34
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
(ii) Second round
171. Following the judgment in the case of Mr Golovkin (of 31 May
2005, as partially modified on 22 September 2005), Uniya reintroduced its
tort claim against the State in the commercial courts. It claimed
RUB 550,250,790 in direct damages and loss of income in respect of the
alcohol seized in 1998 and destroyed later. In support of its claims the
applicant company referred, inter alia, to the debt to Belcourt established by
the judgment of 4 December 2001 (see paragraph 166 above).
172. On 19 April 2006 the Moscow Commercial Court dismissed the
applicant company’s claims. The relevant part of its judgment was as
follows:
“The plaintiff has not proved, in a reliable and unquestionable manner, that it
sustained any damage [as a result of the seizure], and [has not substantiated] the
amount of damages. The calculation of damages has not been supported by primary
documentary evidence, which would support [its allegations about] the cost of the
goods, and the amount of lost income has not been proven.”
173. As regards the judgment of the Commercial Court of 4 December
2001 (in the case between Uniya and Belcourt) the Commercial Court held
that it did not have the force of res judicata for the purposes of the
proceedings before it, since the proceedings that ended in 2001 involved
only Uniya and Belcourt as litigants. The State authorities had not
participated in those proceedings in any capacity. Furthermore, the
Commercial Court noted that the execution order issued to Belcourt against
Uniya had never been implemented, and its three-year time-limit had
already expired. The Commercial Court concluded that Uniya had not
sustained any damage in connection with the seizure.
174. On 5 September 2006 the Ninth District Commercial Court
examined an appeal by Uniya against the judgment of 19 April 2006. It
repeated the reasons given by the first-instance court. In addition, it noted
that Uniya had not proved that it had paid Belcourt for the alcohol seized by
the investigating authorities. Furthermore, it was unclear whether the
alcohol seized in the criminal proceedings against Mr Golovkin did indeed
belong to Uniya, and if it was the same consignment of alcohol that had
been the subject matter of the proceedings between Uniya and Belcourt
which had ended in 2001. It also noted that the execution order had been
returned to Belcourt by the court bailiffs and had not since then been
resubmitted for enforcement.
175. On 10 January 2007 the Moscow Circuit Commercial Court upheld
the judgment of 19 April 2006 and the appeal court decision of 5 September
2006.
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
35
(b) Proceedings before the courts of general jurisdiction
(i) Early rounds
176. On 12 October 2006 Uniya reintroduced its tort claim against the
State before a court of general jurisdiction, with reference to Article 139 of
the CCrP. They sought RUB 548,450,322 in damages. Uniya was
represented by Mr Golovkin.
177. In the following years the case concerning seizure of the second
consignment of the alcohol went through several rounds of proceedings at
two levels of jurisdiction (judgments of 18 December 2006 and 13 March,
22 June, and 20 November 2007). On 25 December 2007 the Baltiyskiy
District Court allowed Uniya’s tort claim and awarded the amount sought in
full. However, on 19 February 2008 the Kaliningrad Regional Court
quashed that judgment and remitted the case for a fresh examination. On
4 June 2008 the applicant company’s tort claim was rejected. That judgment
was confirmed by the Kaliningrad Regional Court on 5 August 2008.
(ii) Final round
178. On 1 February 2010 all the judgments were quashed by way of
supervisory review by the Presidium of the Kaliningrad Regional Court. In
its decision the Presidium disagreed with the lower court’s conclusions that
Uniya had not proved ownership title to the alcohol and had not provided
evidence as to the price of the alcohol. The case was remitted to the
first-instance court for a fresh examination.
179. On 30 March 2010 the Baltiyskiy District Court examined the tort
claim again and rejected it, with the following arguments.
180. The District Court found that the agency agreement of 3 November
1997 between Uniya and Belcourt (see paragraph 118 above) provided that
Uniya had been acting as “depositary and agent” in respect of the alcohol
imported by Belcourt to Russia. However, Uniya had not acquired
ownership rights to the alcohol. Under the 1997 agreement Belcourt
remained the owner of the alcohol until it received payment for it.
181. The next agreement concluded between Uniya and Belcourt (that of
27 April 1998, see paragraph 119 above) provided for the immediate
transferral of the ownership title to the alcohol at the moment of receipt.
That agreement concerned 1,170,312 bottles of alcohol, worth
USD 8,601,793.
182. In the proceedings Uniya claimed that the 1997 agreement had been
superseded by the 1998 agreement; however, the court did not accept that
argument. The court noted that Uniya’s customs declarations had been
drafted with reference to the first agreement (that of 1997). Mr Golovkin, in
his criminal-law complaints concerning the seizure and destruction of the
alcohol, had referred to the 1997 agreement and had identified Belcourt as
the lawful owner of the second consignment. It had been the 1997 contract,