10
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
26. On 30 April 1999 the local police department signed an agreement
with a private firm, Fakel, which undertook to destroy the alcohol for
RUB 29,956.
27. On 1 June 1999 the Alcohol Commission held a meeting. According
to the minutes of the meeting, the State obtained title to the alcohol received
by the Commission from the investigator on 26 January 1998. The
Government produced a report by the State Environment Protection
Committee of the Kaliningrad Region authorising the destruction of the
alcohol seized (Extra-Uniya, Drink-Uniya and Petrov-Lemon).
28. Between 13 September and 21 October 1999 the first consignment of
alcohol was allegedly destroyed. According to the official reports, it took
seven days to dispose of over 460,000 one-litre bottles of alcohol by
burning the alcohol or pouring it into the sewerage system.
2. The “special ruling” of the Baltiyskiy District Court
29. On an unspecified date during the trial of criminal case no. 52012
Mr Golovkin requested the Baltiyskiy District Court to conduct an
additional expert examination of the alcohol seized earlier by the
investigator. On 16 March 2000 the court granted the request and entrusted
the examination to a different group of experts.
30. On 25 May 2000 the experts concluded that the six samples of
alcohol could be characterised as “bitter liquor” and complied with the State
manufacturing standards GOST 7190-93 and GOST 12712-80, and with
sanitary and hygiene standard SanPiN 2.3.2.560-96. The experts contested
the findings of the previous expert team that the alcohol had been made
from non-food-grade spirit. The Government maintained that the new expert
examination “negated the findings of the previous examinations”.
31. On 24 November 2000, following the acquittal of Mr Golovkin, the
Baltiyskiy District Court issued a special ruling (частное определение)
addressed to the police and the regional prosecutor’s office. In that ruling
the court held that the “removal of physical evidence” had been tainted by
procedural irregularities: the investigator had failed to attach the physical
evidence to the materials in the criminal case, and had not decided where to
store the physical evidence, as required by the Code of Criminal Procedure.
Further, the investigator had unlawfully transmitted the alcohol to the
regional authorities for destruction. Since the alcohol had been seized as an
item of physical evidence, that is as “physical evidence of a crime”, only the
trial court had the power to decide what to do with it. Moreover, when
transmitting the consignment the investigator had had at his disposal an
alternative expert report, which stated that the alcohol was drinkable;
however, he had not even mentioned that report in his decision. The District
Court finally found that the destruction of the alcohol had resulted in
significant pecuniary loss for the first applicant company. The court
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
11
requested the regional prosecutor to take appropriate measures in that
respect. That ruling was not challenged and remained in force.
3. Criminal investigation of the destruction of the alcohol
32. On 31 July 2000 police investigator Ms S. opened an investigation of
the destruction of the first consignment of alcohol (case no. 022155).
Having examined the records of the disposal of the alcohol, she concluded
that it could not have been done within seven days. According to the
investigator, it would have taken 462 working days to destroy the alcohol
using the method described in the official reports. Furthermore, it was
unclear where all the empty bottles had gone. The investigator concluded
that only 2% of the alcohol had really been destroyed; the whereabouts of
the rest of the alcohol remained unknown.
33. On 13 January 2002 the investigation was closed. Mr Ya., another
police investigator, concluded that investigator Mr Zh. had acted within his
powers and reasonably. Ownership of the alcohol remained unclear, since
Mr Golovkin had denied that the alcohol belonged to him or to Uniya, in
order to avoid criminal responsibility. Furthermore, the examination of the
alcohol of 14 August 1998 (see paragraph 24 above) showed that it had
been made from non-food-grade spirit. As a result, the investigator had
considered the alcohol to be “derelict property” and undrinkable, and had
ordered it to be destroyed. It had been sent for disposal. It was impossible to
establish how many bottles of alcohol had been destroyed, and what had
happened to the empty bottles. The investigator also concluded that since
the criminal proceedings against Mr Golovkin were still pending at the time,
it had been impossible to establish who owned the alcohol at issue. As a
result, the case had been closed.
34. On 3 September 2002 the Leningradskiy District Court, Kaliningrad
upheld the investigator’s decision of 13 January 2002. The District Court
confirmed that the investigator had acted within his powers and in
accordance with the applicable legislation. The Alcohol Commission had
also been competent to take the decision to destroy the alcohol.
4. Complaints by Uniya, Belcourt and Mr Golovkin under Article 125
of the CCrP
(a) Judicial review of the seizure
(i) Complaints by Uniya and Mr Golovkin
(α) First round (Article 125 proceedings)
35. On 17 March 2003 Mr Golovkin, referring to Article 125 of the
Code of Criminal Proceedings (CCrP), lodged a complaint with the
Baltiyskiy District Court, which was examining his criminal case. In that