Communicated on 15 September 2017

THIRD SECTION

Application no. 7506/17 Tatyana Nikolayevna STEPANOVA against Russia lodged on 14 December 2016

STATEMENT OF FACTS

The applicant, Ms Tatyana Nikolayevna Stepanova , is a Russian national who was born in 1974 and lives in Parfino , Novgorod Region.

A. The circumstances of the case

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

On 18 December 2015 criminal proceedings were opened against the applicant and an accomplice for an offence under Article 159 § 3 of the Criminal Code of Russia (see Relevant domestic law below). They were suspected of embezzling public funds in the amount of at least 396,422 Russian roubles (RUB).

On 24 December 2015 the applicant was placed under house arrest.

On an unspecified date the investigator asked the Starorusskiy District Court of Novgorod Region (“the District Court”) for attachment of the applicant ’ s property with the view to securing enforcement of the sentence in the part relating to a civil claim. In her application the investigator submitted that the applicant owned two houses and had three bank accounts in her name. The investigator asked for attachment of one of the houses with the land plot under it, as well as the bank accounts.

On 25 December 2015 the District Court authorised the attachment of the applicant ’ s property, finding that in order to secure enforcement of the sentence in respect of a civil claim the attachment of one house and the land plot under it would be sufficient.

On 1 April 2016 the applicant challenged the decision of the District Court, arguing that the court had failed to provide any reasons justifying the measure. The applicant further noted that the crime she had been charged with had allegedly caused damage in the amount of RUB 396,422. Therefore, the attachment of the house with the land, as authorised by the District Court, was disproportionate to the alleged damage.

On 16 June 2016 the Novgorod Regional Court (“the Regional Court”) upheld the decision of the District Court. At the hearing, the applicant ’ s representative submitted a report attesting that the value of the attached property was RUB 3,100,000. A copy of the report was joined to the case file. In its decision the Regional Court concluded that since the applicant was charged with fraud, the penalty for which could be a fine ranging from RUB 100,000 to RUB 500,000 (see Relevant domestic law below), the decision to attach the applicant ’ s property had been correct. The court further found that the District Court had given the factual elements that had served the basis for its decision, and that “the principle of proportionality [had been] observed”. Concerning the applicant ’ s question raised in the appeal proceedings as to why the court had not attached the bank accounts in the applicant ’ s name, but had rather attached her real property, the Regional Court explained that the courts had not been provided with and information in respect of the balance of any of those accounts.

On 14 October 2016 the applicant lodged a cassation appeal against the above decision. She argued, in particular, that the authorities had no grounds for attaching the property in her case, as no civil claim had been lodged against her. The applicant claimed that the attachment of property could be applied in situations when the sanction for the imputed crime included a fine as an additional penalty, and, therefore, in her case the possible fine to be taken into account was RUB 80,000 (see Relevant domestic law below). She further reiterated her claim that the value of her property had never been assessed before its attachment, and, thus, the court ’ s decision authorising that measure could not be considered to be proportionate.

On 11 November 2016 a judge of the Regional Court refused to transfer the applicant ’ s cassation appeal for consideration by the Presidium of the Regional Court. The decision, in its relevant part, stated that attachment of property was a preventive measure, and, therefore, no civil claim was required in order for it to be applied. Moreover, the purpose of the attachment had been to secure enforcement of a sentence in the part concerning possible pecuniary penalties and charges provided for by the criminal-procedure legislation. As to the arguments concerning the proportionality, the decision read: “[c] ontrary to the appeal pleadings, the principle of proportionality [had] been observed”.

B. Relevant domestic law

1. Attachment of property within criminal proceedings

Under Article 44 of the Code of Criminal Procedure (“the CCrP ”) a person who has sustained pecuniary or non-pecuniary damage as a result of a criminal offence had the right to lodge a civil claim. Such a claim can be lodged from the commencement of the criminal proceedings until the end of the judicial investigation at the trial court.

Under Article 115 § 1 of the CCrP , in order to ensure execution of a judgment in the part pertaining to a civil claim, to satisfy other pecuniary penalties or (possibly) to confiscate property, an inquirer or investigator, subject to the prosecutor ’ s consent, or a prosecutor, has to apply to a court for an attachment order in respect of the suspect ’ s or accused ’ s property.

When deciding on an attachment of property the court shall, inter alia , refer to concrete factual elements, on the basis of which it has made its decision (Article 115 § 1).

The court has to examine an application for an attachment of property under the procedure set out in Article 165 of the CCrP . According to this Article, the application shall be examined by a single judge, in a session in which a prosecutor, an investigator and an inquirer have the right to participate. The court is not required to summon the suspect or the accused.

2. Criminal responsibility for the offences imputed to the applicant

Under the terms of Article 159 of the Criminal Code, fraud is theft or acquisition of another ’ s property by misrepresentation or abuse of trust.

Under Article 159 § 3 fraud committed by a person through his or her official position or on a large scale is punishable with a fine in an amount ranging from RUB 100,000 to RUB 500,000 or by a fine equivalent to the wage or salary or any other income of the convicted person for a period of one to three years; or with compulsory labour for a term of up to five years with restriction of liberty for a term of up to two years or without such restriction; or by deprivation of liberty for a term of up to six years, with or without a fine in an amount of up to RUB 80,000 or by a fine equivalent to the wage or salary or any other income of the convicted person for a period of up to six months, and with restriction of liberty for a term of up to a year and a half or without such restriction.

3. Requirement of proportionality

In its Ruling No. 1- П , dated 31 January 2011, the Constitutional Court underlined that the principles of the rule of law and equality require that the State ’ s interference into the relationships concerning property must not be arbitrary and must not upset the balance between the public interests and the need to protect the fundamental rights. This presupposes proportionality between the means used and the aim pursued with the view to ensure the balance of the constitutionally protected values, and so that a person is not subjected to an excessive individual burden.

The Constitutional Court further held that the attachment of property with the view to ensuring execution of a sentence in the part pertaining to a civil claim, to satisfy other pecuniary penalties or (possibly) confiscate property restricts the proprietary rights of the owner. Therefore, such a measure should be introduced with observance of the constitutional guarantees. In particular, it should be based on a judicial decision, and be under effective judicial control.

COMPLAINT

The applicant complains under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that the decision of the District Court to attach her property was unlawful and disproportionate. In particular, she alleges that the measure was justified by the need to secure enforcement of a civil claim within a criminal case even though no such claim had been lodged. She further argues that the domestic courts did not assess how the damage allegedly caused by the imputed crime had been calculated and failed to estimate the value of the attached property. As a result, the attachment order in her case was disproportionate.

QUESTIONS TO THE PARTIES

1. What were the exact grounds for attachment of the applicant ’ s property in the present case? Were these grounds duly explained and presented in the District Court ’ s decision authorising the attachment order? Did the Regional Court subject the applicant ’ s arguments raised on appeal to meaningful scrutiny and did it reply in a sufficiently reasoned manner?

2. Why the District court did not examine the question of attachment of the money in the applicant ’ s bank accounts?

3. Has a civil claim been introduced in the criminal case against the applicant? If so, the Government is requested to provide a copy of the claim. Under the applicable domestic law, could attachment of property of a suspect or an accused be introduced “with the view to securing enforcement of the sentence in the part related to a civil claim” at the time when no such claim has been lodged within the criminal case?

4. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in which the applicant challenged the attachment order? Did the applicant have a fair hearing in the determination of her civil rights, in accordance with Article 6 § 1 of the Convention (see Rummi v. Estonia , no. 63362/09 , §§ 64, 82-86, 15 January 2015)?

5. Did the attachment order constitute an interference with the applicant ’ s peaceful enjoyment of possessions , within the meaning of Article 1 of Protocol No. 1 to the Convention?

If so, was that interference 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? Was the interference proportionate? Did it impose an excessive individual burden on the applicant (see Džinić v. Croatia , no. 38359/13, 17 May 2016)?