CASE OF VLADIMIROVA v. RUSSIA
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
5. The applicant was born in 1957 and lives in Stavropol. 6. The applicant is the founder, sole owner and director of a limited liability company, Akvilon (общество с ограниченной ответственностью «Аквилон»). Prior to the events described below, the company had been engaged in the grocery retail trade. 7. On 30 November 2001 Akvilon purchased 5 tonnes of granulated sugar in 100 sacks on condition of delayed payment with a view to reselling it to Mr P. and Mr Pr. The two men made an oral agreement with the company to pay 55,000 Russian roubles (RUB – approximately 2,000 euros (EUR)) in cash immediately upon receipt of the sugar. 8. On the same date Mr V., the applicant’s husband and a deputy director of Akvilon, transferred the sugar to Mr P. and Mr Pr., who then left under the pretext that they had to fetch more cash in order to be able to pay. Shortly thereafter, Mr V. complained to the Nevinnomyssk Department of the Interior (Управление внутренних дел г. Невинномысска) of the misappropriation by Mr P. and Mr Pr. of the sugar belonging to Akvilon. 9. On 30 November 2001 criminal proceedings were instituted on suspicion of aggravated fraud in connection with the incident. The case was assigned to an investigator, Mr S., who granted the status of victim of a crime to the Akvilon company. 10. Later that day, the investigator in charge found the five tonnes of sugar in garages belonging to Mr P. and Mr Pr., in the amounts of 1.5 tonnes and 3.5 tonnes respectively. The two men admitted that they had no documents confirming that they had obtained the sugar legitimately, but insisted that they had paid the necessary amount in cash to a certain Ms Ya., who had promised to deliver the money to Akvilon and had then disappeared. The investigator acknowledged Mr P. and Mr Pr. as witnesses in the case and, without formally attaching the sugar, left it with them for safe storage. Both men gave written undertakings to store the sugar until a court decision was given on the matter. 11. On 20 December 2001, following a complaint by Akvilon, the Nevinnomyssk prosecutor’s office ordered the investigator, Mr S., to formally attach the sugar, to seize it from Mr P. and Mr Pr. and to deposit it with a neutral person for safe storage. 12. On 11 January 2002 the investigator ordered the attachment and seizure of the sugar from the garages belonging to Mr P. and Mr Pr., and its transfer to a third party for safe storage. On 15 January 2002 the order was executed and the attached sugar was included in the list of exhibits in the case. 13. By a decision of 22 February 2002 the investigator, Mr S., declared Mr V., who acted as a representative of the Akvilon company, a civil claimant in the criminal case. 14. On 6 August 2002, on the instructions of the prosecutor’s office of the Stavropol Region, the investigating authorities transferred the sugar to the Akvilon company for safe storage. 15. In late 2002 the criminal case was transferred to another investigator. 16. By two decisions of 24 March 2003 the investigator in charge lifted the attachment order on the sugar and ordered that it be excluded from the list of exhibits in the case. The decisions stated that the investigation had established that, despite their written undertakings to store the sugar, Mr P. and Mr Pr. had sold it to third persons in December 2001. They had then, on 8 January 2002, purchased another lot of sugar in the amount of 1.5 and 3.5 tonnes respectively, which had subsequently been attached and included in the list of exhibits by Mr S. The decisions concluded that the sugar in question was not the object of the crime in the present case, and therefore its attachment should be lifted. It is unclear what happened to the sugar thereafter. 17. On 31 March 2003 the Nevinnomyssk Department of the Interior decided not to institute criminal proceedings against Mr P. and Mr Pr. in connection with the fact that they had sold the sugar in breach of their written undertakings given to Mr S. The decision stated that the undertakings had not been legally binding, since when they had been given, the sugar had not been formally attached and included in the list of exhibits, and therefore there had been no legal grounds for Mr P. and Mr Pr. to refrain from selling it. 18. By a decision of 18 April 2003 the investigator in charge ordered the withdrawal of Akvilon’s victim status. The decision stated that it had been established during the investigation that on 30 November 2001 the Akvilon company had dispatched the sugar to the garages belonging to Mr P. and Mr Pr. The two men had then delivered the stipulated amount in cash to a certain Ms Ya., who had negotiated the deal between them and Akvilon and had disappeared once in receipt of the money. The decision concluded that in view of the fact that it was Mr P. and Mr Pr.’s money which had been stolen in the present case, rather than Akvilon’s sugar, it was the former and not the company who were victims of the crime. 19. On 6 March 2007 a deputy prosecutor of the Stavropolskiy Region ordered that Akvilon again be granted the status of victim of a crime. 20. On 29 March 2007 the criminal proceedings instituted in connection with misappropriation of Akvilon’s property were suspended owing to the absence of those responsible. 21. In 2002 Mr P. and Mr Pr. lodged a civil claim against the Akvilon company, seeking to have their title to, respectively, 1.5 and 3.5 tonnes of sugar attached by the investigating authorities acknowledged, the attachment order lifted and the sugar returned to them. 22. By a decision of 17 April 2003 the Nevinnomyssk Town Court (“the Town Court”) discontinued the proceedings in so far as they had been brought by Mr Pr. on the grounds that he was officially registered as a businessman, and that therefore his dispute with Akvilon fell within the competence of a commercial court. It does not appear that this decision was appealed against or that Mr Pr. attempted to pursue the proceedings any further. 23. As regards Mr P.’s claim, after several rounds of proceedings, the Town Court granted it in a judgment of 21 May 2004. The court confirmed Mr P.’s title to 1.5 tonnes of sugar, referring to the fact that he had purchased it on 8 January 2002. The court further established that the sugar belonging to Mr P. had been attached by the investigator, Mr S., and transferred to a third party and then to Akvilon for safe storage and that by the investigating authorities’ decision of 24 March 2003 the attachment order had been lifted. The court thus concluded that Akvilon was under an obligation to return 1.5 tonnes of sugar to Mr P., who was its rightful owner. The judgment was not appealed against, and no enforcement proceedings were ever instituted. 24. Throughout the investigation into the incident of 30 November 2001 the applicant lodged numerous complaints with the supervising prosecutors alleging negligence on the part of the investigator, Mr S. In particular, she complained of his failure timeously to attach the sugar belonging to Akvilon and his decision to transfer it for safe storage to Mr P. and Mr Pr., individuals whom Akvilon had accused of fraud, with the result that the sugar had been lost and Akvilon had suffered pecuniary damage. 25. In letters sent to the applicant in the period of 2002-04, the Nevinnomyssk prosecutor’s office and the main investigating division of the Department of the Interior of the Stavropol Region stated, inter alia, that the investigator, Mr S., had indeed breached certain requirements of the criminal procedure legislation. They went on to say that he had been subjected to disciplinary sanctions in that connection, but that there were no grounds to bring criminal proceedings against him. 26. Between April and July 2004 the Nevinnomyssk prosecutor’s office took a number of similar decisions to dispense with criminal proceedings against Mr S. They stated, in essence, that although formally there were elements of an offence punishable under Article 293 of the Russian Criminal Code (professional negligence) in Mr S.’s actions, that Article provided for criminal liability only if the damage caused by such negligence attained a minimum of RUB 100,000, whereas the pecuniary damage alleged by Akvilon had been lower than that amount. 27. In 2003 Akvilon initiated proceedings before the Commercial Court of the Stavropol Region against the Nevinnomyssk Department of the Interior, the Department of the Interior of the Stavropol Region and the Russian Ministry of the Interior. The company complained that the negligent actions on the part of the investigator, Mr S., during the investigation into the incident of 30 November 2001 had resulted in the loss of five tonnes of sugar belonging to the company. His actions had caused pecuniary damage to the company and had been detrimental to its business reputation, given that it had purchased the sugar on condition of delayed payment, which it had then been unable to fulfil. The company indicated that the pecuniary damage it had suffered to that date amounted to RUB 96,312, taking into account the current price of sugar. It also sought compensation for damage to its business reputation. 28. After several rounds of proceedings, in a judgment of 22 October 2004 the Commercial Court of the Stavropol Region dismissed the company’s claims in their entirety. It noted that it had not been proven that the investigator, Mr S., had been negligent in performing his duties, given that it had been decided to dispense with criminal proceedings against him in that connection, and that therefore there was no causal link between his actions and the pecuniary damage alleged by the claimant company. The court also stated that since Mr S. had not disseminated any defamatory statements concerning Akvilon, there were no grounds to grant its claim for compensation for damage to its business reputation. 29. On 30 November 2004 the Appellate Instance of the Commercial Court of the Stavropol Region quashed the first-instance judgment in so far as the applicant’s claim for pecuniary damage was concerned, stating that the lower court finding as to the absence of a causal link between the pecuniary damage sustained by Akvilon and Mr S.’s actions had been incorrect. The appellate court noted that the first-instance court had not taken into account that criminal proceedings against Mr S. in connection with the negligent performance of his duties had not been instituted only on the formal ground that the pecuniary damage inflicted on the claimant company by his actions had been below the statutory limit established in Article 293 of the Russian Criminal Code. The appellate court further found it established that “it was on account of the unlawful actions of investigator S., who had transferred five tonnes of sugar belonging to the Akvilon company to other persons, that [the company] had been deprived not only of its property but also of the right to claim compensation for damage in the context of the criminal proceedings, as the investigator in charge had withdrawn the status of victim [from the company]”. The appellate court considered it established that the company had proven the circumstances in which it had sustained pecuniary losses in the amount of RUB 96,312, and awarded the company the full amount claimed in respect of pecuniary damage, as well as RUB 8,619.42 for costs and expenses to be recovered from the Russian Ministry of the Interior at the expense of the Federal Treasury. The appellate court further upheld the judgment of 22 October 2004 in so far as it rejected the company’s claim concerning compensation for damage to its business reputation. 30. On 10 March 2005 the Federal Commercial Court of the NorthCaucasus Circuit, acting as a cassation instance, upheld the appeal decision of 30 November 2004. The court, however, reduced the award to RUB 55,000, noting that that sum represented the pecuniary losses sustained by Akvilon in 2001 (see paragraph 7 above). 31. On 19 May 2005 the Supreme Commercial Court of Russia refused leave to apply for a supervisory review of the case. 32. On 15 December 2004, following the decision of the Appellate Instance of the Commercial Court of the Stavropol Region of 30 November 2004, Akvilon was issued with a writ of execution and the enforcement proceedings were commenced. 33. In a decision of 12 July 2005 the Appellate Instance of the Commercial Court of the Stavropol Region noted that on 10 March 2005 the Federal Commercial Court of the North-Caucasus Circuit had reduced the award in respect of non-pecuniary damage from RUB 96,312 to RUB 55,000 and ordered that the recovery of the amount of RUB 41,312 be discontinued. 34. That decision was sent to the Russian Ministry of Finance, which then returned the writ of execution and the decision remained unenforced. 35. On 23 October 2006, at the request of Akvilon, the Commercial Court of the Stavropol Region issued it with another writ of execution for the amount of RUB 55,000 awarded in respect of pecuniary damage and RUB 8,916.42 awarded in respect of costs and expenses. 36. On 25 October 2006 the new writ was sent to the Ministry of Finance for enforcement. 37. On 4 July 2007 the Russian Ministry of Finance transferred the full amount due to Akvilon’s bank account.