THIRD SECTION
\nCASE OF GYRLYAN v. RUSSIA
\n(Application no. 35943\/15)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n9 October 2018<\/p>\n
FINAL
\n09\/01\/2019<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Gyrlyan v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Chamber composed of:<\/p>\n Vincent A. De Gaetano, President, Having deliberated in private on 18 September 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 35943\/15) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian national, Mr Sergey Konstantinovich Gyrlyan (\u201cthe applicant\u201d), on 14 July 2015.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr A. Koyfman, a lawyer practising in Moscow, who died in the course of the proceedings. The Russian Government (\u201cthe Government\u201d) were represented initially by Mr\u00a0G.\u00a0Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.<\/p>\n 3.\u00a0\u00a0The applicant complained that the confiscation of his lawfully acquired money had been an excessive and disproportionate measure.<\/p>\n 4.\u00a0\u00a0On 9 February 2017 the Government were given notice of the application.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1972 and now lives in Odessa, Ukraine.<\/p>\n 6.\u00a0\u00a0On 31 January 2014 the applicant sold a plot of land and a summer cottage in the Moscow Region for 4,600,000 Russian roubles (RUB). On 20\u00a0February 2014 he exchanged RUB 3,605,000 for 100,000 United States dollars (USD).<\/p>\n 7.\u00a0\u00a0On 19 March 2014 the applicant travelled to Odessa from Domodedovo Airport in Moscow. He was carrying the entire USD 100,000 in his handbag. At the security check, his hand luggage was X-rayed. An officer asked him whether he was carrying any cash. The applicant acknowledged that he had money in his handbag and showed it to the officer.<\/p>\n 8.\u00a0\u00a0The applicant was subsequently interviewed by a police officer and an investigator on suspicion of smuggling foreign currency. He insisted on the lawful origin of the money and claimed that he had erroneously believed that the customs control would take place after the security check.<\/p>\n 9.\u00a0\u00a0On 18 April 2014 the investigator refused to initiate criminal proceedings because it could not be established that the applicant had deliberately sought to circumvent customs regulations.<\/p>\n 10.\u00a0\u00a0On 6 June 2014 the Federal Customs Service prepared a report on a regulatory customs offence under Article 16.4 of the Code of Administrative Offences. The applicant was charged for his failure to make a written declaration in respect of the USD 100,000 he had been carrying on him.<\/p>\n 11.\u00a0\u00a0A hearing was held on 18 December 2014 before a justice of the peace in the Domodedovo Districtof the Moscow Region. The court held that the customs report and statements the applicant had given to the police were sufficient evidence of the offence. It was legally irrelevant whether he had deliberately sought to circumvent customs regulations or negligently failed to abide by the applicable declaration requirements. The court issued a confiscation order for USD 90,000, reasoning as follows:<\/p>\n \u201cWhen deciding on the punishment, the court takes into account the nature and gravity of the offence which is connected to the operation of a hazardous device, the information on the character of Mr Gyrlyan, who has no previous record of similar offences, and considers it appropriate to order confiscation of the object of the administrative offence.\u201d<\/p>\n 12.\u00a0\u00a0In his grounds of appeal, the applicant relied in particular on the case-law of the Constitutional Court, which emphasised that any punishment had to be fair and proportionate to the nature of the offence, the gravity of the consequences, the extent of the damage and other relevant factors. He pointed out that the money had been lawfully obtained and that his actions had not caused any damage to the State.<\/p>\n 13.\u00a0\u00a0On 14 January 2015 the Domodedovo Town Court dismissed the appeal in a summary fashion, noting that the punishment had been determined \u201cwithin the range of penalties [provided for in Article 16.4 of the Code of Administrative Offences] and with regard to the character of the offender\u201d.<\/p>\n 14.\u00a0\u00a0An appeal on points of law was dismissed by the deputy president of the Moscow Regional Court on 30 April 2015. He wrote that \u201cthe defence\u2019s allegation of a formalistic approach on the part of the [lower] courts [was their] subjective opinion that [did not] shield Mr Gyrlyan from liability.\u201d<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 15.\u00a0\u00a0The Code of Administrative Offences (as worded at the material time) provided as follows:<\/p>\n Article 16.4 \u2013 Non-declaration or inaccurate declaration by individuals \u201cThe non-declaration or inaccurate declaration by individuals of cash and\/or monetary instruments being carried across the customs border of the Customs Union which are subject to a written declaration, provided that these acts are not constitutive of a criminal offence:<\/p>\n shall be punishable by an administrative fine of between once and twice the amount of the undeclared cash and\/or monetary instruments or confiscation of the object of the administrative offence.<\/p>\n Note 1.\u00a0For the purposes of the present article, the undeclared amount shall be deemed equivalent to the portion of cash and\/or monetary instruments exceeding the amount which the customs regulations of the Customs Union allow to be taken in or out without a written declaration.\u201d<\/p>\n 16.\u00a0\u00a0On 5 July 2010 the Inter-State Council of the Eurasian Economic Community, a regional organisation comprising Belarus, Kazakhstan and Russia, approved a treaty on the procedure forthe movement by individuals of cash and\/or monetary instruments across the customs border of the Customs Union. Article 4 (as in force at the material time)provided as follows:<\/p>\n \u201c1.\u00a0\u00a0An individual may take cash and\/or travellers\u2019 cheques out of the customs territory of the Customs Union without restrictions in the following manner:<\/p>\n …<\/p>\n if carrying cash and\/or travellers\u2019 cheques in a total amount exceeding the equivalent of 10,000 [United States] dollars at one time, the cash and\/or cheques must be reported on a written customs declaration by means of filing a passenger customs declaration stating the entire amount ofcash or cheques being carried.\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION<\/p>\n 17.\u00a0\u00a0The applicant complained that that the decision of the domestic authorities in the administrative-offence proceedings to confiscate USD\u00a090,000 of his money for having failed to declare the sum of USD\u00a0100,000 at customs had been excessive and disproportionate to the legitimate aim pursued. He relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:<\/p>\n \u201cEvery natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.<\/p>\n The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\u201d<\/p>\n 18.\u00a0\u00a0The Government recapitulated the applicable legal provisions and distinguished the present case from the case of Ismayilov v. Russia (no.\u00a030352\/03, 6 November 2008), in that the applicant had been held accountable for an administrative, rather than criminal, offence and given the minimum penalty. In the Government\u2019s view, the domestic courts had assessed the proportionality of the interference and rejected the applicant\u2019s arguments in that respect, finding that he could have abided by the applicable customs regulations but had not.<\/p>\n
\nBrankoLubarda,
\nHelen Keller,
\nDmitry Dedov,
\nPere Pastor Vilanova,
\nAlena Pol\u00e1\u010dkov\u00e1,
\nMar\u00eda El\u00f3segui, judges,
\nand Stephen Phillips, Section Registrar,<\/p>\n
\nof cash and\/or monetary instruments<\/p>\n