I incorrectly predicted that there's no violation of human rights in BOKOVA v. RUSSIA.

Information

• Judgment date: 2019-04-16
• Communication date: 2017-11-20
• Application number(s): 27879/13
• Country:   RUS
• Relevant ECHR article(s): P1-1, P1-1-1
• Conclusion:
  Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.658697
• Prediction: No violation

• Inconsistent

Communication text used for prediction

The applicant, Ms Olga Vladimirovna Bokova, is a Russian national who was born in 1959 and lives in Moscow.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has been married to Mr B. since 1978.
On an unspecified date, the applicant’s father bought a plot of land in the Dmitrovskiy district of the Moscow region and built a house on that land.
In 2002 he died.
In 2003 the applicant inherited the house.
The certificate of inheritance dated 6 January 2003 referred to the house as an “unfinished residential construction”.
According to the available technical documents, the house became habitable in 2003.
1.
Attachment of the house during the criminal proceedings conducted in respect of the applicant’s husband On 19 January 2011 a criminal case was opened in respect of Mr B. for fraud.
The injured party lodged a civil claim within the criminal case in the amount of approximately 9,800,000 United States dollars (approximately 7,341,000 euros (EUR)).
On an unspecified date the investigator in the case applied to the Basmannyy District Court of Moscow for an attachment order in respect of a certain property.
In his application the investigator stated that between February and December 2006 Mr B. had earned large amounts of money by criminal means.
With reference to unspecified information (справка) from a special investigative agent of the Federal Security Services, the investigator submitted that Mr B. had used money obtained through the alleged crime to buy real estate in Moscow, the Moscow Region, Cyprus, and the United Kingdom.
In respect of the house inherited by the applicant, the investigator submitted that Mr B. had acquired and registered in the name of his father‐in-law the title to an unfinished house (“the house”).
According to the investigator, the applicant had inherited title to the house in 2003, and since that time Mr B. had been investing criminally acquired funds in its reconstruction, renovation and furnishing.
On 29 March 2011 the Basmannyy District Court found that the investigative authorities had sufficient grounds for believing that certain property, including the house, had been acquired by Mr B. using money obtained as a result of his criminal activity and had been registered under the ownership of his relatives.
The District Court therefore ordered attachment of the property in accordance with Article 115 § 3 of the Code of Criminal Procedure (see Relevant Domestic Law below).
On 20 June 2011 the Moscow City Court, following an appeal lodged by the applicant, found the decision of the Basmannyy District Court to be unreasoned, and ordered a new examination.
The court pointed out that Mr B. had allegedly committed the crime in 2006, whereas the attached property (including the house) had been acquired earlier, between 2000 and 2005.
The Basmannyy District Court should have addressed this fact in its decision.
On 19 July 2011 the Basmannyy District Court yet again ordered attachment of the house and of a plot of land registered in Mr B.’s name.
In respect of the plot of land, the court justified the measure by citing the need to secure the civil claim lodged.
In respect of the house, the court considered that the investigator had submitted sufficient evidence to show that the house had been an unfinished construction in 2003 and that the furnishing (обустройство) of the house had taken place between 2005 and 2009.
As evidence, the District Court referred to the technical and ownership certificates for the house, as well as interviews with certain witnesses.
The applicant’s argument that she had inherited the house in 2003 and had made no significant investment in it since that time was dismissed as unfounded.
The Basmannyy District Court further noted the following: “... the question of which funds were invested in the house during the period at issue, and of what value, lay within the competence of the trial court when dealing with the substance of the criminal case, or of the civil court when dealing with the claim for release of the attached property, and these questions, among other things, required special knowledge.” On 12 September 2011 the Moscow City Court upheld the decision on appeal.
2.
Trial, sentence and subsequent appeal, and supervisory proceedings The applicant had witness status in the criminal proceedings against her husband.
In respect of the attached house, she submitted that it had been built by her parents and had subsequently been inherited by her.
On 4 June 2012 the Nikulinskiy District Court of Moscow found Mr B. guilty of fraud and sentenced him to nine years’ imprisonment.
Mr B. and his accomplices were further ordered jointly to pay the victim 265,722,293 Russian roubles (RUB) (approximately EUR 6,228,770) in respect of pecuniary damage.
Execution of this part of the sentence was to be levied on the property attached during the investigation.
In respect of the attached house, the trial court held that amongst the evidence confirming that the house was still under construction after 2003 were some witness statements, and two copies of the “technical passport” of the house – one dated 10 October 2002 and the other one dated 14 December 2009.
It was apparent from these documents that in the period between the dates of the two sets of measurements, the constructed area had significantly increased.
The court’s conclusion in the relevant part reads as follows: “Affording preclusive effect (преюдициальная сила) to the decisions by the Basmannyy District Court which ordered attachment of the property [...], the court finds it necessary for the damages payable to the aggrieved person [...] to be funded by the attached property.
In saying this, the court takes into account the aforementioned evidence and the fact that the majority of the construction and decoration of the house ... was carried out during the period of the commission of the crime, at which time the floor area of the house was significantly extended.” The applicant lodged an appeal against the judgment, arguing that she was the sole owner of the house and that its construction had been finished in 2003, as is apparent from the cadastral certificate issued in 2009.
She also argued that the Nikulinskiy District Court had not taken cognisance of the cadastral certificate, and had failed to evaluate some other evidence, such as pictures of the house, and other witness statements.
On 8 August 2012 the applicant’s cassation appeal was rejected since she had no standing in the criminal proceedings that allowed her to lodge such an appeal.
On 1 October 2012 the Moscow City Court upheld the decision on appeal.
On 24 April 2013 a supervisory review complaint lodged by the applicant in respect of the judgment and of the decision of 1 October 2012 was referred to the Presidium of the Moscow City Court (“the Presidium”) by a judge of the Supreme Court of Russia.
On 9 August 2013 the Presidium quashed the decision of the Moscow City Court of 1 October 2012 in the part relating to the attached house, and ordered a new examination by the cassation court.
On 11 November 2013 the Moscow City Court upheld the decision of 1 October 2012, finding it justified and well-reasoned in the part concerning the attached property.
The court dismissed the applicant’s argument that it had previously unlawfully considered the decisions of the Basmannyy District Court to be res judicata in so far as the attachment of the house was concerned.
The court noted in this respect that “at the date of the judgment there was no information in the case-file indicating that there had been a decision by a civil court ordering release of the property from the attachment, for which the applicant could have applied”.
3.
Civil proceedings (a) Civil action to release the house On an unspecified date the applicant lodged a civil claim with the Dmitrovskiy Town Court of the Moscow Region to release the attached house.
On 17 July 2012 the Dmitrovskiy Town Court granted the applicant’s claim.
It referred, inter alia, to the experts’ opinion of 2 July 2012, in which the experts attested that the inventory value of the house had not significantly changed between 2002 and 2009.
According to the experts, it was apparent from the technical passports of the house issued in 2002 and in 2009 that the changes in the constructed area between the two dates had been modest, and the main walls had remained almost the same.
The changes in the floor area were due mainly to the fact that the two main buildings had been connected to each other by means of some simply erected structures.
That and the inaccuracy of the measurement in 2002 could explain the difference in the constructed areas between 2002 and 2009.
In the light of the experts’ findings, as well as other available evidence (copies of sale agreements of property of the applicant’s parents showing, inter alia, that they had had the means to buy the house at issue), the Dmitrovskiy Town Court concluded that the house had been mainly built and decorated by the applicant’s father, that the applicant had inherited the house in 2003 and, in the light of the existing evidence, it could not be considered common marital property (see Relevant Domestic Law).
The court did not take into account a copy of the judgment of 4 June 2012 on the grounds that it had not entered into force.
On 9 October 2012, following the appeals by the victim in the criminal case and the prosecutor, the Moscow Regional Court set aside the above judgment and terminated the proceedings in the case (прекратить производство по делу).
The court ruled that, since the house had been attached in the course of a criminal investigation, the case could not be examined by a civil court.
On 25 February 2013 a judge of the Moscow Regional Court refused to refer the applicant’s cassation appeal for consideration by the court of cassation instance.
(b) Civil action in respect of the plot of land On an unspecified date the applicant lodged another civil action with the Dmitrovskiy Town Court of the Moscow Region in respect of the plot of land attached firstly by the decision of 19 July 2011 and later by the bailiff’s decision of 28 November 2012 (see above).
She claimed that as the wife of Mr B. she had a right to half of the plot of land, and asked for her marital share in the plot of land to be released from the attachment.
On 16 September 2013 the Dmitrovskiy Town Court declared that half of the land belonged to the applicant as her share of the marital property.
The court ordered the release of that share as the land had been acquired before the criminal acts committed by Mr B. and the judgment made no reference to the land having been acquired using money obtained through the crime of which Mr B. had been convicted.
The court found that “notwithstanding the existence of the enforceable decision of 19 July 2011 ordering attachment of the disputed plot of land and the judgment of 4 June 2012 ..., the court considered it possible to release from the attachment that half of the disputed plot owned by [the applicant]”.
On 11 December 2013 the decision was upheld on appeal.
4.
Execution of the sentence On 29 October 2012 a bailiff opened enforcement proceedings in respect of the damages payable by Mr B. in accordance with the sentence.
Within these proceedings, on 28 November 2012 the bailiff ordered the attachment of the house and the plot of land (наложение ареста на имущество должника).
During the enforcement proceedings, the bailiff requested an assessment of the value of the property.
According to the evaluation report, the market value of the house amounted to RUB 36,941,092 (approximately EUR 914,960).
On 19 April 2013 the bailiff accepted the report and ordered that the house be put up for sale.
On 5 November 2013 the Nikulinskiy District Court of Moscow suspended the enforcement proceedings in the part concerning the house until the entry into force of the sentence in the relevant part (after its quashing in the supervisory review proceedings).
It appears that as of 1 March 2017 the house had not been sold.
B.
Relevant domestic law 1.
Attachment of property within criminal proceedings Under § 3 of Article 115 of the CCrP, property held by a third party may be attached if there are sufficient grounds for supposing that it has been obtained as a result of criminal activities on the part of the suspect or the accused.
For a summary of the other relevant provisions relating to attachment of property in criminal proceedings, see Uniya OOO and Belcourt Trading Company v. Russia, nos.
4437/03 and 13290/03, § 242, 19 June 2014.
2.
Common marital property and spouses’ separately-owned property Article 34 of the Family Code of Russia (“the Code”) provides that property acquired by spouses through marriage is presumed to be jointly owned.
Such property includes, in particular, the incomes of each of the spouses from his labour and business activity, pensions and allowances.
The common marital property consists of the movable and the immovable things, including the furniture, acquired at the expense of the spouses’ joint incomes, and any other property acquired by them during the marriage.
According to Article 36 of the Code, property that a spouse owns before marriage and property acquired during marriage as a gift or inheritance constitutes his or her personal property.
Under Article 45 of the Code, a spouse is liable for his or her obligations only up to the value of his or her property.
If this value is insufficient, the creditor has the right to request that the debtor spouse’s share – which would be due to him or her if the spouses’ common property were to be divided – be identified, so that the debt may be exacted from it.
If it is established in the court judgment that the spouses’ common property was acquired or expanded using funds obtained by one of the spouses by criminal means, the exaction may be turned onto the spouses’ common property or a part thereof.
3.
Civil claim for having an attachment order lifted For a summary of the provisions relating to a civil claim for the lifting of an attachment order, see Denisova and Moiseyeva v. Russia, no.
16903/03, §§ 36-38, 1 April 2010.
COMPLAINTS The applicant complains under Article 1 of Protocol No.
1 of the Convention that she has been deprived of her property as a result of the criminal proceedings in respect of her husband.
She alleges that in its judgment the trial court did not establish the individual amounts invested in the house after she had inherited it, and also failed to establish what was her property and what the property of her husband, instead ordering execution of the sentence – in the part relating to the civil claim – in relation to the entire house.
She further complains that the national courts have not addressed in substance the arguments she raised in respect of her property rights.