Seizure of property of an alleged kidnapped victim, when the victim herself stated that she was not a victim and that there was no kidnapping! Violation of property rights.

JUDGMENT

Litvinenko v. Russia 05.05.2020 (no. 84447/17)

see here 

SUMMARY

Seizure of property as part of a criminal investigation by the alleged abducted victim.

Authorities seized the applicant’s property, which was allegedly the victim of an abduction from unknown criminals, in order to prevent the perpetrators from illegally disposing of her property. The applicant had stated both through her letter and through her lawyer that she had voluntarily left the country without the knowledge of her family and had never been the victim of the above offense. However, authorities refused to lift the ban for many years. The ECtHR ruled that there was a lack of legal basis for the seizure and that there had been insufficient judicial review. Violation of the right to property (Article 1 of the First Additional Protocol).

PROVISION 

Article 1 of the First Additional Protocol

PRINCIPAL FACTS

The applicant, Olga Litvinenko, who has Russian, Polish and Israeli nationality, was born in 1983 and
lives in Warsaw (Poland). The case concerned the seizure of the applicant’s property in the context
of a criminal investigation against third parties.

From 2007 to 2011 Ms Litvinenko was a member of parliament in the legislative assembly of Saint
Petersburg.

Following a dispute with her father she left Russia in 2011 with her minor son without informing her
family. Ms Litvinenko’s father and the child’s father filed a complaint and a criminal investigation
was opened against persons unknown for the illegal confinement of mother and child.

The chief investigator of the Saint Petersburg criminal investigation department stated that, since
14 March 2011, Ms Litvinenko and her son had been held by criminals in an unknown location,
preventing them from moving freely and from taking decisions autonomously. The criminals, whose
intention was to take Ms Litvinenko’s property, had published a notice for the sale of her flat. A
lawyer representing Ms Litvinenko asked the Oktiabrski District Court of Saint Petersburg to declare
unlawful the opening of the above-mentioned criminal investigation, submitting that she was not
deprived of her liberty. The request was apparently never followed up.

Ms Litvinenko sent a letter to the chief investigator informing him that she was living abroad
voluntarily during her maternity leave. She enclosed a number of documents which in her view
confirmed that she was not being held against her will. There is no evidence that this letter met with
any response.

On 15 May 2018 the chief investigator wrote to Mr Panchenko, Ms Litvinenko’s new lawyer in
Russia, informing him that no decision had been taken to give his client victim status in the case.
The criminal investigation was suspended several times on the ground that it was impossible to
identify any suspects. From the documents in the file before the Court there is no evidence that any
notice was issued in order to trace Ms Litvinenko and her son.

At various dates, not established in the file, the investigator on the case submitted to the
Vassileostrovski District Court of Saint Petersburg a number of requests for the seizure of
Ms Litvinenko’s property. In his requests the investigator stated that Ms Litvinenko was under the
influence of unknown criminals who had used methods to prevent her acting of her own free will,
for example by drugging her. He added that the criminals had tried to sell her flat and that they had
rented out two other flats owned by her, purportedly on the basis of a power of attorney that she
had given to them.

In five decisions of 3 and 29 August 2011 and 3 May 2012 the Vassileostrovski District Court
authorised the seizure of Ms Litvinenko’s property, namely three flats, a garage (of which she owned
one third) and a plot of land (of which she owned one half). It took the view that the seizure would
prevent any unlawful disposal of her property by the criminals.

In a decision of 23 December 2011 the same court authorised the seizure of Ms Litvinenko’s two
bank accounts into which the rent from the above-mentioned flats was being paid. The measure
consisted in freezing the accounts to prevent any debits.

On two occasions the applicant’s lawyer Mr Panchenko asked the head of the Saint Petersburg
criminal investigation department, and then the head investigator, to discontinue the investigation
as there was no evidence of a criminal offence and to lift the seizure measures imposed on her property. He stated that she had left Russia voluntarily and had never been deprived of her liberty.

His requests were all rejected in decisions that were upheld on appeal.

Relying in particular on Article 1 of Protocol No. 1 (protection of property), the applicant argued that
the seizure of her property by the authorities had been illegal and unjustified.

THE DECISION OF THE COURT…

Violation of Article 1 of the First Additional Protocol

It is not disputed between the parties that the confiscated items were “assets” within the meaning of Article 1 of the First Additional Protocol to the ECHR.

The Court reiterated that Article 1 of the First Additional Protocol does not prohibit the seizure of assets in criminal proceedings and that such seizure constitutes an interference with the use of property (Lachikhina v. Russia, no. 38783/07, Lachikhina v. Russia). , October 10, 2017). However, in order to meet the requirements inherent in this article, the intervention must be provided for by law, pursue a lawful purpose and be commensurate with that purpose.

Regarding the legality of the measure, the Court pointed out that there was no provision in the Russian CPC with an explicit prohibition on the seizure of the property of the alleged victims. Indeed, there is no legal provisions in this area.

However, the requirement of the lawfulness of the measure within the meaning of the Convention implies not only the existence of a legal basis, but also the respect of the rule of law and protection against arbitrariness.

In principle, the Court finds that in some cases the interests of a person deprived of his/her liberty or abducted (and therefore vulnerable, even incapable of defending himself), requires the confiscation of his property.

With regard to this case, the Court notes that in August 2011, the authorities were informed by the applicant and her lawyer that she was voluntarily abroad and opposed the criminal investigation into the alleged deprivation of her liberty. They did not seek the opinion of the applicant and that of her son and never formally gave them the status of victims in the criminal case. In addition, the national courts, although tacitly acknowledging that the alleged victim was able to order a lawyer of their own free will, did not examine her arguments, but limited itself into mentioning the powers conferred on the Investigator.

According to the ECtHR, the authorities’ actions, in conjunction with the applicant’s “non-legal basis for maintaining the seizure of assets”, proves that the measure does not meet the requirement of “legality” under Article 1 of the First Additional Protocol.

Consequently, there has been a violation of Article 1 of the First Additional Protocol.

Just satisfaction: The Court held that the finding of a violation constituted in itself sufficient just
satisfaction for the non-pecuniary damage sustained by Ms Litvinenko; it further awarded
Ms Litvinenko EUR 2,390 for costs and expenses

 


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