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UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
for assessing the lawfulness of the investigating authorities’ acts complained
of. As a result, the appeal court dismissed the claims of the second applicant
in full.
56. On 4 March 2003 the North-West Circuit Commercial Court, sitting
as a court of appeal, upheld that decision. On 17 June 2003 a panel of three
judges from the Supreme Commercial Court refused to institute supervisory
review proceedings, emphasising primarily that “the proceedings in the case
within the framework of which the seizure of the alcohol was ordered are
still pending; therefore, the courts of appeal were unable to assess the
lawfulness of the acts of the investigating authorities, and were
consequently unable to examine whether there was any damage requiring
compensation”.
(β) Second round (tort claims related to the destruction)
57. In 2008 the second applicant company reintroduced its tort claim
before the commercial courts, now in connection with the investigator’s
decision to destroy the first consignment of alcohol.
58. The second applicant company was represented in these proceedings
by Mr Golovkin, who had been referred to in the text of the judgment as
“the Director, according to the certificate confirming his status of
28.04.2008”.
59. On 20 May 2009 the Kaliningrad Region Commercial Court rejected
the second applicant company’s tort claim. On 18 August 2009 the
Thirteenth Commercial Court of Appeal upheld that judgment. The court of
appeal based its conclusion on two main arguments forwarded by the lower
court. First, the court of appeal noted that the alcohol at issue had not been
destroyed by the investigator but by the Alcohol Commission. However, the
lawfulness of the actions of the Alcohol Commission had never been
challenged by the applicant company or duly established by the courts.
Second, the court of appeal noted that the applicant company did not have
“primary documents” confirming the price of the alcohol, and therefore had
failed to substantiate its calculations of damages. On 23 November 2009 the
North-West District Federal Commercial Court, sitting as a court of appeal
on points of law, upheld the judgments of the courts at the first and second
levels of jurisdiction. On 11 February 2010 the Supreme Commercial Court
refused to initiate a supervisory review of the judgments.
60. In 2010 the second applicant company made an unsuccessful attempt
to have the proceedings before the commercial court reopened. The final
decision refusing to reopen the proceedings was taken by the North-West
District Federal Commercial Court on 12 November 2010.
(γ) Third round (judicial review of the decision of the Alcohol Commission)
61. In 2010 the second applicant company brought a claim before the
commercial courts against the Kaliningrad Region administration. The
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
17
applicant company sought to have the actions of the Alcohol Commission
(destruction of alcohol on 1 June 1999) declared unlawful.
62. On 2 August 2010 the Kaliningrad Region Commercial Court
rejected the claims of the second applicant company. The Commercial
Court found that the Alcohol Commission had been acting within its
powers. The Commercial Court noted in particular that:
“It is clear from the decision of the Alcohol Commission that that decision was not
to seize or confiscate the alcohol, but to decide on what was to be done with the
alcohol which had already been seized and which was unfit for technical processing.
That decision was taken on the basis of the information provided by the police and the
Environmental Protection Committee. The Alcohol Commission had no authority to
rule on whether the decision to seize or confiscate the alcohol had been in compliance
with the law”.
63. The Commercial Court further noted that the Alcohol Commission
had been created by order of the head of the Kaliningrad Region
administration and had been in the meantime abolished, again by his order.
The Government of the Kaliningrad Region was not its successor; therefore,
they were not liable for the decisions taken by the Alcohol Commission.
64. The Commercial Court added that the decision of the Alcohol
Commission had been in compliance with the law, and did not breach the
applicant company’s rights or legitimate interests.
65. Finally, the Commercial Court ruled that the applicant company had
missed the time-limits for challenging the impugned decision.
66. On 1 December 2010 the Thirteenth Commercial Court of Appeal
confirmed the judgment of 2 August 2010.
(ii) Proceedings before the courts of general jurisdiction
(α) First round
67. On 19 June 2008 the second applicant company lodged a tort claim
against the State under Article 139 of the CCrP in connection with the
actions of the investigator. They sought RUB 84,276,000 in damages. In its
statement of claim the applicant company did not identify the defendant.
The court decided that the State authority concerned was the Ministry of
Finance, and summoned their representative to take part in the proceedings
on the side of the defendant.
68. On 22 July 2008 the Baltiyskiy District Court dismissed the claim.
The court’s findings were based on several arguments.
69. First, the court noted that it was impossible to ascertain the price of
the alcohol, and consequently to calculate the amount of damages. The
alcohol had been sold from the warehouses for RUB 44.50 per bottle on
average. The contracts between the first and the second applicant set the
price of one bottle at USD 7.25. The judgment in Mr Golovkin’s case
referred to the “de facto cost of one litre of alcohol”, which was RUB 3.78.