Published: 19 Jun 2020 | By Tom Kiernan
Khodorkovskiy and Lebedev v Russia (No.2)
Case No: 51111/07 and 42757/07
Judgment Date: 14 January 2020
The applicants are Russian nationals and former senior executives of the Yukos Oil Company who were convicted of tax evasion and fraud in 2005. When their sentences expired, the applicants remained imprisoned facing new charges of embezzlement and money laundering. They stood accused of misappropriating large amounts of oil from Yukos’ subsidiaries and laundering the profits by selling the oil through a chain of affiliated trading companies, for which they were convicted and sentenced to fourteen years imprisonment in 2010. On appeal, the Moscow City Court upheld the applicants’ convictions and rejected arguments that they were not guilty and that the trial had been politically motivated. The court did, however, order a minor reduction in their sentences.
Three further appeals, including by Russia’s Supreme Court in January 2014, upheld the applicants’ convictions. The Supreme Court also ordered Mr Lebedev to be released as he had served his sentence, and further ordered that the remainder of Mr Khodorkovskiy’s prison sentence was not to be served due to a Presidential Decree of 20 December 2013 which pardoned him.
The ECtHR found that there had been multiple violations of Art. 6(1) (fair hearing) in conjunction with Art. 6(3)(d), in essence denying applicants a fair trial and adversarial proceedings in their case. The Khamovnicheskiy District Court unjustifiably denied the applicants the possibility to cross-examine experts whose reports were used against them, refused to admit evidence proposed by the applicants, and failed to summon and examine a witness for them. At trial, the applicants had been held in a glass dock away from their lawyers, which amounted to an unnecessary restriction of their right to participate effectively in the proceedings and to receive practical and effective legal assistance
No violation of Art. 6(1) was found regarding the independence and impartiality of the trial judge at Khamovnicheskiy District Court. The ECtHR held that information provided by a trial attendant, who claimed to have overheard a phone conversation between a prosecutor and an unidentified person, was insufficient to overcome the presumption of the personal impartiality of a judge. Neither did spontaneous remarks to journalists (which were quickly corrected) made by the then Prime Minister of Russia, Vladimir Putin, amount to a violation of Art. 6(2) (presumption of innocence).
The ECtHR found a further violation of Art. 7 because the applicants could not possibly have foreseen that their activities would amount to money laundering under the relevant legislation. The Government’s decision to transfer the applicants from penal colonies to remand prisons also violated Art. 8 as it unnecessarily interfered with the applicants’ ability to have long-term visits by family members.
There was no violation of Art. 18 in conjunction with Art. 6, Art. 7 or Art. 4 of Protocol 7. The applicants did not bring any new circumstances before the Court that it had not examined in previous cases brought by the applicants (see Khodorkovskiy and Lebedev v Russia, Apps. Nos. 11082/06 and 13772/05, 25.07.13, § 909). The Court further noted that it did not consider the applicants’ complaint under Art. 18 to represent a fundamental aspect of the case, and that the essence of the complaint was addressed under Art. 6, Art. 7 and Art. 4 Prot. 7. It further held there had been no violation of Art. 18 in conjunction with Art. 8, as the law on prison visits was applied indiscriminately.
The ECtHR declared the applicants’ complaint under Art. 4 of Protocol No. 7 (the right not to be tried or punished twice) to be inadmissible, as it was manifestly ill-founded.
The applicants did not claim costs and expenses because of the heavy burden made by the Court on the Government’s budget by the sum awarded in Neftyanaya Kompaniya Yukos v Russia (Just satisfaction) App Nos.14902/04, 31.07.2014
Khodorkovskiy and Lebedev v Russia (No.2) was the latest in a series of cases brought before the ECtHR by the applicants regarding their criminal prosecution in Russia. They have repeatedly raised Article 18 in their cases, complaining that the criminal proceedings against them are politically motivated.
So far, the Court has found no violations of Art. 18 in any of the cases brought by the applicants. No new evidence was submitted in the present case, so the Court rejected the applicants’ complaint, considering it to be materially the same as that alleged in a previous case.
It is interesting to note the Court’s approach to the Article 18 complaint in relation to Art. 6, 7, and 4 of Protocol 7. The Court considered that no separate issue arose under Article 18 with respect to these provisions, on the basis that it did not represent a “fundamental aspect” of the case. This reasoning is significant, as the Court considered (albeit briefly) these provisions on the merits, rather than holding Art. 18 to be inapplicable to Art. 6 and 7 on the basis that they are not restricted rights. The Court’s approach to the applicability of Art. 18 to Art. 6 has been inconsistent, and in previous cases it has outright rejected such complaints as being inadmissible on the basis of lack of applicability.
It would seem from the Court’s approach in this case that it therefore may be possible in the future for it to make a finding of a violation of Art. 18 with Art. 6 in a case where political motivation is considered a fundamental aspect.
For more analysis of Article 18 applicability to Article 6, see this blog authored by EHRAC’s Jessica Gavron and Ramute Remezaite: https://www.ejiltalk.org/has-the-ecthr-in-mammadov-464-opened-the-door-to-findings-of-bad-faith-in-trials/