FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 68443/01 by Viktor Mikhaylovich BAKLANOV against Russia

The European Court of Human Rights ( First Section) , sitting on 6 May 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs F. Tulkens , Mrs N. Vajić , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application introduced on 23 March 2001,

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, Viktor Mikhaylovich Baklanov, is a Latvian national, who was born in 1957 and lives in Riga. He is represented before the Court by Aleksandr Gurov, a lawyer practising in Moscow.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1 . Initial proceedings

In 1997 the applicant intended to move from Latvia to Russia. Having negotiated a real property transaction with a Moscow estate agent, on 20 March 1997 the applicant withdrew from his bank accounts 250,000 US dollars in cash and asked his acquaintance, B., to deliver the money to Moscow.

On the same day, upon B.’s arrival in Moscow, the customs officers at the Sheremetyevo-1 airport discovered that B. had failed to declare the money and instituted criminal proceedings against him on suspicion of smuggling.

On 13 September 2000, the Golovinskiy District Court of Moscow found B. guilty of smuggling under Article 188 § 1 of the Criminal Code and sentenced him to two years’ suspended imprisonment. The court also ordered the forfeiture of the money as the object of the offence.

In his appeal against the judgment, B.’s lawyer submitted that the District Court had failed to indicate any legal ground for the confiscation order. It was argued that the money had been included in the case-file as evidence and that no relevant law provided for its confiscation. Moreover, lawfully obtained assets, in the lawyer’s opinion, were to be returned to their owners. B.’s lawyer also claimed that Article 188 § 1 of the Criminal Code did not provide for such a sanction as confiscation.

On 25 October 2000, the Moscow City Court refused the appeal, holding that the confiscation had been properly effected.

2 . Proceedings after communication. Judgment left in force

On 1 July 2002 Judge Merkushov , a Deputy President of the Supreme Court, lodged an application for supervisory review ( протест в порядке надзора ) against the judgments. He claimed that the smuggled money could only be confiscated if proven to have been earned by crime.

On 18 July 2002 the Presidium of the Moscow City Court refused the application on the ground that Decisions of the Plenary Supreme Court of USSR issued in 1978 and 1979 allowed for confiscation of smuggled goods joined to case files as exhibits.

On 15 August 2002 Judge Merkushov lodged another application for supervisory review claiming, among other things, that the decisions of 1978 and 1979 were inconsistent with later legislation which should be given preference. However, on an unspecified date Judge Merkushov withdrew his application without giving any reasons.

B. Relevant domestic law

According to Article 188 § 1 of the Criminal Code of 1996,

“Smuggling, i.e. transportation across the customs border of the Russian Federation of considerable amounts of goods and other objects... without due customs control, or avoiding such control, or with fraudulent use of documents or identification means, or in violation of declaration rules,-

shall be penalised by imprisonment of up to five years.”

According to Article 86 of the Code of Criminal Procedure of 1960,

“The destiny of evidence used in criminal proceedings shall be determined in a judgment..., and...

(4) money and other assets obtained unlawfully shall be forfeited; other effects shall be returned to their lawful owners, or, if the owners are not established, shall become the State’s property...”

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 to the Convention that he was deprived of his money by the judgment of the Golovinskiy District Court of 13 September 2000 which contained no legal grounds for the forfeiture.

THE LAW

The applicant complained under Article 1 of Protocol No. 1 to the Convention that the confiscation of his money had no basis in law. Article 1 of Protocol No. 1 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 Government referred to the application for supervisory review lodged by Judge Merkushov on 1 July 2002 as a measure favourable to the applicant. They said that the Court should not consider the application because the Russian authorities had thereby taken steps to eliminate the subject of the complaint.

The applicant argued that Judge Merkushov’s application of 1 July 2002 had been refused and therefore produced no favourable result for the applicant. Furthermore, Judge Merkushov’s second application had been withdrawn. Therefore, the State had not been taking any measures to redress the applicant’s infringed rights.

The Court notes that the judgment of 13 September 2000 by which the applicant’s money was confiscated remains in force. It cannot therefore be argued that the applicant has lost his status as victim under Article 34 of the Convention or that the application is premature.

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 prejudging the merits of the case.

Søren Nielsen Christos Rozakis              Deputy Registrar President