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UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
the investigator had acted within his powers when issuing the removal order
of 22 April 1999. Furthermore, the Presidium ruled that the question of
whether the alcohol belonged to Mr Golovkin or anybody else could only be
resolved within the “main” proceedings against Mr Golovkin, since it was
linked to the substance of the accusation against him. At the same time, the
decision of 14 April 1999 by the Baltiyskiy District Court, to the extent that
it declared unlawful the first decision of the investigator to seize the alcohol
for the purposes of eventual confiscation, was not modified.
135. On 24 November 2000 the Baltiyskiy District Court acquitted
Mr Golovkin in full and lifted the removal order of 22 April 1999 in respect
of the second consignment. On the same day, in a special ruling (see
paragraph 31 above), the Baltiyskiy District Court indicated that the seizure
of the second consignment had been tainted by various breaches of the
domestic law, and requested the regional prosecutor to take appropriate
measures in respect of the alcohol seized. The judgment of acquittal was
appealed against by the prosecution to the Kaliningrad Regional Court (see
paragraph 141 below).
3. Attempts by Uniya to obtain the second consignment from the
warehouses or to sell it
136. After the lifting of the removal order the second consignment of the
alcohol remained in the Kaliningrad customs office warehouses. According
to the first applicant company (Uniya), since the warehouses were not
adequately equipped, and since the expiry date for the second consignment
of the alcohol was 2001, its market value had significantly decreased, and it
had ceased to be drinkable (at least without prior processing). In support of
its submission, the first applicant company produced a report in this vein by
the Commodity Testing Bureau, which had produced its conclusions on
30 July 2001.
137. On an unspecified date Uniya asked the customs office to allow
customs clearance in accordance with the rules in force at the time of
seizure of the second consignment. However, in a letter of 28 July 2001,
no. 06-12/25461, the State Customs Committee required Uniya to
immediately “re-export” the alcohol so that it could undergo a “special
marking” procedure before entering Russian territory again. This was a
costly operation, and since Uniya was unable to pay for it, the consignment
remained in the warehouses of the customs office while Uniya looked for a
prospective buyer for the consignment without customs clearance.
138. Uniya brought proceedings in the Kaliningrad Region Commercial
Court, seeking an injunction against the customs office and authorisation to
subject the second consignment to clearance pursuant to the “old” rules. On
31 August 2001 the Commercial Court dismissed the case. It held that
Uniya had to comply with the new rules, irrespective of the fact that the
alcohol had been seized when those rules did not yet apply.
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
29
139. On 15 September 2001 Uniya signed an agreement with Moscow
Wines and Spirits GMBH, a firm based in Germany, which provided for the
sale of the second consignment to the latter for USD 126,073. The
agreement indicated that the alcohol was not drinkable without further
processing, on account of the expiry of its storage life. The agreement also
stipulated that the second consignment should remain physically in the
customs office warehouses.
140. According to the Government, this contract had not been
considered in the domestic proceedings within the case against
Mr Golovkin.
4. Third decision to seize (removal of physical evidence) and its review
(a) Third seizure
141. In the meantime the proceedings against Mr Golovkin were
resumed, following the decision of the Kaliningrad Regional Court of
20 March 2001 (see paragraph 135 above).
142. On 21 September 2001 the second consignment of alcohol was
again declared an item of physical evidence by the investigator, who
ordered its removal. According to the removal order, the consignment
consisted of 1,170,312 bottles of alcohol, stored in sixty-two containers.
The investigator considered that the sixty-two containers of alcohol “were
an object of criminal actions and an instrument of crime”. The seizure order
referred to Articles 83 and 84 of the old CCrP.
(b) Third complaint by Mr Golovkin
143. Mr Golovkin appealed to a supervising prosecutor. On
26 September 2001 the Baltiyskiy District Deputy Transport Prosecutor
quashed the removal order of 21 September 2001 as unlawful and
insufficiently reasoned.
144. On 29 October 2001 the Kaliningrad Regional Prosecutor
confirmed the validity of the removal order. Mr Golovkin then challenged
the prosecutor’s decision before the court, claiming that the alcohol did not
belong to him personally.
145. On 9 July 2002 the Chief of the Transport Police wrote a letter to
the head of the Kaliningrad customs office, asking for the sixty-two
containers of alcohol to be sent to a firm designated by the police for further
storage.
146. On 7 August 2002 the head of the customs office refused to remove
the second consignment from the customs warehouse. He explained to the
Chief of the Transport Police that the containers had not undergone customs
clearance according to the new rules, so could not be released into
circulation on the territory of the Russian Federation.