THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 72145/01 by OOO TORGOVYI DOM “POLITEKS” against Russia

The European Court of Human Rights (Third Section) , sitting on 16 September 2004 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mr A. Kovler , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 19 October 2000,

Having regard to the partial decision of 3 July 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, OOO Torgovyi Dom “Politeks” , is a limited-liability company registered in Moscow. It is represented before the Court by Mr D. Lyzlov. The respondent G overnment are represented by Mr P. Laptev , the Representative of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows .

1. The applicant company ' s account of events

The applicant is a trading company. It owned a consignment of goods (imported electric tools). Unspecified third persons made groundless claims to the goods . Since there was no evidence to prove the se claims in a court, the third persons incited the police to seize the goods under the guise of a sham criminal investigation.

On 15 July 1999 Mr Lyzlov was accompanying the goods. He was stopped by a police patrol and taken to a police station. In the course of an interrogation, the police discovered that the applicant company was stor ing the goods in a warehouse in Odintsovo . They went there and sealed the warehouse up. The police did not draw up any documents concerning the seizure and the applicant company ' s representatives were not allowed to visit the warehouse.

On 27 October 1999 the police loaded the goods into trucks and removed them from the warehouse. The police did not expla i n their actions, and the goods have been missing ever since. Later, the goods were spotted on sale in Moscow markets.

On 26 N ovember 1999 the police started a criminal investigation against Mr Lyzlov on charges of fraud and forgery of documents.

On 19 October 1999 Mr Lyzlov filed a n administrative complaint on behalf of the applicant company with the Zamoskvoretskiy District Court of Moscow. He maintained that the police had unlawfully seized the goods, that the goods had been plundered, and that the criminal charges against him had been unfounded.

On 25 February 2000 the Zamoskvoretskiy District Court dismissed the complaint. The court found that the police had lawfully seized the goods because they needed to investigate the allegation of a third person, Z., who had claimed that the goods belonged to him and not to the applicant company. The police had lawfully formalised the storage of the goods and appointed warehouse staff responsible for the goods ' safety.

The court limited the scope of its review to the administrative aspects of the complaint having referred to Article 46 of the Constitution which secures to everyone judicial protection against public officials ' acts. The court therefore abstained from looking into the merits of the charges against Mr. Lyzlov and from verifying the safety of the goods.

On appeal, this decision was upheld by the Moscow City Court on 25 April 2000.

Later, the criminal investigation against Mr Lyzlov was stopped.

2. The Government ' s account of events

A third person, Z., applied to the police alleging that goods belonging to his company were unlawfully retained by Mr Lyzlov in a warehouse of the applicant company.

On 15 July 1999 the police sealed up the applicant company ' s warehouse in Odintsovo . The police found that Mr Lyzlov did not work for the applicant company and had no documents confirming his rights on the goods.

On 26 November 1999 a public prosecutor instituted criminal proceedings against Mr Lyzlov on charges of fraud and forgery of documents. In the course of the investigation it was established that the goods had been imported in 1997 by a third company. The company asked Mr Lyzlov to customs clear the goods and to store them in its warehouse. However, Mr Lyzlov breached this agreement. As h e considered that the third company owed him money, he hid the goods in a warehouse of the applicant company and requested the third company to pay a ransom for it. The investigating authorities found no evidence that the goods belonged to Mr Lyzlov . Nevertheless, since Mr Lyzlov ' s actions did not disclose a crime, the proceedings against him were stopped on 8 December 2002 .

On 25 February 2000 the Zamoskvoretskiy District Court dismissed Mr Lyzlov ' s complaint about the police and the institution of the criminal proceedings.

On 25 April 2000 the Moscow City Court upheld the judgment on appeal.

COMPLAINTS

The applicant company complained, with reference to Articles 3, 6 and 13 of the Conve ntion and Article 1 of Protocol No. 1 , about the seizure and plundering of the goods.

THE LAW

The applicant company complains under Articles 3, 6 and 13 of the Convention and Article 1 of Protocol No. 1 about the seizure and plundering of its goods by the police. The Court will consider this complaint under Article 1 of Protocol No. 1 which reads as follows:

“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.”

The Government submitted that the applicant company had not exhausted all available domestic remedies as required by Article 35 § 1 of the Convention. In particular, it was open to the applicant company to institute supervisory-review proceedings against the domestic court ' s decisions . Pursuant to new laws of criminal and civil procedure such proceedings would be an effective remedy . Furthermore, it was open to the applicant company to lodge a civil action to vindicate its property.

The applicant company argued that it did exhaust domestic remedies, since it had written hundreds of com plaints to various authorities. Besides, supervisory review was not an effective remedy according to the Court ' s case-law. The third parties did not have any rights over the goods. The police should have themselves returned the goods once the criminal proceedings against Mr Lyzlov had been stopped.

T he Court reiterates that supervisory-review proceedings , such as established in the “new” Codes of Criminal and Civil Procedure of 2001 and 2002, do not represent a domestic remedy to be exhausted for the purpose of Article 35 § 1 of the Convention ( see Berdzenishvili v. Russia ( dec .), no. 31697/03, ECHR 2004 ‑ ... , Denisov v. Russia ( dec .), no. 33408/03 , 6 May 2004). However, the Court does not need to determine whether the applicant company has exhausted domestic remedies, because its complaint is in any event manifestly ill-founded for the following reason.

The parties make contradictory statements on the question of ownership of the goods. The Government claim that the goods belonged to a third company, whereas the applicant company claims that the goods belonged to it.

However, it is not the Court ' s task to determine the question of the existence of the property rights. The Court reiterates that a person complaining of an interference with his right to property must show at the admissibility stage that such a right existed (see X, Y and Z v. Germany , nos. 7694/76, Commission decision of 14 October 1977, Decisions and Reports (DR) 12, p. 131; Agneessens v. Belgium , no. 1216 4/86, Commission decision of 12 October 1988, DR 58, p. 63). The applicant company has not submitted any evidence that would tend to show that the goods had belonged to it or to Mr Lyzlov , or that the goods were plundered These persons ' title on the property does not follow from the domestic courts ' decisions either.

It does not follow from the circumstances of the case that at the close of the criminal investigation against Mr Lyzlov the authorities decided the destiny of the goods. It is not excluded that the non-return of the goods could cause the applicant company pecuniary loss. However, the applicant company has not substantiated any such loss either.

Consequently there is no basis upon which it would be open to the Court to conclude that the applicant company had been a victim of a violation of Article 1 of Protocol No. 1.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President