chandise.
7. On 30 July 2001 the applicant arrived at the Khabarovsk International Seaport. The customs found on him 72,300 United States dollars (USD) and 760 Chinese yuan (CNY) in cash which he had not reported in his customs declaration. The applicant was charged with attempted smuggling of foreign currency, a criminal offence under Articles 30 § 3 and 188 § 1 of the Criminal Code. The money was appended to the criminal case as physical evidence (вещественные доказательства).
8. On 6 November 2001 the Tsentralniy District Court of Khabarovsk found the applicant guilty as charged and imposed a suspended sentence of two years' imprisonment conditional on one year's probation. As regards the money, the court held that:
"Physical evidence - USD 72,300 and CNY 760 taken from Mr Sun Huan Xin - shall be confiscated by the State..."
9. In his statement of appeal, counsel for the applicant argued that the confiscation measure had no basis in domestic law because the offence of smuggling did not carry such a penalty. She asked that the money be returned to the applicant as the lawful owner.
10. On 29 January 2002 the Khabarovsk Regional Court upheld the conviction on appeal. As regards the money, the Regional Court held as follows:
"Pursuant to Article 86 (4) of the RSFSR Code of Criminal Procedure, criminally acquired money and other valuables shall be confiscated by the State after conviction.
It appears from the case materials that Mr Sun Huan Xin did not report USD 72,300 and CNY 760 in his customs declaration when crossing the customs border of the Russian Federation. Since that moment, the above-mentioned valuables have become criminally acquired by Mr Sun Huan Xin and, pursuant to Article 86 (4) of the RSFSR Code of Criminal Procedure, should be confiscated by the State after conviction."
11. On 2 March 2006 the first deputy prosecutor of the Khabarovsk Region lodged an application for supervisory review of the applicant's conviction. He submitted as follows:
"It was established during the trial that the money which Mr Sun Huan Xin omitted to declare... USD 6,100 were his personal property, whereas the remainder was the money destined to pay for the merchandise he had intended to buy in China. Thus, the court did not adduce any evidence showing that the seized foreign currency had been criminally acquired. In these circumstances, the physical evidence - USD 72,300 and CNY 760 - must be returned to the lawful owner, Mr Sun Huan Xin. Moreover, the first-instance and appeal judgments contradict the requirements of Article 1 of Protocol No. 1 ..."
12. On 5 June 2006 the Presidium of the Khabarovsk Regional Court rejected the prosecutor's application. In a succinct decision it held, without further details, that "the convict's acts had been correctly characterised" and that "the penalty had been determined in accordance with the requirements of the law". It did not address in substance the issue raised in the prosecutor's application. Finally, noting that Article 188 of the Criminal Code did not provide for confiscation, the Regional Court considered it necessary to amend the first-instance and appeal judgments to read "reverted to the profit [of the State]" instead of "confiscated [by the State]".
II. Relevant domestic law and practice
13. The Criminal Code of the Russian Federation provides that smuggling, that is movement of large amounts of goods or other objects across the customs border of the Russian Federation, committed by concealing such goods from the customs or combined with non-declaration or inaccurate declaration of such goods, carries a penal sanction of up to five years' imprisonment (Article 188 § 1).
14. The RSFSR Code of Criminal Procedure of the Russian Federation ("CCrP", in force at the material time) provided as follows:
> 1 2 3 ... 7 8 9 ... 11 12 13
Zaki.ru законы и право
поиск по сайту
каталог документов
добавить сайт Zaki.ru в избранное
Правовые акты международные
Правовые акты Российской Федерации
