DISSENTING OPINION OF JUDGE KOVLER

To my regret I cannot share the conclusions of the Chamber in this case. I did not agree with the conclusions of the majority in the similar case of Baklanov v. Russia , no. 68443 /01, judgment of 9 June 2005 (which became final on 30 November 2005) in which the Court concluded that “the interference with the applicant ’ s property cannot be considered lawful within the meaning of Article 1 of Protocol 1 to the Convention” (§ 46 of the Baklanov judgment). In the present case the Court concluded differently: “ ... the Court finds that the measure had a basis in domestic law which was sufficiently foreseeable in its application” (§ 32). But for the majority “the imposition of a confiscation measure as an additional sanction was, in the Court ’ s assessment, disproportionate ... “ (§ 38). Nota bene : lawful but disproportionate ...

As regards the lawfulness of the interference I refer to the provisions of Article 188 (“Contraband”) of the Criminal Code of the Russian Federation and the Foreign Currency Act (reproduced in §§ 18-19 of the judgment). These provisions specify in clear terms in what circumstances the importation of foreign currency in cash was illegal under Russian law. The judgment (§ 20) also reproduces Article 81 of the Code of Criminal Procedure of the Russian Federation, which provides that any object used to commit an offence may be recognised as physical evidence and that instruments of the crime belonging to the accused are liable to confiscation, transfer to the competent authorities or destruction (Article 81 § 3 (1)).

As mentioned in § 15 of the present judgment, the Constitutional Court of the Russian Federation in its Decision ( Opredeleniye) of 8 July 2004 concluded that the determination of the procedural status of objects illegally transported across the customs border of the Russian Federation in criminal proceedings and the decision as to whether they constitute physical evidence liable to criminal confiscation are to be made by the court of general jurisdiction trying the criminal case. Furthermore, it did not establish any extra-judicial way of confiscation ( vnesudebnyy poriadok konfiskatsiji ) of money in Mr. Izmayilov ’ s case.

On many occasions our Court has observed that the Court ’ s power to review compliance with domestic law is limited, it being in the first place for the national authorities, notably the courts, to interpret and apply that law (see Chappell v the United Kingdom , judgment of 30 March 1989, Series A no. 152-A, p. 23; The Traktorer Aktiebolag v. Sweden , judgment of 7 July 1989, Series A no. 159, p. 23).

The Golovinskiy District Court of Moscow found the applicant guilty under Article 188 § 1 of the Criminal Code and held that the illegally transported money was physical evidence to be transferred into the State ’ s possession, strictly applying the national law.

As to disproportionality, Article 188 §1 of the Criminal Code of the Russian Federation carries a penal sanction of up to five years ’ imprisonment. Thus, the two years ’ suspended sentence is not really disproportionate punishment even in combination with a confiscation of physical evidence. I do not agree with the interpretation of the AGOSI case given in § 35 of the present judgment. In the mentioned case the Court pointed out in general terms, as the Commission did in the past, that “under the general principles of law recognised in all Contracting States, smuggled goods may, as a rule, be the object of confiscation” ( AGOSI v. the United King d om , judgment of 24 October 1986, Series A no. 108, § 53). In other words, a margin of appreciation of the States is recognised by the Court in this delicate matter, and it does not contravene Article 1 § 2 of the Protocol 1 to the Convention.

In my dissenting opinion on the Baklanov case I also drew attention to the international aspects of the case, essentially to the UN and Council of Europe ’ s Conventions on money laundering where the term “confiscation” means not only punishment (or “additional sanction” – the term used by our Court in § 38), but also “a measure ordered by a court following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property” (Article 1 of the Council of Europe Convention of 8 November 1990), a kind of preventive and “pedagogical” measure.

Last but not least, I am really shocked that someone can be awarded a 25,000 Euros prize for illegally transporting money across the customs border premeditatedly, declaring only 48 US dollars in the customs declaration and carrying in reality 21,348 US dollars ... Incidentally, in the Baklanov case the applicant, for reasons which can readily be understood, did not include the forfeited sum in his claims under Article 41.