UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
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In the case of Uniya OOO and Belcourt Trading Company v. Russia,
The European Court of Human Rights (First Article), sitting as a
Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 27 May 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two applications (nos. 4437/03 and 13290/03)
against the Russian Federation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by two companies (“the applicant companies”).
2. The first applicant company was Uniya OOO, a limited liability
company registered in Alsheyvskiy District, Bashkortostan, under Russian
law. The materials of the case indicate that this company went into
liquidation during the proceedings before the Court, and no longer exists as
a legal person.
3. The second applicant company is Belcourt Trading Company, which
was originally registered in the Republic of Ireland and then in the state of
Delaware, USA, and subsequently in Belize City, Belize.
4. The applications on behalf of the two applicant companies were
introduced on 28 December 2002 and 17 March 2003 respectively. The first
applicant company was represented before the Court by Ms Alekseyenkova,
a lawyer practising in Kaliningrad. The second was represented by
Mr Golovkin, its director, and by Mr Rubinstein, who both live in the
Kaliningrad Region, Russia.
5. The Russian Government (“the Government”) were represented by
Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian
Federation at the European Court of Human Rights, and subsequently by
Mr G. Matyushkin, the Representative of the Russian Federation at the
European Court of Human Rights.
6. The applicants alleged that their property was seized and destroyed,
and that there had been no effective judicial review of the seizure and the
destruction.
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UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
7. The Chamber decided to join the proceedings in the applications
(Rule 42 § 1). By a decision of 7 October 2010, the Court declared the
applications admissible.
8. The applicant companies and the Government each submitted further
written observations (Rule 59 § 1) on the merits. The Chamber having
decided, after consulting the parties, that no hearing on the merits was
required (Rule 59 § 3 in fine), the parties replied in writing to each other’s
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The criminal case against Mr Golovkin
9. Between 1997 and 1998 the first applicant company (Uniya) imported
several consignments of alcohol into the Kaliningrad Region under a
contract with the second applicant company (Belcourt). The alcohol had
been produced in Germany and Belgium. Uniya acted as a commissioner
(agent) or, in some instances, as a buyer of the alcohol. The initial price of
the alcohol, as sold by the producer, varied between 1.09 and 1.12 German
marks per bottle. Under the contracts between the second and the first
applicant company the price of the alcohol varied between about 7.25 and
7.41 United States dollars (USD) per bottle. The alcohol was declared at the
border at that price. The alcohol was bottled by the producer; after customs
clearance the alcohol was sold in the Kaliningrad Region under various
brand names (such as Petrov-Lemon, Extra-Uniya, and Drink-Uniya)
bottled in plastic and glass bottles. According to the Government, between
November 1997 and April 1998 Uniya imported and sold alcohol worth
USD 20,000,000.
10. On 29 April 1998 the police instituted criminal proceedings on
suspicion of unlawful trafficking in alcohol by the senior management of
Uniya (no. 52012). In particular, the police suspected that Uniya had been
importing the alcohol without an appropriate licence (“the criminal
proceedings” or “criminal case no. 52012”), an offence under Article 171 of
the Criminal Code (“illegal trading”). It appears that whereas the licence in
issue was required for wholesale trading in vodka, the alcohol was declared
at the border as “alcohol tincture” which did not require the licence.
11. Within that criminal case Mr Golovkin, the director of the
Kaliningrad branch of Uniya, was charged under Article 171 of the Criminal
Code. The offence imputed to Mr Golovkin was categorised by the
investigator as “a crime on a particularly large scale”. The amount of
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
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damage caused to the State was calculated by the Government with
reference to the price of two licences that Mr Golovkin and other managers
of Uniya should have purchased: a general operating licence worth
1,544,565 Russian roubles (RUB), and a storage licence worth
RUB 292,215. In addition, the Government indicated that the managers of
Uniya “had received ‘uncontrolled profit’ in the amount of RUB 7,634,358
from illegal activity in the sphere of alcohol trading”.
12. In 1999 Mr Golovkin and several other managers of Uniya were also
charged under Article 199 § 2 of the Criminal Code with corporate tax
evasion. According to the Government, Mr Golovkin was suspected of
“artificial under-pricing of the imported alcohol in the contracts between
Uniya and Belcourt in order to reduce the amount of taxes subject to
payment on the territory of the Russian Federation”. Mr Golovkin and
others were also charged with money laundering (Article 174 § 3 of the
Criminal Code).
13. On 31 May 2005 the Baltiyskiy District Court. Kaliningrad (“the
Baltiyskiy District Court”) found Mr Golovkin guilty of illegal trading. The
District Court found, inter alia, that between October 1997 and May 1998
he had, in his capacity as director of the Kaliningrad branch of Uniya,
imported 2,459,756 litres of various brands of alcohol worth
USD 17,871,860. The District Court found that a special licence was
required for such operations, which Mr Golovkin did not have. In relation to
other charges, Mr Golovkin and others were acquitted of some of the
charges, and some were dropped by the prosecution. For more details
concerning criminal proceedings against Mr Golovkin see the Court’s
judgment in the case of Golovkin v. Russia, no. 16595/02, 3 April 2008.
14. On 22 September 2005 the Kaliningrad Regional Court quashed the
judgment of 31 May 2005 on appeal and decided to discontinue the
proceedings in Mr Golovkin’s case, on account of the expiry of the statutory
time-limit for finding him criminally responsible.
B. The first consignment of alcohol (337,104 bottles belonging to
Belcourt and 120,317 bottles belonging to Uniya)
1. Seizure and destruction of the first consignment
(a) Seizure
15. Between May and October 1998 the police investigator in charge of
criminal case no. 52012, Mr Zh., ordered the seizure of the alcohol imported
by Uniya. Pursuant to his order, between June and September 1998 the
police seized over 450,000 one-litre bottles of liquor, stored in various
warehouses (hereinafter “the first consignment”). The first consignment had
undergone customs clearance and all customs duties had been paid.
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