCrP
- Under Article 115 § 1 of the Code, in order to
ensure execution of a judgment in a part pertaining to a civil claim,
to satisfy other pecuniary penalties or an eventual confiscation of
property, an inquirer or investigator, subject to the prosecutor's
consent, or a prosecutor should apply to a court for a charging order
in respect of the suspect's or accused's property. The court should
examine such request under the procedure set out in Article 165 of
the Code. A charge or attachment of property prohibits the proprietor
or owner from disposing of, and, if appropriate, using the property;
it may require impounding of that property and its transfer for
safekeeping to its proprietor or owner or a third person (§§
2 and 6). A charging order is lifted by the authority dealing with
the criminal case when the charge is no longer needed (§ 9).
On 4
July 2003 Article 115 § 1 of the Code was amended to exclude an
eventual confiscation of property as a reason for requesting a
charging order. A charging order could only concern property acquired
by the suspect, accused or another person as a result of criminal
activity or by criminal means.
On 8
December 2003 Article 115 § 1 of the Code was amended to
reintroduce an eventual confiscation of property as a reason for
requesting a charging order; in such circumstances it became
incumbent on the court to indicate the relevant circumstances in its
decision.
3. Other relevant legislation/jurisprudence
- By decision no. 97-O of 10 March 2005 the
Constitutional Court held, in the context of proceedings concerning
Article 82 of the CCrP on real evidence, that provisional measures
such as imposition of a charge on one's property may be required in
criminal proceedings and should not be considered as a violation of
constitutional rights and freedoms, including property rights.
Judicial scrutiny of such measures as to their lawfulness should also
encompass an assessment of whether other measures would be
inappropriate, with due regard to the gravity of the charges in
relation to which provisional measures have been taken, as well as to
the nature of the property under the charge, its importance for its
owner or holder and other eventual negative effects that the charge
might have. Thus, it is incumbent on the investigator and,
subsequently, on the reviewing court to be satisfied that the
property under the charge should or should not be returned to its
owner for safekeeping until the closure of the criminal proceedings.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 6 AND 13 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
against him had been in breach of the “reasonable time”
requirement under Article 6 § 1 of the Convention. It reads as
follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
He
also complained about the lack of effective remedies in respect of
his above complaint. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- In
relation to both complaints, the Government argued that the applicant
had not complained before the national authorities about any delays
in the criminal proceedings or appealed against decisions by which
they had been suspended. Neither had he ascertained his right to
rehabilitation following the discontinuation of the criminal case
against him. They also submitted that the preliminary investigation
in the applicant's case had taken only eleven months, certain
unspecified periods of delay being attributable to the authorities.
With reference to an information note from the Prosecutor General's
Office, the Government alleged that the criminal case file contained
copies of notifications sent to the applicant about suspension of the
proceedings and their resumption; the applicant and his counsel had
not requested copies of the relevant procedural orders. In any event,
Articles 208 and 209 of the Code of Criminal Procedure (CCrP) did not
require their provision to the defence (see paragraph 18 above). The
proceedings had been suspended owing to the applicant's repeated
periods of illness.
- The
applicant submitted that the preliminary investigation in his case
had spanned from June 1999 to January 2006. He had not been served
with copies of the decisions suspending the proceedings which, in any
event, could not have been justified by the state of his mental
health. He had learnt about the discontinuation of the proceedings
from the Government's observations dated 6 September 2006. Having not
been provided with copies of the relevant decisions, the applicant
could not challenge them in the courts and had not been informed of
his right to rehabilitation.
A. Admissibility
- The
Court considers that the Government's argument relating to exhaustion
of domestic remedies is closely linked to the merits of the
applicant's complaint under Article 13 of the Convention. Thus, the
Court finds it necessary to join it to the merits of the applicant's
complaint under Article 13 of the Convention.
- The
Court further notes that the applicant's complaints under Articles 6
and 13 of the Convention are not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention and that they are
not inadmissible on any other grounds. They must therefore be
declared admissible.
B. Merits
1. Article 13 of the Convention
- Article 13 of the Convention guarantees the
availability at national level of a remedy to enforce the substance
of the Convention rights and freedoms in whatever form they may
happen to be secured in the domestic legal order. The effect of
Article 13 is thus to require the provision of a domestic remedy to
deal with the substance of an “arguable complaint” under
the Convention and to grant appropriate relief. The Court considers
that the applicant's complaint under Article 6 § 1 of the
Convention is an arguable one.
- The scope of the Contracting States' obligations under
Article 13 varies depending on the nature of the applicant's
complaint; however, the remedy required by Article 13 must be
“effective” in practice as well as in law (see, among
other authorities, Kudła v. Poland [GC], no. 30210/96,
§ 157, ECHR 2000-XI). Moreover, there is a close affinity
between the requirements of Article 13 of the Convention and the rule
on exhaustion of domestic remedies in Article 35 § 1 of the
Convention. The latter's purpose is to afford the Contracting States
the opportunity of preventing or putting right the violations alleged
against them before those allegations are submitted to the Court
(see, among other authorities, Selmouni v. France [GC], no.
25803/94, § 74, ECHR 1999-V). The rule in Article 35 § 1
is based on the assumption, reflected in Article 13, that there is an
effective domestic remedy available in respect of the alleged breach
of an individual's Convention rights (see Kudła, cited
above, § 152). Nevertheless, the only remedies which Article 35
of the Convention requires to be exhausted are those that relate to
the breaches alleged and at the same time are available and
sufficient. The existence of such remedies must be sufficiently
certain not only in theory but also in practice, failing which they
will lack the requisite accessibility and effectiveness (see Scordino
v. Italy (no. 1) [GC], no. 36813/97, § 142,
ECHR 2006 ...).
- As
to a remedy concerning a complaint about the length of proceedings,
the decisive element in assessing its effectiveness is whether the
applicant can raise this complaint before the domestic courts by
claiming a specific redress; in other words, whether a remedy exists
that could answer his complaints by providing direct and speedy
redress, and not merely indirect protection of the rights guaranteed
in Article 6 of the Convention (see Hajibeyli v.
Azerbaijan, no. 16528/05, § 39,
10 July 2008). In particular, a remedy of this sort shall be
“effective” if it can be used either to expedite a
decision by the courts dealing with the case or to provide the
litigant with adequate redress for delays which have already occurred
(see Krasuski v. Poland, no. 61444/00, § 66,
ECHR 2005 V (extracts)).
- Regarding
the possibility of challenging procedural orders suspending the
proceedings (see paragraphs 17 - 19 above), the Court observes that,
as the Government have agreed, the applicant and his counsel were not
served with copies of those orders. Despite their assertion to the
contrary, the Government failed to adduce any evidence showing that
the applicant had at least been put on notice that the proceedings
had been suspended or resumed. In such circumstances, the Court does
not see how the applicant could appeal against those procedural
measures taken in the course of the preliminary investigation. In the
Court's view, in the absence of a copy of the procedural orders, the
applicant would not have a realistic opportunity effectively to
challenge them (see Chitayev and Chitayev v. Russia,
no. 59334/00, §§ 139 and 140, 18 January
2007, and Khamila Isayeva v. Russia, no. 6846/02,
§§ 101 and 133, 15 November 2007).
- The
Government also argued, in general terms, that the applicant could
have exercised his so-called “right to rehabilitation”
(see paragraph 21 above). The Court need not decide whether the
procedure referred to by the Government constituted on the facts a
remedy within the meaning of Article 13 of the Convention or for
purposes of exhaustion within the meaning of its Article 35 § 1,
since it does not transpire from the case file that the applicant was
given a copy of the decision of 20 January 2006. Neither is there any
evidence showing that he was apprised of his right to apply for
compensation in respect of damage caused by criminal prosecution
(compare Sidorenko v. Russia, no. 4459/03, § 39,
8 March 2007). Furthermore, the Government did not indicate how
that would have remedied the complaint currently before the Court in
respect of the alleged excessive length of the criminal proceedings
(see Karamitrov and Others v. Bulgaria, no. 53321/99,
§§ 59-60, 10 January 2008). The Government
produced no copies of domestic court judgments where awards had been
made in the proceedings under Articles 133 and 134 of the CCrP
providing redress for excessive length of criminal proceedings.
Having regard to this, the Court considers that the Government's
argument as to non-exhaustion of domestic remedies in respect of the
applicant's complaint under Article 6 § 1 of the Convention
must be dismissed.
- Furthermore,
the foregoing considerations are sufficient for the Court to conclude
that the applicant was not afforded an effective and
accessible remedy in respect of his complaint under Article 6 §
1 of the Convention regarding the allegedly excessive length of the
criminal proceedings against him. Accordingly, there has been a
violation of Article 13 of the Convention.
2. Article 6 § 1 of the Convention
- The
parties made no submissions as to the exact period to be taken into
consideration. The Court considers that the relevant period started
at the latest on 10 August 1999, when the applicant was first
charged. As to the end of that period, the Court reiterates that
proceedings which do not lead to a proper trial before a domestic
court normally end with an official notification to the accused that
he or she is no longer to be prosecuted on the charges which would
allow a conclusion that the situation of that person could no longer
be considered to be substantially affected (see Kalpachka v.
Bulgaria, no. 49163/99, §§ 65 and 66,
2 November 2006, with further references). The Court notes that
the criminal proceedings against the applicant were discontinued on
20 January 2006 but that he contended that he had first learnt about
the discontinuation of the proceedings from the Government's
observations submitted in September 2006. It is also observed that
under Russian law (see paragraph 20 above) he was entitled to be
served ex officio with a copy of the decision to discontinue
the criminal proceedings against him (see also Nakhmanovich
v. Russia, no. 55669/00, §§ 88-94, 2
March 2006). The Court has already noted that it does not transpire
from the materials in the case file that the applicant was given a
copy of that decision. Thus, the Court considers that the proceedings
under review did not end until September 2006 and thus lasted for
approximately seven years.
- The
Court reiterates that the reasonableness of the length of the
proceedings is to be assessed in the light of the particular
circumstances of the case, regard being had to the criteria laid down
in the Court's case-law, in particular the complexity of the case,
the applicant's conduct and the conduct of the competent authorities
(see, among other authorities, Rokhlina v. Russia,
no. 54071/00, § 86, 7 April 2005). One of the purposes
of the right to trial within a reasonable period of time is to
protect individuals from remaining too long in a state of uncertainty
about their fate (see Stögmüller v. Austria, §
5, 10 November 1969, Series A no. 9).
- The
Court is not convinced by the Government's argument that the length
of the proceedings was caused by the applicant's state of health. The
Government did not submit copies of the suspension or resumption
orders. They neither adduced any medical evidence nor specified in
what way the applicant's medical condition had impeded the
proceedings. The applicant was not brought to trial and no plausible
explanation was given as to why it took seven years to conduct the
preliminary investigation. Furthermore, the facts of the case do not
reveal that the applicant in any way delayed the investigation. The
Court considers, rather, that the conduct of the domestic authorities
led to substantial delays in the proceedings.
- Having regard to the foregoing, the Court considers
that the length of the proceedings did not satisfy the
“reasonable-time” requirement. Accordingly, there has
been a breach of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL No. 1
IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION
- With
reference to Article 6 §§ 1 and 2, Article 13 and Article
18 of the Convention and Article 1 of Protocol No. 1, the applicant
contended that the imposition of the charging order in respect of his
bus, its transfer to Mr Y. and its continued retention by the
authorities amounted to disproportionate limitations on the “peaceful
enjoyment of his possessions”. The Court considers that this
complaint should be examined 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.”
The
Court also decides to examine under Article 13 of the Convention
(cited above) whether the applicant had an effective remedy in
relation to his complaint under Article 1 of Protocol No. 1.
A. Submissions by the parties
- The
Government argued that the applicant could have applied to a court
for the lifting of the charging order in respect of his bus and
sought compensation in respect of the loss allegedly sustained
because of the impounding of the vehicle. The Government submitted
that the seizure of the applicant's bus had been lawful and that its
aim had been to constitute security for the eventual penalty of
confiscation of his property in relation to charges under Article 160
of the Criminal Code, if he were subsequently convicted by a court.
The Government acknowledged that the investigator's failure to order
the release of the bus after the decision of 20 January 2006 had been
unlawful. However, it had been remedied by the decision of 18 July
2006 taken by the deputy prosecutor of the Buryatiya Republic. In any
event, the applicant had not made any effort between January and July
2006 in order to obtain release of his bus. As regards Article 13 of
the Convention, the Government submitted that the applicant had had
an effective remedy, namely the possibility of challenging the
investigator's decision to seize the bus. The applicant had used that
remedy, albeit without success.
- The
applicant maintained his complaint.
A. The Court's assessment
1. Scope of the complaints
- The
Court observes at the outset that the applicant's complaint is
threefold. First, he contested as unlawful the charging order issued
in respect of his bus. Second, he was unsatisfied with its transfer
for safekeeping to a Mr Y. Third, he contended that the prolonged
retention of the bus constituted a disproportionate limitation on the
“peaceful enjoyment of his possessions”.
- The parties made no specific arguments relating to the
lawfulness of the initial act of seizure or that of the safekeeping
of the bus by Mr Y. The Court considers that both acts were lawful
and otherwise compatible with Article 1 of Protocol No. 1. It
will make no further findings in that respect. It is further noted
that although the charging order was lifted in July 2006, the bus has
not been returned to the applicant to date. The total period, during
which the applicant was denied use of the vehicle has already
exceeded nine years. In that connection, the Court observes that
there are two uninterrupted periods under consideration:
(i) from
November 1999 to 18 July 2006, the date on which the charging order
was lifted; and
(ii) from
18 July 2006 onwards.
The
Court will confine its analysis to the compatibility of the prolonged
retention of the bus with the requirements of Article 1 of Protocol
No. 1.
- The
Court also observes that the applicant's complaint under Article 13
of the Convention relates to the period when the charging order was
in force, that is from November 1999 to 18 July 2006.
2. Admissibility
- The
Court considers that the Government's argument relating to exhaustion
of domestic remedies is closely linked to the merits of the
applicant's complaint under Article 13 of the Convention. Thus, the
Court finds it necessary to join it to the merits of the applicant's
complaint under Article 13 of the Convention.
- The
Court further notes that the applicant's complaints under Article 13
of the Convention and Article 1 of Protocol No. 1 are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
3. Merits
(a) Compliance with Article 13 in
conjunction with Article 1 of Protocol No. 1
- The
Court notes at the outset that although the complaints under Article
13 of the Convention and Article 1 of Protocol No. 1 arise out
of the same facts, there is a difference in the nature of the
interests protected by those provisions: the former affords a
procedural safeguard, namely the “right to an effective
remedy”, whereas the procedural requirement inherent in the
latter is ancillary to the wider purpose of ensuring respect for the
right to the peaceful enjoyment of one's possessions. Thus, the Court
judges it appropriate in the instant case to examine the same set of
facts under both Articles (see Iatridis v. Greece [GC],
no. 31107/96, § 65, ECHR 1999 II).
- The
Court has consistently interpreted Article 13 as requiring a remedy
in domestic law in respect of grievances which can be regarded as
“arguable” in terms of the Convention (see, for example,
Boyle and Rice v. the United Kingdom, 27 April 1988, §
54, Series A no. 131). The Court considers that the applicant's
grievance under Article 1 of Protocol No. 1 is an “arguable”
one. The Court has to determine whether the Russian legal system
afforded the applicant an “effective” remedy, allowing
the competent “national authority” both to deal with the
complaint and to grant appropriate relief (see Camenzind v.
Switzerland, 16 December 1997, § 53, Reports
1997 VIII).
- The
Court accepts that at the relevant time Russian law in principle
allowed recourse to courts in order to challenge a decision by the
investigating authority to seize chattels in pending criminal
proceedings (see paragraphs 17 and 19 above). However, the Court is
unable to reach the same conclusion in respect of the possibility of
opposing the continuing retention of such chattels. Indeed, by
a judgment of 15 September 2003 the Sovetskiy District Court of
Ulan-Ude rejected the applicant's arguments to the effect that his
property rights over the bus had been breached by the continuing
application of the charging order. On appeal, the Supreme Court of
the Buryatiya Republic, referring to the 2002 CCrP, held, however,
that the authority dealing with the criminal case had the power to
release the property under the charging order, if the charge was no
longer needed. The appeal court concluded that “[t]aking into
account...the requirement of the procedure under Article 125 of the
Code, the court [was] not empowered to decide on the issue of lifting
the charging order”.
- The Court observes that the redress in the procedure
under Article 125 of the CCrP consists of invalidating the impugned
action or inaction as unlawful or lacking justification and requiring
the respondent authority to remedy the violation. The power to lift
the charging order and to release the property remains with the
“authority dealing with the case”, that is the
investigator in the present case. In a recent case against Russia,
the Court found a violation of Article 13 with reference to the fact
that the domestic courts had examined a complaint concerning a search
and seizure in the applicant's flat, while declaring inadmissible a
complaint about a failure to return his computer on the ground that
the retention decision was not amenable to judicial review (see
Smirnov v. Russia,
no. 71362/01, § 64, 7 June 2007, ECHR 2007 ...).
In other words, the Russian courts declined jurisdiction to deal with
the substance of the applicant's complaint and to grant appropriate
relief. In view of the above findings, the Court dismisses
the Government's argument that the applicant did not apply for the
lifting of a charging order. It was not submitted, and the Court does
not consider, that any subsequent applications would have had better
prospects of success (see, mutatis mutandis, Granger v. the
United Kingdom, 28 March 1990, §§ 37 and 40,
Series A no. 174).
- As to an eventual claim for compensation, the Court
reiterates that an individual is not required to try more than one
avenue of redress when there are several available. It is for the
applicant to choose the legal remedy that is most appropriate in the
circumstances of the case (see, among other authorities, Airey v.
Ireland, 9 October 1979, § 23, Series A no. 32, and
Boicenco v. Moldova, no. 41088/05, § 80, 11
July 2006). The Court considers that, having exhausted all the
possibilities of appeal available to him in the framework of the 2003
proceedings (see paragraphs 13 and 14 above), the applicant should
not be required to embark on another attempt to obtain redress by
bringing a civil action for damages (see, mutatis mutandis,
Assenov and Others v. Bulgaria, 28 October 1998, §
86, Reports of Judgments and Decisions 1998-VIII). In any
event, the Court finds it unproven that at the relevant time Russian
law provided the applicant with the possibility of seeking
compensation for the damage caused as a result of the prolonged
interference with his right to peaceful enjoyment of his possessions.
In particular, the Government failed to provide sufficient details as
to what type of legal action could be considered to have been an
effective remedy that should have been exhausted.
- As regards the second period, in the absence of any
submissions from the Government regarding availability of a remedy
relating to the applicant's regaining possession of his bus after the
charging order had been lifted and once the applicant had become
aware of that fact, the Court is not prepared to dismiss the
complaint for non-exhaustion of domestic remedies.
- In view of the foregoing considerations, the Court
concludes that there has been a violation of Article 13 of the
Convention in that, at the relevant time, the applicant had no
effective domestic remedy in respect of his complaint under Article 1
of Protocol No. 1.
(b) Article 1 of Protocol No. 1
- It
is common ground between the parties that the applicant was the
lawful owner of the bus; in other words, it was his “possession”.
Neither is it disputed that the charging order and its continued
application 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. The Court reiterates that the
seizure of property for legal proceedings normally relates to the
control of the use of property, which falls within the ambit of the
second paragraph of Article 1 of Protocol No. 1 to the
Convention (see, among others, Raimondo v. Italy, 22 February
1994, § 27, Series A no. 281 A; Andrews v. the
United Kingdom (dec.), no. 49584/99, 26 September 2002;
Adamczyk v. Poland (dec.), no. 28551/04, 7 November
2006; and Simonjan-Heikinheino v. Finland (dec.), no. 6321/03,
2 September 2008). Indeed, the seizure of the vehicle did not
deprive the applicant of his possession, but only provisionally
prevented him from using it and from disposing of it. The Court
cannot but note certain indications that the applicant's bus is no
longer available, which may be why it has not been returned to him to
date. However, having regard to the established facts and verifiable
information in its possession, it will examine the applicant's
complaint with reference to the second paragraph of Article 1 of
Protocol No. 1.
- As
regards the period when the charging order was in force, nothing in
the parties' submissions discloses that the interference was not
lawful. The Court also accepts that the interference was in the
“general interest” of the community because the charge
aimed at anticipating an eventual confiscation of property and
securing civil claims of the injured party (see Kokavecz v.
Hungary (dec.), no. 27312/95, 20 April 1999, and Földes
and Földesné Hajlik v. Hungary, no. 41463/02,
§ 26, ECHR 2006 ...).
- The
Court observes, however, that there must also be a reasonable
relation of proportionality between the means employed and the aim
sought to be realised by any measures applied by the State, including
measures designed to control the use of the individual's property.
That requirement is expressed by the notion of a “fair balance”
that must be struck between the demands of the general interest of
the community and the requirements of the protection of the
individual's fundamental rights (see Edwards v. Malta,
no. 17647/04, § 69, 24 October 2006, with further
references).
- The
Court considers that, in principle, imposition of a charge on an
accused's property is not in itself open to criticism, having regard
in particular to the margin of appreciation permitted under the
second paragraph of Article 1 of the Protocol. However, it carries
with it the risk of imposing on him or her an excessive burden in
terms of ability to dispose of his or her property and must
accordingly provide certain procedural safeguards so as to ensure
that the operation of the system and its impact on an applicant's
property rights are neither arbitrary nor unforeseeable (see, mutatis
mutandis, Immobiliare Saffi v. Italy [GC], no. 22774/93,
§ 54, ECHR 1999 V, and the ruling from the Russian
Constitutional Court cited in paragraph 26 above).
- The Court has already found that the criminal
proceedings in relation to which the charging order had been issued
in the present case did not comply with the “reasonable-time”
requirement of Article 6 § 1 of the Convention (see paragraph 41
above). It has also found that the applicant was not afforded an
effective remedy for his complaint under Article 1 of Protocol No. 1
(see paragraph 56 above). Furthermore, the Court reiterates that
while any seizure or confiscation entails damage, the actual damage
sustained should not be more extensive than that which is inevitable,
if it is to be compatible with Article 1 of Protocol No. 1 (see
Raimondo, cited above, § 33, and Jucys v. Lithuania,
no. 5457/03, § 36, 8 January 2008). It was not in
dispute between the parties that the bus had a considerable
commercial value for the applicant. However, following amendment of
the Criminal Code in December 2003, removing confiscation as a
penalty for criminal offences, and in the absence of any civil claims
against the applicant, it was incumbent on the national authorities
to re-assess the lawfulness and necessity of the continued
application of the order. Indeed, it was the investigator's duty
under the CCrP to lift the charging order if it was no longer
necessary (see paragraph 25 above). Nevertheless, the case remained
dormant and no investigative measures were taken between 2000 and
early 2006. The domestic authorities did not consider whether it
would be possible to leave the bus with the applicant, while
restraining him from disposing of it. Although the availability of
alternative solutions does not in itself render the interference with
the applicant's right unjustified, it constitutes a relevant factor
when determining whether the means chosen may be regarded as
reasonable and suited to achieving the legitimate aim being pursued
(see James and Others v. the United Kingdom, 21 February 1986,
§ 51, Series A no. 98; and Wiesinger v.
Austria, 30 October 1991, § 77, Series A no. 213). The
Court concludes that the Russian authorities failed to strike a “fair
balance” between the demands of the general interest and the
requirement of the protection of the applicant's right to peaceful
enjoinment of his possessions by maintaining the charging order for
more than six years.
- As
regards the retention of the bus after the decision of 20 January
2006 (see paragraph 9 above), the Government have acknowledged that
maintaining the charging order after that date and until its
discharge on 18 July 2006 was unlawful. The Court has no reason
to disagree with this assessment. In addition to that, the Court
observes that the Government cited no legal basis for not returning
the bus to the applicant after that annulment. Thus, the Court
considers that the continued retention of the bus even after the
annulment of the charging order is equally unlawful (cf. Vendittelli
v. Italy, 18 July 1994, §§ 39 and 40, Series A
no. 293 A; and Raimondo, cited above, § 36).
- There
has therefore been a violation of Article 1 of Protocol No. 1.
III. 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.”
A. Damage
- The
applicant claimed 170,000 euros (EUR) in respect of non-pecuniary
damage caused in relation to the seizure and retention of his bus and
restitution of his bus or payment of EUR 700,000, as well as lost
earnings in the amount of 1,533,000 Russian roubles (RUB).
- The
Government made no comments within the prescribed time-limit.
- The
Court considers that the applicant has suffered non-pecuniary damage
on account of the prolonged retention of his bus and, making its
assessment on an equitable basis, awards him EUR 3,000 under
this head, plus any tax that may be chargeable.
- As
to the pecuniary claims, the Court considers that the applicant did
not substantiate his claims in respect of the lost earnings. Neither
did he submit any details as to his alternative claim regarding the
value of the bus. Thus, the Court dismisses those claims as
unfounded.
- However,
the Court reiterates that a judgment in which the Court finds a
breach imposes on the respondent State a legal obligation to put an
end to the breach and make reparation for its consequences (see
Papamichalopoulos and Others v. Greece (Article 50),
31 October 1995, Series A no. 330-B, and Brumărescu
v. Romania (just satisfaction) [GC], no. 28342/95, ECHR
2001-I). Therefore, in so far as the claim for restitution of the bus
is concerned, the Court finds it appropriate in the circumstances of
the case to grant the applicant's claim by requiring the respondent
State to ensure, by appropriate means, that the bus in question is
returned to the applicant.
B. Costs and expenses
- The
applicant claimed RUB 21,000 for unspecified legal costs.
- The
Court reiterates that costs and expenses will not be awarded under
Article 41 unless it is established that they were actually and
necessarily incurred, and were also reasonable as to quantum (see
Iatridis v. Greece (just satisfaction) [GC],
no. 31107/96, § 54, ECHR 2000-XI). The Court considers
that the applicant's claim is unsubstantiated; it therefore rejects
it.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the merits the Government's
objections as to the exhaustion of domestic remedies in respect of
the applicant's complaints about the excessive length of the criminal
proceedings against him and the prolonged retention of the bus and
rejects them;
- Declares the application admissible;
- Holds that there has been a violation of Article
13 of the Convention in relation to the applicant's complaint under
Article 6 § 1 of the Convention;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention in relation to the applicant's complaint under
Article 1 of Protocol No. 1;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Holds
(a) that
the respondent State shall ensure, by appropriate means, that the bus
in question be returned to the applicant;
(b) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros) in respect of non-pecuniary damage, to be
converted into Russian roubles at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
