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UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
by the Code, the Russian Federation and its subsidiary bodies. Article 29
point 2 specifically provides that commercial courts hear cases arising from
administrative relations if, as a result of a non-normative act of an
administrative authority, “rights and legitimate interests of the claimant in
the area of entrepreneurial or other economic activity” are affected by that
act. Under the Code of Commercial Proceedings, a legal person disposes of
two types of remedy in the event of a dispute with State authorities: a
complaint about unlawful administrative or other “public” acts of the State
authorities (akin to the remedy provided by Chapter 25 of the Code of Civil
Proceedings for physical persons), which is governed by Article III of the
Code of Commercial Proceedings, or a “claim” related to an “economic
dispute or a case originating from civil relations”, which is governed by its
Section II.
6. Judicial review of the investigator’s orders under the CCrP
(a) Under the old CCrP
248. Under the old Code, decisions ordering the attachment of property
or removal of physical evidence in criminal proceedings could be
challenged before a higher prosecutor, but not a court.
249. In accordance with the Judgment of the Constitutional Court of the
Russian Federation of 23 March 1999, no. 5-P, third parties whose rights
and legitimate interests are affected by a decision of the investigating
authorities taken in the course of a criminal investigation can challenge
those decisions in court. Any such challenge must be examined separately
from the main criminal proceedings, without waiting for those proceedings
to end.
(b) Under the new CCrP (complaints under Article 125)
250. Under Article 125 of the new Code, read in conjunction with
Article 123, decisions of the investigator can be appealed against to the
court by persons who are not parties to the criminal proceedings if the
decisions at issue affect their rights or legitimate interests.
(c) Special rulings
251. Under Article 21.2 of the old CCrP if the trial court discovers a
violation of the law or a breach of the rights of the persons during the
pre-trial investigation it may issue a “special ruling” addressed to the
competent bodies and requiring them to take “appropriate measures”.
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
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7. Right to compensation for unlawful criminal prosecution
252. The new CCrP contains Chapter 18 (“Rehabilitation”) which deals,
in particular, with compensation for damage caused by unlawful actions by
the State authorities directed at participants in criminal proceedings.
253. Article 133 of the new CCrP (which is in Chapter 18) establishes
the right to claim compensation for pecuniary damage “caused to the citizen
as a result of a criminal prosecution”. Compensation shall be made by the
State in full, regardless of whether the law-enforcement bodies or officials
concerned have been found “guilty” or not (strict liability). Under
paragraph 3 of that Article a right to compensation is also vested in “any
person who has been unlawfully subjected to coercive procedural measures
in the course of proceedings in a criminal case.” “Coercive procedural
measures” are defined in Article IV of the Code. That Article mentions
attachment orders as a coercive measure (Article 115 of the new CCrP), but
not the seizure of physical evidence.
254. Under paragraph 4 of that Article, there is no right to compensation
“when the coercive procedural measure or the conviction ... have been set
aside or modified in view of ... the expiry of the prescription period for
criminal liability”.
255. Under Article 139 of the CCrP (“Damage caused to legal persons”:
this Article also belongs to Chapter 18) “damage caused to legal persons by
unlawful actions (or inaction) or decisions on the part of a court, a
prosecutor, investigator, inquirer, or inquiry body, must be compensated for
by the State in full and in the order and within the time-limits set by the
present Chapter”. However, most of the provisions of Chapter 18 concern
the right of former accused to “rehabilitation” and compensation for
pecuniary and non-pecuniary damage. It is unclear what the “order and
time-limits” are for claiming compensation under Article 139 of the CCrP.
8. Rules on tort liability of the State
256. Article 1064 of the Civil Code contains general provisions on
liability for damage. It provides that damage caused to the person or
property of an individual shall be compensated for in full by the person who
caused the damage (Article 1064 § 1).
257. Articles 1069 and 1070 of the Civil Code determine liability for
damage caused by unlawful actions of law-enforcement authorities or
courts. Paragraph 1 of Article 1070 establishes the principle of strict
liability of the State Treasury for damage caused to individuals by
(i) unlawful conviction; (ii) unlawful institution of criminal proceedings;
(iii) unlawful application of a preventive measure in the form of placement
in custody or an undertaking not to leave their place of residence, and
(iv) unlawful administrative detention or mandatory labour. In other
situations, where damage is caused by an investigative or prosecuting