Yukos affair and Putin statements. A series of violations against the accused. Multiple Russian condemnation of ECHR violations

JUDGMENT

Khodorkovskiy  and Lebedev v. Russia  14.01.2020 (n. 2) (appl. no. 51111/07 and 42757/07)

see here 

SUMMARY

The case concerned the second trial of former Yukos executives Mikhail Khodorkovskiy and Platon Lebedev.
The European Court of Human Rights held unanimously that there had been breaches of the applicants’ right to a fair trial under Article 6 § 1 and Article 6 § 3 (c) and
(d) of the European Convention on Human Rights because of the trial judge’s refusals to allow the
defence to examine prosecution and defence witnesses and to submit important expert or exculpatory evidence.

However, the Court unanimously found no violation of Article 6 § 1 concerning the independence
and impartiality of the trial judge and no violation of Article 6 § 2 (presumption of innocence) with
regards to comments during the trial made by Vladimir Putin, prime minister at the time.

By five votes to two, the Court held that the applicants had suffered an unforeseeable application of
the criminal law to their detriment, in breach of Article 7 (no punishment without law). It
unanimously held that there had been a violation of Article 8 (right to private and family life)
because of a lack of long-term family visits when the applicants were on remand before the trial.

The Court unanimously held that there was no need to examine the applicants’ complaints under
Article 18 (limitation on use of restrictions on rights) in conjunction with Articles 6 and 7 and
Article 4 of Protocol No. 7 (right not to be tried or punished twice), and, no violation of Article 18
in conjunction with Article 8.

PRINCIPAL FACTS

The applicants were Mikhail Borisovich Khodorkovskiy and Platon Leonidovich Lebedev, Russian
nationals born in 1963 and 1956 respectively.

After being convicted of tax evasion in 2005 and sent to penal colonies, Mr Khodorkovskiy and Mr
Lebedev, former senior executives at the Yukos oil company, faced fresh criminal charges in 2009. A
new trial began in March 2009 and ended with their conviction for a second time in December 2010
for the misappropriation or embezzlement of oil and for laundering illicitly gained profits.

In essence, the trial court found that the applicants had used their influence and position to get
Yukos production entities to sell their crude oil cheaply to Yukos trading companies, which had then
exported it for a higher price on world markets. The profits had then been sent to Russian and
foreign corporate accounts controlled by the applicants.

During the trial, when the applicants were held in glassed-in boxes, the judge refused to call several
witnesses for the defence and rejected requests for finance and oil market specialists to come and
testify in the applicants’ favour on the expert reports which had been part of the prosecution case.

On appeal, the trial court’s verdict was upheld but the applicants’ sentence was reduced to 13 years’
imprisonment from 14. The appeal court rejected the applicants’ arguments that, among other
things, they were not guilty of stealing because the transactions between the production and trading
had been legal and valid; that the trial judge’s taking of evidence had been one-sided; that they had
been tried twice for the same offence; and that their prosecution had been politically motivated.

Three sets of supervisory review proceedings reduced their sentences further. Mr Khodorkovsky was
pardoned in December 2013 while Mr Lebedev completed his sentence in January 2014.

Vladimir Putin, prime minister at the time of the second trial, made various public statements during
the proceedings, referring to Mr Khodorkovsky and the Yukos case. Some current and former
employees of the trial court also made allegations in the media about the judge’s independence and
impartiality, however, the investigative committee decided against beginning criminal proceedings.

THE DECISION OF THE COURT…

Article 6 § 1

The Court rejected as inadmissible a complaint by the applicants that the trial court had not had
territorial jurisdiction over their case. It also found no violation of Article 6 § 1 on account of the trial
judge’s conduct, which the applicants alleged had shown a lack of impartiality and independence.

Article 6 § 1 in conjunction with Article 6 § 3 (c) and (d)

The Court noted that the applicants had raised a general issue about the fairness of the trial and
about specific aspects of its conduct. It examined the complaints under the two provisions together.
Confidentiality of lawyer-client relations

The Court observed that the trial judge had decided to first review all the documents which the
applicants’ defence lawyers had wished to show them. It noted that it had found a violation of the
Convention over similar circumstances in the applicants’ first trial owing to an interference with the
secrecy of the applicants’ communications with their lawyers and that the Government had not
made any argument that persuaded it to conclude differently in this case.

The Court also noted that the applicants had been held in a glass dock, which had reduced their
direct involvement in the trial and had separated them from their lawyers, which had made
confidential contact impossible. The use of that measure had been a matter of routine, not of
security or order in court. The judge had not recognised the impact of those arrangements on the
applicants’ defence rights or taken any measures to compensate such limitations.

Their rights to participate effectively in the trial and to receive effective legal assistance had been
restricted in a way that was neither necessary nor proportionate, in breach of Article 6 §§ 1 and 3
(c). The Court did not find it necessary to deal further with the complaint under those provisions.

Adversarial proceedings and examination of witnesses

The Court examined in turn six groups of complaints about the taking and examination of evidence
and of a breach of the principle of equality of arms.

It found violations of Article 6 §§ 1 and 3 (d) as the applicants had not been able to cross-examine
witnesses for the prosecution; the trial court had refused to admit most of the defence’s proposed
expert evidence; and they had not been able to obtain the questioning of various defence witnesses,
both in Russia and abroad. Furthermore, it found a violation because of the court’s refusal to admit
exculpatory material to the case file or to order the disclosure of exculpatory material.

In particular, the Court noted that the prosecution had presented expert reports which had been
important to its case, but that the defence had never been able to question the experts who had
drafted them to challenge their opinions. Furthermore, the court, in a restrictive interpretation of
the Code of Criminal Procedure, had prevented the defence from calling its own specialists.

The defence had also made reasoned and relevant requests to call witnesses in Russia and abroad
who could have strengthened the applicants’ case, however, the trial court had rejected those
requests in formulaic terms, without providing proper reasons. It had also failed to take sufficient
steps to ensure the presence in court of defence witnesses whom the court had agreed to hear.

The Court also held that there had been a breach Article 6 § 1 as the trial court had relied on
judgments delivered in other, related cases. In particular, the applicants had not been able to
contest the witness statements read out from those earlier judgments or to rebut facts that had
been established in them. Furthermore, the court had relied on a finding of guilt in one of the earlier
judgments, in a case to which the applicants were not parties, in a way that was prejudicial.

Taking those considerations into account, the Court found a violation of Article 6 § 1 in conjunction
with Article 6 § 3 (c) and (d) on account of a breach of the guarantees of a fair trial.

Article 6 § 2

The applicants complained that Mr Putin’s public statements in 2009 and 2010 had breached their
right to the presumption of innocence. The Government contested that allegation.

The Court reiterated that this provision aimed at preventing the undermining of a fair criminal trial
by prejudicial statements made in close connection with the proceedings.

It noted that Mr Putin had alluded to the applicants being complicit in murders for which the head of
Yukos’s security service had been convicted. However, the applicants had never been charged over
those crimes and the Court held that Mr Putin’s comments on that question did not give rise to any
Article 6 § 2 issues. Nor did references by Mr Putin to cases involving U.S. fraudster Bernard Madoff,
a hacker, and gangster Al Capone appear to have a connection to the applicants’ second trial.

Mr Putin had referred to Mr Madoff again in December 2010, conflating the crimes charged against
Mr Khodorkovsky in the first and second trials and mentioning another – fraud – which he had never
faced. However, Mr Putin had later clarified his remarks such as to dispel any confusion.

The Court thus held that there had been no violation of Article 6 § 2. It did not find it necessary to
consider the applicants’ complaints under Article 6 §§ 1 and 3 (a) and (b).

Article 7

The applicants complained of being subjected to an extensive and novel interpretation of the
criminal law and of the unlawful imposition of a criminal penalty.

They argued in particular that as under domestic law “misappropriation and embezzlement”
constituted a type of “stealing”, their actions had not fallen within the statutory definition of
“stealing” as the transfer of oil from Yukos’s production entities to the trading companies had taken
place under lawful purchase-sale transactions. The Government contested that argument.

The Court examined whether the courts had carried out a reasonable analysis and whether the
applicants could have foreseen that their acts could count as misappropriation or embezzlement.
The Court noted that the contracts for the production entities’ sale of oil to the trading companies
had been valid under civil law at the time and, indeed, remained so. It was thus difficult to
understand how a reciprocal transaction that was valid under civil law could amount to “the
unlawful and uncompensated taking… of another’s property”, the definition of “stealing” in
domestic law.

Furthermore, the notion of “deceit”, mentioned in the domestic judgments as the way the
applicants had obtained approval for the oil sale agreements, did not appear as a qualifying element
in either the offence of “misappropriation or embezzlement” or that of “stealing”. The acts imputed
to the applicants therefore were not punishable under the criminal provisions applied by the courts.
The offence of which the applicants had been charged had therefore been extensively and
unforeseeably construed to their detriment. They could not have foreseen that their entering into
the oil sale transactions in question could have constituted misappropriation or embezzlement. Nor
could they have foreseen that the profits from the sale of the oil from the production entities to the
trading companies would be found to constitute the proceeds of a crime, the use of which could
amount to money laundering. The Court concluded that there had been a breach of Article 7 and did
not consider it necessary to examine the applicants’ complaint about the calculation of their prison
terms.

Article 8

The applicants argued that there had been a violation of this provision because their transfer to
remand prisons in Chita and Moscow before the trial had deprived them of the long-term family
visits that were possible in the penal colonies where they had been serving their sentences after the
first trial. The Government argued that the transfer to remand prisons had facilitated family visits.

The Court observed that it had found a violation of Article 8 in the 2018 case of Resin v. Russia owing
to the legislative bar on long-stay family visits for convicted prisoners who had been taken to a
remand prison from a correctional facility during an investigation.

The Government had not submitted any information or arguments to enable the Court to depart
from those findings in Mr Khodorkovsky and Mr Lebedev’s case and there had been a breach of
Article 8 because of the lack of long-stay visits in their remand prisons.

Article 4 of Protocol No. 7

The Court examined whether the second set of criminal proceedings had arisen from facts which
were substantially the same as those which had led to the applicants’ first conviction.

The second judgment had mentioned the sale of oil by Yukos’s production entities to its trading
companies, which had also been referred to in the first trial. However, the Court noted that the
applicants had been running a large-scale oil business involving many different companies and so an
argument that both convictions had concerned the sale of oil within the Yukos group was too
general and could not lead it to conclude that the two convictions had arisen from the same facts.
The applicants had also pointed more specifically to the fact that both judgments had referred to the
setting up of four trading companies in particular. However, the Court was not convinced that
mentioning certain details related to the organisation of the applicants’ business in both judgments
was sufficient to show that both convictions had arisen from the same facts.

The Court concluded that the applicants had not been prosecuted or convicted in the second set of
criminal proceedings on the basis of facts that were substantially the same as used in the first
conviction and it rejected this complaint as manifestly ill-founded.

Article 18

The applicants argued that they had been prosecuted and convicted for political reasons, a
submission which the Government rejected. The Court had regard to earlier cases involving the
applicants and noted that it had dismissed their allegations of a politically motivated prosecution.

Examining their second trial, it saw no separate issue under Article 18 in conjunction with Articles 6,
7, and Article 4 of Protocol No. 7, and could not find that the law on prison visits in regard to Article
8 had been applied for an ulterior motive. There had thus been no violation of Article 18 in this case.

Just satisfaction (Article 41)

The applicants did not make a claim for just satisfaction and the Court held that the finding of a
violation constituted sufficient just satisfaction for the non-pecuniary damage they had sustained.

Separate opinions

Judges Lemmens and Dedov expressed a joint partly dissenting opinion which is annexed to the
judgment.

 

 


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