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

a development was foreseeable in the circumstances of the case.
30. On the facts, the Court observes that it has never been claimed that the applicant's money was the proceeds of any criminal activity (see, by contrast, Phillips v. the United Kingdom, No. 41087/98, §§ 9 - 18, ECHR 2001-VII) or had been unlawfully acquired (see, by contrast, Riela and Arcuri, both cited above, or else Raimondo v. Italy, judgment of 22 February 1994, Series A No. 281-A, § 29). As it transpires from the prosecutor's application for supervisory review, the trial court unambiguously established that of the total amount, some 6,100 United States dollars had been the applicant's own whereas the remainder had been the money that had been destined for purchasing merchandise in China (see paragraph 11 above). The applicant did not have a criminal record and he had not been suspected of, or charged with, any criminal offences prior to the incident at issue. This lends support to his submission that the entire amount had been lawfully earned through his commercial activities on Russian territory.
31. It has thus been established that the applicant's money had had a lawful origin. That fact was brought by the prosecution to the attention of the supervisory-review instance which, however, omitted to address that issue. Through holding that the applicant's offence had received appropriate legal characterisation, the supervisory-review instance endorsed the appeal court's finding that the nature of the applicant's money had changed from "lawfully acquired" to "criminally acquired" when it crossed the customs border without being entered into a customs declaration.
32. In this connection the Court considers, firstly, that such an interpretation appears to be at variance with the ordinary meaning of the term "criminally acquired", which implies that the offender gained possession of the assets through criminal activities. In the instant case the applicant did not obtain the money as a result of committing the offence of smuggling, but rather - as has been noted above - he earned it through the exercise of his trade. Secondly, the Court observes that the interpretation in question does not appear to be the result of a gradual clarification of the rules of criminal liability through judicial interpretation from case to case (compare K.-H.W. v. Germany [GC], No. 37201/97, § 45, ECHR 2001-II). The finding that the smuggled object is "criminally acquired" represented a departure from the previous case-law of the Russian courts. In a series of binding resolutions the Supreme Court clarified that the money or other objects smuggled across the customs border were the "instruments" or "objects" of the offence of smuggling. That approach was endorsed by the Supreme Court's judgment in the Petrenko case, to which the Government referred, and also followed by ordinary Russian courts in the cases which have previously come before the Court (see Baklanov, cited above, § 14). In the applicant's case, however, the courts did not recognise that the money he had carried was either the "instrument" or "object" of the offence. On the other hand, the Government did not cite any other case-law or legal authority supporting the domestic courts' finding that the money the applicant had omitted to report on a customs declaration had been "criminally acquired" from the moment he had crossed the customs border.
33. In these circumstances, the Court finds that the confiscation measure issued by the Russian courts in the applicant's case fell short of the requirement of foreseeability of the law. This finding makes it unnecessary to examine whether the interference with the applicant's property right also pursued a general community interest and was also proportionate to it.
34. There has therefore been a violation of Article 1 of Protocol No. 1.

II. Applicati



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