CONCURRING OPINION OF JUDGE KOVLER

I agree with the conclusions reached by the Chamber. Nevertheless, I feel I should clarify the reasons for my decision.

Unlike in some similar cases (for example, Baklanov v. Russia , no. 68443/01, 9 June 2005, and Ismaylov v. Russia , no. 30352/03, 6 November 2008), where the national courts admitted all money carried across the customs border without a customs declaration as physical evidence in the criminal case, ordering the confiscation of the entire amount (as did the first-instance court in the present case), the Presidium of the Moscow City Court, after examining the applicant ' s request for supervisory review, again found her guilty of smuggling, but declared that the amount of 10,000 United States dollars (USD) and 31 Ukrainian hryvnias (UAH) should be returned to her (see paragraph 12 of the judgment) because this part of the sum had been declared to the customs authorities.

I disagree, in view of this evident fact, with the contradictory conclusions of the Chamber in paragraphs 31-32 of the judgment, especially with the statement that “ on 26 April 2007 the Presidium of the Moscow City Court determined that the money which the applicant had carried across the customs border had been neither the object of the offence of smuggling ( sic ! – A.K.) nor proceeds from any criminal activities ” (§ 31). The Moscow City Court ' s order to return “only” USD 10,000 and UAH 31 to the applicant was not based on “unexplained reasons”, but instead was logical because it separated the “smuggled” part of the total amount (USD 3,020), which was not declared to the customs authorities and consequently was confiscated, from the “legally carried” part of the amount, which was declared to the customs authorities and was thus confiscated illegally. This judgment was in line with the decision ( определение ) of the Constitutional Court of the Russian Federation of 8 July 2004, in which money smuggling was 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). I regret that the present judgment did not mention the provisions of that instrument.

But I accepted the final decision of the Chamber because of the truly outrageous fact of the “mysterious” disappearance of the money confiscated from the evidence storage room of the Sheremetyevo Customs Office by the bailiffs long before the final judgment of the national court! For this reason I also agree with the amount awarded for pecuniary damage.