CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 7 octobre 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s75A32C27 { border-collapse:collapse } .s938C1CCA { padding-right:5.4pt; padding-left:5.4pt; vertical-align:top } .s598389F9 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9E5B8760 { width:125.74pt; text-indent:0pt; display:inline-block } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s337CD626 { font-family:Arial; font-size:9.5pt; font-weight:bold; color:#000080 } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 4437/03 by Uniya OOO against Russia Application no. 13290/03 by Belcourt Trading Company against Russia   The European Court of Human Rights (First Section), sitting on 7   October 2010 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens, judges, and Søren Nielsen, Section Registrar, Having regard to the above applications lodged on 28 December 2002 and on 17 March 2003, Having regards to the decision of the Chamber of 13   December 2005 to join the above-mentioned cases under Rule   42   §   1 of the Rules of Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The first applicant, Uniya OOO (application no. 4437/03), is a Russian limited company, registered in Bashkortostan, Alsheyvskiy District. It is represented before the Court by Ms Alekseyenkova, a lawyer practising in Kaliningrad. The second applicant, Belcourt Trading Company (application no. 13290/03), is a company registered in the State of Delaware, USA. It is represented before the Court by Mr   Rubinstein, who lives in the Kaliningrad Region, Russia. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms   V.   Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. A.     The circumstances of the case       The facts of the case, as submitted by the applicant companies, may be summarised as follows.   Between 1997 and 1998 the first applicant company (“Uniya”) imported several consignments of alcohol into the Kaliningrad Region under a contract with the second applicant company (“Belcourt”). The alcohol had been produced in Germany and Belgium. Uniya acted as a commissioner or, in some instances, as a buyer of the alcohol. The alcohol was declared at the border and custom duties were paid. The alcohol was bottled by the producer and sold in the Kaliningrad Region under various brand names (“Petrov-Lemon”, “Uniya Extra”, “Uniya Drink”, etc.). 1.     Criminal proceedings against Mr Golovkin (case no.   52012) On 29 April 1998 the police instituted criminal proceedings on suspicion of unlawful trafficking in alcohol by the top-management of Uniya (criminal case no.   52012). In particular, the police suspected Mr   Golovkin, the director of the Kaliningrad branch of Uniya, of importing the alcohol without an appropriate licence. Within that case (hereinafter – “the criminal proceedings” or “criminal case no. 52012”) Mr Golovkin. was charged with “illegal enterprise” (a criminal offence under the Criminal Code). Several other managers of Uniya were also charged within that criminal case.     In the following months the investigator in charge of the case seized the alcohol allegedly imported by Uniya. In the course of the proceedings Mr Golovkin pleaded not guilty. He claimed that he had had a licence for the retail sale of alcohol; as to the requirement to obtain a licence for wholesale trading in “bitter liquors”, this had been introduced into the domestic legislation only on 9 July 1998, by Government Decree no. 727, that is, several months after all transactions had been finalised and implemented. On 29 March 1999 Mr Golovkin was also charged with tax evasion and money laundering. In particular, the investigators suspected him of having artificially inflated the price of the imported alcohol in the contracts between Uniya and Belcourt in order to reduce the amount of taxes to be paid on the territory of the Russian Federation. On 17   September 1999 the case against Mr Golovkin was transmitted to the court for examination on the merits. On 24 November 2000 the Baltiyskiy District Court of Kaliningrad acquitted Mr Golovkin in full. On 20 March 2001 the Kaliningrad Regional Court quashed the acquittal of Mr Golovkin in part and remitted the case to the prosecution authorities for further investigation. In its decision the Regional Court noted, inter alia, that some of the alcohol seized by the investigators in the retail shops had, at least formally, been purchased from Dionis Ltd and not Uniya. On several occasions Mr Golovkin requested the authorities to expedite the investigation or to drop the case. On 31   May 2005 the Baltiyskiy District Court found Mr Golovkin guilty of illegal enterprise. The District Court found, inter alia , that between October 1997 and May 1998 he had, in the capacity of the director of the Kaliningrad branch of Uniya (the first applicant company), imported 2,459,756 litres of various brands of alcohol worth 17,871,860 US Dollars (USD). The District Court found that a special licence was required for such operations, which Mr Golovkin did not have. He was acquitted of the other charges. The court sentenced him to two years' imprisonment, but ordered the sentence to be suspended on account of the expiry of the statutory time-limit within which a person could be prosecuted for such crimes ( истечение срока давности привлечения к уголовной ответственности ). On 22   September 2005 the Kaliningrad Regional Court quashed the judgment of 31   May 2005 on appeal and decided to discontinue the proceedings in Mr Golovkin's case on account of the expiry of the statutory time-limit for finding him criminally responsible. 2.     Seizure and destruction of the first consignment of alcohol (a)     Seizure Between May and October 1998 the police investigator in charge of criminal case no.   52012, Mr Zh., ordered the seizure of the alcohol imported by Uniya.   Pursuant to his order, between June and September 1998 the police seized 461,049 bottles of various liquors (bottled under the trademarks Extra-Uniya, Drink-Uniya, and Petrov-Lemon), stored in various warehouses (hereinafter “the first consignment”). According to the applicant companies, 120,477 of those bottles belonged to the first applicant company (“Uniya”), whereas 337,104 bottles were the property of the second applicant company (“Belcourt”). According to the Government, the first consignment of alcohol was seized under Article 167 of the Code of Criminal Procedure. In support of that submission, they produced copies of several seizure orders by the investigator Zh., dated 19   May to 26   October 1998. It appears from these documents that the alcohol was seized on two different grounds: either for the purpose of possible confiscation of the property of the accused (Mr   Golovkin and others) or as an exhibit in the criminal proceedings against Mr   Golovkin. The seizure orders were thus formulated either as “charging orders” ( постановление о наложении ареста на имущество) or “removal orders” ( постановление о производстве выемки ). All the seizure orders contained a summary of the charges against Mr Golovkin and indicated where the alcohol in question could be found. The decisions which referred to Article 175 of the Code mentioned that the charging order had been imposed in order to secure the possible payment of civil damages and/or confiscation of property of the suspect (i.e. Mr   Golovkin and other managers of Uniya). In other respects the seizure orders were substantially the same. On 29 June 1998 five bottles of the seized alcohol were examined in Moscow by the Central Laboratory of the State Customs Office, at the request of the investigator. The experts concluded that the content of one bottle could be characterised as “vodka” according to the State manufacturing standard for liquor (GOST 12712-80). The content of the other four bottles could be characterised as “bitter liquor” (State manufacturing standard GOST 7190-93). The experts concluded that the alcohol had been made from food-grade spirit, according to traditional processes, and was drinkable (if consumed in reasonable quantities). On 13 July 1998 the investigator commissioned another expert examination of the alcohol (hereinafter “the second expert examination”). He sent the experts ten bottles of the alcohol seized by the investigator earlier. The new examination was entrusted to the Centre of Forensic Examination of the Ministry of the Interior in Moscow. On 14 August 1998 the second expert report was prepared. The experts found that some of the ingredients mentioned on the labels were absent from the sample bottles (such as lemon acid and some aromas as regards the bottles labelled “Petrov Lemon”). The experts further found that all the alcohol's physical and chemical characteristics corresponded to the State manufacturing standard for liquor (GOST 7190-93). However, the alcohol could not be characterised as “bitter liquor”: its examination had shown that the alcohol had been made from non-food-grade raw spirit, whereas under Russian law it had to have been produced from food-grade vegetable-derived raw spirit. The experts based their conclusion on the very low percentage of methanol in the alcohol examined. The experts noted that such alcohol was potentially harmful to consumers. (b)     Destruction On 26   January 1999 the investigator in charge of the criminal case against Mr Golovkin concluded that the liquor seized was “derelict property”. The investigator's reasoning can be summarised as follows. The first consignment had been purchased by Uniya from Belcourt. Between January and March 1998 the alcohol had “ostensibly” been returned to Belcourt. The fact of the return was confirmed by several invoices issued by Uniya, as well as by a “Reciprocal Debt Settlement Agreement” signed between Uniya and Belcourt on 18   March   1998 and discovered by the investigating authorities. The agreement had been signed on behalf of Belcourt by their agent, Mr I. The latter had been questioned by the investigator. He had testified that he had never heard of Belcourt or any alcohol. On that ground the investigator concluded that the alcohol had no lawful owner.   Basing himself on the expert report of 14 August 1998, the investigator concluded that it was “non-drinkable” alcohol and derelict property. He ordered 462,290 bottles of the liquor to be sent to a competent regional authority (hereinafter “the Alcohol Commission”) for “further disposal or processing”. On 30 April 1999 the local police department signed an agreement with a private firm, Fakel, which undertook to destroy the alcohol for 29,956   Russian roubles (RUB). On 1 June 1999 the Alcohol Commission held a meeting. According to the minutes of the meeting, the State obtained title to the alcohol received by the Commission from the investigator on 26 January 1998. The Government produced a report by the State Environment Protection Committee of the Kaliningrad Region authorising the destruction of the alcohol seized (Extra-Uniya, Drink-Uniya and Petrov-Lemon). Between 13 September and 21 October 1999 the first consignment of alcohol was destroyed, allegedly by being burnt and poured into the sewage system. According to the official reports, it took seven days to dispose of 462,299 litres of alcohol. (c)     Criminal investigation into the destruction of the first consignment On 31 July 2000 police investigator Ms S. opened an investigation into the destruction of the first consignment of alcohol (case no. 022155). Having examined the records of disposal, she concluded that it could not have been done within seven days. According to the investigator, it would take 462 working days to destroy the alcohol using the method described in the official reports. Furthermore, it was unclear where all the empty bottles had gone. The investigator concluded that only 2% of the alcohol had really been destroyed; the whereabouts of the rest of the alcohol remained unknown. On 13 January 2002 the investigation was closed. The police investigator Mr Ya. concluded that police investigator Mr Zh. had acted within his powers and reasonably. The title to the alcohol had been unclear, since Mr   Golovkin had denied that the alcohol had belonged to him or to Uniya in order to avoid criminal responsibility. Furthermore, the examination of that alcohol of 14 August 1998 showed that it had been made from non-food-grade spirit. As a result, the investigator had considered the alcohol to be “derelict property” and undrinkable and ordered it to be destroyed. It had been sent to Fakel for disposal. It was impossible to establish how many bottles of alcohol had been destroyed, and what had happened to the empty bottles. The investigator also concluded that since the criminal proceedings against Mr Golovkin had still been pending, it had been impossible to establish who had owned the alcohol at issue. As a result, the case had been closed. The first applicant company challenged that decision in court, seeking the reopening of the proceedings. On 3 September 2002 the Leningrad District Court of Kaliningrad upheld the decision of the investigator of 13   January 2002. The District Court confirmed that the investigator had acted within his powers and in accordance with the applicable legislation. The Alcohol Commission had also been competent to take the decision to destroy the alcohol. (d)     First criminal-law complaint by Mr Golovkin On 16 March 2000 the Baltiyskiy District Court of Kaliningrad trying the case against Mr Golovkin (case no.   52012) ordered a fresh expert examination of the alcohol seized earlier by the investigator. The examination was entrusted to a different group of experts. On 25 May 2000 the experts concluded that the six samples of alcohol could be characterised as “bitter liquor” and complied with the State manufacturing standards GOST 7190-93 and GOST 12712-80, and the sanitary and hygiene standard SanPiN 2.3.2.560-96. The experts contested the findings of the previous expert team that the alcohol had been made from non-food-grade spirit. On 24 November 2000, following the acquittal of Mr Golovkin, the Baltiyskiy District Court issued a special ruling ( частное определение ) to the police and the regional prosecutor's office. In that ruling the court held that the removal of exhibits had been tainted by procedural irregularities: the investigator had failed to attach the exhibits to the materials in the criminal case and had not decided where to store the exhibits, as required by the Code of Criminal Procedure. Further, the investigator had unlawfully transmitted the alcohol to the regional authorities for destruction. Since the alcohol had been seized as an exhibit, “physical evidence of a crime”, only the trial court had power to decide what to do with it. Moreover, when transmitting the consignment the investigator had had at his disposal a second expert report which stated that the alcohol had been drinkable. In its ruling the court found that the destruction of the consignment had resulted in significant pecuniary loss for the first applicant. The court requested the regional prosecutor to take appropriate measures in that respect. That ruling was not challenged and remained in force. On 17 March 2003 Mr Golovkin lodged a complaint with the Baltiyskiy District Court, seeking to have the seizure of the first consignment of alcohol declared illegal. He insisted, inter alia , that the alcohol seized in 1998 had not belonged to him and, therefore, should not have been seized in the criminal proceedings against him. He submitted that 120,477 litres of alcohol belonged to Uniya, whereas the rest (337,104 litres) belonged to Belcourt. Mr   Golovkin further indicated that the criminal-law provisions under which he had been charged did not provide for a sanction such as the confiscation of property. Therefore, there had been no need to seize any property at all, even if it had belonged to him. The investigating authorities maintained, in reply, that it was unclear who was the lawful owner of the alcohol seized. On 17 June 2003 the Baltiyskiy District Court examined the complaint. The court confirmed that the offences imputed to Mr   Golovkin were not punishable by confiscation of property, and that, in any event, the alcohol seized had not belonged to him. However, Mr   Golovkin's complaint was dismissed on the ground that “the investigation of the criminal case was still pending and it was unclear whether any new charges or civil claims would be brought against him or against any prospective civil defendants”. The court also noted that the prosecution had lodged a civil claim for damages caused by the allegedly illegal activities of Mr Golovkin. Mr   Golovkin appealed. On 22 July 2003 the Kaliningrad Regional Court upheld the lower court's decision, stating that “given that the criminal investigation with respect to ... Mr   Golovkin was still pending, and the prosecution had lodged a civil claim in respect of damage caused to the State”, the lower court's conclusion with respect to Mr. Golovkin's complaint had been correct. In 2004 Mr Golovkin renewed his complaint against the seizure orders concerning the first consignment. On 31 January 2005 the Baltiyskiy District Court refused to examine the complaint in so far as it concerned the “removal orders”, as being essentially the same as the complaint examined on 17 June 2003, but examined the complaint concerning the “charging orders” of 1998. Mr   Golovkin appealed. On 12 April 2005 the Kaliningrad Regional Court examined the appeal and dismissed it. On an unspecified date in 2005 Mr Golovkin requested the Baltiyskiy District Court of Kaliningrad to exclude two items of evidence from the materials of the case file in his criminal case, namely, the expert examination of 16 November 1998, and the decision of the investigator of 26   January 1999. On 14 April 2005 the Baltiyskiy District Court of Kaliningrad granted the request. It found that the expert examination of 16 November 1998 had been tainted by serious procedural flaws which made it unreliable. Further, the court noted that the decision of the investigator of 26   January 1999 had been based on the expert examination which had already been discarded by the court as unreliable as well. However, it had not been the investigator who had ordered the first consignment of alcohol to be destroyed; he had simply sent it to the Alcohol Commission, which had taken the decision to destroy it. As a result, the District Court decided to exclude the expert examination from the body of evidence and rejected the remainder of the application. On 20 April 2005 the Baltiyskiy District Court of Kaliningrad refused to examine the complaint by Mr Golovkin against the seizure orders of 1998. The court decided that this complaint was essentially the same as the one that had already been examined earlier and resulted in the final decision of 22   July 2003 of the Kaliningrad Regional Court. (e)     Civil claim by Belcourt in the commercial courts On an unspecified date the second applicant (“Belcourt”) lodged a civil claim with the Commercial Court of the Kaliningrad Region, seeking compensation for damage caused by the seizure and destruction by the authorities of 366,785 bottles of liquor allegedly belonging to Belcourt and constituting part of the first consignment. The first applicant participated in those proceedings as a third party. On 2 April 2001 the Kaliningrad Region Commercial Court allowed the claims of Belcourt. The court held, in particular, that the State could only have appropriated alcohol belonging to the second applicant company pursuant to a court judgment and not on the basis of a decision by an investigating authority. The investigator had failed to establish to whom the alcohol had belonged. Further, the conclusions of the expert examination of 14 August 1998 had been unreliable because the State standards established only the maximum permissible percentage of methanol in the end product and not the minimum percentage. A fresh expert examination carried out at the request of the Baltiyskiy District Court in 2000 had fully disproved the second expert examination. Belcourt had been a lawful owner of part of the first consignment; its seizure had been unlawful and arbitrary. The declared customs value of the alcohol had been USD   7.31 per bottle. As a result, the Commercial Court ordered the defendant (the Ministry of Interior) to pay the second applicant company RUB   76,810,056 in damages. The defendant appealed. On 10 July 2002 the appeal court suspended the proceedings pending the criminal investigation against Mr Golovkin. On 4   September 2002 the Court of Cassation ordered the resumption of the proceedings and remitted the case to the appeal court. On 15 November 2002 the Kaliningrad Regional Commercial Court, sitting as a court of appeal, examined the merits of the case. The defendant claimed that the contracts between Uniya and Belcourt had been null and void. The court rejected that argument. The court established that Belcourt had purchased several cargos of alcohol from a German producer through a chain of intermediary companies. The initial price of the alcohol, as sold by the producer, varied between 1.09 and 1.12 German marks per bottle. That alcohol was then sold by Belcourt to Uniya at another price. The alcohol had been shipped by the German producer directly to Uniya, which had paid for that alcohol directly to the German producer as well. Uniya had obtained from Belcourt a 180-days respite on the payment of the contract price. The Commercial Court also found that Uniya had sold the first cargos in Russia successfully, but a part of the last shipment had not been sold. Uniya and Belcourt had signed an agreement which provided for the return of the unsold part of the last shipment (554,162 bottles) to Belcourt. That agreement further stipulated that the debt of Uniya before Belcourt would be consequently decreased by 4,050,923 US Dollars (i.e. the average price of the alcohol returned had been estimated at 7.31 US Dollar per bottle). However, that agreement had not been fully executed. A part of that alcohol, 337,104 bottles, had been seized by the police. The court concluded that those 337,104 bottles of alcohol in fact belonged to Belcourt. The Commercial Court found that although Belcourt, by virtue of the agreement with Uniya, had the property title to that alcohol, it had not been under an enforceable obligation to pay for it. The conclusive paragraphs of the judgment read as follows: “The calculation of damages in the amount of 76,810,056 Roubles, based on the price of [the alcohol] indicated in the agreement on the return of [the alcohol], and not in the contract of sale, was ill-founded, because it does not follow from the materials of the case that those prices were identical. The plaintiff did not prove that it had paid to the producer of the goods either. In such circumstances there is not evidence that the plaintiff has suffered any real loss as a result of the seizure of the goods. Equally, there is no evidence of either the lost profits, or of the amount of the such lost profits”. The court further held that under Article 1069 of the Civil Code of the Russian Federation, only the damage caused unlawfully could be recovered. However, the seizure had taken place within the framework of the criminal proceedings against Mr   Golovkin; therefore, the alleged illegality of that seizure could only be established in the course of those criminal proceedings, which were still pending. The special ruling of the Baltiyskiy District Court of 24 November 2000 could not have served as a basis for assessing the lawfulness of the acts of the investigating authorities complained of. As a result, the appeal court dismissed the claims of the second applicant in full. On 4 March 2003 the Commercial Court of the North-West Circuit upheld the decision of the Kaliningrad Regional Commercial Court of 15   November 2002. It held as follows: “The unlawfulness of the acts of the investigating authorities should be established in accordance with the Code of Criminal Procedure of the Russian Federation, because the alcohol was seized within the framework of the criminal case. The special ruling of the Baltiyskiy District Court of 24   November 2000, in which the court referred to certain breaches of law by the investigating authorities when seizing the alcohol cannot serve as a basis for declaring the actions of the investigating authorities as being in breach of the law on criminal procedure”. The second applicant company appealed to the Supreme Commercial Court of Russia, seeking to have the judgment of the Commercial Court of the North-West Circuit reversed by way of supervisory review. On 17 June 2003 a panel of three judges refused to institute proceedings before the full court. They held as follows: “The pre-trial investigation in the case, within the framework of which the seizure of the alcohol was ordered, is still pending; therefore, the courts of appeal and cassation were unable to assess the lawfulness of the acts of the investigating authorities, and, consequently, to examine whether there was any damage requiring compensation”. (f)     Criminal-law complaint by Belcourt On 19 May 2003 the second applicant company lodged a claim with a court of general jurisdiction, the Baltiyskiy District Court, under Article 125 of the Code of Criminal Procedure. They sought to have the seizure of the alcohol ordered by the investigator declared illegal. The second applicant company referred to the decision of 4   March 2003 of the Commercial Court of the North-West Circuit, which they interpreted to mean that the lawfulness of the seizure orders could be established in the context of the proceedings in the case against Mr   Golovkin (no. 52012). On 21 May 2003 the second applicant company sent a letter to the Kaliningrad Regional Court, summarising the substance of the dispute and asking whether it was within the competence of the courts of general jurisdiction. On 21 June 2003 the Vice-President of the Kaliningrad Regional Court replied that he could not give legal advice to private persons. On 16 June 2003 the Baltiyskiy District Court, by a simple letter, returned the case file to the second applicant company without examination. In that letter the court stated that since the Belcourt trading company was not a party to the criminal proceedings in case no. 52012, they had no legal standing to lodge such a claim. The court advised the second applicant company to lodge a specific civil claim, challenging the seizure of property under the legislation on civil procedure. The court's letter did not contain references to any legal provisions in the area of civil procedure. The second applicant company forwarded that letter to the Commercial Court of the Kaliningrad Region. They claimed that since the court of general jurisdiction did not accept the case, it should be examined by a commercial court. On that ground they requested leave to resume the proceedings before the commercial courts. On 11 August 2003 the Commercial Court of the Kaliningrad Region dismissed that request, stating that the letter from a district court was not a valid reason for reopening the proceedings. On 3   October 2003 that decision was upheld by the Commercial Court of the North-West Circuit. (g)     Civil-law complaint by Uniya in the courts of general jurisdiction Following the partial acquittal of Mr Golovkin and discontinuation of the proceedings as to the remainder of the charges against him, Uniya lodged a complaint with the Baltiyskiy District Court of Kaliningrad. They noted that the courts had not ruled on the issue of the alcohol seized in the criminal proceedings and asked the court to declare unlawful the decisions of the investigators concerning the seizure and destruction of the first consignment of alcohol. On 29 December 2005 the Baltiyskiy District Court refused to examine the complaint by Uniya. It ruled that since the seizure had been ordered in the criminal proceedings, a civil court had no competence to examine that issue in civil proceedings. On 8 February 2006 that decision was upheld by the Kaliningrad Regional Court. (h)     First tort claim by Uniya in the commercial courts In 2000 the first applicant company (“Uniya”) brought civil proceedings against the police department in charge of the criminal case against Mr   Golovkin claiming damages for the unlawful seizure and destruction of 120,477   bottles of liquor, constituting part of the first consignment of alcohol. In the course of the proceedings they increased the amount of damages sought. On 23 July 2001 the Commercial Court of the Kaliningrad Region decided in favour of Uniya, stating that the alcohol at issue had been unlawfully seized and destroyed (case no. 4943/1968/1). The Commercial Court found that the alcohol had belonged to the first applicant company. The alcohol had passed customs clearance. Its price thus corresponded to its “customs value” declared to the authorities at the border. The expert examination of the alcohol of 14 August 1998 had been defective in many respects and thus unreliable. Its findings had been discarded by an independent expert examination of 25 May 2000. Uniya had been operating without a special licence because in 1998 there had been no requirement to obtain a licence for the importation of alcohol. The court awarded Uniya the damages sought (RUB   25,930,253), to be recovered from the Ministry of Internal Affairs. On 10   October 2001 the appeal court upheld that judgment. On 20 December 2001 the Commercial Court of the North-West Circuit quashed the lower courts' judgments and remitted the case to the first-instance court for fresh consideration. The court rejected the defendant's argument that the commercial courts were not competent to examine the case; however, the court suggested that the proceedings should be stayed pending the criminal investigation. It also noted that the issue of the ownership of the alcohol had not been clear. On 12 March 2002 the Commercial Court of the Kaliningrad Region re-examined the case and again upheld Uniya's claims. The Commercial Court concluded, inter alia , that the civil dispute before it could be resolved independently from the criminal proceedings pending against Mr Golovkin. In particular, criminal proceedings did not aim at establishing whether the contract for sale of the first consignment between Uniya and Belcourt had been null and void within the meaning of the Civil Code. On the contrary, the court considered that the sale contract had been entered into by duly authorised persons and that the parties had started implementing it, declared the alcohol at the border, paid customs duties, etc. The contract was therefore valid. The fact that Uniya had no direct contractual relationship with the firms which had produced the alcohol was immaterial. Therefore, Uniya had been the legitimate owner of the 120,377 bottles of alcohol seized by the police investigator. As to the quality of the alcohol, the expert examination of 14   August 1998 had been scientifically defective. Furthermore, the serial numbers of the bottle labels described in the expert report did not correspond to those of the bottles imported by the applicant company. The Commercial Court also noted that that type of alcohol could have been imported in 1998 without any special licence. In conclusion the court granted the applicant company's claim in full, awarding it RUB   27,482,321 in damages. The defendant appealed. On 6   November 2003 the Commercial Court of the Kaliningrad Region, sitting as a court of appeal, quashed the lower court's judgment. The court stated that the alleged unlawfulness of the seizure could only be established in the course of the criminal proceedings. The reasoning of the court in that case was almost identical to the reasoning of the same court in the case of the second applicant, stated in the decision of 15 November 2002. On 24 February 2004 the Commercial Court of the North-West Circuit upheld the judgment of the appeal court rejecting the first applicant company's claims in full. (i)     Second criminal-law complaint by Mr Golovkin On 31 May 2005 the Baltiyskiy District Court found Mr Golovkin guilty of illegal enterprise. It found that he, as a director of Uniya, had been under an obligation to purchase a licence for wholesale trading in alcohol. He was acquitted in respect of the other charges brought against him. On 22   September 2005 the Kaliningrad Regional Court upheld the acquittal. As to the conviction of Mr Golovkin, the Regional Court quashed the judgment of 31 May 2005 and discontinued the proceedings in this part. Thereafter, on an unspecified date Mr Golovkin challenged the decision of the investigator of 26 January 1999, concerning the destruction of the first cargo of alcohol, in the Leningradskiy District Court of Kaliningrad. The prosecutor acknowledged, in his reply, that the decision at issue had been unlawful. On 25 November 2005 the Leningradskiy District Court allowed the claim by Mr Golovkin. The court ruled that the investigator's conclusion that the first consignment of alcohol had been “derelict property” had not been sufficiently justified. Therefore, the investigator had had no right to dispose of the property before the final resolution of the criminal case. The prosecution appealed. On 17 January 2006 the Kaliningrad Regional Court upheld the decision of 25 November 2005. (j)     Second claim for damages by Uniya in the commercial courts On 8 December 2005 the first applicant lodged an application with the Commercial Court of the Thirteenth District (appeal court) seeking the reopening of the proceedings on grounds of newly discovered circumstances. On 14 March 2006 the Commercial Court rejected the application. On 14 June 2006 the Commercial Court of the North-West Circuit, sitting as a cassation court, quashed the decision of 14 March 2006 and remitted the case to the appeal court for fresh consideration. On 15 January 2007 the Commercial Court of the Thirteenth District examined the claims anew. The first applicant's claims against the State were dismissed in full. The first applicant company appealed. On 16 April 2007 the Commercial Court of the North-West Circuit examined the cassation appeal against the decision of 15 January 2007 and upheld it. In its judgment the Commercial Court referred to the decision of 3   September 2002 of the Leningradskiy District Court which had found that the decision to seize and destroy the alcohol had been taken by the investigator and the Alcohol Commission within their powers. The plaintiff (“Uniya”) claimed that the first consignment of alcohol belonged to it. The Commercial Court acknowledged that customs declarations, transportation documents and other documentary evidence showed that the alcohol had been imported by Uniya. However, later Uniya had informed the Commercial Court that the right to claim compensation for the seizure had been re-assigned by Uniya to two other companies: DIVO Ltd and Belcourt. The Commercial Court further endorsed the findings of the investigator in his decision of 26 January 1999, in particular as regards the return of the consignment to Belcourt and the description of the alcohol as “undrinkable”. According to the decision of the appeal court of 20 March 2001, some of the alcohol had been sold to retail shops not by Uniya but by Dionis Ltd, a company affiliated with Mr   Golovkin and his co-defendants in the criminal case, whereas that alcohol had earlier been imported into Russia by Uniya. The Commercial Court referred to the assignment agreement signed on 18 March 1998 between Uniya, Dionis and Belcourt. According to that agreement, Uniya transferred ownership of the alcohol to Dionis because it did not have the appropriate licence. However, on 30   March 1998 Dionis returned 149,989 bottles to Uniya. According to the testimony of Mr   Golovkin given to the investigator, the assignment agreement had not been implemented and the alcohol had been returned by Dionis to Uniya. At the same time, as can be seen from the judgment in the case against Mr   Golovkin, 150,000 litres of alcohol had been transferred to Dionis as a contribution by Uniya to the company capital of Dionis. Part of the alcohol seized was physically located in the warehouses of Dionis. According to an audit report of the Uniya's business activities, carried out at the request of the investigator, Uniya bought 2,459,756 bottles of alcohol from Belcourt. 1,769,014 bottles were returned to Belcourt some time later. 353,007 bottles were sold to retail shops. 150,000 bottles were transferred to Dionis as a contribution to its capital. However, only 81,963 bottles were discovered in Uniya's warehouses. On 12 January 2001 Uniya and Belcourt signed another reciprocal debt settlement agreement. As could be seen from that agreement, Uniya had never paid Belcourt for the alcohol seized. The agreement stipulated that Uniya's non-fulfilment of its contractual obligations resulted from the unlawful seizure of the alcohol by the State authorities. Despite having signed that agreement in 2002 Belcourt brought proceedings against the State claiming damages for the loss of 460,000 litres of alcohol, including part of the consignment which had allegedly belonged to Uniya. In conclusion the Commercial Court found that “the above-mentioned contradictions had not been eliminated by the plaintiff”. The court referred to Article 65 of the Code of Commercial Procedure, according to which the burden of proving the facts on which the claim was based was on the plaintiff. The court then considered the amount of damages. It noted that the damages had been calculated by Uniya on the basis of the value of the alcohol as declared to the customs authorities (USD   7,41 per bottle). The price stipulated in the contract between Uniya and Belcourt was USD   7.35 per bottle. The Commercial Court noted that Uniya had not explained why the customs value of the bottle had been the basis for calculating the amount of damages. Finally, the Commercial Court found that there was no causal link between the actions of the investigating authorities and any losses of Uniya. The alcohol had been destroyed on the initiative of the Alcohol Commission, not the investigator. The investigator had simply decided to transmit the alcohol to the Alcohol Commission; it had been up to the Commission to decide what to do with it. Consequently, the fact that the Leningrad District Court had earlier recognised the actions of the investigator as unlawful did not mean that the Alcohol Commission had acted unlawfully. Uniya could have challenged the Alcohol Commission's decision to destroy the alcohol before the competent authorities, but had failed to do so. As a result, the first applicant company's civil claim for damages was dismissed in the final instance. 3.     Seizure and destruction of the second consignment of alcohol (a)     First decision to seize (charging orders) Between May and June 1998 the investigator ordered a further seizure of alcohol from the warehouses of the Kaliningrad custom office rented by Uniya. By three charging orders (of 20 May, 26 May and 16 June 1998) 1,145,760 bottles of alcohol were seized (hereinafter “the second consignment” – 62 containers). According to the applicants, that consignment fully belonged to Uniya. On 5 October 1998 the investigator commissioned an expert examination of the alcohol. It was entrusted to the same institution as the second expert institution that had carried out the second examination of the alcohol from the first consignment (the Centre of Forensic Examination of the Ministry of Interior in Moscow), but to a different group of experts. On 16 November 1998 the experts examined samples of alcohol from the second consignment and came to the same conclusions as their colleagues who had previously prepared the second expert report in respect of the first consignment, mainly that it had been made from non-food-grade raw spirit and had therefore been potentially harmful. On 23 March 1999 the Constitutional Court of the Russian Federation ruled that an appeal lay against charging orders. A few days later Mr   Golovkin challenged the charging orders before a court.   On 14 April 1999 the Baltiyskiy District Court quashed the charging orders and ruled that the alcohol seized should be returned to Uniya. (b)     Second decision to seize (removal order) On 22 April 1999 the investigator issued a removal order in respect of 1,012,704 bottles of the Extra-Uniya liquor and 133,056 bottles of the Uniya liquor stored in the warehouses of the Kaliningrad customs office. On an unspecified date the decision of 14 April 1999 was challenged by way of supervisory review by the President of the Kaliningrad Regional Court. The proceedings were reopened and the case was sent to the first-instance court for retrial. On 20 September 1999 the Baltiyskiy District Court again quashed the charging orders of May-June 1998 and also quashed the removal order of 22   April 1999. It noted that the first charging order had been issued by the investigator with a view to possible confiscation of the property. However, originally Mr Golovkin had been charged with “illegal enterprise”, for which confiscation of property was not a possible sanction. Consequently, the first charging order (of 20 May 1998) had been void. The subsequent charging orders had been issued after the charges against the applicant had been extended. However, those charging orders concerned the property of Belcourt, and not that of Mr   Golovkin or any other person within the jurisdiction of the Russian courts. On 15 October 1999 the decision of the Baltiyskiy District Court of 20 September 1999 was quashed in part by the Presidium of the Kaliningrad Regional Court by way of supervisory review. The Presidium decided that the investigator had acted within his powers in issuing the removal order of 22 April 1999. Furthermore, the Presidium ruled that the question of whether the alcohol belonged to Mr Golovkin or anybody else could only be resolved within the “main” proceedings against Mr   Golovkin, since it was linked to the substance of the accusation against him. On 24 November 2000 the Baltiyskiy District Court of Kaliningrad acquitted Mr Golovkin in full and lifted the removal order of 22   April 1999 in respect of the second consignment. On the same day, by a special ruling, the Baltiyskiy District Court declared the seizure of the second consignment unlawful and requested the regional prosecutor to take appropriate measures in respect of the alcohol seized. However, the second consignment of alcohol remained in the warehouses of the Kaliningrad customs office. According to the first applicant company, since the warehouses were not adequately equipped, and since the expiry date for the second consignment of the alcohol had been 2001, its market value had significantly decreased, and it had ceased to be drinkable (at least, without prior processing). In support of its submission, the first applicant company produced a report by the Examination of Commodities Bureau, which had produced its conclusions on 30 July 2001. On an unspecified date the applicant company asked the customs office to allow customs clearance in accordance with the rules in force at the time of seizure of the second consignment. However, in a letter of 28 July 2001, no. 06-12/25461, the State Customs Committee required that the first applicant company immediately “re-export” the alcohol so that it could undergo the “special marking” procedure before entering Russian territory again. This was a costly operation, and since Uniya was unable to pay for it, the consignment remained in the warehouses of the customs office while Uniya was looking for a prospective buyer for the consignment without customs clearance. The first applicant company brought proceedings in the Commercial Court of the Kaliningrad Region (case no. 4558), seeking to obtain an injunction against the customs office and authorisation to subject the second consignment to clearance pursuant to the “old” rules. On 31 August 2001 the Commercial Court dismissed the case. It held that the first applicant company had to comply with the new rules irrespective of the fact that the alcohol had been seized when they had not yet been applicable. On 15 September 2001 the second consignment was sold by Uniya to Moscow Vine and Spirits GMBH, a firm based in Germany, for USD   126,073. The contract indicated that the alcohol was not drinkable without further processing on account of the expiry of its storage life. The second consignment physically remained in the warehouses of the customs office. According to the new rules, the buyer had to pay the money only after the consignment passed customs clearance. (c)     Civil claim brought by Belcourt against Uniya On an unspecified date the Belcourt brought civil proceedings in the Commercial Court of the Kaliningrad Region against Uniya claiming damages for its failure to pay for the second consignment of alcohol. In those proceedings Uniya claimed that it was not its fault that the alcohol had been seized by the authorities. On 4 December 2001 the Commercial Court awarded the plaintiff (Belcourt) USD 17,203,586 in damages. It found that 62 containers of alcohol had been sold by Belcourt to Uniya. The contract of sale provided that the unsold part of the consignment could be returned to the seller. However, the consignment had neither been paid for in full nor returned to Belcourt. The fact that the consignment had been seized by the authorities was irrelevant, since it was part of the professional risks incurred by Uniya. (d)     Third decision to seize and destruction; first criminal-law complaint lodged by Mr   Golovkin against the seizure In the meantime the proceedings against Mr Golovkin were resumed, following the decision of the Kaliningrad Regional Court of 20   March 2001. On 21 September 2001 the second consignment of alcohol was again declared an exhibit by the investigator, who again ordered its removal. According to the removal order, it concerned 1,170,312 bottles of alcohol stored in 62 containers. Mr Golovkin appealed to a supervising prosecutor. On 26 September 2001 the Deputy Transport Prosecutor of Baltiyskiy District quashed the removal order of 21 September 2001 as unlawful and insufficiently reasoned. On 29   October 2001 the Prosecutor of the Kaliningrad Region confirmed the validity of the removal order. Mr Golovkin then challenged the Prosecutor's decision before the court, claiming that the alcohol belonged not to him but to a third person. On 9 July 2002 the Chief of the Transport Police wrote a letter to the head of Kaliningrad Customs Office asking to send 62 containers of alcohol to a firm designated by the police, for further storage. On 7 August 2002 the head of the Customs Office refused to remove the second consignment from the customs warehouse. He explained to the Chief of the Transport Police that the containers had not unde