14
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
47. The District Court further explained the difference between
“removal” of items within criminal proceedings and “attachment”. The
District Court considered that the “character of the imputed crimes” gave
the investigator grounds to believe that both “attachment” and “removal” of
the alcohol as an item of evidence could be necessary. On those grounds
both “attachment of property” orders and “removal of physical evidence”
orders were declared lawful by the District Court.
48. On 1 December 2009 the Kaliningrad Regional Court confirmed the
decision of 20 October 2009 in a summary manner.
(b) Judicial review of the destruction
49. On an unspecified date in 2005 Mr Golovkin requested the
Baltiyskiy District Court to exclude two items of evidence from the
materials of the case file in his criminal case, namely the expert examination
of 16 November 1998 and the investigator’s decision of 26 January 1999.
50. On 14 April 2005 the Baltiyskiy District Court granted
Mr Golovkin’s request. It found that the expert examination of
16 November 1998 (see paragraph 124 below) had been tainted by serious
procedural flaws, which made it unreliable. Further, the court noted that the
investigator’s decision of 26 January 1999 had been based on an expert
examination which had also been discarded by the court as unreliable.
However, it had not been the investigator who had ordered the first
consignment of alcohol to be destroyed; he had simply sent it to the Alcohol
Commission, which had taken the decision to destroy it. As a result, the
District Court decided to exclude the expert examination from the body of
evidence and rejected the remainder of the application.
51. Criminal proceedings against Mr Golovkin were terminated by the
judgments of 31 May 2005 and 22 September 2005. Thereafter, on an
unspecified date Mr Golovkin challenged the decision of the investigator of
26 January 1999, concerning the destruction of the first cargo of alcohol, in
the Leningradskiy District Court. The prosecutor acknowledged in his reply
that the decision at issue had been unlawful.
52. On 25 November 2005 the Leningradskiy District Court allowed the
claim by Mr Golovkin and declared that the decision of the investigator of
26 January 1999 had been unlawful. The court found that the investigator’s
conclusion that the first consignment of alcohol was “derelict property” had
not been sufficiently justified. Therefore, the investigator had had no right
to dispose of the property before the final resolution of the criminal case. On
17 January 2006 the Kaliningrad Regional Court upheld the decision of
25 November 2005.
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
15
5. Tort claims by Belcourt and Uniya against the State and related
proceedings
(a) Tort claims by Belcourt against the State concerning the seizure and
destruction of 337,104 bottles of alcohol
(i) Proceedings before the commercial courts
(α) First round (tort claims related to the seizure and destruction)
53. In 2001 the second applicant company (Belcourt) lodged a civil
claim with the Kaliningrad Region Commercial Court, seeking
compensation for damage caused by the seizure and destruction by the
authorities of 337,104 litres of alcohol allegedly belonging to Belcourt and
constituting part of the first consignment. The first applicant company
participated in those proceedings as a third party.
54. On 2 April 2002 the Kaliningrad Region Commercial Court allowed
Belcourt’s claims. The court held, in particular, that it would only have been
licit for the State to appropriate alcohol belonging to the second applicant
company pursuant to a court judgment, and not on the basis of a decision by
an investigator. The investigator had failed to establish to whom the alcohol
belonged. Further, the conclusions of the expert examination of 14 August
1998 had been unreliable. A fresh expert examination carried out at the
request of the Baltiyskiy District Court in 2000 had completely discredited
the second expert examination. Belcourt had been the lawful owner of part
of the first consignment; its seizure had been unlawful and arbitrary. The
declared customs value of the alcohol had been USD 7.31 per bottle. As a
result, the Commercial Court ordered the defendant (the Ministry of the
Interior) to pay the second applicant company RUB 76,810,056 in damages.
The defendant appealed.
55. On 15 November 2002 the Kaliningrad Region Commercial Court,
sitting as a court of appeal, quashed the lower court’s judgment. The court
confirmed that 337,104 bottles of alcohol seized by the investigator and
later destroyed in fact belonged to Belcourt. However, the Kaliningrad
Regional Commercial Court disagreed with the calculation of damages
proposed by the plaintiff, because they were based on the sale price of the
alcohol and not on the purchase price. The Commercial Court further noted
that the alcohol at issue was returned to Belcourt unconditionally and that it
had not been under an enforceable obligation to Uniya to pay for it. The
court further held that under Article 1069 of the Civil Code of the Russian
Federation only damage caused unlawfully could be compensated for.
However, the seizure had taken place within the framework of the criminal
proceedings against Mr Golovkin; therefore, the illegality or otherwise of
that seizure could only be established in the course of those criminal
proceedings, which were still pending. The “special ruling” of the
Baltiyskiy District Court of 24 November 2000 was not a legitimate basis