OAO AFANASIY-PIVO AND OTHERS v. RUSSIA
Inadmissible
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra
1. The applicants are three companies: OAO Afanasiy-Pivo (Russia), OOO Brau Service (Russia), and Eastern Union Holding AG (Switzerland). They were represented before the Court by Mr A. Shcherba, a lawyer practising in Moscow, Y. Fedichkin, a lawyer practising in Tver, and Ms Mjriana Visentin, a lawyer practising in Lainate in Italy. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. Afanasiy-Pivo ran a brewery in Tver. In June 2002 its chief executive officer Mr M. Larin was charged with abusing his position by transferring the company’s taxable profits to his other company, Eastern Union Holding. 5. On 9 September 2002 the Tverskoy District Court of Moscow made a freezing order (наложил арест) against Mr Larin under Article 115 of the Code of Criminal Procedure. The order concerned the Afanasiy-Pivo shares owned by Easter Union Holding and Brau Service, real estate and industrial equipment owned by Afanasiy-Pivo and Brau Service, Brau Service shares owned by Eastern Union Holding, and trademarks that Mr Larin had allegedly criminally assigned to Eastern Union Holding. 6. On 25 September 2002 the applicant companies learned of the freezing order. They realised that domestic law, in particular Article 354 of the Code of Criminal Procedure did not allow them to lodge an ordinary appeal against such an order. 7. In October 2002 Mr Larin applied for a supervisory review of the order. On 10 December 2002 the Moscow City Court returned his application as incomplete. 8. In January 2003 Afanasiy-Pivo and Brau Service applied for a supervisory review. On 18 March 2003 their application was dismissed on the merits. 9. In May 2003 Brau Service lodged an ordinary appeal against the order. On 7 July 2003 the Moscow City Court terminated the proceedings (прекратил производство) as under Article 115 of the Code of Criminal Procedure the company was not affected by the order. 10. In July 2003 Afanasiy-Pivo applied for leave to appeal against the order out of time. On 21 July 2003 the Tverskoy District Court of Moscow refused. 11. Between February and May 2003 the applicant companies four times asked an investigator or prosecutor to unfreeze the assets, without success. 12. The Code of Criminal Procedure 2001, as in force at the material time: 1. A prosecutor ... or investigator ... may ask a court to freeze the assets of the suspect [or] the accused ... to secure them for meeting any award of damages, other recovery orders, or eventual forfeiture. 2. The asset freeze prohibits the owner or holder of the assets from disposing of and ... using them, and puts the assets into custody. 3. Assets held by third parties may be frozen if there is reason to believe that they were gained by criminal activity of the suspect or accused. 1. An appeal or appeal in cassation may be lodged by parties against ... court decisions that have not yet come into force.... 4. The right of appeal lies with a convicted person, an acquitted person, their defenders or legal representatives, the public prosecutor, a victim or his representative.