36
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
and not that of 1998, that had been referred to in the proceedings before the
commercial court in 2001 and 2006. The District Court concluded that the
second consignment had been imported under the 1997 agreement and that
Belcourt retained ownership rights to it, since no payment from Uniya had
been received.
183. According to the District Court, the Kaliningrad Region
Commercial Court judgment of 4 December 2001 (see paragraph 166
above) did not establish that Uniya had obtained ownership title to the
alcohol. It simply established that Uniya had failed to pay for that alcohol.
Even though that judgment awarded damages to Belcourt, Uniya had not
paid anything, and the writ of execution had never been produced for
enforcement and had expired. Consequently, Uniya was under no binding
obligation to pay Belcourt. The agreement of 9 December 2003 (see
paragraph 168 above), whereby Uniya had recognised its debt to Belcourt
and confirmed its willingness to pay, was now irrelevant, since that
agreement had been concluded by the parties voluntarily and bore no
relation to the impugned acts of the investigator.
184. As regards Uniya’s alternative claim that the alcohol had been in its
de facto possession, the District Court observed that the alcohol at issue had
not cleared customs. Therefore, it was not permitted into free circulation in
Russia. The District Court noted that under Article 131 of the Customs
Code, as a general rule, “nobody can use goods or dispose of goods which
have not cleared customs”. The District Court concluded that:
“Since the sixty-two containers of alcohol had not cleared customs, nor had duty
been paid, Uniya had no right to use the alcohol or dispose of it, and therefore the
alcohol was not in its ownership or possession”.
185. On 25 May 2010 the Baltiyskiy District Court judgment was
confirmed by the Kaliningrad Regional Court.
8. Tort action by Belcourt against the State
186. On an unspecified date Belcourt (the second applicant company)
brought an action in tort against the State, with reference to Article 139 of
the CCrP, referring to the unlawful seizure and destruction of the second
consignment. They claimed RUB 548,450,322 in damages for the
destruction of the second consignment of alcohol. In the proceedings
Belcourt referred to the Baltiyskiy District Court judgment of 30 March
2010 (see paragraphs 179-185 above) which in their view had established
that the ownership title to the second consignment of alcohol, at the moment
of its seizure, was held by Belcourt. The company was represented in the
proceedings by Mr Golovkin.
187. On 14 October 2011 the Moskovskiy District Court refused to
examine the claim, on the ground that Mr Golovkin had not produced
documents showing that he was entitled to represent Belcourt after it had
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
37
been registered in Belize. This decision was confirmed on appeal on
27 December 2011.
188. Mr Golovkin resubmitted his claims, but on 25 January 2012 the
Moskovskiy District Court again refused to examine them.
189. Mr Golovkin reintroduced the claim again on behalf of Belcourt.
On 19 July 2012 the Moskovskiy District Court examined the claim and
dismissed it. The District Court found that, pursuant to the judgment of the
Kaliningrad Region Commercial Court of 4 December 2001 (see
paragraph 166 above), Uniya was under an obligation to pay Belcourt
RUB 548,450,322 for non-fulfilment of its contractual obligations, plus
penalties provided by the contract. On 9 January 2003 Uniya and Belcourt
concluded an agreement whereby Uniya confirmed its debt to Belcourt in
that amount. The District Court concluded that Uniya had been under an
obligation to pay Belcourt, but that the State could not be held responsible
for the non-fulfilment of Uniya’s contractual obligations to Belcourt.
190. As regards the Baltiyskiy District Court judgment of 30 March
2010, the Moskovskiy District Court held that the judgment of 30 March
2010 had only established that Uniya was not entitled to claim damages not
actually already incurred but in the form of future losses. However, it did
not establish that the alcohol at issue belonged to Belcourt. Neither did it
establish that Uniya was no longer obliged to pay Belcourt under the
Commercial Court judgment of 4 December 2001.
191. On 11 September 2012 the above judgment was confirmed by the
Kaliningrad Regional Court, sitting as a court of appeal.
D. Seizure of 37,184 bottles of alcohol and compensation proceedings
192. On 23 September 1999 the Krasnoznamenskiy District local police
in the Kaliningrad Region discovered 37,184 bottles of alcohol branded
“Uniya” and “Extra-Uniya”. The bottles were being stored in a garage
belonging to a third party. Mr Golovkin suspected that those bottles were a
part of the alcohol which had been seized earlier by the investigator within
his criminal case and allegedly “destroyed” by the Alcohol Commission.
Several months later he wrote a formal letter to the local police on behalf of
Uniya, seeking the return of the alcohol. In support of his allegations he
submitted copies of shipment orders and “excise duty stamps” for that
alcohol, which would permit the alcohol seized from the consignments
imported into Russia in 1997-98 to be traced. In the following months
Uniya sent several letters to the authorities claiming that the alcohol
discovered was theirs.
193. On 4 August 2000 the investigator in charge of the case decided to
sever the evidence concerning the 37,184 bottles of alcohol found in the
garage into a separate investigation.