Case of European Court of Human Rights, January 14, 2020 (case KHODORKOVSKIY AND LEBEDEV v. RUSSIA (No. 2))

Defense:RUSSIA (No. 2)
Resolution Date:January 14, 2020
SUMMARY

No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Article 6-3-d -... (see full summary)

 
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THIRD SECTION

CASE OF KHODORKOVSKIY AND LEBEDEV v. RUSSIA (No. 2)

(Applications nos. 51111/07 and 42757/07)

JUDGMENT

Art 6 § 1 (criminal) and Art 6 § 3 (c) and (d) • Fair hearing • Defence through legal assistance • Confinement in glass cabin negatively impacting the exercise of an accused’s right to participate effectively in proceedings • Systematic perusal by trial judge of written communications between the accused and their lawyers • Adversarial trial • Equality of arms • Omission to hear in person expert witnesses whose reports were used against the accused • Imbalance between the defence and the prosecution in collecting and adducing “expert evidence” • Court’s unreasoned refusal to examine the defence witnesses, to adduce exculpatory evidence or to obtain disclosure of evidence in the possession of third parties • Unfair reliance of the trial court on judgments in related proceedings to which the applicants were not parties

Art 6 § 2 • Presumption of innocence • Prime Minister’s confusing statements on the applicants’ conviction in an earlier trial • Confusion rapidly dispelled

Art 7 • Criminal offence • Extensive and unforeseeable interpretation inconsistent with essence of the offence

Art 8 • Respect for family life • Unavailability of long-stay family visits in remand prisons

Art 18 and Art 8 • Restrictions for unauthorised purposes • Absence of ulterior motives in view of indiscriminate application of impugned legislation to all detainees of remand prisons

STRASBOURG

14 January 2020

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Khodorkovskiy and Lebedev v. Russia (No. 2),

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Paul Lemmens, President,Georgios A. Serghides,Helen Keller,Dmitry Dedov,María Elósegui,Gilberto Felici,Erik Wennerström, judges,and Stephen Phillips, Section Registrar,

Having deliberated in private on 3 December 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in two applications (nos. 51111/07 and 42757/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Mikhail Borisovich Khodorkovskiy and Mr Platon Leonidovich Lebedev (“the applicants”), on 16 March 2007 and 27 September 2007 respectively.

  2. The applicants were represented by Mr A. Drel, Mr J. Glasson QC and Lord D. Pannick QC, lawyers practising in London. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr Galperin.

  3. The applicants complained, in particular, about their conviction for misappropriation and money laundering, and about other events related to the criminal proceedings against them. They alleged, in addition, that their prosecution had been motivated by political reasons, in breach of Article 18 of the Convention.

  4. On 24 March 2014 the applications were communicated to the Government.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  5. The first applicant was born in 1963 and the second applicant was born in 1956.

    1. Background

  6. The applicants’ activities prior to their imprisonment

  7. Before the applicants’ first arrest in 2003, the first applicant was the Chief Executive Officer (“CEO”) of and a major shareholder in OAO Neftyanaya Kompaniya Yukos (Yukos plc), the head company of the Yukos group of companies (further referred to as “Yukos”), which at the relevant time was one of the largest oil companies in Russia. The second applicant was the first applicant’s business partner and a close friend. From 1998 the second applicant was a director at Yukos-Moskva Ltd. He was also a major shareholder in Yukos plc. Furthermore, the applicants controlled a large number of other mining enterprises, refineries, banks and financial companies. In 2002-2003 Yukos began to pursue a number of ambitious business projects which would have made it one of the strongest non-State players on the market. In particular, Yukos was engaged in merger talks with the US-based Exxon Mobil and Chevron Texaco companies.

  8. The applicants were also active as political lobbyists. From at least 2002 the first applicant openly funded opposition political parties, and a number of his close friends and business partners became politicians.

  9. The first applicant asserted that his political and business activities had been perceived by the leadership of the country as a breach of loyalty and a threat to national economic security. He alleged that as a counter-measure the authorities had launched a massive attack on him personally, his company, colleagues and friends. A more detailed description of the applicants’ political and business activities prior to their arrest can be found in Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, §§ 8-41, 25 July 2013.

  10. The applicants’ first trial

  11. On 20 June 2003 the General Prosecutor’s Office (the GPO) initiated a criminal investigation into the privatisation of a large mining company, Apatit plc (criminal case no. 18/41-03). In 1994 20% of Apatit plc’s shares were acquired by a company allegedly controlled by the applicants. The case was opened under Article 165 of the Criminal Code (“misappropriation of assets” falling short of embezzlement), Article 285 (“abuse of official powers”) and Article 315 (“deliberate non-compliance with a court order”) of the Criminal Code.

  12. In the following years the charges against the applicants within case no. 18/41-03 (hereinafter – the “main case”) were repeatedly supplemented and amended. Thus, within that case the applicants were also charged with corporate tax evasion (Article 199 of the Criminal Code). The applicants were suspected of selling Yukos oil through a network of trading companies registered in low-tax zones, in particular in the town of Lesnoy, Sverdlovsk region. According to the GPO, tax cuts were obtained by those companies by deceit, since the companies existed only on paper and never conducted any real business in the low-tax zones which would have granted eligibility for a preferential tax regime. The GPO suspected that the applicants registered and controlled those companies through their friends and partners, in particular Mr Moiseyev, senior manager and shareholder of Group Menatep Limited, Mr Pereverzin, director of two Yukos companies registered in Cyprus (see paragraph 116 below), and Mr Malakhovskiy, director of Ratibor (see paragraph 108 below).

  13. Case no. 18/41-03 led to the applicants’ conviction at their first trial in 2005. The facts related to that trial (the “first trial”) were at the heart of several applications lodged with the Court in 2003-2006 (see Summary of the Court’s main findings in the applicants’ previous cases at paragraph 34 et seq. below).

  14. In October 2005, on completion of the first trial, both applicants were transferred from Moscow to two remote Russian penal colonies to serve their sentences. The first applicant was sent to penal colony FGU IK-10, located in the town of Krasnokamensk, Chita Region. The second applicant was sent to correctional colony FGU IK-3 in the Kharp township, located on the Yamal peninsula (Yamalo-Nenetskiy region, Northern Urals, north of the Arctic Circle).

  15. The applicants’ prison terms as imposed in the 2005 judgment subsequently expired; however, they both remained in prison on account of new accusations brought against them within the related but separate court proceedings which are at the heart of the present case (the “second trial”).

  16. Trials of the applicants’ former colleagues and partners

    (a) Trial of Mr Pereverzin, Mr Malakhovskiy and Mr Valdez-Garcia

  17. On an unspecified date the GPO severed from the applicants’ case a new case concerning Mr Pereverzin, Mr Malakhovskiy and Mr Valdez-Garcia, directors of Yukos trading companies. The charges against Mr Pereverzin included, in particular, embezzlement and money laundering (“legalizatsiya”) committed in a group which also included the applicants.

  18. In June 2006 the trial of Mr Pereverzin, Mr Malakhovskiy and Mr Valdez-Garcia started at the Basmanniy District Court of Moscow. That trial was held in camera and was presided over by Judge Yarlykova.

  19. On 1 March 2007 Mr Pereverzin and Mr Malakhovskiy were found guilty; Mr Valdez-Garcia fled from Russia and escaped conviction. He alleged that in 2005 he had been ill-treated while in custody. In particular, Mr Valdez-Garcia claimed that he had been beaten by investigator Mr Kz. and received multiple injuries. However, the Russian authorities refused to institute a criminal investigation into those allegations.

  20. On 21 June 2007 the Moscow City Court upheld the conviction on appeal.

    (b) Trial of Mr Aleksanyan

  21. Mr Aleksanyan was one of the lawyers acting for the first and second applicants. In 2006 he was arrested and prosecuted in a related but separate case (see Aleksanyan v. Russia, no. 46468/06, 22 December 2008). The accusations against Mr Aleksanyan were brought to trial, but in 2010 they were dropped due to the expiry of the statute of limitations.

  22. Other criminal cases against the applicants

  23. In 2004, while the applicants’ first trial was underway, the GPO decided that certain episodes related to the applicants’ business operations were to be severed from the main criminal case (no. 18/41-03) against the applicants.

  24. On 2 December 2004 the GPO opened criminal case no. 18/325556-04, which concerned “money laundering” by Mr Moiseyev and other “unidentified persons”.

  25. On 27 December 2004 the GPO informed the applicants of that decision. However, the applicants were not questioned in relation to those new charges and were not given any details or informed...

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