CEDH · CASELAW;CLIN;ENG — 6 novembre 2008

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 113 November 2008 Ismayilov v. Russia - 30352/03 Judgment 6.11.2008 [Section I] Article 1 of Protocol No. 1 Article 1 para. 2 of Protocol No. 1 Control of the use of property Forfeiture of applicant's lawfully possessed money for failure to report it to customs authorities: violation   Facts : The applicant arrived in Moscow on a trip from Baku in possession of over USD 20,000 in cash, which he had acquired through the sale of an inherited flat. Even though under Russian law any amount exceeding USD 10,000 had to be reported to the customs authorities, the applicant failed to do so. The authorities found the money in his luggage, seized it and charged him with smuggling. He was eventually found guilty as charged and received a six-month suspended prison sentence. The money – which was considered to be physical evidence of the commission of the offence – was confiscated. Law : The States have a legitimate interest and also a duty by virtue of various international treaties, such as the United Nations Convention against Transnational Organized Crime, to implement measures to detect and monitor the movement of cash across their borders, since large amounts of cash may be used for serious financial offences. However, the lawful origin of the applicant's money had not been in dispute. He had no criminal record nor was he suspected of money laundering, corruption or other serious financial offences. The criminal offence of which the applicant was found guilty consisted of failing to declare money which he was carrying in cash to the customs authorities. The mere act of bringing foreign currency in cash into Russia was not illegal under Russian law; rather, it only needed to be declared to the customs authorities. The amount confiscated was undoubtedly substantial for the applicant, for it represented the entire proceeds of the sale of his late mother's house in Baku. The harm the applicant might have caused to the authorities was minor: he had not avoided customs duties or any other levies or caused any other pecuniary damage to the State. Had the amount gone undetected, the Russian authorities would have only been deprived of the information that the money had entered Russia. Thus, the confiscation measure was not intended as pecuniary compensation for damage – as the State had not suffered any loss as a result of the applicant's failure to declare the money – but was deterrent and punitive in purpose. However, since the applicant had already been punished for the smuggling offence through the criminal conviction, the desired deterrent effect had therefore already been achieved. In such circumstances, the Court was not persuaded that the confiscation measure had been necessary. On the contrary, it was excessive and disproportionate and imposed an individual and excessive burden on the applicant. Conclusion : violation (six votes to one). Article 41 – EUR 20,000 in respect of pecuniary damage, EUR 5,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes