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UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
(b) The victim status of the first applicant company
282. The Court reiterates that the unlawfulness of the destruction of the
first consignment of alcohol was acknowledged, first by the decision of
25 November 2005 of the Leningradskiy District Court, and then confirmed
on 27 January 2011 by the Baltiyskiy District Court in the proceedings
initiated by the first applicant company (Uniya; see paragraphs 108-111
above). As regards the “redress” for the property lost, the tort claim by the
first applicant company in relation to the destruction of its part of the first
consignment resulted in a court award in the applicant company’s favour
under Article 139 of the CCrP. Thus, on 27 January 2011 the Baltiyskiy
District Court awarded Uniya RUB 52,665,032 for the 120,317 bottles
belonging to it. The first applicant company did not contest the amount of
compensation awarded to it in the domestic proceedings, so the Court is
prepared to accept that the compensation awarded was adequate. However,
by contrast with the second applicant company, the award in favour of the
first applicant company has never been paid, since the company was
liquidated in the meantime. The question is whether in such a situation it
can be said that the first applicant company obtained “sufficient redress” for
the violation of its rights under Article 1 of Protocol No. 1.
283. Where the liquidation of an applicant company is related to the
interference by a State authority with the company’s rights under Article 1
of Protocol No. 1 complained of, the Court may continue the examination of
such a case even where the company formally ceases to exist (see OAO
Neftyanaya Kompaniya Yukos v. Russia (dec.), no. 14902/04, §§ 439 et seq.,
29 January 2009). Otherwise there is a risk that the States might benefit
from their own wrong and evade the Court’s control by liquidating the
company which started the proceedings in Strasbourg. In the present case
the Court does not discern a direct causal link between the liquidation of the
company and the violation of the Convention complained of, namely the
destruction of the alcohol. As transpires from the materials of the case, the
liquidation of the first applicant company was related to its failure to submit
tax returns. Thus, the liquidation was related to an external reason not linked
to the facts which gave rise to the present application.
284. The Court is mindful of the principle of effective protection of the
rights guaranteed by the Convention. Normally, to redress a violation of
someone’s rights under Article 1 of Protocol No. 1 the State should not only
award an adequate compensation but actually pay it to the victim. The Court
stresses that the money due by the State to the first applicant company by
virtue of the court judgment of 27 January 2011 became a part of that
company’s “assets”. Thus, either the applicant company itself or its legal
successors should benefit from the award. If, by virtue of operation of
certain provisions of the domestic law, the applicant company or its legal
successor would be incapable of receiving that money, such a situation may
give rise to a separate complaint under Article 1 of Protocol No. 1. In fact,
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
55
the liquidation of the first applicant company and the inability of the
company’s shareholder to benefit from the award of 27 January 2011 is the
subject of a separate application before the Court brought by Mr R., the
company’s sole shareholder.
285. However, in the specific circumstances of the present case the
Court considers that those two issues must be dealt with separately. As to
the liquidation of the first applicant company and subsequent proceedings
related to the distribution of the applicant company’s assets, these facts
relate to another case which will be examined separately. As regards the
original complaint of the first applicant company about the destruction of
the first consignment alcohol, the Court concludes that by making the
money available to the first applicant company the authorities redressed the
wrong done to it. It follows that the first applicant company lost its victim
status in respect of that part of the complaint.
B. Destruction of the second consignment
1. The Government’s non-exhaustion plea and the Court’s assessment
thereof
286. The Court observes that in its admissibility decision of 7 October
2010 it joined to the merits the Government’s plea of non-exhaustion under
Article 35 § 1 of the Convention. Assuming that the Government wished to
maintain that plea, the Court observes that the destruction of the second
consignment was declared unlawful by a decision of 7 November 2005 by
the Baltiyskiy District Court. Uniya’a claim in respect of the second
consignment has been withdrawn (see paragraphs 267 et seq. above). A tort
claim on behalf of Belcourt was rejected on 19 July 2012 by the
Moskovskiy District Court (confirmed on appeal by the Kaliningrad
Regional Court on 11 September 2012). That appeal decision was final; no
ordinary appeal lay against that decision and the Government did not refer
to any other remedy which Belcourt might use in order to obtain
compensation for the destruction of the second consignment of alcohol. The
Court concludes that Belcourt properly exhausted domestic remedies as
required by Article 35 § 1 of the Convention. The Government’s
non-exhaustion objection in this respect should therefore be rejected.
2. The parties’ submissions on the merits
(a) The applicant companies
287. In its original observations following the Court’s decision on
admissibility the applicant companies argued that the destruction of the
second consignment was unlawful and unjustified, and that the refusal of