44
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
236. On 16 July 2008 the Constitutional Court of the Russian Federation
(Judgment no. 9-P) ruled that the destruction or sale of physical evidence
could not be ordered by a simple decision of the investigator without prior
judicial review of the matter.
237. Article 38 of the new CCrP defines the powers of the investigator,
which include the right to perform investigative actions unless there is a
need to obtain a court sanction for them.
4. Attachment of property within criminal proceedings
238. Under the old Code of Criminal Procedure a person who has
sustained pecuniary damage or loss as a result of a criminal offence had the
right to lodge a civil claim against the accused. He or she could exercise this
right from the commencement of the criminal proceedings until the opening
of the trial (Article 29 of the old Code).
239. Articles 175 and 176 of the old Code authorised the attachment of
property pending trial in order to secure enforcement of civil awards made
in connection with the imputed criminal offences or possible confiscation of
the suspect’s property. Under that provision the investigator could impose
an attachment order on the property of the suspect himself, as well as on the
property of anyone who was liable for a tort committed by the suspect.
Property acquired as a result of the suspect’s criminal activities but kept by
other persons could also have a charge placed on it under these provisions.
240. Such decisions could be appealed against to a higher prosecutor but
not to a court (Articles 218 and 220). On 23 March 1999 the Constitutional
Court of the Russian Federation struck down the latter two provisions as
unconstitutional in so far as they prevented the parties concerned from
appealing against such decisions to a court.
241. Article 303 of the old Code obliged the trial court to decide in its
judgment, inter alia, the civil claim and the amount to be paid.
242. Under Article 115 § 1 of the new Code, in order to ensure
execution of a judgment in the part pertaining to a civil claim, to satisfy
other pecuniary penalties or (possibly) confiscate property, an inquirer or
investigator, subject to the prosecutor’s consent, or a prosecutor, has to
apply to a court for an attachment order in respect of the suspect’s or
accused’s property. The court has to examine such a request under the
procedure set out in Article 165 of the Code. An attachment of property
prohibits the proprietor or owner from disposing of, and, if appropriate,
using the property; it may require that property to be impounded and
transferred for safe keeping to its proprietor or owner or a third person (§§ 2
and 6). An attachment order is lifted by the authority dealing with the
criminal case when it is no longer necessary (§ 9).
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
45
5. “Complaints” against unlawful administrative acts and “tort
claims” against the State
243. Under the Code of Civil Proceedings of 2002 (“the new CCP”), a
person affected by an unlawful administrative act or omission by a State
authority disposes of two types of remedies: a “complaint” or a “claim”
(иск) against the State. “Claims” - for example, tort claims - are governed
by Sub-Section II of the new CCP. “Complaints” are governed by
Chapter 25 of the Code (“Challenging decisions, actions or inaction of State
and municipal bodies and officials”).
244. The new CCP provides for judicial review of decisions and other
acts of State officials if those acts breach the rights and freedoms of the
interested person. Article 258 point 3 provides that a complaint must not be
allowed if the action challenged in court “is in compliance with the law, has
been taken within the jurisdiction of the State body or official ... and the
rights and freedoms of the citizen have not been violated”. Since the CCP
repeatedly refers to “citizens” in the text of the Code, and since generally
the Code applies only to proceedings involving physical persons as
plaintiffs or defendants, it is unclear whether the remedy provided by
Chapter 25 is available to legal persons.
245. Article 258 of the new CCP indicates that a successful plaintiff
under Chapter 25 of the CCP may obtain an injunction against the State
body or official concerned. By that injunction the court must require “the
breach of the rights and freedoms to be eliminated in full”. The Code is
silent on whether Chapter 25 allows the plaintiff to seek other relief
provided by the law, in particular to seek damages.
246. Before the enactment of the new CCP “complaints” about unlawful
acts of public authorities or their omissions were governed by Federal Law
No. 4866-1 on Judicial Review of Measures and Decisions Infringing
Individual Rights and Freedoms dated 27 April 1993 (hereinafter “the
Judicial Review Act”), as amended in 1995. Section 3 of the Act provided
that this did not apply to situations for which the law established a different
legal avenue of judicial review. The Ruling of the Plenary Session of the
Supreme Court of the Russian Federation of 21 December 1993 (no. 10)
specifies that a civil-law complaint provided for by the Judicial Review Act
is not an appropriate legal remedy against decisions of prosecution
authorities taken in criminal proceedings. Such decisions are to be
challenged under the provisions of the Code of Criminal Procedure.
247. “Claims” involving legal persons and the State as opposing parties
are considered, as a general rule, by the commercial courts and governed by
the provisions of the Code of Commercial Proceedings. Article 27 of the
Code of Commercial Proceedings, in so far as relevant, defines jurisdiction
of commercial courts as follows: under point 1 of that Article, commercial
courts hear cases “related to entrepreneurial or other economic activity”;
under point 2, those cases must involve legal persons and, where provided