FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58254/00 by Nina Ivanovna FRIZEN against Russia

The European Court of Human Rights ( First Section) , sitting on 4 December 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. Hajiyev , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced on 24 March 2000,

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 Nina Ivanovna Frizen, is a Russian national, who was born in 1951 and lives in the city of Krasnoyarsk. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation in 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.

In 1995 a limited liability company Telemediaservice (“TMS”) hired the applicant as an accountant.

In 1996 TMS granted the applicant an interest-free loan for the purchase of a Toyota car. The terms and conditions of the loan were set out in a loan agreement of 10 June 1996 signed by the applicant and the director general of TMS, Mr Yevseyev. The loan was for RUR 266,847,000 [*] (USD 52,883 at the official exchange rate on that date) for a period of 84 months. On 13 June 1996 the total amount was transferred directly to the bank account of the car dealer.

On 30 September 1996 the State Road Inspectorate of the Krasnoyarsk Region registered the purchased car in the applicant’s name.

According to an undated certificate issued by TMS’ director general Ms Yakovleva, between 10 June 1996 and 31 December 1999 the applicant had repaid RUR 22,890 (approximately USD 4,300) of the loan amount.

On 27 November 1998 the Tsentralniy District Court of Krasnoyarsk convicted Mr Yevseyev and the applicant’s husband, Mr Frizen, of large-scale fraud and misappropriation of funds carried out through TMS, a company controlled by them. The applicant was a witness in the trial. The court established that wages, dividends and loans had been paid to TMS employees out of the misappropriated funds. The court held that the applicant’s loan was unlawful and undocumented and decided that the applicant’s car, along with another one purchased by Mr Yevseyev, was to be seized by way of compensation for damage. The court also ordered confiscation of property belonging to Mr Frizen and Mr Yevseyev.

On 12 April 1999 household items in the applicant’s flat were seized. On an unspecified date the applicant’s car was also seized.

The applicant brought a civil action to lift the seizure in respect of her household items and the car.

On 23 August 1999 the Oktyabrskiy District Court of Krasnoyarsk granted the applicant’s action in respect of the household items but confirmed the seizure of the car. The court agreed that the applicant had taken out a loan to purchase the car and that the car had been registered in her name. However, the court referred to the judgment of 27 November 1998 to establish that the loan had been granted unlawfully and therefore the car should be returned as compensation for damage.

On 6 October 1999 the Civil Chamber of the Krasnoyarsk Regional Court, on the applicant’s appeal, upheld the judgment of 23 August 1999. The court relied again on the judgment of 27 November 1998 and pointed out that the applicant had failed to prove that the loan had been used to pay for the car. The court also based its conclusion on the fact that the loan was to be repaid out of the applicant’s wages with TMS. The applicant submits that the court ignored a copy of the bank payment instruction submitted by the applicant in evidence. The applicant also contends that the lawfulness of her income received from TMS in the form of wages has never been disputed in court.

B. Relevant domestic law

1. The Civil Code of the Russian Federation (Federal Law no. 51-FZ of 30 November 1994) provides:

Article 243. Confiscation

“1. Where the law so provides, property may be withdrawn from its owner without compensation upon a court decision by way of a sanction for the commission of a crime or another offence (confiscation).

2. Where the law so provides, confiscation may be carried out in accordance with the administrative procedure. The decision on confiscation made in the framework of the administrative procedure may be appealed to a court.”

2. The Criminal Code of the Russian Federation (Federal Law no. 63-FZ of 13 June 1996) provides that “punishment shall be imposed on a person found guilty of commission of a crime”.

Article 44 (g) provides that confiscation is a form of punishment.

Article 52 defines confiscation of property as “compulsory withdrawal without compensation of the property owned by the convict, in whole or in part”.

3. The Code on Administrative Offences of the RSFSR of 20 June 1984 provides for confiscation of items, which were used to commit an administrative offence or were a direct object of an offence.

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 to the Convention that the confiscation of her property was not effected in accordance with conditions provided for by law.

THE LAW

The applicant complains under Article 1 of Protocol No. 1 to the Convention about an infringement of her property rights in that the car of which she was the legal owner was taken from her without any legal basis. Article 1 of Protocol No. 1 to the Convention 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 Government do not deny that there has been an interference with the applicant’s right to the peaceful enjoyment of her possessions. However, they contend that the deprivation of the applicant’s property was in the public interest and in accordance with the conditions provided for by law because the car in question had been purchased out of funds obtained through unlawful activities. The deprivation was necessary to cover the damage caused by the applicant’s husband.

The applicant responded that her husband’s conviction for a criminal offence could not be construed as imposing liability on her; she was not a defendant in the criminal proceedings against her husband; she did not cause the damage imputed to her husband; the car in question was not used to commit any offence and it was for the applicant’s own personal use. The applicant submits that the court judgment ordered the car to be seized from her husband who was not the owner of the car; nor was the car in their joint ownership because it had been purchased at the applicant’s own expense. The loan agreement has never been terminated by a court or by the parties and the applicant continues to pay the amounts outstanding under the agreement. Finally, the applicant points out that the car was transferred to a private company (allegedly defrauded by her husband) in breach of the Law on Enforcement Proceedings and it is now being used by that company.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudicing the merits of the case.

Erik Fribergh Christos Rozakis Section Registrar President

[*] The amount is indicated without regard to the denomination of 1998. In accordance with the Presidential Decree “On the Modification of Face Value of Russian Currency and Standards of Value” of 4 August 1997, 1,000 “old” roubles became 1 “new” rouble as of 1 January 1998.