The seizure of computers do not consist evidence in criminal proceedings and the lengty and unnecessary retention of the seizure of assets violated the right to property
JUDGMENT
OOO SK Stroykompleks and others v. Russia 17.12.2019 (no. 7896/15 and 48168/17)
SUMMARY
Proportionality principle and freezing of assets. Long and unnecessary confiscation of movable property. Violation of the right to property.
The applicant companies and their principal shareholder have been frozen by their referral of the major shareholder of the companies to criminal proceedings for serious offenses. The criminal proceedings are still pending, but the freezing of assets has not been lifted, although domestic courts have ruled that it is now a disproportionate measure.
The Court finds that the prolongation of the seizures, which were too long, was not commensurate with the damage alleged, and imposes an unjustified burden on the parties concerned, and concludes that the freezing of computers is not unjustifiable and inappropriate. continued confiscation of other assets is disproportionate to the damage, there is a violation of the applicants’ right to property.
PROVISION
Article 1 of First Additional Protocol
PRINCIPAL FACTS
The applicants are 19 Russian limited companies and a Russian-Israeli national, Yelena Shapiro, who
was born in 1960 and lives in Petah Tikva (Israel).
In application no. 48168/17, the applicant Ms Shapiro is the single or majority shareholder of the 19
applicant companies. The case concerns proceedings for the lifting of restraint measures applied
against the property of the applicant companies in connection with criminal proceedings brought
against Ms Shapiro, among others.
In April 2007 Ms Shapiro, who in the meantime had left Russia for Israel, was charged in her absence
with aggravated fraud, aggravated embezzlement, and complicity in aggravated embezzlement and
abuse of authority, for a total of some 125 million Russian roubles. Searches were made during the
investigation and documents and other items were seized on the premises of the applicant
companies OOO SK Stroykompleks and OOO Signal (application no. 7896/15); in addition, orders
were issued for the seizure of property belonging to all the applicant companies.
The criminal investigation is currently pending as Ms Shapiro and other accused persons have
absconded.
In spite of a number of requests to the investigators from the applicants for the release of their
property, the restraint measures were not lifted. That was despite the fact that court decisions had
declared the restraint measures to be excessively lengthy, disproportionate to the alleged damage
and irrelevant, and to impose an unjustified burden on those concerned. They had also instructed
the prosecuting authorities to remedy those breaches.
Relying in particular on Article 1 of Protocol No. 1 (protection of property), the applicants alleged
that the restraint measures in respect of their property, which had been in place for many years, and
the retention of certain items by the authorities, had breached their right to respect for the
enjoyment of their possessions.
THE DECISION OF THE COURT…
Concerning the freezing of central computer units in the applications No 7896/15
The Court observes that, in the present case, contrary to the Government’s assertion, central computer units have never been classified as evidence in criminal proceedings.
It stated that, in accordance with Article 81 § 4 of the CC, the objects and documents seized by the public prosecutor’s office in the course of the criminal investigation, since they had not been classified as evidence, had to be returned to the persons to whom they belonged. If no deadline was initially provided for this return, by 10 August 2012 the return had to be made in a ‘reasonable time’ and by 15 July 2016, these items had to be returned within five days of the expert’s decision stating that other items were evidence.
Consequently, the continued detention of the seized central units from 2006, when they consisted no longer evidence, is contrary to Articles 81 § 4 and 81.1 of the CC and was therefore ‘illegal’ within the meaning of Article 1 of the First Protocol of the Convention.
Although that conclusion renders it unnecessary to consider the existence of a legitimate aim and the proportionality of the measure, the Court can only point out, for reasons of completeness, that the undertaking in question had no legitimate purpose. Indeed, neither the domestic authorities nor the government have promoted the existence of an objective requiring the preservation of objects which are not regarded as evidence and which are obviously of no interest to judicial investigation. For its part, the Court sees no reason to justify this commitment for nearly 13 years.
Consequently, there has been a violation of Article 1 of the First Protocol to the Convention.
Concerning the continued confiscation of the applicants’ property in the appeal no. 48168/17
As to the legality of the continued confiscation of Ms Shapiro’s personal property – the defendant, the Court noted that the CCJ provided no time limit for the continuation of the seizure. As to the legality of the continuation of seizures by the requesting companies – third parties in the criminal proceedings – the Court observed that from reading Articles 115 and 115.1 of the CCP it appears that, as of September 2015, such seizures should be withdrawn by the court if they become time-consuming. However, it is not clear whether the indefinite continuation of the seizures is contrary to the CCP from that date and if the parties have not put forward arguments on that point. The Court considers that it is not competent to rule on the matter and therefore to rule on the lawfulness of the measure.
The Court also recognizes that the maintenance of the seizures pursued at least two legitimate aims, the payment of a fine as a criminal sanction and the protection of the interests of the public.
However, it considers that the continued confiscation of almost all of the applicants’ buildings, vehicles and bank accounts for many years was disproportionate. It points out that the courts concluded in their rulings that there were no longer any grounds to justify the retention of the seizures, that they were too long, that they were “not proportionate” to the alleged damage, no longer mattered and imposed an unjustified burden to those interested. The Court sees no reason to depart from these conclusions. It adds that, almost four and a half years after the judgments in question, at the date of the parties’ observations, in 2019, these seizures had not been lifted, which, in his view, exacerbated its disproportionate nature. intervention.
Consequently, there has been a violation of Article 1 of the First Protocol to the Convention
The Court reiterates that a decision finding a breach creates a legal obligation under the Convention on the Respondent State to terminate the breach and to remove its consequences so as to restore as much as possible the former situation. The Contracting States which are parties to a case are in principle free to choose the means to be used to comply with a finding of infringement. If the nature of the infringement permits it to be restored to its former state, it is for the defendant State to enforce it, and the Court has neither jurisdiction nor the practical capacity to do so. If, on the contrary, national law does not allow or restrict only the consequences of the infringement, Article 41 of the Convention empowers the Court to grant the injured party, where appropriate, the satisfaction it deems appropriate.
In the present case, the finding of a violation of Article 1 of the First Protocol to the Convention stems from the unlawful and unnecessary seizure of host computers (recourse to Decision 7896/15) and the disproportionate maintenance of the applicants’ confiscation ( No. 48168/17).
In those circumstances, the Court considers that, with regard to the application in Case T-32/04, 7896/15, the proper solution would be to return the computers.
Lastly, the Court considers that the alleged damages claimed by the applicants as actual pecuniary damage have no direct bearing on the disproportionate continuation of the seizures and points out that those claims relate to the complaints for which there has been no infringement.
Just satisfaction: The ECtHR found that the finding of a breach was in itself sufficient compensation for the non-material damage sustained by the applicants. The applicants also jointly received EUR 20,000 in respect of costs and expenses. (edite by echrcaselaw.com).
