42
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
224. According to Order No. 372 by the Federal Alcohol Market
Regulation Service of 13 December 2012, in 2003 the minimum retail price
of vodka in Russia was RUB 170 for 0.5 litre.
3. Physical evidence (exhibits)
(a) Under the old CCrP
225. Under Article 83 of the Code of Criminal Procedure of 1960 (“the
old CCrP", or “the old Code”, in force until 1 July 2002), the notion of
“physical evidence” (or exhibits, вещественные доказательства) meant
physical objects which had served as instruments of a crime, or which bore
traces of a crime, or were the target of criminal activity, or money and other
valuables acquired by the accused by criminal means, as well as “other
objects which may facilitate solving of the crime, establishment of the facts
of the case, identification of the guilty person or rebutting the accusations,
or extenuating the guilt”.
226. Under Article 84 of the Code, an item of physical evidence could
be seized by an investigator in order to be attached to the materials in the
case file. If the physical evidence taken was too bulky, it could be sent to
third parties for safe keeping.
227. Under Article 85, those items had to be kept until the court
judgment in the case became final. If they were “easily perishable but could
not be returned to their owner, they [had to be] transmitted to a competent
authority for disposal according to their intended purpose. If necessary, the
owner [could] be compensated by items of the same kind or monetary
payment of equivalent value” (Article 85, part 3, of the old CCrP).
228. Pursuant to Article 86 of the old Code, the court had to specify in
its judgment what should be done with physical evidence taken by the
investigating authorities. Thus, “money and other valuables acquired by
criminal means” or “derelict property” could be appropriated by the State.
“Instruments of the crime which belong to the accused” were also subject to
forfeiture. Property prohibited from free circulation or unusable objects
could be transferred to a competent authority or destroyed.
229. Article 167 concerned removal (выемка) of documents and
physical evidence by the investigator. Removal had to be ordered by a
reasoned decision of an investigator. That Article stipulated that physical
evidence could be removed “when it has importance for the case”.
230. Articles 169-72 of the old CCrP regulated the process of
conducting seizures and searches and recording the results thereof.
231. Pursuant to the Ruling of the Plenary Supreme Court of the USSR
no. 2 of 3 February 1978 “smuggled items must be forfeited as physical
evidence”. The Supreme Court also indicated that “vehicles and other
means of transport are also liable to forfeiture as instruments of the offence
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
43
if they are equipped with special hiding places for concealing goods or other
valuables.”
232. The Presidium of the Supreme Court of the Russian Federation in
the case of Petrenko (decision no. 446p98pr of 10 June 1998) granted the
prosecution’s appeal against the judgment, by which Mr Petrenko had been
found guilty of smuggling foreign currency but the money had been
returned to him on the ground that Article 188 of the Criminal Code did not
provide for confiscation as a penal sanction. The Presidium held as follows:
“Confiscation of property as a penal sanction must be distinguished from forfeiture
of smuggled objects which were recognised as physical evidence. These issues must
be addressed separately in the judgment ...
Within the meaning of [Article 86 § 1 of the RSFSR Code of Criminal Procedure]
and also Article 83 of the CCrP, an instrument of the offence is any object which has
been used to carry out actions which constitute a danger to the public, irrespective of
the main purpose of the object. Accordingly, the notion of an instrument of the
offence comprises the object of the offence.
A mandatory element of a criminal offence under Article 188 of the Criminal Code
is an object of smuggling that is being illegally transported across the customs border
... The court found Mr Petrenko guilty of [attempted smuggling], noting that the
United States dollars were the object of the offence. Accordingly, the court was
required to decide on what should happen to the physical evidence in accordance with
Article 86 § 1 of the CCrP – that is, according to the rules on the instruments of the
offence – but failed to do so.”
(b) Under the new CCrP
233. Article 82 of the new Code of Criminal Procedure (in force from
1 July 2002, “the new Code” or “the new CCrP”) deals with the storage of
physical evidence. Its relevant provisions, as in force at the material time,
can be summarised as follows.
234. If there is a dispute concerning title to property seized as “physical
evidence”, it should be resolved in civil proceedings. For bulky objects,
large batches of commodities, or goods which require very expensive
conditions of storage, three options are provided:
(a) such physical evidence may be photographed or video-recorded,
sealed and kept at a place indicated by the investigator.
(b) the evidence may be returned to its owner if this is possible without
detriment to the normal course of justice;
(c) such objects may be sold in accordance with the rules specified by the
Government. The proceeds of the sale shall be kept on the deposit account
of the investigating body.
235. For perishable products options (b) and (c) are applicable. In
addition, perishable products can be destroyed if they can no longer be used.
Alcohol withdrawn from circulation must be examined and sent for
reprocessing, or destroyed. Money or other valuables that are the proceeds
of a crime should be attached with a view to possible confiscation.