DISSENTING OPINION OF JUDGE KOVLER

To my big regret I cannot agree with the conclusion of the majority of the Chamber that there has been a viol ation of Article 1 of Protocol No . 1 on the ground that the interference (the forfeiture order) was not “lawful”.

The Court recalled on many occasions the importance of a legal basis for interferences with the rights guaranteed by the Convention. Only without a basis in the domestic law the interference will not comply with the basic requirements of “lawfulness” and the question of its justification will not arise.

As regards the present case, I would note that the penalty for the substantive offence of a non-declaration of goods under Article 279 of the Customs Code of 1993 as in force at the material time made clear provision for the forfeiture of goods concealed from customs control. The problem of the Court seems to be that the articles of the Criminal Code of 1996 concerning smuggling, as opposite to the Article 169-1 of the Criminal Code of the RSFSR of 1960, do not contain such a provision. At the same time Article 86-4 of the CCrP provided for the forfeiture of the criminally acquired exhibits.

However, the Court ' s competence to review compliance with domestic law is limited. It is in the first place for the national authorities to interpret and apply this law (see Tre Traktorer Aktiebolag v. Sweden , judgment of 7 July 1989 , Series A no.159, § 58).

I agree with the Court ' s opinion that the above mentioned provisions of the national law left a certain ambiguity as to the destiny of smuggled money in cases similar to the applicant ' s. Under such circumstances it was only appropriate for the Supreme Court to give its own interpretation of the law by issuing the Ruling of 2 February 1978 , since the Supreme Court may interpret statutes to fill legal lacunas and such interpretation should be considered as “law”. As to the decision of the Presidium of the Supreme Court of 10 June 1998 in the Petrenko case cited in § 2 3 , the convicted person himself had recourse to domestic remedies available to him under the national law, which is not the case of Mr. Baklanov. For instance, Article 429 of the Code of Civil Procedure of the RSFSR offered him as a third person the possibility to challenge the court judgment regarding confiscation of his property (regretfully, this provision is not mentioned in our Judgment). The applicant failed to exhaust the domestic remedies available to him and did not appeal against the trial court judgment.

As to the third party ' s comments that the smuggled items could only be confiscated if proven to have been criminally acquired, I am satisfied that the Judgment cites the Decision ( Opredelenije ) of the Constitutional Court of the Russian Federation of 8 July 2004 where money smuggling is qualified as a criminal offence in the light of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (8 November 1990) and of the UN Convention against Transnational Organised Crime (15 November 2000). According to the Article 1 of the CE Conventions the term “confiscation” means not only punishment, 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 12 of the UN Convention recognises “the possibility of confiscation of proceeds from crimes, as well as of property, equipment or other means used or intended for use in committing crimes”.

Taking into account both national and international aspects of the case I have decided not to join the majority of the Chamber in its reasoning.