Постановление Европейского суда по правам человека от 01.04.2010 «Дело Денисова и Моисеева (Denisova and Moiseyeva) против России» [англ.]

icants had not submitted appropriate documents in support of their claims for costs and expenses.
75. The Court considers that the question of the application of Article 41 is not ready for decision. Accordingly, it shall be reserved and the subsequent procedure fixed having regard to any agreement which might be reached between the Government and the applicants (Rule 75 § 1 of the Rules of Court).

FOR THESE REASONS, THE COURT

1. Declares unanimously the complaint concerning an alleged violation of the applicants' property rights admissible and the remainder of the application inadmissible;
2. Holds, by six votes to one, that there has been a violation of Article 1 of Protocol No. 1;
3. Holds, by six votes to one, that the question of the application of Article 41 is not ready for decision and accordingly:
(a) reserves the said question;
(b) invites the Government and the applicants to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.

Done in English, and notified in writing on 1 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Christos ROZAKIS
President

{Andre} WAMPACH
Deputy Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Ms {N. Vajic} is annexed to this judgment.

C.L.R.

A.M.W.

DISSENTING OPINION OF JUDGE {VAJIC}

I am unable to find that there has been a violation of the applicants' property rights under Article 1 of Protocol No. 1 to the Convention in the present case.
According to national law a criminal court in Russia has the power to confiscate criminally acquired property; the finding as to its criminal origin is of a factual nature. In the present case that question was examined in the criminal proceedings, which determined the matter (see paragraphs 14 - 16 of the judgment) and simply precluded any further claims. In this regard, Resolution No. 7 of the Plenary Supreme Court of the USSR states as follows: [["However, if the criminal judgment established that the listed property items had been criminally acquired or paid for with criminally acquired assets,]] <*> but registered in other persons' names with a view to concealing them from confiscation... [[then the claim for lifting of the charging order shall be dismissed"]] (see paragraph 37 of the judgment). (emphasis added)
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<*> В тексте документа вместо подчеркивания использовано выделение двойными квадратными скобками.

As in most countries, Russian civil law basically denies any legal protection to criminally acquired property.
It follows that in the given circumstances the applicants could not and had not become the owners of the property in question and thus could not claim their share of the property, as their claim had no basis in domestic law (contrary to the assertion in paragraph 52 of the judgment). This was also stated by the national courts (see paragraphs 27 - 28 and 30 of the judgment). Therefore, in view of the Court's case-law, the applicants - contrary to the majority's view (see paragraphs 51 - 54 of the judgment) - did not have a sufficiently established claim to qualify as an asset protected by Article 1 of Protocol No. 1.
For the above-mentioned reasons it is my opinion that the applic

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