The theft of parts of a helicopter that has beeen seized by the authorities following a police investigation violates the right to property.
JUDGMENT
Barkanov v. Russia 16.10.2018 (no. 45825/11)
SUMMARY
The case concerned restrictions imposed by the Russian authorities between 2008 and 2017 on the
use of a helicopter belonging to Mr Barkanov.
The Court found, in particular, that there had been no legal basis for the restrictions on the use of
the aircraft.
PROVISION
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Vitaliy Dmitriyevich Barkanov, is a Russian national who was born in 1947 and lives in
Stavropol (Russia).
In 2008 the Federal Security Service (FSB), which suspected Mr Barkanov of fraudulently taking
possession of helicopters and then selling them illegally, inspected the hanger where the applicant’s
helicopter was stored and placed seals on the door. According to Mr Barkanov, his helicopter was
also placed under seal. The officers seized the original versions of the helicopter’s navigation
certificate and registration certificate, and copies of other documents. The seals were removed from
the hanger 15 days later and an employee was instructed to take personal responsibility for securing
the helicopter. The file was then transferred to the Interior Ministry so that an investigator could
decide whether or not to open a criminal investigation against Mr Barkanov. On five occasions an
investigator issued a decision refusing to open a criminal investigation on the grounds that the
elements constituting an offence had not been made out.
In 2010 Mr Barkanov lodged a complaint alleging theft, arguing that several parts from his
helicopter, particularly two engines, had disappeared. The investigation, which was opened in 2010,
was discontinued in 2016 on the basis that criminal prosecution had become time-barred.
Mr Barkanov requested, unsuccessfully, that a criminal prosecution be opened against the FSB
officers for abuse of office and assault. He also lodged two applications with the administrative
courts, one against the FSB and its staff and the other claiming compensation for the damage
allegedly sustained. Lastly, he requested the return of his helicopter and the documents that had
been seized. The Interior Ministry replied that its officials had never removed or seized the
helicopter and the documents as such measures could not be taken prior to the opening of a
criminal investigation against Mr Barkanov. The applicant was ultimately asked to recuperate the
documents related to his helicopter in May 2017.
THE DECISION OF THE COURT
Article 1 of the First Additional Protocol
The helicopter in question was Mr Barkanov’s “possession” within the meaning of Article 1 of
Protocol No. 1 to the Convention, and the authorities had interfered with his right to the peaceful
enjoyment of his possessions.
Following the State agents’ inspection of the hanger where the helicopter was parked, the hanger
was placed under seal and responsibility for guarding it was entrusted to the employees of an
agricultural cooperative, a situation which continued even after the seals had been removed. In
addition, the paperwork for the helicopter, including its registration certificate, had remained in the
authorities’ possession. However, without the registration certificate Mr Barkanov could not freely
use and dispose of the aircraft. Furthermore, the domestic courts had on several occasions
confirmed that the restrictions on the helicopter’s use were maintained.
With regard to the justification for this interference, the Court considered that it had not been
carried out “subject to the conditions provided for by law” within the meaning of Article 1 of
Protocol No. 1. The placing of seals on the hanger (a measure which had ceased on 25 April 2008 and
which had been imposed as an operational-search measure) was not provided for by any domestic
legal provision. In addition, the State agents had entrusted third parties with the task of keeping the
helicopter secure, for an indefinite period and even after the seals had been removed from the
hangar, although such a measure was not provided for by any domestic legal provision. The
authorities had also seized and retained the certificates pertaining to the helicopter for several
years, without any criminal investigation being opened. However, no domestic legal provision
permitted their continued retention. Lastly, the domestic courts had justified the “restrictions on
use” of the helicopter with reference to preliminary checks, on the basis of Article 144 of the Code of
Criminal Procedure, which did not allow for the imposition of that measure. The restrictions on the
use of Mr Barkanov’s helicopter had thus been without any basis in law.
It followed that there had been a violation of Article 1 of Protocol No. 1 to the Convention(echrcaselaw.com editing).
