Постановление Европейского суда по правам человека от 05.02.2009 "Дело "Сан (Sun) против Российской Федерации" [рус., англ.]

d Chinese yuan which was confiscated from the applicant by a judicial decision. It is not in dispute between the parties that the confiscation order amounted to an interference with the applicant's right to peaceful enjoyment of his possessions and that Article 1 of Protocol No. 1 is therefore applicable. It remains to be determined whether the measure was covered by the first or second paragraph of that Convention provision.
25. The Court reiterates its constant approach that a confiscation measure, even though it does involve a deprivation of possessions, constitutes nevertheless control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see Riela and Others v. Italy (dec.), No. 52439/99, 4 September 2001; Arcuri and Others v. Italy (dec.), No. 52024/99, 5 July 2001; C.M. v. France (dec.), No. 28078/95, 26 June 2001; Air Canada v. the United Kingdom, judgment of 5 May 1995, Series A No. 316-A, § 34; and AGOSI v. the United Kingdom, judgment of 24 October 1986, Series A No. 108, § 34). Accordingly, it considers that the same approach must be followed in the present case.
(b) Compliance with Article 1 of Protocol No. 1
26. The Court emphasises that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be "lawful": the second paragraph recognises that the States have the right to control the use of property by enforcing "laws". Moreover, the rule of law, one of the foundations of a democratic society, is inherent in all the Articles of the Convention. The issue of whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights only becomes relevant once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary (see, among other authorities, Baklanov v. Russia, No. 68443/01, § 39, 9 June 2005, and Frizen v. Russia, No. 58254/00, § 33, 24 March 2005).
27. Moreover, the Court reiterates that a norm cannot be regarded as a "law" within the meaning of the Convention unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; an individual must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, for example, Chauvy and Others v. France, No. 64915/01, §§ 43 - 45, ECHR 2004-VI).
28. Turning to the case before it, the Court observes that the money which had been discovered on the applicant was recognised as physical evidence in the criminal case. The first-instance court ordered confiscation of the entire amount without specifying the legal basis for the measure. The appeal court filled in the lacuna and indicated that the money should be confiscated as "criminally acquired" in accordance with Article 86 (4) of the then effective Code of Criminal Procedure. The supervisory-review instance upheld that finding but replaced the word "confiscated" with the expression "reverted to the State" with a view to bringing the text of the judgment in line with Article 86 of the Code of Criminal Procedure.
29. In examining the applicant's case, the domestic courts determined that the money had become "criminally acquired" from the moment he had crossed the customs border without reporting it on the customs declaration. They did not cite any case-law or legal authority or indicate any factual ground for that finding. The Court will accordingly examine whether such

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