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UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
company affiliated with Mr Golovkin and his co-defendants in the criminal
case, whereas that alcohol had earlier been imported into Russia by Uniya.
97. The Commercial Court referred to the assignment agreement signed
on 18 March 1998 between Uniya, Dionis and Belcourt. According to that
agreement, Uniya transferred ownership of the alcohol to Dionis because it
did not have the appropriate licence. However, on 30 March 1998 Dionis
returned 149,989 bottles to Uniya. According to the testimony of
Mr Golovkin given to the investigator, the assignment agreement had not
been implemented and the alcohol had been returned by Dionis to Uniya. At
the same time, as can be seen from the judgment in the case against
Mr Golovkin, 150,000 litres of alcohol had been transferred to Dionis as a
contribution by Uniya to the company capital of Dionis. Some of the
alcohol seized was physically located in Dionis’ warehouses.
98. According to an audit report on Uniya’s business activities, carried
out at the request of the investigator, Uniya bought 2,459,756 bottles of
alcohol from Belcourt; 1,769,014 bottles were returned to Belcourt some
time later; 353,007 bottles were sold to retail shops; and 150,000 bottles
were transferred to Dionis as a contribution to its capital. However, only
81,963 bottles were discovered in Uniya’s warehouses.
99. On 12 January 2001 Uniya and Belcourt signed another reciprocal
debt settlement agreement. It was clear from that agreement that Uniya had
never paid Belcourt for the alcohol seized. The agreement stipulated that
Uniya’s non-fulfilment of its contractual obligations resulted from the
unlawful seizure of the alcohol by the State authorities. Despite having
signed that agreement in 2002, Belcourt brought proceedings against the
State, claiming damages for the loss of 460,000 litres of alcohol, including
part of the consignment which had allegedly belonged to Uniya.
100. In
conclusion
the
Commercial
Court found that “the
above-mentioned contradictions had not been eliminated by the plaintiff”.
The court referred to Article 65 of the Code of Commercial Procedure,
according to which the burden of proof in respect of the statement of claim
was on the plaintiff.
101. The court then considered the amount of the damages. It noted that
the damages had been calculated by Uniya on the basis of the value of the
alcohol as declared to the customs authorities (USD 7.41 per bottle). The
price stipulated in the contract between Uniya and Belcourt was USD 7.35
per bottle. The Commercial Court noted that Uniya had not explained why
the customs value of the bottle had been the basis for calculating the amount
of damages.
102. Finally, the Commercial Court found that there was no causal link
between the actions of the investigating authorities and any losses suffered
by Uniya. The alcohol had been destroyed on the initiative of the Alcohol
Commission, and not on that of the investigator. The investigator had
simply decided to transfer responsibility for the alcohol to the Alcohol
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
23
Commission; it had been up to the Commission to decide what to do with it.
Consequently, the fact that the Leningradskiy District Court had earlier
deemed the actions of the investigator to be unlawful did not mean that the
Alcohol Commission had acted unlawfully. Uniya could have challenged
the Alcohol Commission’s decision to destroy the alcohol before the
competent authorities, but had failed to do so.
103. As a result, the first applicant company’s civil claim for damages
was dismissed at the final level of jurisdiction.
(ii) Tort claim in the courts of general jurisdiction
(α) First, second, and third rounds of the proceedings
104. In 2007 the first applicant company reintroduced its action in tort
against the State, referring to Article 139 of the CCrP in connection with the
destruction of the 120,317 litres of alcohol. The damages sought amounted
to RUB 56,412,995. During the following year the case was examined three
times at two levels of jurisdiction. The last decision, by which the applicant
company’s tort claim was finally rejected, was taken on 5 August 2008 by
the Kaliningrad Regional Court.
(β) Fourth round
105. On 1 February 2010 the Presidium of the Kaliningrad Regional
Court quashed the judgment of 5 August 2008 by way of supervisory
review and remitted the case to the first-instance court for a fresh
examination.
106. On 2 April 2010 the Baltiyskiy District Court dismissed the
applicant company’s claim anew. Its central argument was that the
destruction of the alcohol had been ordered by the Alcohol Commission and
not by the investigator. On 25 May 2010 the Kaliningrad Regional Court
confirmed that judgment on appeal.
(γ) Fifth round
107. The Government’s submissions indicate that on an unspecified date
in 2010 the Baltiyskiy District Court judgment of 2 April 2010, and the
Kaliningrad Regional Court judgment of 25 May 2010, by which the
applicant company’s tort claims had been rejected, were quashed by way of
supervisory review and the case was remitted for fresh consideration to the
first-instance court.
108. On 27 January 2011 the Baltiyskiy District Court satisfied the first
applicant company’s claim in part. The Baltiyskiy District Court, referring
to the decision of the Leningradskiy District Court of 25 November 2005,
established that the investigator’s decision of 26 January 1999 had been
unlawful and that there existed a direct causal link between that decision
and the destruction of the alcohol. The District Court noted in particular that