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UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
the domestic courts to award it compensation for the lost property was
arbitrary.
288. In their letters of 25 September 2012 and of 1 March 2013 the
applicant companies informed the Court that they considered the second
applicant company (Belcourt) a victim in respect of the loss of the second
consignment. They claimed that the judgment of 19 July 2012, whereby the
Moskovskiy District Court dismissed Belcourt’s claims in respect of the
second consignment of alcohol, had been contrary to the judgment of
30 March 2010 by the Baltiyskiy District Court which, in the applicant
companies’ opinion, acknowledged that Belcourt was the lawful owner of
the second consignment of alcohol. If that company was the owner, then it
had suffered losses as a result of the destruction of the second consignment,
and should therefore be entitled to full compensation for it.
(b) The Government
289. In the light of the recent developments in the case the Government
seemed to concede that the destruction of the second consignment of
alcohol was unlawful. However, the Government insisted that the applicant
companies were not entitled to any compensation in relation to the
destruction.
290. Thus, the Government referred to the judgment of 30 March 2010
by the Baltiyskiy District Court, in which Uniya’s tort claim against the
State was rejected. The Government reiterated the main arguments of that
judgment. In particular, it repeated the District Court’s findings that the
ownership title to the alcohol should have been defined under the 1997
agreement and not under the additional agreement of 1998. The alcohol was
imported into Russia under the 1997 agreement; that was the agreement
referred to by Uniya and Mr Golovkin in other legal proceedings, both
criminal and civil. According to the 1997 agreement, at the time of the
seizure Uniya was not the lawful owner of the second consignment, since
the agreement defined Uniya as a commissioner (agent). The District Court
did not accept the plaintiff’s argument that the 1997 agreement had been
cancelled and replaced by the 1998 agreement, since Uniya had failed to
produce any document in support of this claim. Furthermore, it was not
clear whether the 1998 agreement concerned exactly the same consignment
as the sixty-two containers destroyed on the orders of the investigator.
291. The Government analysed the content of the 1997 agreement,
which defined the ownership status of the alcohol, in the following terms
(quoting from the Government’s observations of 3 February 2011):
“According to the contract of agency of 03/11/97 of 3 November 1997 concluded
between Belcourt Trading Company (Principal) and the Kaliningrad branch of
OOO Uniya (Agent) the Principal entrust and the Agent assume the pursuance of the
following duties: the receipt, customs clearance and safe custody of the goods
purchased for the sale [through the Continel customs warehouse ...] . Under item 5 of
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
57
the agreement the Principal is the owner of the consignment until such time as the
goods have been paid for. The Agent is responsible for the safety of the goods storage
and receipt before the Principal until payment is made. Under item 7 of the agreement,
in the event of impossibility of the sale of the goods [by the Agent to the consumers]
they should be returned to the Principal or to another party specified by the Principal
at the expense ... of the Principal. Thus according to the provisions of the agreement
of 3 November 1997 the owner of goods up to the time of payment appeared not to be
the Agent – not OOO Uniya”
292. Furthermore, Uniya had never paid for the alcohol. Uniya’s debt to
Belcourt arising from the judgment of the Commercial Court of 4 December
2001 had never been paid in full, and the writ of execution had expired.
Consequently, Uniya had suffered no damage related to the seizure of the
alcohol. The Government further commented on the judgment of
14 October 2011 by the Moskovskiy District Court, in which the court had
refused to examine the tort claims lodged by Mr Golovkin on behalf of
Belcourt.
293. Finally, the Government commented on the judgment of 19 July
2012 in which the claims by Belcourt against the State had been rejected. In
that judgment the District Court had held that Belcourt was not the lawful
owner of the second consignment. As established in the domestic
proceedings, the judgment of the Baltiyskiy District Court of 7 November
2005 in which the destruction of the alcohol had been declared unlawful had
no relationship with the establishment of the ownership title to the alcohol.
As regards the judgment of the Commercial Court of 4 December 2001 in
which Belcourt was awarded damages against Uniya, the Government
claimed that it had no force of res judicata for the tort proceedings opposing
Belcourt and the State, since the factual background of the two cases was
different. The fact that the commercial court acknowledged that Uniya and
Belcourt were parties to a contract of sale of the alcohol did not mean that
ownership title of either of those companies to the alcohol was established.
3. The Court’s assessment
(a) Whether the alcohol in the second consignment was the second applicant
company’s “possessions”
294. The central argument relied on by the Government in respect of the
second consignment concerns the title to the alcohol. The position of the
Government, as well as the latest position of the Russian courts in this
respect can be summarised as follows: even though the authorities acted
unlawfully in destroying the second consignment of alcohol, the applicant
companies failed to prove that the alcohol belonged to them.
295. The Court observes that for many years Uniya was regarded by the
domestic authorities as the owner of the second consignment. Thus, the
customs authorities considered that Uniya was under an obligation to pay
customs duty (see paragraph 137 above). The investigator seized that