In 2004 Ms Adzhicovich, a Russian citizen, sought to travel from Moscow to Ukraine. She had on her the amount of 13,020 US dollars, 31 Ukrainian hryvnyas (UAH) and 1,100 Russian roubles (RUB). At the customs check-out she reported the sum of 10,000 US dollars and 31 UAH to the airport officials. When they found the remaining 3,020 US dollars, Ms Adzicovich was charged with smuggling, a criminal offence under the Russian Criminal Code Art 188 §1. The money was appended as physical evidence of the offence. 

Subsequently Ms Adzhicovich was convicted by the Moscow District Court under the stated article. The money held as physical evidence was decided to revert back to the state. All the appeal Courts upheld this decision. 

Counsel for the applicant filed several supervisory review applications arguing that the confiscation of the money by the state was unlawful, since the applicant’s criminal intention was directed at a breach of the procedural requirements for money transfer, not at the illegal acquisition of the money. Therefore the cash money did not represent the object of the offence, and is thus not liable to confiscation under Article 81 §3 1 of the Code of Criminal Procedure. 

The Moscow City Court division in its supervisory review ascended to this view, amending the judgement as to the confiscation of the money by the State. 

A writ of execution was issued and sent to the bailiffs service for execution. However, as was later discovered, the confiscated cash money had been taken away, making enforcement impossible. 

In her application to the ECtHR Ms Adzhicovich argued under Article 1 of Protocol No. 1 that the legal domestic law basis for the confiscation measure was not sufficiently clear. 

As to this application the government argued that the applicant’s property rights under Article 1 of Protocol No.1 had been restricted by the criminal offence committed by the applicant. The confiscation was further in accordance with Article 81 §3 of the Code of Criminal Procedure and existing judicial practice regarding the money as an instrument of the offence. 

The applicant contented this view stating that the Government consistently failed to specify the application of the paragraph of Article 81 §3 and the reference to the confiscated money as the “instrument” of the criminal offence. Therefore the application of the law was inconsistent and could not have constituted lawful judicial practice. 

In its judgement the Court firstly established the common approach that a confiscation measure, although depriving the applicant of the right to peaceful enjoyment of her possessions, generally constitutes a lawful control of the use of property by the State as referred to by the second paragraph of Article 1 Protocol No.1 (see, in respect of a similar measure, Sun v. Russia, no. 31004/02, § 25, 5 February 2009). 

In establishing whether in this case the state’s interference with the applicant’s peaceful enjoyment of property rights was lawful according the second part of Article 1 of the Protocol, the Court held that during the state trials there had been no reference made to a legal basis rectifying the confiscation measure. The Russian courts merely referred to Art 188 of the Criminal Code in general. The Presidium’s decision during the supervisory review for the restitution of 10,000 US dollars did not include any reference to why only 10, 000 US dollars out of 13, 020 US dollars were to be restituted. It therefore remains unclear what legal provision could be applied to the maintenance of the confiscation order in respect of the remaining amount. In fact, as regards that amount, the Presidium’s decision did nothing to remedy the lacunae in the legal reasoning of the first-instance, appeal and supervisory-review courts. The protection of the applicants fundamental right of peaceful enjoyment of her property requires any interference to satisfy the requirement of lawfulness, foreseeability and un- sarbitraryness (among other authorities, Baklanov v. Russia, no. 68443/01, § 39, 9 June 2005, and Frizen v. Russia, no. 58254/00, § 33, 24 March 2005).

As a result of the constant failure of the Russian authorities to indicate a legal basis for the confiscation of the applicant’s property and the refusal to return the money confiscated, the Court found that the interference with the applicant’s property rights cannot be considered lawful.  The Court held that there had therefore been a violation of Article 1 Protocol No. 1 and accepted the claim in respect of the pecuniary damage in its entirety, awarding the applicant EUR 10,240 as well as EUR 1,000 in non-pecuniary damage.