THIRD SECTION
DECISION
Application no. 3315/04
OAO AFANASIY-PIVO and others
against Russia
The European Court of Human Rights (Third Section), sitting on 8 November 2016 as a Chamber composed of:
Luis López Guerra, President,
Helena Jäderblom,
Helen Keller,
Dmitry Dedov,
Branko Lubarda,
Alena Poláčková,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 25 December 2003,
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
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.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Freezing order
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.
2. Extraordinary judicial appeals
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.
3. Ordinary judicial appeals
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.
4. Appeals to investigating authorities
11. Between February and May 2003 the applicant companies four times asked an investigator or prosecutor to unfreeze the assets, without success.
B. Relevant domestic law
12. The Code of Criminal Procedure 2001, as in force at the material time:
Article 115. Freezing of Assets
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.
Article 354. Right of appeal and appeal in cassation
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.
COMPLAINTS
13. The applicant companies complained under Article 1 of Protocol No. 1 to the Convention that the freezing order issued against Mr Larin had disrupted their brewing business.
14. The applicant companies complained under Articles 6 and 13 of the Convention that the law barred them from appealing against the freezing order.
15. The applicant companies complained under Articles 6, 13, and 17 of the Convention that the supervisory review and appeals to the investigating authorities had been long, unfair, and ineffective.
A. Complaint under Article 1 of Protocol No. 1
16. The applicant companies complained under Article 1 of Protocol No. 1 to the Convention that the freezing order issued against Mr Larin had disrupted their brewing business. This Article reads:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. The Government
17. The Government argued that the complaint was manifestly ill‑founded. The interference had been based on the Code of Criminal Procedure and had aimed at ensuring the availability of assets to meet any award of damages. The law was public and accessible.
18. The interference had served the public interest in fighting crime, indemnifying civil parties (shareholders), and in staving off Afanasiy-Pivo’s bankruptcy and a drain of capital abroad. Eastern Union Holding had been controlled by Mr Larin. The applicant companies had gained their assets from the activity he was investigated for. The asset freeze had not done any harm to the applicant companies as it had only restricted how they disposed of the assets. They had still been able to own, use, and even sell the assets.
2. The applicant companies
19. The applicant companies maintained their complaint. The freezing order had been unlawful as the domestic law had been vague. Contrary to the requirements of Article 115 § 3 of the Code of Criminal Procedure, there had been no evidence that the frozen assets had been gained by Mr Larin criminally. The charges against Mr Larin had excluded the possibility of forfeiture. Instead of freezing Mr Larin’s assets, the court had frozen those of the applicants. Mr Larin no longer owned Eastern Union Holding.
20. The asset freeze had been disproportionate as the value of the assets had far exceeded any possible award for damages. The applicant companies had suffered incalculable damage, including harm to their reputation, and had had to cut jobs and manufacturing output, cancel equipment upgrades and loans. The freeze also had to be seen in the context of a hostile takeover attempt by a third party.
21. Article 354 of the Code of Criminal Procedure did not afford a right of appeal to any of the applicants, as interested parties, and whose property was seized.
3. The Court
22. There is no need to answer the parties’ arguments as the complaint is in any event inadmissible as belated.
23. Under Article 35 § 1 of the Convention, the Court may only deal with the matter within six months of the final decision. It is not open to the Court to set aside the application of the six months’ rule solely because a Government have not made a preliminary objection based on it (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000‑I).
24. If it is clear from the outset that the applicant has no effective remedy, the six months run from the measure complained of or from when the applicant learned of it (see Dennis v. the United Kingdom (dec.), no. 76573/01, 2 July 2002).
25. The applicant companies complain of the freezing order of 9 September 2002. They learned of it on 25 September 2002. No effective remedy was available to them. Indeed, the applicant companies admit realising immediately that the law barred them from appealing, which was confirmed by the Moscow City Court on 7 July 2003. The other two remedies tried by the applicant companies – supervisory review and appeals to prosecutors – were ineffective (see Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004‑II (extracts), and Makhmudov v. Russia, no. 35082/04, § 53, 26 July 2007). The application was lodged on 25 December 2003.
26. Accordingly, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
B. Complaint under Article 13 of the Convention
27. The applicant companies complained under Articles 6 and 13 of the Convention that the law barred them from appealing against the freezing order. The Court will examine this complaint only under Article 13 as Article 6 does not guarantee an appeal in civil matters (see Steglich-Petersen v. Denmark, no. 41250/98, Commission decision of 21 October 1998, Decisions and Reports 94, p. 167).
28. Article 13 applies only to “arguable” complaints. As the complaint under Article 1 of Protocol No. 1 is time-barred, it is not “arguable” (see Stockton and Others v. the United Kingdom, no. 36053/97, Commission decision of 15 January 1998).
29. Accordingly, the complaint under Article 13 is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Other complaints
30. The applicant companies complained under Articles 6, 13, and 17 of the Convention that the supervisory review and appeals to the investigating authorities were long, unfair, and ineffective.
31. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 December 2016.
Stephen PhillipsLuis López Guerra
RegistrarPresident
Full & Egal Universal Law Academy