Resolution CM/ ResDH (2019)66 Execution of the judgments of the European Court of Human Rights Denisova and Moiseyeva against Russian Federation

(Adopted by the Committee of Ministers on 27 March 2019 at the 1342 nd meeting of the Ministers ’ Deputies)

Application No.

Case

Judgment of

Final on

16903/03

DENISOVA AND MOISEYEVA

01/04/2010

14/06/2011

04/10/2010

14/09/2011

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in this case and to the violation established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the information provided by the government indicating the measures adopted to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see Appendix);

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH ( 2019)66

Information about the measures to comply with the judgment

in the Denisova and Moiseyeva case against Russian Federation

Case summary

This case concerns the violation of the applicants ’ right to peaceful enjoyment of possessions (violation of Article 1 of Protocol No. 1) in 2002-2005 because of the lack of a proper judicial review of the confiscation measures imposed on their property in the framework of criminal proceedings instituted not against them but against a member of their family.

The Court underlined that the applicants were not parties to the criminal case against the family member and, at the material time, could accordingly appeal against the confiscation order only in civil proceedings (§§ 60-61). However, the domestic civil courts merely referred back to the judgment in the criminal case without a global assessment of the family property and the balancing exercise of the rights of family members, which were both required under the applicable domestic law provisions (§§ 61-62, 64).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Paid on

Denisova and Moiseyeva

(no. 16903/03)

-

EUR 8,000 (jointly for both applicants)

EUR 496.80 (jointly for both applicants)

EUR 8,496.80

14/12/2011

b) Other individual measures

One part of the property at issue (a car) was returned to Mr Moiseyev in 2005 (see § 24 of the judgment). As regards the seized computer, the applicants have apparently lost interest in it, as they undertook no further steps after the European Court ’ s judgment in order to recover it. Neither the applicants nor their representatives have requested reopening of the relevant civil proceedings or lodged other applications at the stage of execution of the European Court ’ s judgment. Accordingly, no other individual measures appear necessary.

II. General measures

The authorities consider the present case to be a rare occurrence. The violation resulted from an incorrect interpretation of domestic legislation and clarifying rulings of the Supreme Court, which has also been highlighted by the European Court in the present judgment. Thus, the European Court noted that domestic law requires to respect the rights of the family members of criminally charged persons and allows confiscation only if it has been proven that the property was criminally acquired but registered in other persons ’ names with a view to concealing it from confiscation (§ 52) and concluded that the domestic courts ’ “persistent failure to take cognisance of the merits of the applicants ’ claim for vindication of their property was at variance with the requirements of the Russian law” (§ 62). It follows that the domestic law, as clarified by rulings of the Supreme Court, was in line with the Convention requirements at the time of the events.

Nonetheless, additional general measures have been adopted to prevent further similar violations. Since 2013, in accordance with a new Article 389.1 of the amended Code of Criminal Procedure ( CCrP ), any person whose rights are in any way determined by a judgment in a criminal case can appeal against this judgment. This new provision would allow persons in situations similar to that of the applicants to lodge an appeal directly in the criminal proceedings, thus addressing one of the underlying reasons for the violation in the present case (§§ 60-61).

Further, since 2015 a new Article 115.1 of the CCrP introduced judicial review over extensions of property seizure (prior to that, investigators decided whether to extend it without the necessity to seek the approval of a domestic court). The owner of the property participates in the proceedings. Thus, there is now an additional safeguard against possible abuses in relation to seizure of property within criminal proceedings in which a person otherwise does not participate.

Lastly, in its guidelines of 14 June 2018 (in § 7), the Plenum of the Supreme Court once again highlighted that, in criminal proceedings, the property of third persons can be confiscated only if these persons knew or should have known that it had been criminally acquired or was used (or would have been used) to commit the crime.

Finally, the judgment was published and widely disseminated amongst the relevant authorities, including the Supreme Court, the General Prosecutor ’ s Office and the Federal Security Service.

III. Conclusions of the respondent State

The government considers that no individual measure is required, apart from the payment of the just satisfaction, and that the general measures adopted will prevent similar violations and that the Russian Federation has, therefore, complied with its obligations under Article 46, paragraph 1, of the Convention.