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UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
imposition of a considerable financial burden on the plaintiff after the
conclusion of proceedings could act as a restriction on the right to a court
(see also Klauz v. Croatia, no. 28963/10, §§ 86 et seq., 18 July 2013).
319. In the present case the applicant companies obtained a
determination of their claims related to the seizure and destruction of the
alcohol. However, for many years the domestic courts refused to examine
their claims in this respect awaiting completion of the proceedings in
Mr Golovkin’s criminal case or for other reasons. In essence, the applicant
companies alleged that they did not have a “clear, practical opportunity to
challenge an act that [was] an interference with [their] rights” (see Bellet
v. France, 4 December 1995, p. 42, § 36, Series A no. 333-B).
3. Application to the present case
320. The Court observes that the applicant companies and Mr Golovkin
made many attempts to challenge seizure and destruction of the alcohol.
They also brought several tort claims before different courts, seeking
pecuniary compensation from the State. Some of the complaints brought by
the applicant companies were not examined on the merits, the domestic
courts having decided that those complaints were premature, that the
applicant companies had no standing, or for other reasons. The Court,
however, does not need to examine all legal proceedings which the
applicant companies initiated in this case. Instead, the Court will
concentrate on two central episodes which, in its opinion, contributed most
to the delayed determination of the applicant companies’ claims.
(a) Effects of the “special ruling” of 24 November 2000
321. It appears from the reasoning of the Russian courts that in order to
claim damages for the property seized and then destroyed the applicant
companies had to obtain a declaration of unlawfulness of the investigator’s
actions, and only then bring tort claims against the State (see, in particular,
Article 1069 of the Civil Code, paragraph 257 above).
322. Usually, a declaration of unlawfulness of an administrative action
may be obtained within proceedings governed by Chapter 25 of the new
CCP (“Chapter 25 Proceedings”; before the enactment of the new Code
similar proceedings were provided by the Judicial Review Act of 1993).
However, Chapter 25 of the CCP did not apply where the impugned
administrative action was taken within the framework of a criminal
investigation (see the decision by the Baltiyskiy District Court of
29 December 2005, paragraph 43 above; see also, mutatis mutandis, the
ruling of the Supreme Court of 21 December 1993, cited in paragraph 246
above). In such situations the declaration of unlawfulness must have been
obtained within separate proceedings governed by the Code of Criminal
Proceedings.
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
65
323. The applicant companies believed that the “special ruling” issued
by the Baltiyskiy District Court of 24 November 2000 under Article 21.2 of
the Code of Criminal Procedure was sufficient to show that the
investigator’s action had been unlawful. The applicant companies’ reading
of the law was not unreasonable: indeed, in the “special ruling” the
Baltiyskiy District Court indicated various irregularities in the actions of the
investigator concerning the first consignment and found in essence that
those actions had been unlawful (see paragraph 31 above; see also
Article 21.2 of the CCrP defining the purpose of the special ruling,
summarised in paragraph 251 above).
324. However, the domestic courts decided otherwise – see the decisions
of 15 November 2002 and 6 November 2003 by the Kaliningrad Region
Commercial Court (paragraphs 55 and 88 above), and the decision of
21 May 2002 by the same court (paragraph 170 above). The commercial
courts ruled that the applicant companies should go again to the courts of
general jurisdiction and obtain another declaration of unlawfulness, now
within the proceedings governed by Article 125 of the CCrP. Article 125
provides for judicial review of the lawfulness of actions of an investigator
taken within a criminal case. Although the old CCrP did not contain a
provision identical to Article 125, such a legal avenue existed from 1999
onwards by virtue of the Judgment of the Constitutional Court of the
Russian Federation of 23 March 1999, no. 5-P (see paragraph 249 above).
The Court will refer to this remedy as “Article 125 proceedings”,
irrespective of the period concerned.
325. The Court is prepared to admit that the “special ruling” did not
amount to a formal declaration of unlawfulness required under the domestic
law as a precondition for a successful tort claim against the State. On the
other hand, even if the courts interpreted the domestic law correctly, such
interpretation objectively resulted in the over-complication of the process of
claiming damages from the State. Thus, having obtained a “special ruling”
which affirmed that the investigator’s actions had been unlawful, the
applicant companies were required to go again to the same court and obtain
another declaration of unlawfulness, now within Article 125 proceedings.
(b) A temporary ban on complaints under Article 125
326. As appears from the judgments of the commercial courts,
Article 125 proceedings constituted a necessary preliminary phase before
claiming damages under the Civil Code (see, in particular, the judgments of
15 November 2002 by the Commercial Court of the Kaliningrad Region, of
4 March 2003 by the Federal Commercial Court of the North-West Circuit,
and of 21 May 2002 by the Commercial Court of the Kaliningrad Region).
327. The applicant companies followed that direction and lodged a
complaint under Article 125 of the Criminal Procedure Code. However, the