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UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
147. On 7 August 2002 the Baltiyskiy District Court dismissed the
complaint by Mr Golovkin against the “removal of physical evidence” order
of 21 September 2001. It decided that the law on criminal procedure,
namely Article 83 of the old Code of Criminal Procedure, corresponding to
Article 82 of the new Code of Criminal Procedure (see “Relevant domestic
law” below), provided that items could be removed for use as physical
evidence.
148. As regards ownership of the alcohol, the court held that that issue
could be raised by the companies claiming ownership in separate court
proceedings. The fact that the first removal order had been declared invalid
did not affect the validity of the second order, which had been issued after
the reopening of the proceedings against Mr Golovkin. On 17 September
2002 the Kaliningrad Regional Court upheld the decision of 7 August 2002.
(c) Complaint by Uniya under Article 125 of the CCrP about the seizure
149. On an unspecified date Uniya lodged a complaint under Article 125
of the Code of Criminal Procedure, challenging the seizure orders.
150. On 22 October 2004 the Baltiyskiy District Court dismissed the
first applicant company’s complaint on the ground that the same court had
already found earlier that the seizure of the sixty-two containers of alcohol
had been lawful (decision of 7 August 2002). Furthermore, the District
Court noted that the criminal proceedings against Mr Golovkin were
pending and that it was therefore premature to rule on the issue relating to
the physical evidence. On 7 December 2004 the Kaliningrad Regional Court
upheld the Baltiyskiy District Court decision of 22 October 2004.
5. Destruction of the second consignment and its judicial review
(a) Destruction
151. Throughout the proceedings the second consignment remained in
the “temporary storage warehouse” belonging to the Kaliningrad Maritime
Customs Port (KMCP). According to the Government, on 17 June 2002 the
KMCP’s licence for the operation of that warehouse expired. On the same
date, the head of the Kaliningrad customs office informed the investigator
that the goods must be removed from the territory of the port.
152. On 7 August 2002 the head of the Kaliningrad customs office
refused permission for the alcohol to be removed from the territory of the
port without payment of customs duties (see paragraphs 145-146 above).
153. On 2 September 2002 the investigator ordered the alcohol to be
sent for further storage to a private firm specialising in alcohol processing.
The investigator indicated that the alcohol in the second consignment had
been kept as an item of physical evidence; however, it was impossible for it
to be kept in the customs warehouse any longer, as the warehouse’s
operating licence had expired in 2002. The investigator decided that the
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
31
alcohol must be disposed of in accordance with Articles 38, 81 and 82 of the
new CCrP.
154. On 30 September 2002 the Head of the Investigation Department of
the Ministry of the Interior wrote a letter to the Chairman of the State
Customs Committee asking for permission for the transferral of the
sixty-two containers of alcohol to a private firm without prior customs
clearance. On 25 November 2002 the Deputy Chairman of the State
Customs Committee allowed the transferral without payment of customs
duties.
155. On 19 December 2002 the investigator concluded that the alcohol
seized had been imported into Russia under invalid contracts, and,
moreover, was not drinkable under State standards. On that ground the
investigator ordered the private firm to destroy the whole consignment.
156. On 25 December 2002 the second consignment was sent to the
private firm. In the following months it was processed and transformed into
windscreen wiper fluid. According to the official records signed by the firm
and the police, 8,584 litres of alcohol had been lost during transportation of
the consignment, owing to “breakage”.
(b) Constitutional complaint by Mr Golovkin
157. On an unspecified date Mr Golovkin lodged a complaint with the
Constitutional Court of the Russian Federation concerning the provisions of
the new Code of Criminal Procedure (see Relevant domestic law below)
which had allowed the seizure and destruction of the alcohol without prior
judicial authorisation. In his opinion, the impugned provisions of the Code
of Criminal Procedure violated the Constitution of the Russian Federation.
158. On 10 March 2005 the Constitutional Court issued Ruling no. 97-O
(opredeleniye). It held that the provisions of the Code of Criminal
Procedure, namely Article 82 § 3, did not as such contradict the
Constitution, in so far as they were interpreted in the light of the earlier
case-law of the Constitutional Court on that matter.
159. The Constitutional Court held that provisional measures such as the
temporary seizure of property may be required in criminal proceedings, and
should not be considered a violation of constitutional rights, including
property rights. Judicial authorisation of such measures should encompass
an assessment of whether other measures would be inappropriate, with due
regard to the seriousness of the charges in relation to which the provisional
measures have been taken, as well as to the nature of the property
concerned, its importance for its owner or holder, and other possible
negative effects that the seizure might have. Thus, it was incumbent on the
investigator, and subsequently on the reviewing court, to satisfy themselves
as to whether the property subject to the charge should or should not be
returned to its owner for safe keeping until the closure of the criminal
proceedings.