Seizure of money found at the defendant’s residence belonging to his wife. Violation of respect for property
JUDGMENT
Malygina v. Russia 20.09.2022 (app. no. 29962/18)
SUMMARY
Seizure of the applicant’s money to pay her husband’s fine. Right to the peaceful enjoyment of property.
The applicant’s husband was sentenced to imprisonment and a fine. Their residence was searched and the amount of money found (15,500,000 rubles) was confiscated in order to pay the fine. The applicant claimed that the money belonged to her and not to her husband, but her action for damages was dismissed by final judgment. She filed a complaint for violation of the right to property.
The ECtHR recalled that any measure of interference with the right to the peaceful enjoyment of property must, first of all, have a legal basis in domestic law in order to prevent arbitrary attacks by public authority.
The Court found that a sum of money was confiscated from a person who had not been convicted and that the national courts did not specify, in their judgments, the legal basis on which the confiscation in favor of the State was based.
It further found that the confiscation of the money was not foreseeable because domestic law only permitted the confiscation of proceeds of crime such as weapons or drugs.
Finally, the ECtHR observed that the domestic courts did not prove any illegal source of the money but also that the local authorities did not exercise the option they had to separate the property of the applicant from that of her convicted husband and confiscate only his share.
The Court held that the confiscation in favor of the State of all said money was not carried out “under the conditions provided for by law” and consequently there was a violation of the right to the peaceful enjoyment of property (Article 1 of the First Additional Protocol) and awarded 5,000 euros for moral damages.
PROVISION
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Tatyana Malygina, is a Russian national who was born in 1971 and lives in Moscow.
She complains about the forced transfer to the State (обращение взыскания) of a sum of money
found in her home (15,500, 000 roubles (RUB) in cash). This transfer was ordered by the courts
following the criminal conviction of her husband – for a corruption-related offence – and the
imposition of a prison term and a fine of RUB 20,000,000. Without reaching a conclusion as to the
origins or ownership of the money, the court ordered that it be transferred to the State, with a view
to paying the fine. The applicant’s husband lodged an appeal, arguing that the money in question did
not belong to him, but his request was dismissed. Civil proceedings brought by the applicant in an
attempt to establish her ownership and recuperate the money were also unsuccessful.
Relying on Article 1 of Protocol No. 1 (protection of property) to the Convention, the applicant
alleges that the transfer of her money to the State, imposed following her husband’s conviction in
criminal proceedings, breached her right to the peaceful enjoyment of her possessions.
THE DECISION OF THE COURT…
The Court considered that the interference with the applicant’s right to the peaceful enjoyment of her property fell within the scope of the second paragraph of Article 1 of the First Additional Protocol to the Convention, concerning the power of States to apply laws to ensure the payment of a penalty.
It reminded that any measure of interference with the right to peaceful enjoyment of property must, first of all, have a legal basis in domestic law (G.I.E.M. S.R.L. et al. v. Italy of 28.06.2018, case no. 1828/06 etc § 292) and not be arbitrary (Vistiņš and Perepjolkins v. Latvia of 25.10.2012 [GC], case no. 71243/01, § 69). Legality is a primary condition for compatibility with Article 1 of the First Additional Protocol and implies that the rules of domestic law are sufficiently accessible, precise and predictable in their application in order to prevent arbitrary attacks by public authority (Lekić v. Slovenia of 11.12 .2015 [GC], application no. 36480/07 § 95). This requirement of legality is identical to the rule of law, inherent in all the articles of the Convention (G.I.E.M. S.R.L. cited above § 292).
Therefore, the Court was asked to ascertain in the present case whether the disputed intervention was based on a sufficiently clear and foreseeable legal basis, taking into account that this intervention concerned the permanent deprivation of property without compensation of a person, who had not been accused of having committed an offense and nor, for the most part, was he convicted (Godlevskaya v. Russia of 07.12.2021, case no. 58176/18, § 53).
The Court found that the amount of money in question had, at the start of the criminal proceedings, a dual status: that of physical evidence within the meaning of Article 81 CPC and that of confiscated property in accordance with Article 115 CPC. Subsequently, the decision of January 27, 2015 by which M. was convicted of a criminal act – as confirmed in the appeal – ordered the confiscation of these funds in favor of the State, the illegal source of which was not established, for the payment of the criminal fine imposed on M.
Recalling that it is primarily up to the national authorities to interpret and apply domestic law (Uzan et al. v. Turkey of 05.03.2019, ref. no. 19620/05 etc., § 198, and references cited), the Court examined the how they justified the legality of this transfer in the light of Article 1 of the First Additional Protocol.
The Court first observed that the national courts did not specify, in their judgments, the legal basis on which the confiscation in favor of the State was based.
It then noted that, apart from Article 115 CPC, the Government did not cite before it any provision of domestic law authorizing the impugned seizure. However, the Court has already held that Article 115 CPC covers only provisional confiscations and not confiscations of property and therefore cannot be considered as a foreseeable legal basis for such intervention (Godlevskaya, supra § 54) .
Moreover, the Government never claimed that the expression “decided on the fate of the seized property and evidence” could be taken as authorizing the seizure of the property.
Finally, if Article 81 § 3 of the CPC provided for cases in which certain assets classified as material evidence remained acquired by the State, this was not the case for the disputed money claimed by the applicant and the illegal source of which was not established in the conviction. Rather, it follows from this article that the money was to be “returned to its rightful owner” determined by the civil courts.
The Court ultimately found that the Government did not demonstrate the existence of a sufficiently clear and foreseeable legal basis capable of justifying the intervention in question.
Admittedly, it would be possible to conclude that the seizure of the money belonging to the person sentenced to a fine was lawful if it had been shown that the money belonged directly to that person. The Court noted that the State as the beneficiary had the possibility, which is provided by article 45 § 1 of the Family Code, to bring an action for the division of the property between the applicant and M. and to remove the latter’s share (in money and/or movable or immovable property, if applicable). However, it was noted that national authorities did not make use of this possibility.
In the light of all the above, the Court concluded that the confiscation in favor of the State of all the money in question was not carried out “under the conditions provided for by law”.
The ECtHR found a violation of the right to peaceful enjoyment and respect for property (Article 1 of the First Additional Protocol) and deemed it unnecessary to examine compliance with the other requirements of this Article and the parties’ other arguments.
Just satisfaction (article 41): The Court awarded an amount of 5,000 euros for moral damage and rejected the request for costs and expenses (edited by echrcaselaw.com).
