40
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
F. Information on the status of the applicant companies.
214. It appears that after the seizure of the alcohol Uniya (the first
applicant company) did not engage in any economic activity and at some
point ceased to submit annual tax returns. According to the applicant
company, Mr R., Uniya’s shareholder, met representatives of the tax
authorities on several occasions and explained that despite the fact that
Uniya had not been engaging in any economic activity it had been involved
in court proceedings against the State, and that all its working documents
had been seized by the investigating authorities as part of the criminal case
against Mr Golovkin.
215. On 16 June 2011, at the request of the tax authorities and referring
to Uniya’s failure to submit tax returns for the past twelve months, Uniya
was placed in liquidation and its name was formally removed from the State
register of legal persons.
216. According to Uniya’s representatives, they were not notified of the
liquidation by the tax authorities; they submitted that the liquidation
procedure had been conducted surreptitiously. Mr. R., the sole shareholder
of the company, brought court proceedings challenging the decision to place
the company in liquidation. From the latest information obtained from the
representative of Uniya, the courts refused to order restoration of the
company’s legal personality in 2013.
217. The second applicant company (Belcourt) was first registered under
the law of the Republic of Ireland and then became domiciled and was
registered in the State of Delaware, USA. On 12 August 2001 Belcourt
changed its domicile again and was registered in Belize. It produced a
“notarial certificate” which confirmed that before its registration in Belize
Belcourt had been registered in Delaware, USA, and that the director of the
Belize-based company was Mr Golovkin. In the domestic proceedings the
Russian courts accepted the Belize-based company as the successor to the
Irish/American “Belcourt”.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Criminal responsibility for the offences imputed to Mr Golovkin
218. Articles 171 and 199 of the Criminal Code of 1996 (“Illegal
trading” and “Tax evasion by a legal entity”) at the time did not provide for
confiscation of property as a form of punishment. Article 174 (“Money
laundering”) provided, under certain conditions, for confiscation of property
of the convict as an additional form of punishment.
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
41
2. Alcohol market regulations
219. The Federal Law on Circulation of Alcoholic Beverages
(hereinafter “the Alcohol Act”, Law no. 171-FZ of 22 November 1995)
requires a person involved in the alcohol trade to obtain a licence. The law
provides several exceptions from this general rule, for example, for retail
sales of alcohol or for sales of non-food-grade alcohol.
220. Section 25 of the Alcohol Act establishes that alcohol products
should be “removed from circulation” if they are being traded without a
licence, or without hygiene and sanitary certificates of compliance with
State standards, or if they do not meet State standards, or if they are made
from non-food-grade raw spirit (except for non-food-grade alcohol), or if
they are, inter alia, derelict property (Article 25(1)). The “removal from
circulation” must be conducted in accordance with the legislation of the
Russian Federation. Section 25 provides that alcohol products made from
non-food-grade raw spirit should be transformed on a contractual basis into
technical ethanol (технический этиловый спирт) or into non-food-grade
alcohol products (Article 25(4)).
221. On 8 July 1999 the Law on Administrative Liability for Irregular
Alcohol Trading was enacted (“the Administrative Liability (Alcohol
Trading) Act”). Section 2 provided that wholesale trading in alcohol without
the appropriate licences was punishable by a fine and confiscation of the
alcohol at issue. Section 3 of the Act provided that alcohol produced from
non-food-grade raw spirit should be confiscated. The Act established a
procedure for implementing various administrative measures: an
administrative offence report was to be drawn up and submitted for
consideration to an appropriate State authority (the tax authority for trading
in alcohol without a licence, and the sanitary and epidemiological authority
for use of alcohol made from non-food-grade spirit). Under section 13(3),
confiscation of alcohol could be ordered only by a judge.
222. On 30 December 2001 the new Code of Administrative Offences
was enacted (in force from 1 July 2002), which repealed the Administrative
Liability (Alcohol Trading) Act of 1999. Article 6 § 14 of the new Code of
Administrative Offences (as in force at the material time) provided for the
confiscation of alcohol which did not correspond to State standards, sanitary
rules and hygiene standards. The Code established the rules of
administrative procedure applicable in such cases.
223. On 11 December 2002 the Government of the Russian Federation
adopted decree no. 883, by which it determined the procedure for the
destruction or processing of “illegal alcohol” removed from circulation
pursuant to the Alcohol Act, or confiscated alcohol. Point 2 of the decree
states that alcohol may be seized by the investigating authorities as an item
of physical evidence in a criminal case.