68
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
commercial enterprises whose businesses had been paralysed by the
seizures and destruction of the alcohol in the first consignment. In the
circumstances it was crucial for them to obtain a speedy judicial review of
the actions of the investigator and, if they were successful, lodge a tort
claim against the State.
340. However, for several years the Russian courts precluded them from
claiming compensation. In particular, the courts (a) refused to give any
effect to the “special ruling” of 2000, (b) denied the applicant companies’
standing in the judicial review proceedings under Article 125, and
(c) refused to review the lawfulness of the investigator’s actions before the
completion of the criminal proceedings in Mr Golovkin’s case which were
unnecessarily protracted.
341. In sum, the Court concludes that the procedural barriers described
above deprived the applicant companies’ of the effective “right to a court”.
There was therefore a violation of Article 6 § 1 of the Convention on that
account.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
342. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
A. The parties’ submissions
1. The applicant companies
343. The first applicant company (Uniya) claimed 56,412,995 Russian
roubles (RUB) in connection with the seizure and destruction of its part of
the first consignment of alcohol. The second applicant company (Belcourt)
claimed RUB 105,924,818 in connection with the seizure and destruction of
its part of the first consignment. The amount claimed in connection with the
destruction of the second consignment was RUB 548,450,322.
344. In their additional observations of 8 February 2012 the applicant
companies indicated, in the light of recent developments in the case, that the
amount of RUB 548,450,322 should have been recovered in favour of the
second applicant company, as the owner of the alcohol in the second
consignment.
345. Furthermore, each applicant company claimed 500,000 euros
(EUR) for the loss of their respective businesses as a result of the
investigator’s actions.
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
69
346. The applicant companies also indicated that they should be
awarded compensation for “non-material” damage related to “years of
humiliation leading to undisguised embezzlement of the [companies’]
property, for not calling the responsible individuals to account”.
347. Under the head of legal costs the first and second applicant
companies claimed 27,400 United States dollars (USD) and USD 23,200
respectively. The applicant companies produced a legal services agreement
which provided for a lawyer’s hourly rate of USD 200. They also submitted
bills specifying work done by the lawyer at the domestic level and in
preparation of the case for the European Court of Human Rights.
2. The Government
348. The Government maintained that the rights of the applicant
companies in respect of the seizure and destruction of the first consignment
had been fully restored at the domestic level. As regards the second
consignment, it was not Uniya’s property and Uniya had not paid for it, so
Uniya could not have suffered any loss in connection with its seizure and
destruction. The Government also maintained, in the light of the domestic
courts’ judgments, that Belcourt was not entitled to any compensation in
relation to the second consignment.
349. The applicant companies’ claims for loss of business were
excessive and unsubstantiated. In addition, the applicant companies had
never tried to introduce such claims before the Russian courts.
350. As regards the legal costs claimed by the applicant companies, they
were excessive, and there was no evidence that the amounts owed by the
applicant companies pursuant to the legal services agreement were ever
actually paid to the lawyer. In addition, the applicant companies did not try
to claim those costs before the domestic courts.
B. The Court’s assessment
351. The Court will start by summarising its findings on the merits of
the present case. The Court has established that, in view of the
compensation awarded to the two applicant companies at the domestic level
in connection with the destruction of the first consignment, they have lost
their victim status in this respect. The Court also established that the
destruction of the second consignment, which was the second applicant
company’s “possessions”, was unlawful and thus contrary to Article 1 of
Protocol No. 1. The Court also found a breach of the applicant companies’
“right to court” in view of the lengthy and uncessarily complex legal
proceedings in which their claims concerning the loss of the first
consignment were determined.
70
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
1. Pecuniary damage
(a) “Loss of business”
352. Both applicant companies claimed about EUR 500,000 for the loss
of their respective businesses as a result of the investigator’s actions.
However, in absence of any specific calculations and documents which
would describe the “business” the applicant companies have allegedly lost,
the Court considers that it cannot quantify that loss and consequently cannot
make any award under this head.
(b) Loss of the first consignment
353. As regards the claims of the applicant companies concerning the
first consignment, the Court notes that both Belcourt and Uniya lost their
victim status in this respect (see paragraphs 281 and 283 above).
Consequently, the Court cannot award anything to the applicant companies
under this head.
(c) Loss of the second consignment
354. As regards the loss of the second consignment, the Court recalls its
finding under Article 1 of Protocol No. 1, to the effect that at the time of its
seizure it was Belcourt’s “possessions”. The Court reiterates that after the
termination of the criminal proceedings against Mr Golovkin the alcohol
seized by the investigator should normally have been returned to its owners.
However, since in the meantime the alcohol had been unlawfully destroyed,
restitution in kind became impossible. In such circumstances Belcourt is
entitled to receive a sum of money corresponding to the value of the alcohol
(see Hentrich v. France, 22 September 1994, § 71, Series A no. 296-A),
plus compensation for any consequential damage.
355. Belcourt claimed RUB 548,450,322 for 1,170,312 bottles of
alcohol. It appears that this amount includes penalties which Belcourt might
have received from Uniya in relation to the latter company’s failure to pay
for the second consignment of alcohol and which were awarded by the
Kaliningrad Region Commercial Court on 4 December 2001. However, in
the circumstances the Court does not consider that such penalties, which
were fixed in an agreement between Uniya and Belcourt, can be associated
with Belcourt’s losses, which resulted from the unlawful expropriation of its
property by the authorities.
356. The Court notes that in 1997-98 the alcohol was declared at the
price of USD 7.25 and USD 7.41 per bottle (see paragraph 9 above). The
additional agreement of 1998 between Belcourt and Uniya, which
specifically concerned the second consignment, set the price of the alcohol
in it at USD 7.35 per bottle (see paragraph 119 above). The Court also notes
that in the tort proceedings concerning Uniya and Belcourt the domestic
courts estimated the value of the second consignment at USD 8,601,793,
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
71
which was broadly equivalent to USD 7.35 per bottle (see paragraphs 165 et
seq. above).
357. That being said, Court observes that the net pecuniary loss of
Belcourt was, by all appearances, less than USD 8,601,793, and that is for
the following reasons.
358. First, the Court reiterates that its findings on the merits concerned
only the destruction of the second consignment. The alcohol was destroyed
in 2002, and it is unclear whether at that time Uniya would have been able
to sell all the alcohol for the price fixed in the agreements between Uniya
and Belcourt in 1998. The Court also observes that Belcourt’s operations
consisted of wholesale trade in alcohol. Having regard to the price at which
the alcohol was purchased in Europe, namely between 1.09 and
1.12 German marks per bottle (see paragraph 9 above), to the dynamics in
the change of prices of alcohol in Russia, taking into consideration the
nature of the commercial relations between the first and the second
applicant companies, and considering other relevant factors and economic
data available to it, the Court considers that the price of USD 7.35 per
bottle, fixed in the 1998 agreements, was excessive.
359. Second, it appears that Belcourt had to pay taxes and customs
duties, and to cover storage and transportation expenses and any other costs
in order to sell alcohol in Russia in 2002. It is thus evident that the net profit
of Belcourt from the operations with the second consignment of alcohol,
after all taxes, dues, costs and expenses would be paid, should be lower than
the full value of the second consignment of the alcohol.
360. On the other hand, the Court notes that the unlawful interference
with Belcourt’s possession took place in 2002, whereas no compensation
has been paid to date. In such circumstances the Court considers that it
should add to the value of the alcohol an interest which could have accrued.
361. The Court considers that in view of the multitude of factors
involved, the amount of pecuniary damage sustained by the second
applicant company does not lend itself to a precise calculation, and that
instead
the
Court
has
to
make
a
global
assessment
(see
Negrepontis-Giannisis v. Greece (just satisfaction), no. 56759/08, § 27,
5 December 2013). In the light of all the materials in its possession and the
information available to it, taking into account possible costs and expenses
of Belcourt, including tax payments and custom dues, the Court awards the
second applicant company USD 3,050,000 (three million and fifty thousand
US dollars) under the head of pecuniary damages. That amount includes
compensation for consequential damage related to the destruction of the
second consignment of alcohol in 2002. Given that Belcourt is a foreign
company, the Court deems it appropriate to denominate the award in
US dollars.
72
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
2. Non-pecuniary damage
362. The Court observes that the applicant companies appear to claim
compensation for non-pecuniary damage (see paragraph 346 above).
However, in the circumstances of the case the Court considers that its
findings of a violation of the Convention constitute a sufficient just
satisfaction in respect of non-pecuniary damages.
3. Costs and expenses
363. The first and second applicant companies claimed USD 27,400 and
USD 23,200 respectively in compensation for lawyers’ fees. The Court
reiterates that under its case-law an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. The Court emphasises that the extreme complexity of the
present case justify the overall amount claimed on account of the lawyer’s
assistance in litigating before the domestic courts and in the preparation of
the applicant companies’ submissions to Strasbourg.
364. The Government, however, contended that those amounts have not
actually been paid to the applicant companies’ lawyer. The Court reiterates
that even where legal fees have not yet been actually paid by a client they
remain recoverable (see Fadeyeva v. Russia, no. 55723/00, § 147, ECHR
2005-IV). The Court has no doubts that those amounts are “recoverable”
from Belcourt. The Court concludes that the whole amount claimed by the
second applicant company under the head of legal costs – USD 23,200
(twenty three thousand two hundred US dollars) must be paid to Belcourt.
Given that Belcourt is a foreign company, the Court deems it appropriate to
denominate the award in US dollars.
365. In contrast, the amounts claimed by Uniya are not formally
“recoverable” from that company, since Uniya was liquidated and its debts
formally extinguished. That should not, however, preclude the Court from
making an award under the head of “legal costs”. The Court considers that
the amount claimed by Uniya – USD 27,400 (twenty seven thousand four
hundred US dollars) – should be paid in full and transferred directly to the
first applicant’s lawyer, converted into Russian roubles at the rate applicable
on the day of settlement.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government’s request to strike out the case in respect of
the first applicant company;
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
73
2. Decides to strike out the first applicant company’s complaint concerning
the loss of the second consignment pursuant to Article 37 § 1 (a) of the
Convention, and to continue examination of that part of the case with the
second applicant company as the purported victim;
3. Holds that the applicant companies have lost their victim status on
account of the destruction of the first consignment of alcohol;
4. Dismisses the Government’s plea of non-exhaustion related to the
complaint of the second applicant company under Article 1 of
Protocol No. 1 on account of the destruction of the second consignment
and holds that there has been a violation of this provision in this respect;
5. Holds that there is no need to decide separately on the applicant
companies’ complaints under Article 1 of Protocol No. 1 concerning the
seizures of the two consignments of alcohol;
6. Dismisses the Government’s plea of non-exhaustion related to the
applicant companies’ complaint under Article 6 § 1 of the Convention
that they had been unable to obtain an effective and timely judicial
determination of their claims related to the seizure and destruction of the
first consignment, and holds that there has been a violation of this
provision in this respect;
7. Holds that the findings of a violation constitutes a sufficient just
satisfaction in respect of non-pecuniary damages;
8. Holds
(a) that the respondent State is to pay the second applicant company,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the following
amounts:
(i) USD 3,050,000 (three million and fifty thousand US dollars), in
respect of pecuniary damage, plus any tax that may be chargeable
on this amount to the second applicant company;
(ii) USD 23,200 (twenty three thousand two hundred US dollars),
plus any tax that may be chargeable to the second applicant
company, in respect of legal costs and expenses;
(b) that the respondent State is to pay, within three months from the
date on which the judgment becomes final in accordance with Article 44
§ 2 of the Convention, to be converted into Russian roubles at the rate
applicable at the date of settlement, on account of legal costs and
expenses, USD 27,400 (twenty seven thousand four hundred US dollars)
directly to the lawyer for the first applicant company;
74
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
(c) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
9. Dismisses the remainder of the applicant companies’ claim for just
satisfaction.
Done in English, and notified in writing on 19 June 2014, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen
Isabelle Berro-Lefèvre
Registrar
President
Dostları ilə paylaş: |