8
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
16. According to the most recent court judgments concerning those
events, 120,317 bottles seized by the investigator belonged to the first
applicant company (Uniya), whereas 337,104 bottles were the property of
the second applicant company (Belcourt).
17. According to the Government, the first consignment of alcohol was
seized under Article 167 of the Code of Criminal Procedure. In support of
that submission they produced copies of several seizure orders by the
investigator Zh., dated from 19 May to 26 October 1998. It appears from
these documents that the alcohol was seized on two different grounds: either
for the purpose of possible confiscation of the property of the accused
(Mr Golovkin and others) or as physical evidence of a crime in the criminal
proceedings against Mr Golovkin. The seizure orders were thus formulated
either as “order for attachment of property” (постановление о наложении
ареста на имущество) or “orders for removal of physical evidence”
(постановление о производстве выемки).
18. The “removal of physical evidence” orders referred to Article 197 of
the CCrP (“Measures of identification of the person to be charged”) which
apparently bore no relation to the investigator’s power to seize items or
definition of “physical evidence”.
19. All the seizure orders contained a summary of the charges against
Mr Golovkin under Article 171 of the Criminal Code (“illegal trading”) and
indicated where the alcohol in question could be found. The decisions which
referred to Article 175 of the Code of Criminal Proceedings (for example,
the decisions of 16 and 18 June 1998) mentioned that the attachment order
had been imposed in order to secure the possible payment of civil damages
and/or confiscation of property of the suspect (namely Mr Golovkin and
other managers of Uniya). Some of the seizure orders (see, for example, the
“removal of physical evidence” order of 26 October 1998 and the
“attachment of property” order of 19 May 1998) mentioned that the offence
imputed to Mr Golovkin and others (“illegal trading”) caused damage to the
State amounting to RUB one million. In other respects the seizure orders
were substantially the same.
20. According to the applicant companies, on the basis of the “removal
of physical evidence” orders the investigative authorities carried out several
searches and seizures at different addresses. Thus, in toto the authorities
seized 162,246 bottles under the head of “removal of physical evidence”
and 295,235 bottles under the head of “attachment of property orders”. The
alcohol was seized from both the applicant companies under two heads. The
price of the alcohol seized varied between USD 7.31 and 7.41 per bottle.
21. As well as seizing alcohol, the investigator carried out searches in
Uniya’s offices and seized its official stamps and seals.
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
9
(b) First and second expert examinations of the quality of the alcohol
22. On 29 June 1998 five bottles of the seized alcohol were examined in
Moscow by the Central Laboratory of the State Customs Office, at the
request of the investigator. The experts concluded that the content of one
bottle could be characterised as “vodka” according to the State
manufacturing standard for liquor (GOST 12712-80). The content of the
other four bottles could be characterised as “bitter liquor” (State
manufacturing standard GOST 7190-93). The experts concluded that the
alcohol had been made from food-grade spirit, according to traditional
processes, and was drinkable (if consumed in reasonable quantities).
23. On 13 July 1998 the investigator commissioned another expert
examination of the alcohol (hereinafter “the second expert examination”).
He sent the experts ten bottles of the alcohol seized by the investigator
earlier. The new examination was entrusted to the Centre of Forensic
Examination of the Ministry of the Interior in Moscow.
24. On 14 August 1998 the second expert report was prepared. The
experts found that some of the ingredients mentioned on the labels were
absent from the sample bottles (such as citric acid and some flavourings as
regards the bottles labelled Petrov-Lemon). The experts further found that
all the alcohol’s physical and chemical characteristics corresponded to the
State manufacturing standard for liquor (GOST 7190-93). However, the
alcohol could not be characterised as “bitter liquor”: its examination had
shown that the alcohol had been made from non-food-grade raw spirit,
whereas under Russian law it was required to be produced from food-grade
vegetable-derived raw spirit. The experts based their conclusion on the very
low proportion of methanol in the alcohol examined. The experts noted that
such alcohol was potentially harmful to consumers.
(c) Destruction of the alcohol
25. On 26 January 1999 the investigator concluded that the liquor seized
was “derelict property”. According to the investigator, the first consignment
had been purchased by Uniya from Belcourt. Between January and March
1998 the alcohol had “ostensibly” been returned to Belcourt. The fact of the
return was confirmed by several invoices issued by Uniya, as well as by a
“reciprocal debt settlement agreement” signed between Uniya and Belcourt
on 18 March 1998 and discovered by the investigating authorities. The
agreement had been signed on behalf of Belcourt by their agent, Mr I. The
latter had been questioned by the investigator. He had testified that he had
never heard of Belcourt or any alcohol. On that ground the investigator
concluded that the alcohol had no lawful owner. On the basis of the expert
report of 14 August 1998 the investigator concluded that it was
“non-drinkable” alcohol and was derelict property. He ordered the alcohol
to be sent to a competent regional authority (hereinafter “the Alcohol
Commission”) for “further disposal or processing”.