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UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
121. According to the recent court judgments the second consignment
consisted of 1,170,312 bottles (see below, in particular, the judgment of the
Baltiyskiy District Court of 30 March 2010). It appears that the second
consignment had not undergone customs clearance, so it was stored in the
Kaliningrad customs office warehouse space rented by Uniya.
1. First decision to seize (attachment orders) and its review
(a) Seizure and expert examination of the second consignment
122. In May and June 1998 the investigator in charge of the case of
Mr Golovkin and others ordered the seizure of the second consignment of
alcohol from the Kaliningrad customs office warehouse. The alcohol was
seized under three attachment orders (of 20 May, 26 May and 16 June
1998).
123. On 5 October 1998 the investigator commissioned an expert
examination of the alcohol. It was entrusted to the same institution as had
carried out the second examination of the alcohol from the first consignment
(the Forensic Examination Centre of the Ministry of the Interior in
Moscow), but to a different group of experts.
124. On 16 November 1998 the experts examined samples of alcohol
from the second consignment and came to the same conclusions as their
colleagues who had previously prepared the second expert report in respect
of the first consignment, mainly that it had been made from non-food-grade
raw spirit, and was therefore potentially harmful.
(b) First complaint by Mr Golovkin against the seizure
125. On 23 March 1999 the Constitutional Court of the Russian
Federation ruled that an appeal lay against the seizure orders. A few days
later Mr Golovkin challenged the seizure orders before a court.
126. On 14 April 1999 the Baltiyskiy District Court examined his
complaint. The investigator participated in the proceedings and claimed, in
particular, that the alcohol at issue belonged de facto to Uniya.
127. Having heard the parties, the District Court noted that the alcohol
had been seized in order to secure “confiscation of property”. However, the
case had been opened under Article 171 (illegal trading), which did not
provide for confiscation. Furthermore, at the moment of the seizure
Mr Golovkin did not have the status in the proceedings of a suspect or an
accused; therefore, seizing the alcohol with a view to eventual
“confiscation” made no sense.
128. The court noted that on 29 March 1999 Mr Golovkin had been
charged under Article 174 of the Criminal Code (money laundering), which
did provide for confiscation as a possible sanction. That being said, that fact
was, in the opinion of the court, irrelevant, since “attachment orders” may
concern only property which belongs to the accused personally, whereas the
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
27
alcohol at issue, in the District Court’s view, belonged to Belcourt,
according to the contracts between Uniya and Belcourt, as the second
consignment had not passed customs clearance and was not allowed on
Russian territory.
129. Finally, the District Court noted that the totality of the State’s
pecuniary claims against Mr Golovkin amounted to a maximum of
RUB 6,200,566, whereas the alcohol seized by the investigator was worth a
minimum of RUB 120,304,800, if the State-defined “minimum price for
strong alcohol” was to be applied.
130. In sum, the District Court quashed the attachment orders and ruled
that the alcohol seized should be returned into the care of Uniya. The court
also ordered the investigator to return Uniya’s official stamps and seals.
131. On 23 August 1999 the decision of 14 April 1999 was challenged
by way of supervisory review by the President of the Kaliningrad Regional
Court. The proceedings were reopened and the case sent to the first-instance
court for reconsideration (see paragraph 133 below).
2. Second decision to seize (removal of physical evidence) and its
review
(a) Seizure
132. Following the District Court’s decision of 14 April 1999 (see
paragraphs 126-130 above), on 22 April 1999 the investigator issued an
order of “removal of physical evidence” in respect of the alcohol stored in
the Kaliningrad customs office warehouses: 1,170,312 bottles were then
seized by a “removal order” as an item of “physical evidence”.
(b) Second complaint by Mr Golovkin against the seizure
133. On an unspecified date Mr Golovkin complained about the second
seizure. On 20 September 1999 the Baltiyskiy District Court again quashed
the attachment orders of May and June 1998 and, in the same proceedings,
also the removal order of 22 April 1999. It noted that the first attachment
order had been issued by the investigator with a view to possible
confiscation of the property. However, originally Mr Golovkin had been
charged with “illegal trading”, for which confiscation of property was not a
possible sanction. Consequently, the first attachment order (of 20 May
1998) was void. The subsequent attachment orders and the removal order
had been issued after the charges against the applicant had been extended.
However, those orders concerned the property of Belcourt, and not that of
Mr Golovkin or any other person within the jurisdiction of the Russian
courts.
134. On 15 October 1999 the decision of the Baltiyskiy District Court of
20 September 1999 was quashed in part by the Presidium of the Kaliningrad
Regional Court by way of supervisory review. The Presidium decided that