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Cite as: [2010] ECHR 906
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
13772/05
by Platon Leonidovich LEBEDEV
against Russia
The European Court of Human Rights (First Section), sitting on 27 May 2010 as a Chamber composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Mr Søren Nielsen, Section
Registrar,
Having regard to the above application lodged on 28 March 2005,
Having decided to give priority to this case under Rule 41 of Rules of Court,
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
1. The applicant, Mr Platon Leonidovich Lebedev, is a Russian national who was born in 1956 and is now serving his sentence in the Kharp township of the Yamalo-Nenetskiy Region. He was represented before the Court by Ms Y. Liptser and Mr Y. Baru, lawyers practising in Moscow. The present case is his second application concerning his pre-trial detention and conviction for tax fraud. The respondent Government were initially represented by Mr P. Laptev, and subsequently by Mrs V. Milinchuk, both former Representatives of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background
3. From 1992 until December 1995 the applicant was the President of the Menatep bank. In 1995-1996 the applicant was a member of the Executive Board and the Board of Directors of that bank. In 1996-1998 the applicant worked in the Rosprom (an industrial holding company affiliated to Menatep): first, as an adviser to the Executive Board and then as Deputy Chairman of the Executive Board. From 1998 onwards the applicant was Deputy Chairman of the Executive Board of Yukos-Moskva Ltd., a major Russian oil company belonging to the Yukos group and affiliated to Menatep and Rosprom. He was a business partner and a close friend of Mr Khodorkovskiy, the former head and a major shareholder of Yukos. Both Mr Khodorkovskiy and the applicant were major shareholders of an international investment holding company GML (Group Menatep Limited) that controlled the Yukos oil company.
4. On 20 June 2003 a public prosecutor opened an investigation on suspicion of fraud committed in the course of privatisation of a State-owned company in 1994 by a group of leading executives of Menatep and its affiliated companies. In the following months some of them were arrested and charged, including Mr Khodorkovskiy. Others, in fear of prosecution, left Russia.
5. On 14 April 2004 the Tax Office lodged its first demand for tax arrears allegedly owed by Yukos, which led to proceedings before the Moscow Commercial Court. Those proceedings concerned the operation of a “tax optimisation” scheme using trading companies registered in the Lesnoy Town and other “tax havens”. In the following months more claims concerning the tax situation of Yukos and its affiliates were lodged. The commercial courts granted most of the Tax Service's claims. As a result Yukos had to declare itself insolvent and bankruptcy proceedings were started. (For further details see the statement of facts in the case of OAO Neftyanaya kompaniya YUKOS v. Russia, no. 14902/04, admissibility decision of 29 January 2009).
2. Statements by public officials
6. On 12 November 2003 Mr Kolesnikov, the Deputy Prosecutor General, at a press-conference in the State Duma publicly stated that the applicant and Mr Khodorkovskiy faced a ten-year prison sentence. He added: “Unfortunately, we cannot give them [a harsher sentence]”.
7. On 24 March 2004 Mr Biryukov, the Deputy Prosecutor General, published an article in the Komsomolskaya Pravda newspaper in which he wrote as follows:
“The defendants [Mr Khodorkovskiy and Mr Lebedev] are taking their time before the trial; they know that after conviction they would not have an opportunity to appeal to the public and complain about injustice, but they would have to serve a well-deserved punishment. ... They knew it long before we charged them. They knew it when they were committing those crimes! Yukos is like a virus infection quickly spreading through the country and covering it with the pockets of contamination. Here is the map of the epidemic: Samara, Volgograd, Mordoviya. ... They left dirty marks everywhere in the country. Take, for example, Vladimir Dubov, an MP representing Yukos in the State Duma; he, so to say, appropriated 70 billion Russian roubles of budget funds via a bank under his control and using a fraudulent scheme; that money was allocated for the housing of retired military personnel and for building a new bridge over the Volga. Do you see the scale? Smooth guys! Dubov is now abroad, hiding ... Leonid Nevzlin is also charged with fraud and tax evasion.”
8. On 6 July 2004 Mr Ustinov, the Prosecutor General, said in a radio interview to the radiostation Ekho Moskvy:
“This case has a beginning, but it is hard to see where it ends. ... The scale of fraud, abuse, tax evasion, is so big that it is impossible to fit them into one case. This is why other branches of this case were severed into separate proceedings, and they are now pending.”
9. On 11 April 2005 Mr Shokhin, who represented the State prosecution at the applicant's trial, made the following statement to the news agency Interfax:
“We believe that the evidence collected in the course of the trial was enough for a fair judgment, for a conviction. I am absolutely convinced that [the applicant] committed serious crimes and that the court has unquestionable evidence of that ... All fine words and loud statements of innocence and care about the good of Russia that have been made today are nothing but words ... During the year of the trial we saw that there was a cynical and insolent embezzlement behind all that, amounting to tens of billions of roubles. Therefore, in our view, the State, society and the population suffered great damage ... In the course of the trial enough evidence was obtained to prove the applicants' guilt.”
10. On 1 June 2005 the spokesperson of the General Prosecutor's Office, Ms Veshnyakova, said in an interview to the Noviye Izvestia newspaper:
“We consider that judgment just and in line with the factual circumstances and the gravity of the crimes committed by Khodorkovskiy, Lebedev and Kraynov. We flatly dismiss any political rationale behind that case. Specific grave crimes were committed, and have been proven. The question was about common fraud, theft and tax evasion. The fact that those crimes were committed by the management of a big company does not change the substance of the case. These are grave crimes which ended with a just punishment. Now Khodorkovskiy and Lebedev are facing new charges, primarily concerning the legalisation of criminal profits, which amounted to billions of roubles.”
3. The applicant's detention
(a) From 3 July 2003 until 10 September 2004
11. On 2 July 2003 the applicant was admitted to a hospital in connection with his chronic diseases. On the same day, while in hospital, the applicant was arrested by the prosecuting authorities as a suspect in the above-mentioned criminal case. He was placed to the Lefortovo remand prison. In the following months the applicant's detention on remand was extended by the court (for further details, as regards the period until November 2004, see the decision on admissibility in the case of Lebedev v. Russia, no. 4493/04, 18 May 2006). At the end of October 2003 the applicant was transferred to remand prison IZ-77/1 in Moscow, commonly known as “Matrosskaya Tishina”. On 6 April 2004 the Meshchanskiy Court decided that the applicant should remain in detention pending trial. No reasons were given for that decision. On 15 April 2004 the Meshchanskiy District Court dismissed the application for release lodged by the defence. The court held as follows:
“[The court] takes into account that [the applicant] is accused of a number of offences, including serious ones, punishable with more than two years' imprisonment. The combination of the seriousness of the charge and the information about the applicant's personality gives reason to suspect that, if released, the applicant may abscond from trial, interfere with the proceedings and influence witnesses. [In particular], the persons suspected of having committed the offences in concert with [the applicant] have gone into hiding. [The applicant] maintains international connections. [He] is accused of offences committed in his capacity as a manager of commercial companies. The persons with whose assistance, according to the investigating authorities, [the applicant] committed the offences, still work in the companies and depend on [him] financially and otherwise. [The applicant] may therefore influence them ...”
The District Court concluded that the applicant should be kept in custody pending trial.
(b) From 10 September 2004 until 16 May 2005
12. At the hearing of 10 September 2004 the prosecutor requested the court to extend the applicant's detention on remand until 26 December 2004, since the previous detention order would expire on 26 September 2004. The defence objected but the court granted the request and extended the applicant's detention on remand as requested. The reasons given by the District Court in its decision of 10 September repeated the reasons stated in the decision of 15 April 2004.
13. The defence appealed. On 13 October 2004 the Moscow City Court upheld the decision of the lower court. The City Court noted that “the circumstances in which the imputed acts had been committed” suggested that, if released, the applicant might pervert the course of justice by putting pressure on witnesses or otherwise influencing them, or might abscond.
14. At the hearing of 14 December 2004 the prosecutor again requested the extension of the applicant's detention until 26 March 2005. That request was made orally. The court granted the request and extended the detention until 26 March 2005, giving the same arguments as in the detention orders of 15 April and 10 September 2004. On 19 January 2005 the detention order of 14 December 2004 was upheld by the Moscow City Court.
15. At the hearing of 2 March 2005 the State prosecutor requested a new extension of the applicant's detention pending trial. The prosecutor referred to the applicant's oral statement of 1 March 2005, when he had said that he “would haunt the prosecutor until his last day”. The court granted the request extending the applicant's detention until 26 June 2005. That detention order repeated the reasons given in the previous detention orders.
4. Investigation
16. On 3 July 2003 the prosecution charged the applicant and two other persons (Mr Khodorkovskiy and Mr Kraynov) with fraud, non-compliance with a court order and tax evasion. The prosecution asserted that in 1994 the applicant, together with the co-defendants, had deceived the State: he had bought a stake in a large mining company through a privatisation tender, but had not made a return investment in the company even though it was the winning bidder's obligation to do so. Furthermore, the applicant had subsequently disregarded a judgment ordering him to return his stake in the company to the State. In the following month other accusations were added, in particular that of tax evasion (corporate and personal).
17. On 14 August 2003 the investigator commissioned an audit of the business activities of Apatit Plc. – one of the companies belonging to the group connected with the applicant. The audit was completed on 16 August 2003. The defence received a copy of the investigator's request for the audit report only on 19 August 2003.
18. On 20 August 2003 the investigation ended. On 22 August 2003 the applicant and his lawyers began to study the case file, consisting of 162 volumes (over 250 pages each), and the bill of indictment.
19. On two occasions, after having a meeting with the applicant in the remand centre where he was being detained, his defence lawyer, Mr Baru, was subjected to a search by officers of the SIZO led by its director. The reason given by them was that the applicant had allegedly handed over some notes to the lawyer. During the search, documents that Mr Baru was carrying and which were related to the cases of Mr Khodorkovskiy and the applicant, were seized from him.
20. In September 2003 one of the applicant's lawyers, Mr Drel, was summoned to the General Prosecutor's Office for questioning in respect of the applicant's case. Mr Drel refused to appear, referring to his status as advocate. On 9 October 2004 the prosecution carried out a search in the office of Mr Drel and seized certain documents which were later included in the case file. The prosecution also carried out searches in a number of other places, including the applicant's house, the office of Menatep bank, the law firm of ALM Feldmans, and the office of Mr Dubov (a Member of Parliament). A large number of documents on paper and in electronic form were seized. On 22 March 2004, during a visit to the applicant by one of his lawyers, Mr Baru, the prison guards seized from Mr Baru certain documents and his notebook. These documents were returned to him two days later.
21. In the meantime, the cases of several other leading Yukos executives were set down for trial. On 5 February 2004 the Meshchanskiy District Court, presided over by Judge Kolesnikova, rendered a judgment in a criminal case concerning Mr Shakhnovskiy, the former president of Rosprom and Yukos-Moskva (companies belonging to the Yukos group). In that case the District Court found, inter alia, that during the period under consideration the de facto “captains” (фактические руководители) of Yukos, acting in concert with Mr Shakhnovskiy, had transferred the funds of a number of Russian companies controlled by Yukos to the accounts, in foreign banks, of foreign companies controlled by Mr Shakhnovskiy and the said persons. Further, these unnamed “captains” of the company, in order to reduce tax payments, had paid him his salary through Status Service Limited, an offshore company, under the guise of consultancy fees. In support of its findings the court referred to various documents. Among them the court indicated “analogous” consultancy agreements, concerning the same period of time, that had been entered into with other leading Yukos executives, including the applicant. Further, the court referred to the American Express credit cards found in the applicant's house during the search. As can be seen from the text of the judgment, the applicant received these cards in his capacity as head of Status Service Limited.
22. On 5 March 2004 the Basmanny District Court of Moscow, upon the request of the prosecution, set a time-limit for the examination of the case file by the defence. In support of their request the prosecution indicated that the defence was maliciously delaying the beginning of trial. Thus, by 9 February 2004 the applicant had read only 41 out of 162 volumes given to him; his lawyers had read from 4 to 85 volumes. It set a deadline of 25 March 2004.
23. An entry made by the applicant in the record shows that on 24 March 2004 he requested that volumes 150 and 152 be provided to him for inspection. However, on 25 March 2005 this was not done.
24. On 25 March 2004 the investigator decided to withdraw the case file from the defence and submit it to the court.
25. On 26 March 2004 the case was transmitted to the Meshchanskiy District Court for examination on the merits.
26. On 20 April 2004, during the preliminary hearing, the defence filed a request for additional time to enable new lawyers, who had entered the proceedings recently, to become properly acquainted with the materials of the case. The defence also pointed out that the applicant himself was not familiar with all the materials of the criminal case because the time frame for examining the case materials was so constrained. They sought to obtain five months for the proper preparation of their position. The court adjourned the preliminary hearing until 28 April 2004 and set a one-month deadline for the defence to become acquainted with the case materials.
27. On 13 May 2004 the applicant signed a statement in which he confirmed that he had read all the materials in the case file. However, on 17 May 2004 he withdrew that statement.
5. Bill of indictment
28. The prosecution presented a number of charges against the applicant, Mr Khodorkovskiy and Mr Kraynov. In particular, the applicant was accused of misappropriation of assets and profits of private companies and tax evasion. The charges may be summarised as follows:
(a) Misappropriation of shares in Apatit
29. In 1994 the State privatisation authority decided to sell 20% of the stock of Apatit Plc., a large mining company producing the apatite concentrate. Under the conditions of the privatisation tender the buyer would be under an obligation to invest money in the business activities of Apatit.
30. In order to participate in the privatisation tender, the applicant, together with Mr Khodorkovskiy and their subordinates and friends, created several “paper companies”: Volna, Malakhit, Flora and Intermedinvest. Further, the applicant, as a head of the Menatep bank, issued indemnity bonds on behalf of Menatep, guaranteeing the capacity of the first three companies to pay. The fourth company produced a fake indemnity bond from the European Union Bank. As a result, the four companies were admitted by the State privatisation authority for participation in the tender procedure.
31. In its tender of 1 July 1994 Intermedinvest made the best offer, but then withdrew it. Other companies participating in the tender procedure did the same. As a result, Volna obtained the privatisation contract. Under the contract Volna had to invest 394,219,000 Russian roubles in Apatit by 1 July 1995. However, that condition was not met.
(b) Misappropriation of profits and assets of Apatit
32. In 1995 the applicant and Mr Khodorkovskiy, who together (through affiliated companies) held a controlling interest in Apatit (including 20% purchased through the privatisation tender), appointed a group of managers in order to control the sales of Apatit. As a result, all sales went through a number of paper companies controlled by the applicant and located in tax havens. Thus, the apatite concentrate was bought by those companies for 30-40 United States dollars (USD) per metric ton and then sold to foreign companies for USD 40-78. These companies, controlled by the applicant, thus accumulated the profits of Apatit; as a result, the minority shareholders suffered pecuniary losses.
(c) Failure to comply with the court decision concerning Apatit
33. On 16 November 1994 the State privatisation authority brought proceedings before the Commercial Court against Volna seeking the nullification of the privatisation contract and return of the shares of Apatit. In 1995 Volna transferred the amount stipulated in the privatisation contract to the bank account of Apatit. On 16 August 1995 the case against Volna was dismissed on the ground that the money stipulated in the privatisation contract had been duly paid. Some time later that amount was transferred back to the bank accounts of Volna by the director of Apatit.
34. In 1998 the judgment of 1995 was quashed. The Commercial Court of Moscow, sitting as a court of appeal, declared the privatisation contract null and void and ordered the restitution of the shares of Apatit to the State. However, by that time Volna had already sold the shares of Apatit to a number of sham legal entities, controlled by the applicant and Mr Khodorkovskiy. As a result, the decision of the Commercial Court of Moscow of 1998 remained unenforced and the enforcement proceedings were discontinued.
35. In March 2002 the applicant proposed a friendly settlement of the dispute and the State privatisation authority accepted the offer. Under the friendly settlement Volna paid the State USD 15,130,000 and the State withdrew its claim to the shares of Apatit. The above amount was calculated by an audit firm, BC-Otsenka, and was accepted by the Commercial Court of Moscow as representing the market value of the shares. On 22 November 2002 the Commercial Court of Moscow endorsed the friendly settlement agreement and closed the case. However, according to the Meshchanskiy District Court, the real market value of the shares at the relevant time was USD 62,000,000. It referred to the audit report of 19 August 2003, commissioned by the investigator, and the report of the consultancy firm Rusaudit, Dorhoff, Yevseyev and Partners of December 2002, commissioned by the Government of the Russian Federation. Therefore, the decision of the Commercial Court was based on false evidence.
(d) Misappropriation of shares in NIUIF
36. In 1995 the State privatisation authority decided to sell through a tender procedure 44% of NIUIF Plc., a Moscow-based research institute. To that end the authority issued an invitation to tender. One of the conditions of the privatisation tender was that the winner would have to invest a certain amount of money to support the on-going activities of NIUIF.
37. In order to take part in the tender procedure the applicant (acting through his subordinates in the Menatep bank) created two “paper companies”: Polinep Ltd. and Wallton Ltd. Further, he issued two indemnity bonds on behalf of Menatep, guaranteeing the payment capacity of those companies. As a result, they were admitted by the State privatisation authority for participation in the tender procedure.
38. In its offer Polinep proposed to invest USD 50,000,000 in NIUIF; it was the highest bid so Polinep was declared the winner. However, immediately afterwards Polinep withdrew its bid. Wallton made a bid of USD 25,000,000; as it was then the highest investment, Wallton obtained the privatisation contract.
39. On 28 December 1995 Wallton transferred the investment money to the account of NIUIF in the Menatep bank. Mr Klassen, the then managing director of NIUIF, reported to the State privatisation authority that Wallton had fulfilled its obligations under the privatisation contract. On the next day he transferred the money back to the account of Wallton in Menatep. As a result, 44% of the shares of NIUIF were transferred to Wallton, although de facto the conditions of the privatisation contract had not been met.
40. In February 1996 Wallton sold the shares of NIUIF to another three “paper companies” created by the applicant: Khiminvest, Metaksa, and Alton. Under the contract of sale those companies received the shares but were free from any investment obligations vis-à-vis NIUIF.
41. Further, in order to control the activities of NIUIF the applicant delegated several employees of the Menatep bank to the Board of Directors of NIUIF. As a result, the board of directors approved the sale of the main asset of NIUIF – its office buildings in Moscow – to Pender Limited, an off-shore company controlled by the applicant and registered in the Isle of Man. That company acted through the persons who worked in the Menatep bank or the Rosprom holding company. The applicant also delegated his men to the management of NIUIF in order to oversee the day-to-day activities of the company.
(e) Failure to comply with the court decision concerning NIUIF
42. In 1997 the State privatisation authority learned that Wallton Ltd. had failed to perform the main obligation under the privatisation contract, namely, to invest a certain sum of money in NIUIF. The privatisation authority brought proceedings against Wallton seeking the return of the shares. As a result, on 24 November 1997 the Commercial Court of Moscow annulled the privatisation contract of 1995 and ordered the seizure of the shares from Wallton.
43. However, by this time the shares in NIUIF had already been sold by Wallton, so that decision could not be executed. In January 1998 the shares were re-sold to several “paper companies”, which had also been created and were controlled by the applicant: Danaya, Galmet, Fermet, Status, Elbrus, Triumph, Leasing, Renons, Izumrud, Topaz. As a result, the decision of the Commercial Court of Moscow remained unenforced.
(f) Personal income tax evasion
44. In 1998-2000 the applicant registered himself as a private entrepreneur. That status allowed him to pay an “imputed” income tax of a fixed amount, defined by the legislation, instead of paying the personal income tax and making social security contributions. He then made fake agreements for consultancy services with the company Status Service Limited registered in the Isle of Man. The court found that the applicant was the head of that company. That company was controlled by Mr Moisseyev, a close friend of Mr Khodorkovskiy and the applicant. Under that agreement he received money purportedly in payment for consultancy services; however, in reality that money was the wage for his work in the Menatep bank, the holding company Rosprom and other large companies affiliated to Yukos. As a result, he paid much lower taxes than if he had received that money as his salary. In support of these allegations the prosecution referred, amongst other documents and witness statements, to the American Express cards seized during the search of the applicant's country house and to copies of the consultancy agreements between the applicant and Status Service Limited.
(g) Company income tax evasion; misappropriation of budget funds
45. In the 1990s there were a number of tax havens in Russia; one of them was Lesnoy Town in the Sverdlovsk Region. The applicant, together with Mr Khodorkovskiy, registered a number of “paper companies” there. Those companies purported to operate in Lesnoy Town and, on that ground, obtained tax relief. However, de facto those companies did not have any business activities in Lesnoy Town but were controlled and administered from Moscow. Those “paper companies” became the profit centre for Yukos Plc. (the major oil pumping company of the industrial group, controlled by the applicant and Mr Khodorkovskiy). As a result, the overall tax payments of the industrial group were significantly reduced.
46. Secondly, the “paper companies” registered in Lesnoy Town did not pay taxes in monetary form. Instead, they obtained promissory notes from Yukos Plc. and then transferred them to the tax authority of Lesnoy Town. The value of the promissory notes was later offset from the tax debt. In the following years the promissory notes were paid off, but only in part.
47. Thirdly, since the value of promissory notes was higher than the tax debt, the “paper companies” obtained a tax refund from the State. In other words, in 2000-2001 the Federal Treasury paid the “paper companies” the difference between the tax debt and the value of the promissory notes.
48. In 2001, when the regional tax authority started a tax audit of the “paper companies” registered in Lesnoy Town, those companies formally discontinued their activities in Lesnoy Town and merged with another “paper company” registered in Aginskiy Town, another tax haven. Later these companies were again re-registered in the Chita Region.
5. Trial
49. On 20 May 2004 the Meshchanskiy District Court held a preparatory hearing. On 16 July 2004 the trial was opened. The court was composed of three judges: Ms Kolesnikova (presiding judge), Ms Klinkova and Ms Maksimova. The court was assisted by seven secretaries who kept the summary record of the hearing (no verbatim record was made). The prosecution was represented by Mr Shokhin. The defence was represented by Mr Baru, Mr Drel, Ms Liptser, Mr Ryvkin, Mr Grydnev and Mr Kransov.
50. On 8 June 2004 the applicant's case was joined with those of Mr Khodorkovskiy and Mr Kraynov (director of Volna, a firm which participated on behalf of Menatep in the privatisation of Apatit). The applicant was given access to a mass of further documents.
51. The hearings were public. They took place in a courtroom which held, according to the defence, up to thirty people. No audio or video recording or broadcasting of the hearings was allowed. However, journalists were present in the courtroom. The applicant and his co-defendants were held in a metal cage under the supervision of armed guards. Any contact between the applicant and his lawyers during the hearing was prohibited, unless authorised by the judge.
52. On 23 June 2004 the defence sought a one-month adjournment in the proceedings in order to allow the applicant to finish reading the case file. The court adjourned the case until 12 July 2004.
53. The judge decided to start with the examination of prosecution evidence. The judge also ordered that the applicant's meetings with the defence team should take place on Wednesdays.
(a) Examination of prosecution evidence
54. Between August and October 2004 the court examined a large number of witnesses called by the prosecution. In respect of 37 of the witnesses examined by the court the prosecution requested the reading-out of the written statements that they had previously given to the investigator. The defence objected, arguing that it would intimidate the witnesses. The court granted all requests and the written statements of those witnesses were read out. It appears that some of those witnesses had been summoned to the General Prosecutor's Office and questioned again only a few months, weeks or even days before they appeared in court.
55. Between September and December 2004 the defence lodged a number of applications on the exclusion of evidence produced by the prosecution. Thus, on 30 September 2004, the defence drew the court's attention to the fact that certain items of evidence relied on by the prosecution were missing from the case file. For instance, the case file did not contain an American Express credit card or a copy of the contracts between the applicant and Status Service Limited (these documents were later referred to in the judgment, on page 479) that were relied on by the prosecution in their submissions.
56. On 11 October 2004 the defence asked the court for access to the case file in the case of Mr Shakhnovskiy. They claimed that the prosecution, in their submissions, had referred to American Express credit cards allegedly seized during the search in the applicant's house, but that these cards were missing from the case file in the applicant's case. The applicant had expected that these credit cards would be found in the materials of Mr Shakhnovskiy's case, since in the judgment of 5 February 2004 in that case the Meshchanskiy District Court had listed those cards among other evidence. However, the District Court rejected this request.
57. On 28 October 2004 the defence requested the court not to include in the case file documents which had not been part of the original file, as it had stood at the time when the applicant had been given access to it, on the completion of the investigation.
58. On 19 November 2004 the defence complained to the court that the case file contained a large numbers of documents which either were not duly certified or were barely readable.
59. On 30 December 2004, 21 January and 25 February 2005 the defence asked the court to exclude from the body of evidence documents which were not duly certified. The defence also asked the court to exclude the documents obtained by the prosecution in several searches carried out in the applicant's house, in the office of Mr Drel (one of the applicant's lawyers), and in the offices of Menatep-SPB and the law firm ALM-Feldmans, among others. The defence sought to exclude other items of prosecution evidence (see pages 629 et seq. of the judgment), but the court rejected their requests.
60. Despite the objections of the defence, the court also admitted several documents produced by the prosecution which were not final: a draft agreement between two companies (later referred to on page 269 of the judgment), draft minutes of board of directors meetings, a draft contract between the applicant and a foreign company Status Services Limited (later referred to on page 476 of the judgment).
61. The defence further sought the exclusion of the audit report of 16 August 2003. They claimed, among other things, that they had been unable to challenge the experts, to put additional questions to them, or to have independent experts added to the team. However, the court rejected the request. The court noted that at that time the applicant had not yet been charged with the misappropriation of assets of Apatit.
(b) Examination of evidence produced by the defence
62. From November 2004 onwards the defence started to produce their evidence in the case, including a large number of documents, some of which were included in the case file. However, the court refused to admit the reports prepared by tax experts and auditors, in particular Mr Shchekin, Ms Petrova, Mr Semenov, Mr Lubenchenko, and Mr Grechishkin. The court decided that those reports were inadmissible evidence and therefore could not be admitted to the case file. The court, however, later agreed to question those persons as witnesses. After examining them, the court decided that the witness statements of Mr Shchekin, Mr Semenov, Ms Petrova and Mr Lubenchenko were inadmissible evidence. The court accepted the testimonies of Mr Grechishkin, but only to the extent that they did not relate to the subject-matter of his report.
63. On 27 December 2004 and 17 January 2005 the court refused to admit in evidence certain documents produced by the defence on the ground that those documents had not been duly certified (did not contain an official seal or signatures on each page). On 28 December 2004 the court refused to admit in evidence a draft of a Government regulation on privatisation produced by the defence, on the basis that it had been just a draft and not a final document. Further, the court refused to admit the charter of Status Service Limited because that document had been obtained by the defence lawyer in breach of Article 59 of the Code of Criminal Procedure. The court also refused to admit documents confirming that the promissory notes transmitted to the tax authority of Lesnoy Town had been duly paid.
64. On 31 December 2004, before the start of the Orthodox Christmas holidays, the defence sought the adjournment of the case for a day. However, the court adjourned it only for a few hours. As a result, the applicant had only one hour for a meeting with his lawyers.
65. From January 2005 onwards the hearings were held every day. As a result the applicant had little time to meet his lawyers in private. On 25 January 2005 the defence lawyers requested the court to allocate every Wednesday for meetings with the applicant. However, this request was refused. Some time later the defence repeated that request, but it was again refused.
66. According to the applicant, the defence could not properly examine the expert witnesses called on their initiative, since the presiding judge often artificially dismissed the questions put to them by the defence. The presiding judge overruled and rejected questions on the pretext that the questions “were not related to the competence of that specialist”, or because of the fact that “they assumed interpretation and explanation of the legislation in force”, or upon other grounds not envisaged by Russian law.
67. On 17 January 2005 and 23 March 2005 the defence lawyers complained to the court that the prosecution had put pressure on certain witnesses by threatening them with criminal prosecution or actually prosecuting them. The defence declared that, for the sake of the safety of those witnesses, they would not call them to testify at the trial.
68. On 8 February 2005 the defence sought an adjournment for two days, but it was refused. On 14 February 2005 the defence sought another adjournment for two days. The court decided to adjourn the case but only until noon the next day. On the next day the defence repeated its request for adjournment for two days, but the request was dismissed.
69. On an unspecified date the defence challenged the prosecutor Mr Shokhin alleging his personal enmity towards the applicant. However, the judge refused to exclude Mr Shokhin from the proceedings.
70. On 9 March 2005 the defence sought the judge's replacement. They referred to various irregularities in the proceedings and the judge's alleged lack of impartiality in matters of detention. In particular, they referred to the participation of Judge Kolesnikova in the trial of Mr Shakhnovskiy, alleging that this showed her predisposition against the applicant. However, the judge refused to stand down. The judges decided that the applicant's allegations were unfounded.
71. On Thursday 24 March 2005 the defence requested adjournment until the following Monday, 28 March 2005. The court ordered the adjournment only until 2 p.m. on Friday 25 March 2005.
72. On 25 March 2005 the defence sought adjournment for five days in order to prepare their pleadings in reply to those of the prosecution. That request was repeated on 30 March 2005, when the prosecution concluded. However, the court scheduled the next hearing for 1 April 2005.
(c) Position of the defence
73. The applicant pleaded not guilty. His substantive defence in respect of the charges, as shown by the text of the judgment, can be summarised as follows.
74. As regards his position in the companies involved in the transactions which the prosecution regarded as criminal, the applicant gave the following testimony. He confirmed that he had been the President of the Menatep bank until 1995. He was also one of its major shareholders. However, in December 1995 he had left that post. Later he had become a chief executive of Rosprom (1996-1997) and of Yukos-Moskva. Rosprom was the management company of the Yukos oil company. At the same time, in 1999-2002, the applicant had represented a group of major shareholders of Menatep in the negotiations concerning the restructuring of that bank. In 2001-2002 Menatep created the Menatep-St. Petersburg bank and the applicant had become the Chairman of its Board of Directors. From 1999 onwards the applicant had been the head and one of the major shareholders (together with Mr Khodorkovskiy) of Group Menatep Limited. That company owned 100% of shares in GML Management Services. In 2001-2002 the applicant had also provided consultancy services to Fos-Agro AG (the management company of Apatit).
75. As to the transactions referred to by the prosecution, the applicant did not deny that some of them might indeed have taken place. However, those transactions had been public and lawful. He also denied any personal involvement in those transactions or any relations with the parties thereto.
76. Thus, as regards the alleged misappropriation of shares in Apatit, the applicant claimed that he had not had any relations with the companies involved in the re-sale of the shares in Apatit, and had not controlled them.
77. Concerning the alleged misappropriation of the profits of Apatit, the applicant testified that he had never participated in any discussion concerning schemes in respect of the apatite concentrate (the main produce of Apatit).
78. Concerning the alleged non-compliance with the court judgments, the applicant denied having heard about proceedings initiated by the Murmansk Prosecutor for the return to the State of shares in Apatit, or the ensuing proceedings before the commercial courts. The applicant admitted that he had learned about the situation later, and had been ordered to help Volna to pay off its debts to the Treasury in 2002, in order to secure a friendly settlement between the State and Volna.
79. Concerning the privatisation of NIUIF the applicant did not deny that Menatep had issued a security bond for the acquisition of shares in NIUIF. However, he did not remember the details of that operation and, in any event, he was unaware about the further implementation of the investment programme since he had left Menatep in 1995. The applicant testified that in 1993 the Menatep bank had created an investment department which was supposed to find business projects to fund. The applicant was not aware of its on-going activities, especially when the amounts of investment involved were relatively small. The activities of the investment department were controlled by the Deputy Chairman of the bank's Management Board. The applicant only set the general policies of the Menatep bank and of other companies he had headed. As to the larger business projects, they were approved by the Board of Directors or other collective bodies of those companies.
80. In respect of the charges related to the personal income tax evasion, the applicant confirmed that he had concluded consultancy agreements with Status Service Limited. However, he was unable to indicate specifically when he had rendered services to that company or to any of its clients, and what these services consisted of. He denied that he had ever been the head of that company.
81. In respect of the charges related to the company tax evasion, the applicant testified that he had no information about the companies that were buyers of Yukos oil. He had not given any instructions to the oil-pumping entities belonging to the Yukos group to sell oil to those companies.
82. As regards the alleged misappropriation of budget funds, the applicant denied any links to the companies registered in Lesnoy Town or other tax havens. Until the beginning of the investigation, he had not heard the names of their directors, shareholders or managers. He denied having designed, together with Mr Khodorkovskiy, the scheme of payment of taxes by promissory notes from Yukos Plc.
6. The judgment
83. On 16 May 2005 the Meshchanskiy District Court delivered two separate judgments. The first concerned the misappropriation of shares in Apatit (see above, point (a) of the “Bill of indictment” part). The court found the applicant guilty as charged; however, because the offence had been committed more than ten years before, namely in July 1994, the court applied the statute of limitations and waived the applicant's criminal liability.
84. As regards other charges against the applicant, the District Court found the applicant guilty (with minor changes in the legal characterisation of the offences) and sentenced him to nine years' imprisonment in an “ordinary regime” correctional colony. The relevant judgment was 660 pages long; it may be summarised as follows.
85. The District Court found that the “paper companies” involved in the transactions had been controlled by the applicant and Mr Khodorkovskiy. Most of the persons who had created those companies, acting on their behalf, worked at Menatep, Rosprom, Yukos, etc., and, in that capacity those persons were subordinate to the applicant and Mr Khodorkovskiy. Further, the “paper companies” never had any financial resources of their own, but operated with the financial support of Menatep, Rosprom, Yukos and other companies officially affiliated to the applicant. The “paper companies” did not have premises or personnel; they did not make profits and some of them had been finally liquidated or abandoned. Therefore, the companies had been created solely for participation in the sham transactions; they were controlled by the applicant and Mr Khodorkovskiy through their personal friends or subordinates in Menatep, Rosprom and Yukos.
86. As regards the charges concerning personal income-tax evasion, the court dismissed the applicant's arguments. The court found that the applicant was unable to substantiate with any documentary evidence the claim that he had provided services to the company Status Service Limited, although, as a tax payer and an entrepreneur, he had been obliged to keep records of his transactions with his business counterparts. The judgment did not contain any reference to the case of Mr Shakhnovskiy. However, the judge referred to the same evidence as in the case of Mr Shakhnovskiy, in particular, the consultancy agreements between the applicant and Status Service Limited, the American Express credit cards seized in his house during the search and his tax reports for the relevant periods. The court also referred to the reports of Yukos lawyers which described this method of payment of salaries as a tax minimisation scheme.
87. The judge orally informed the applicant that he could file objections to the summary record of the trial until 25 August 2005 at the latest. However, by that date only 15 volumes of the original record were available. The rest was not given to the defence on the grounds that they had already received a copy of it.
7. The appeal
88. The defence appealed. They claimed, in particular, that the Meshchanskiy District Court had no territorial jurisdiction to hear the applicant's case. Further, the court had been biased because of the participation of Judge Kolesnikova in the proceedings concerning Mr Shakhnovskiy. The applicant's right to the presumption of innocence had been breached by the statements of senior prosecution officials. Further, the applicant had been seriously ill and had therefore been unable to prepare his defence. He had not had enough time to consult with his lawyers. The prosecution had put pressure on the lawyers for the defence, on witnesses and on judges. The applicant had not had enough time to read the record of the trial. The District Court had refused to admit evidence produced by the defence, in particular the expert reports. At the same time the court had accepted all documents produced by the prosecution. The applicant further challenged the assessment of evidence by the lower court claiming that his link to the “paper companies” or persons who represented them in the transactions had not been sufficiently proven.
89. On 22 September 2005 the Moscow City Court examined the appeal. The City Court held that the Meshchanskiy District Court had jurisdiction to hear the case since at least some of the offences imputed to the applicant had been committed in the Meshchanskiy District of Moscow. The City Court also dismissed all objections related to the admission of evidence by the first-instance court. It further found that the applicant had enjoyed legal assistance by qualified advocates, that he had had enough time to meet them in private, and that his state of health had not prevented him from participating in the hearings or preparing for them. The City Court found that the first-instance court had been impartial, that the defence had enjoyed equality of arms with the prosecution and that the proceedings had been fair. However, the City Court disagreed with the legal characterisation of certain acts imputed to the applicant. Thus, the City Court excluded from the judgment the episode concerning the payment of taxes with promissory notes in 1999 and 2000. The City Court further excluded two episodes concerning the alleged failure to comply with the Commercial Court judgments. It also excluded the episodes concerning the misappropriation of the profits of Apatit in 1997-1999. As a result, the overall sentence was reduced to eight years of imprisonment.
8. Medical conditions of the applicant's detention
(a) While in the remand prison
90. During the trial the applicant was detained in the remand prison IZ–77/1. According to him, he was seriously ill and might even have died in prison because no adequate medical treatment was available there. The Government maintained that the applicant's health condition was compatible with the detention and that the medical aid in the remand prison was adequate and sufficient. The detailed account of the parties' submissions in this respect may be found in the decision on admissibility in the case of Lebedev v. Russia (no. 4493/04, 18 May 2006).
91. On 2 March 2004 the applicant was examined by a panel of doctors composed of the Chief Doctor of the Moscow Health Department, the Deputy Medical Director of the Moscow Prisons Department, the Healthcare Director of Matrosskaya Tishina, and an infectious diseases specialist. The panel found that:
“[The applicant] suffer[ed] neuroculatory dystonia of a hypertensive type, chronic subacute hepatitis of a non-complicated course, i.e., without transformation into cirrhosis and portal hypertension.”
92. The panel also prescribed further treatment. Thus, in particular, the applicant was prescribed “Atenolol” hepatotropic drugs (“Carsil”, “LIV 52”, and “Grandaxin”).
93. According to the Government, the applicant refused further treatment and monitoring “in categorical terms”. Thus, on 19 March 2004 he refused to undergo a gastroduodenal fibroscopy. On 23 April 2004 he refused to take an eyesight test. He also refused to undergo regular medical checks before going to hearings. At the same time he continued to receive medicines from his relatives.
94. The applicant also claimed that his health condition had not been properly monitored. Further, that the conditions of detention were incompatible with his poor health. During the trial, between 20 May 2004 and 11 April 2005, the applicant was deprived of outdoor walks and was unable to follow the diet required by his chronic ailments or to receive hot food. In the courtroom his was confined within a narrow iron cage for up to nine hours a day. On 19 August he had felt bad during a hearing. As a result, the judge had had to call for an ambulance. The doctors established that the applicant had high blood pressure and administered an injection.
95. On 10 December 2004 the applicant underwent an X-ray examination of the chest organs. On 14 December 2004 a blood test was carried out. None of those two tests established any deterioration of the applicant's condition.
96. On 20 January 2005 the applicant requested the examination of his state of health by independent doctors. In reply the remand prison administration offered him a number of medical tests by prison doctors. The applicant requested that those tests be performed by doctors of his choosing, but his request was refused. The applicant claimed that he had not received medicine prescribed to him by the panel of doctors in March 2004. Neither had he been able to receive necessary medicine from his relatives.
97. On 7 February 2005 the defence requested the court to order the applicant's medical examination by the doctors of his choosing having the necessary qualifications. They maintained that the applicant's state of health had deteriorated. Thus, the defence insisted on an examination of the applicant by a physician, a surgeon and a neurologist. The court held that it had no competence to deal with such matters.
98. On the following day the defence addressed a request in similar terms to the prison administration, which replied that an examination by independent doctors would be possible, but only after the applicant had undergone the tests carried out by the prison doctors. Further, the prison administration would allow consultation with independent doctors only on the premises of the remand prison and based on written authorisation by the investigative authorities or the court.
99. On 15 February 2005 the defence repeated the request for medical examination by independent doctors. The applicant claimed that his state of health was deteriorating, but renounced any examination or treatment by the prison doctors.
100. On 17 March 2005 the prison administration, upon the applicant's request, authorised the use of the “Promosol” drug that the applicant's relatives had sent to him through the prison administration.
101. From 18 to 25 August 2005 the applicant was subjected to disciplinary punishment: he was segregated in a solitary confinement cell. He maintained that he had not been visited by a doctor for seven days. The Government asserted that on 25 August 2005 the applicant had been examined by a prison doctor and a medical attendant.
(b) While in the “correctional colony”
102. At the end of September 2005, after the applicant's conviction had been confirmed by the court of appeal, he was sent to serve his sentence in penitentiary institution FGU IK-3, situated in the Yamalo-Nenetskiy Region (Northern Urals, north of the Arctic Circle). He was assigned to a workshop producing metal grids. According to the administration of the colony, his job did not require hard physical exercise. Furthermore, given that the applicant was a tall person he received bigger portions in the canteen.
103. On 11 and 12 October 2005, upon his arrival at the colony, the applicant was inspected by the prison doctors. In his submission it was only a brief perfunctory inspection of whether or not he had any physical injuries. He was also subjected to a blood test and a photofluorogram. The diagnosis of the colony doctors repeated the diagnosis established in 2003 during his stay in the civil hospital. Namely, the doctors established that:
“[The applicant suffered from] neurocirculatory distonia of a hypertensive type; chronic persistent hepatitis, inactive phase; chronic cholecystitis without exacerbation.”
104. The applicant informed the doctors that he felt pain in the liver area during physical exercises or after having eaten fatty food. The doctors concluded that his overall state of health was satisfactory.
105. On 25 and 26 October 2006 the applicant was examined by another group of prison doctors. According to the applicant, they did not have the necessary medical knowledge: the group was composed of a therapist, a dentist, a psychiatrist and a number of doctors whose qualifications were unclear. Further, the medical licence was obtained by the prison hospital two months after the applicant's arrival there. The medical unit of the colony did not have a hepatologist, a surgeon or an infectious diseases doctor who would be able to make a thorough examination of the applicant's health.
106. During the examination the applicant did not complain of any specific health problem. The doctors concluded that his state of health was satisfactory.
107. In the following months the applicant insisted on being examined by the doctors of his choosing, but this request was refused. On 29 December 2005 the applicant signed a waiver refusing to accept any treatment from the prison doctors. However, it appears that he continued to receive the medicines and vitamins from his relatives. Furthermore, he underwent several routine medical checks. In particular, the applicant was examined on 26 October and 29 December 2005, 25 January, 13 March and 28 March 2006. The applicant also underwent the following medical tests: ultrasound test, photofluorogram, X-ray, blood and urine test, and eyesight test. No serious degradation of his state of health was established. According to the information provided by the Government, since his arrival at the colony the applicant had not requested any medical aid, except on 3 March 2006 when he had informed the paramedic that he had felt pain in the liver area and had caught a cold.
108. On 4 May 2006 the applicant was examined by a panel of doctors affiliated with the prison system. He did not complain of any specific problems and refused to undergo medical tests.
109. On 18 October 2006 Dr Pechatnikov, the Chief Doctor of the “European Medical Centre” clinic in Moscow, wrote a letter to the applicant's lawyer Mr Baru. Based on information on the applicant's state of health, Dr Pechatnikov described the adverse effects of the applicant's diseases if they were not properly monitored and treated. He also described what kind of tests the applicant should be subjected to.
110. On 19 October 2006 Dr Harris, from the “Temple Fortune Health Centre” in London, at the request of the applicant's lawyers drafted a report based on the Russian doctors' reports. Dr Harris concluded, from what he had received, that the applicant's diseases, namely the hepatic disease and the hypertension were “unmonitored and untreated”. He further recommended a number of medical checks the applicant would have to undergo in order to obtain a full picture of his situation.
111. In October 2006 the documents containing information on the applicant's state of health were examined by a British doctor, Dr O'Grady, practising at the Kings College Hospital in London. In his report dated 20 October 2006 Dr O'Grady concluded that “there [were] a number of indications that Mr Lebedev's liver disease was more serious than ... currently classified”. He also warned against “significant health implications for failing to detect and treat active hepatitis B replications as well as failing to diagnose cirrhosis”. In his opinion, Mr Lebedev's liver disease had been inadequately investigated.
9. Conditions of detention
112. The applicant claims that in the remand prison he was deprived of all physical exercise. Thus he constantly missed his daily walks because of the need to read the materials in the case file or participate in the hearings. On weekends and holidays, when there were no court hearings he could not go outside because he was ill.
113. Further, the food in the prison was incompatible with his illnesses, and he only received appropriate food from his relatives or lawyers to a limited extent. It was impossible to have a hot meal at midday when there was a hearing or when he was reading the case file.
114. During the Christmas holidays the applicant was transferred to an overcrowded “common” cell. Despite his requests, he was not given a calculator or a magnifying glass. As a result, he was able neither to prepare for the hearings nor to have a rest.
115. On 18 August 2005 the applicant was placed in a solitary confinement cell (or “isolation cell”) as a punishment for refusing to go outside for a daily walk (the Government indicated that the applicant had refused to go to the shower rooms, whereas, according to the applicant, that remand prison IZ-77/1 simply did not have a bath-house for inmates). The applicant alleged that he was not subjected to a medical check before his placement in that cell.
116. The cell was very small and had no natural light or ventilation. He did not receive hot meals. It was prohibited to lie or even sit on the bed between 6 a.m. and 10 p.m. The bed was very close to the toilet pan. The water for flushing, drinking and washing was available from the water-tap above the toilet pan. The applicant spent seven days in that cell.
117. As regards conditions in the isolation cell, the Government described them as follows. The cell in which the applicant was placed measured 5.52 square metres, which was more than the minimal surface area established by law. The applicant was detained in the cell alone. The cell had a folding bed, a washbasin with cold water, a toilet, a shelf for toiletries, a chair and a table. The cell was ventilated naturally, and was lit by a day-time lamp and a night-time lamp (dezhurnoye osvescheniye). In addition, the cell had a window measuring 60 x 90 cm. The cell was equipped with a cistern for boiled water which was supplied by the warders when necessary. Referring to the certificates issued by the head of the remand prison, Mr Tagiyev, dated 7 August 2008, the Government alleged that illumination, temperature and humidity in the cell had corresponded to the sanitary standards. The distance between the toilet and the bed was one metre, which was explained by the small dimensions of the cell; such distance, however, respected basic requirements of hygiene. The bed was unfolded during the night, namely between 11 p.m. and 6 a.m. During the daytime the applicant could sit on the chair. The applicant was provided with hot meals three times a day in accordance with the established standards. The applicant had a right to a one-hour daily walk. Before his placement in the isolation cell, on 18 August 2003, the applicant had been examined by the doctor on duty and a paramedic. However, he had objected to the examination. On 23 August 2008 he was examined by the doctor who took his pulse and visually examined him. On 25 August he was examined by a paramedic on duty. On the days of the hearings the detainees were provided with dry meals; in the court building they were given hot water to prepare tea, coffee, or instant food. However, the applicant always refused to take the dry meal; he preferred the food he received from his relatives. The doctors did not recommend him any special diet, so he could have eaten the same food as other prisoners.
10. Court proceedings concerning the place where the sentence was to be served
118. On 27 September 2005 the Moscow branch of the Federal Penitentiary Agency (FSIN) decided to send the applicant to serve his sentence in a correctional colony situated on the Yamal peninsula. That penitentiary institution was a “strict regime” colony which had a special “ordinary regime” zone. The applicant lived in that zone.
119. On 11 January 2006 Mr Kalinin, the Head of the Federal Penitentiary Agency, stated in an interview that the applicant had been sent to that colony in order to guarantee his own safety.
120. On 23 January 2006 the applicant's lawyers wrote a letter to the Department of the Federal Penitentiary Agency in the Kaluga region, adjacent to the Moscow region, seeking to obtain information about the number of detainees in the ordinary-regime colony (FGU IK-2) situated in that region. In the letter dated 31 January 2006 the applicant's lawyer was informed that the Kaluga colony was capable of accepting up to 50 detainees; however, by 1 October 2005 only 48 people were serving their prison sentence in that colony. Between 1 and 10 October 2005 that number remained the same. Each detainee had 2 square metre of personal space in the colony.
121. On an unspecified date the applicant's lawyers challenged in court the decision of the FSIN. They asserted that the applicant had the right to serve his sentence in a colony situated in Moscow or in the Moscow region, where he had lived before his conviction. The defendant Agency explained that since Moscow was a capital city, it had no correctional colonies on its territory.
122. On 16 February 2006 the Zamoskvoretskiy District Court of Moscow dismissed the complaint. The District Court found that under Article 72 of the Code of Execution of Criminal Sentences a convicted person had the right to serve his sentence in the region where he was convicted or where he had lived before. However, if in that prison there were no places vacant, the detainee could be sent to serve his sentence in the nearest region where it was possible to accommodate him.
123. The District Court further established that there were no appropriate penitentiaries in Moscow; furthermore, it was impossible to accommodate all the convicts from Moscow in the Moscow Region. According to a letter from the head of the Special Register Bureau of the FSIN (byuro spetsialnogo utcheta), it was equally impossible to place the applicant in correctional colonies in the regions adjacent to Moscow because of overcrowding, repair work, allocation of premises for remand prisons, etc. On 27 August 2003 and 28 July 2005 the FSIN had established quotas for sending convicts from Moscow to other regions of Russia. The quota for the Yamal peninsula was five persons. The fact that the applicant suffered from certain chronic diseases was not an absolute obstacle to his being sent there. Consequently, the FSIN's decision to send the applicant to a colony on the Yamal peninsula was lawful and justified.
12. Reactions from international organisations, NGOs and political figures
124. The applicant's case has attracted considerable public attention in Russia and abroad. During and after the trial many prominent public figures and influential organisations expressed their doubts as to the fairness of the criminal proceedings against the applicant and his colleagues. The applicant submitted documents to that effect.
125. In particular, the applicant referred to Resolution 1418 (2005) adopted on 25 January 2005 by the Parliamentary Assembly of the Council of Europe, the statement of the Committee on Legal Affairs and Human Rights of the Council of Europe's Parliamentary Assembly adopted on 6 October 2005; the letter sent on 15 November 2005 to President Putin by former Czech President V. Havel and several other former heads of State, all members of the “Madrid Club”, a democracy-promoting group, and the US Senate Resolution 322 of 18 November 2005.
126. In addition, the applicant referred to decisions of the British and Swiss courts which had considered requests for extradition or other requests for international judicial cooperation made by Russian authorities in relation to criminal cases linked to those against the applicant or Mr Khodorkovskiy. The foreign courts had emphasised in their decisions that the measures requested by the Russian authorities had a political motive and therefore refused to grant them. Thus, on 18 March 2005 a Senior District Judge of Bow Street Magistrates' Court in London had refused to grant the extradition of Mr Maruev and Ms Chernysheva, on charges of conspiracy to defraud the Government of Russia and the Property Fund of Murmansk Oblast. In his ruling, the judge had stated that “[he had heard] a substantial amount of evidence about the concerns over the independence of the judiciary, particularly in Moscow City”. He had added that, in respect of the case at hand he was satisfied “that it [was] so politically motivated that there [was] a substantial risk that the judges of the Moscow City Court would succumb to political interference in a way which would call into question their independence”.
127. On 23 December 2005 the same British judge had refused to grant the extradition of Mr Temerko, who held a senior position in the Yukos oil company and who was charged with conspiracy to defraud and conspiracy to pervert the course of justice. This British judge found again, in the light of the evidence before him, that the case against Mr Khodorkovskiy was politically motivated and that the “overwhelming weight of background material indicated that Mr Khodorkovskiy's case was a political trial”. He said that he had come “to the conclusion that the motivation for the charges against Mr Temerko [was] inextricably entwined with the motivation for the prosecution of Mr Khodorkovskiy” and that “the request for his extradition [had been] made for the purpose of prosecuting or punishing him on account of his political opinions”. Moreover he stated that he had heard “uncontradicted evidence that the defendants involved with Yukos had been denied medical treatment” and that, as regards the applicant's case, “there [was] a clear picture of prevarication and obstruction by the authorities which impinged upon proper preparation of the defence”.
128. In decisions relating to requests for judicial assistance by the Russian Federation in connection with the Yukos case, the First Public Law Division of the Swiss Federal Court expressed its concerns about the circumstances concerning the criminal prosecution of the executives of Yukos oil company, including the applicant; in particular, the Federal Court mentioned Resolution 1418 of the Parliamentary Assembly of the Council of Europe, as well as the report of 29 November 2004 upon which the Resolution was based, and stated that the concerns expressed therein could not be ignored.
129. The applicant alleged that certain statements of some Government officials within the country could be interpreted as an acknowledgement of the political motivation behind the prosecution of leading Yukos executives. He referred in this respect to a statement of 29 March 2005 where Mr Shuvalov, adviser to the Russian President, said to the Interfax correspondent that “the Yukos case was a lesson to other companies using tax avoidance schemes. If it was not Yukos, it would have been another company that would have had to explain how it used schemes to avoid paying taxes to the budget, resulting in the State being restricted in assuming its social responsibilities”. The applicant also referred to another advisor to the Russian President, Mr Illarionov, who in an interview with the weekly Argumenty i Fakty on 30 November 2005, characterised the Yukos case as a “cheat”.
B. Relevant domestic law and practice
1. General rules on pre-trial detention
130. Under Article 108 (“Remand in Custody”) of the Code of Criminal Procedure of 2001, custody as a preventive measure is imposed by a court decision on a person accused or suspected of having committed an offence punishable under criminal law by imprisonment for a term exceeding two years, if it is impossible to use a different, non-custodial preventive measure.
131. Under Article 97 (“Grounds for Applying a Preventive Measure”) a court is empowered to impose a preventive measure (including custody) on the suspect, provided there are sufficient reasons to believe that the suspect (1) will abscond during the inquiry, pre-trial investigation or trial; (2) may continue to engage in criminal activities; or (3) may threaten a witness or other participants in the criminal proceedings, destroy evidence or otherwise obstruct the investigation or trial in the criminal case.
132. Under Article 99 (“Circumstances to be considered in Applying Preventive Measures”), the circumstances to be taken into account when imposing a preventive measure include, apart from those specified in Article 97 of the Code, the seriousness of the charges brought and the defendant's personality, age, health, family status, occupation and other circumstances. The judge's ruling is to be notified to the person who has filed the request, the prosecutor and the defendant (suspect), and is to be executed immediately. Under Article 108, a second request for a person to be remanded in custody in the same criminal case after one such request has been denied by a judge's ruling may only be filed with the court if new circumstances emerge that justify the need for a preventive measure.
133. A judge's decision whether or not to remand a person in custody may be appealed against to a higher court within three days from the date on which the decision was given. A judge of the appellate court (кассационная инстанция) shall render a decision on such a complaint or representation within three days from the date of receipt thereof.
2. Criminal proceedings in Russia – a general overview
134. For most criminal cases the proceedings start with a “preliminary investigation” carried out by an empowered State investigative agency (often by the police, but it can also be the Prosecutor's Office, the Federal Security Service etc.). At this stage, the investigative agency, having received information about the commission or the preparation of a crime from other sources, opens the case and starts the investigation. The investigative authority in the present case was the office of the Prosecutor General (“the prosecution”).
135. The prosecution carries out various investigative measures, such as searches, questioning of witnesses, expert examinations of material evidence, etc. For certain investigative measures the prosecution has to request a court order; the same concerns preventive measures, in particular the detention of the suspect. If having collected the evidence the prosecution concludes that a particular person has committed a crime, the prosecution makes an order formally charging the said person. The accused person may challenge any decisions (or inaction) of the prosecution before a higher prosecution official or, in some instances, before a court. The accused person may also seek to supplement the case file by requesting additional investigative steps to be taken by the prosecution.
136. If, in the course of the investigation, the prosecution decides that there is no basis for bringing the case to trial, the accused is released (if detained) and the case is closed. Otherwise, the prosecution must draw up an act of indictment. At this point the prosecution must invite the interested parties, including the accused and his representatives, to examine the materials collected in the course of the investigation supporting the accusation and contained in the case file. The time for reading the case file by the accused and his counsel may be limited (for example, when the defence deliberately delays the proceedings). When the time for reading the case file is over, the prosecution refers the case to the appropriate court.
137. When the bill of indictment is received by the court, a judge of that court sitting alone holds an administrative session. At this stage the judge must decide whether the case is within the jurisdiction of this court, whether copies of the bill of indictment have been handed over, whether there are grounds for holding a preliminary hearing, whether the accused person, if detained, should be released, etc. At this stage the judge may decide to refer the case to the court of competent jurisdiction, to set down the case for trial or to schedule a preliminary hearing.
138. A preliminary hearing may be held if a party, for example, seeks to exclude evidence, wishes to establish an alibi or seeks the obtaining of additional evidence. A summary record of the preliminary hearing is made. Again, as a result of the preliminary hearing the judge may decide to refer the case to another court, to suspend the proceedings, to terminate the case, etc. Alternatively, the judge, after deciding on any applications lodged by the parties, may set down the case for trial.
139. As a general rule, trials are held in open court. All evidence in the case is, as a rule, subject to direct examination in oral proceedings. The judgment of the court may be based only on the evidence examined during the trial. The same judge must hear the case from beginning to end. During the trial the prosecutor supports the accusation, but can withdraw it wholly or in part. The parties have equal rights to make challenges, submit petitions and objections, produce evidence, participate in examination, submit pleadings and remarks, etc. A court secretary keeps a summary record of the hearings.
140. Before the start of the hearing the presiding judge invites the parties to submit requests, if any (for example, to summon new witnesses, to carry out an additional expert examination, etc). After ruling on such requests, the judge begins the “judicial investigation” of the case. The prosecutor opens the case for the accusation by setting out succinctly the essence of the accusation with reference to the relevant Articles of the Criminal Code. The judge then asks the accused if he (the accused) understands the accusation and whether or not he considers himself guilty. If the accused understands the charges and does not plead guilty, the examination of evidence produced by the prosecution begins. The prosecution decides on the order in which witnesses are called and other evidence is presented to the court. The defence can intervene and challenge the witnesses for the prosecution, put questions, etc., but the presiding judge can reject leading or irrelevant questions. An expert witness who gave an opinion during the preliminary investigation may be summoned and questioned in court; further expert examinations can be ordered if necessary. After the prosecution finishes its submission of evidence, the floor is given to the defence. The prosecution can challenge evidence adduced by the defence.
141. Upon completing the study of evidence submitted by the parties, the court asks whether they want to add anything to the judicial investigation. If there is such a request, the court discusses the matter and takes a decision, together with performing any other necessary judicial actions. The judicial investigation is then declared to be completed and the court passes to the stage of oral argument.
142. Oral argument consists of statements to the court, first by the prosecution, and then by the defence. The victim, the claimants and defendants (if any) can also take part in the pleadings. After all the participants have given their statements, they may each speak in rebuttal, the right of last rebuttal always belonging to the defence counsel and the person brought to trial. The person brought to trial has the last word.
143. The deliberations are held and the judgment is drawn up in a conference room behind closed doors; no one, except the judges who consider the case, can be present. The judgment must be “lawful, well-founded and just”. Once the judgment is signed by all judges, the bench returns to the courtroom where it is read out to the parties and the public. It is common practice, in complex cases, to read out only the operative part of the judgment; in this case the full text of the judgment is delivered later.
144. The parties can appeal; in most criminal cases (except for those heard by the justice of the peace at first instance) the court of appeal is the only court of “ordinary” jurisdiction available for the parties to challenge the judgment (access to “supervisory review” proceedings is at the discretion of the judicial authorities). The appeal must be filed within ten days from the date on which the judgment is delivered. The court of appeal may modify or quash the judgment, adopt a new decision or refer the case for fresh consideration to the first instance court. There are four grounds for quashing or modifying the judgment: (1) if the conclusions of the first-instance court are not supported by evidence examined at the trial, or the first-instance court disregarded important circumstances, (2) if the criminal procedure was seriously violated, (3) if the criminal law was applied incorrectly, or (4) if the penalty imposed does not correspond to the gravity of the offence committed or the personality of the convicted person. The appeal hearings are de jure open to the public and oral; however, in practice the court of appeal rarely examines evidence directly. More often the appeal hearing consists only of the parties' oral argument. No verbatim record of the hearing before the appellate court is made. If the appellate court upholds the judgment, it becomes final and enforceable, but it can still be challenged before a higher court by way of a “supervisory review” appeal.
3. Regime of detention of convicted criminals
145. The Russian Code of Execution of Criminal Sentences (Уголовно-исполнительный кодекс) provides for five main types of penitentiary institutions for convicted criminals: colony-settlement, “ordinary regime” colony, “strict regime” colony, “special regime” colony and prison. The conditions of serving a sentence in a colony-settlement are the mildest. By contrast, the regime in prisons is the most severe. The difference between the “strict regime” and “ordinary regime” colonies concern such aspects as the amount of money a detainee has the right to spend, the number of letters and parcels a detainee can receive, the length of meetings with relatives, etc.
146. Under Article 73 of the Code of Execution of Criminal Sentences a convicted person who is given a custodial sentence must serve it in the federal constituency (region) where he had his residence and where he was convicted. Derogation from this rule is possible only on medical grounds or in order to secure the safety of a detainee.
147. On 30 October 2001 the Ministry of Justice and Ministry of Health issued Order no. 346/254. It established a list of diseases incompatible with serving a prison sentence in certain regions of Russia. In particular, people suffering from second- and third-degree diseases of the blood-circulation system, severe or progressive organic diseases of the central nervous system, severe cases of peripheral nervous-system diseases or traumas, chronic progressive pernicious haematological diseases, chronic active hepatitis, etc., should not serve their sentences on the Yamal peninsula.
COMPLAINTS
A. Complaints under Articles 2 and 3
148. Under Articles 2 and 3 of the Convention the applicant complained that the lack of adequate medical treatment in the detention facilities put his life at risk and constituted an inhuman and degrading treatment. While in detention, he was unable to consult a doctor of his choosing, and the prison doctors were not qualified or were biased against him. His health condition was not duly monitored, making it impossible for his real condition to be assessed or for appropriate treatment to be prescribed. As to the medication prescribed previously, he had never received it from the prison administration.
149. Under Article 3 of the Convention the applicant complained of humiliating conditions in the courtroom, where each day he had spent up to nine hours in a metal cage.
150. Under Article 3 of the Convention the applicant complained that despite his precarious state of health he had been sent to serve his sentence in a remote “correctional colony” in the Arctic, where the climatic conditions were very harsh. He maintained that, having regard to the Order of the Ministry of Justice and the Ministry of Health of 30 October 2001, the climate of the Yamal peninsula was incompatible with his state of health.
151. Under Article 3 of the Convention the applicant complained about the conditions of detention in remand prison IZ-77/1. In particular, he complained about conditions in the solitary confinement cell where he had spent seven days in 2004. Further, during the trial he had been deprived of outdoor walks, since the hearings had been held every day and he had had to prepare for them instead of going for a walk. He had not received any hot food on most of the days and his relatives had been unable to transmit appropriate food to him. From 1 to 10 January 2005 the applicant had been accommodated in an overcrowded common cell, where he could not rest or prepare his defence. For a long time he had been kept in a facility for persons with infectious diseases, to the transmission of which he was particularly vulnerable given his own severe chronic illnesses.
B. Complaints under Article 5
152. Under Article 5 § 3 the applicant complained that his detention pending investigation and trial had not been justified and had exceeded a “reasonable time”. The applicant maintained that the court had extended his detention without assessing the factual circumstances of the case.
153. Under Article 5 § 4 the applicant complained that the requests for the extension of his detention had been lodged by the prosecution orally, long before the expiry date of the previous detention order. Therefore, the defence had not had enough time to prepare their counter-arguments. The court had allowed the defence just two hours to prepare a reply and that had clearly been insufficient. Further, the requests of the prosecution had not been supported by any documents.
154. Under Article 5 § 4 the applicant complained that the Moscow City Court, while examining the appeals against the detention orders of the District Court, had not addressed some of the defence arguments for his release.
155. Under Article 5 § 4 the applicant complained that the review of the detention orders by the Moscow City Court had not been “speedy”.
C. Complaints under Article 6
156. Under Article 6 § 1 the applicant complained that the Meshchanskiy District Court had lacked jurisdiction to hear the case, since the offences imputed to him had not been committed within that court's territorial jurisdiction.
157. The applicant also complained that the hearings had not been truly “public”. The courtroom had held only about 30 people, and the judge had prohibited any video or audio recording or broadcasting of the hearings.
158. Under the same provision the applicant complained that the court deciding his case had not been “impartial”. Thus, on 5 February 2005 Judge Kolesnikova had delivered a judgment in the case of Mr Shakhnovskiy, another leading Yukos executive. In that judgment Judge Kolesnikova had declared that the applicant had been a co-perpetrator of the offences imputed to Mr Shakhnovskiy. Further, in the course of the proceedings in the applicant's case the judge put pressure on the witnesses to make them confirm the written statements they had given to the prosecution before the trial.
159. Under Article 6 § 2 the applicant complained that the principle of the presumption of innocence had been breached in his case. Thus, before the judgment in his case was delivered and became final, high officials of the General Prosecutor's Office had made a number of public statements in which de facto he had been declared guilty. Further, in the judgment of 5 February 2004 in respect of Mr Shakhnovskiy, Judge Kolesnikova had also de facto declared the applicant guilty.
160. Under Article 6 § 3 (a) the applicant complained that the prosecution had not informed him about other investigations they were carrying out in order to collect evidence for future criminal cases against him.
161. Under Article 6 § 1 the applicant complained that his conviction had been based on speculation and on inadmissible or unreliable evidence. In particular, the judgment had referred to a large number of documents allegedly discovered during the search in his house. However, those documents had not been described in the search record. Furthermore, the search had been conducted on several floors of the applicant's house simultaneously; therefore, the attesting witnesses had been unable to follow it. The applicant concluded that the documents then seized should not have been relied upon by the court. The court had given weight to the testimonies of the investigators, but had rejected those of cleaning ladies, whom it had regarded as interested persons. Finally, many other documents relied on by the prosecution and produced at the trial had been illegible, had not been duly certified, or had been obtained unlawfully.
162. Under Article 6 § 1 the applicant complained that the judgment had been based on evidence which had never been examined by the court. In particular, the judgment had referred to American Express credit cards and to contracts between the applicant and the company Status Service Limited. However, neither the cards nor the contracts were in the case file.
163. Under Article 6 § 1, in conjunction with paragraph 3 (d), the applicant complained of a disparity between the prosecution and the defence in the process of administration and assessment of evidence, especially as regards the examination of witnesses. In particular, the applicant referred to the following:
(a) The court had rejected more than twenty requests by the defence for the submission of evidence. In particular, the court had not admitted certain expert opinions in evidence, including those of experts Schekin, Gulyaeyv or Bochko, of the Institute of Economics, of the audit firm Ernst and Young, of the Giproruda Institute, or of the audit firm Pricewaterhouse Coopers. At the same time the court had rejected all the defence's requests for the exclusion of evidence produced by the prosecution. Further, the court had accepted uncertified copies of documents from the prosecution but not from the defence. The court had relied on draft documents produced by the prosecution but had refused to examine draft documents provided by the defence. In general, in assessing the evidence the court had shown preference for that produced by the prosecution.
(b) The court had refused to call certain witnesses whose written statements had been produced by the prosecution, even though the defence had insisted on their personal appearance at the trial. Thus, the court had refused to call Mr Shulgin, Mr Yeloyan, Mr Kupriyanov and several others.
(c) The prosecution had put pressure on certain witnesses. Thus, 37 witnesses had been summoned to the General Prosecutor's Office for questioning in the months or weeks preceding the hearing. At the hearing the statements by those witnesses had been read out by the prosecutor, in addition to their being questioned orally. Further, the prosecution had intimidated witnesses for the defence in particular by arresting some of them, calling for extradition of others or prosecuting for non-payment of taxes. Further, the court had prevented the witnesses from answering certain questions of the defence on the ground that those questions were “irrelevant” or “fishing”.
(d) The defence had been unaware of certain investigative measures undertaken by the prosecution, and, as a result, had been unable to monitor them. In particular, the defence had learned about the audit report of 16 August 2003 five days after it had been commissioned and three days after it had been drawn up. Therefore the defence had been unable to challenge the experts or put additional questions to them.
164. Under Article 6 § 3 (b) the applicant complained that he had not had enough time or facilities to prepare his defence. In particular, the applicant referred to the following:
(a) On 5 March 2004 the court had limited the time for the reading of the case file by the applicant. Furthermore, on several occasions the applicant had been transferred to a “common” cell or an isolation cell where it was impossible to study the case materials or prepare for the trial.
(b) Some of the materials produced by the prosecution to the court in the course of the trial had been missing from the original case file. As a result, the applicant had been unable to examine them.
(c) At the trial the defence had not known the order of questioning of the key witnesses for the prosecution, this being known only to the prosecution. Consequently, the defence had been unable to prepare questions for those witnesses in advance.
(d) When it had been the turn of the defence to produce evidence, the hearings had started much earlier than usual. As a result, the defence had not had enough time to prepare for them. In 2005 the hearings had been held every day, and the defence lawyers had not had enough time to see their client in private. Further, the court had rejected almost all the defence's requests for adjournment.
(e) The defence had not received the original copy of the trial record by the date fixed as a deadline for lodging objections. As a result, they had been unable to comment on the accuracy of the trial record. The applicant had received a copy of the record only on 15 August 2005. On the same day the applicant had been placed in solitary confinement for seven days and had been unable to read or write there.
165. Under Article 6 § 3 (c) the applicant complained that his right to professional legal assistance had been breached. Thus, he had not had enough time for confidential meetings with his lawyers in the remand prison. During the hearings the guards had prevented the defence lawyers from speaking to the applicant or giving documents to him. Further the applicant had been unable to defend himself because, for example, of his poor state of health, uncomfortable conditions in the courtroom (metal cage), absence of food or the awkward timing of hearings. The applicant had often been close to fainting: on one occasion the defence had even insisted on inviting doctors to the courtroom to assist the applicant. The judge had allowed the applicant to remain seated while speaking, but had showed no indulgence in other respects.
D. Other complaints
166. Under Article 7 of the Convention the applicant complained that he had been convicted of tax evasion, whereas, according to the prevailing practice at the relevant time, his behaviour had not constituted a criminal offence. He also complained that the prosecution had failed to prove any malicious intent on his part in respect of tax evasion.
167. Under Article 8 of the Convention the applicant complained that he had been sent to serve his sentence in a remote colony situated in the Arctic, two thousand kilometres from his home, whereas the law entitled him to serve his sentence in Moscow. His contacts with his family and lawyers were therefore seriously hindered. Moreover, it was a “strict regime” colony, although the court had sentenced him to imprisonment in an “ordinary regime” colony.
168. Under Article 17 the applicant complained that his criminal prosecution had been “aimed at the destruction of rights and freedoms set forth [in the Convention] or at their limitation to a greater extent than [was] provided for in the Convention”.
169. Under Article 18 of the Convention the applicant complained that his criminal prosecution had been politically motivated.
THE LAW
A. Complaints under Articles 2 and 3 of the Convention
1. Medical assistance
170. The applicant complained about the alleged lack of adequate medical assistance in the remand prison and the correctional colony. He referred to Articles 2 and 3 of the Convention in that respect. The Court considers that this complaint falls to be examined under Article 3 of the Convention which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
171. The Court notes that on 18 May 2006 a complaint in similar terms relating to the period prior to September 2004 was declared inadmissible as manifestly ill-founded (application no. 4493/04). In reaching that conclusion the Court relied on various medical reports about the applicant's state of health, namely the opinion of a panel of doctors of 2 March 2004. Having examined the medical reports and other information provided by the parties the Court held as follows:
“... the Court finds it established that the applicant's health allowed his detention. Although the applicant did suffer from hypertension and hepatitis, the prison doctors monitored his health. The applicant suffered from these illnesses before his detention, and the Court does not find it established that the detention as such was a circumstance aggravating his medical condition, nor that the medical examination and treatment, available to the applicant, were inadequate. ... To sum up, the situation complained of was not such as to disclose any appearance of a violation of Article 3 of the Convention.”
172. Now the Court has to establish whether the applicant's state of health after September 2004 called for any special treatment, whether that treatment was provided, and, if not, whether this constituted a breach of Article 3, as the applicant suggested.
173. The Court reiterates that the lack of medical treatment in prison may raise an issue under Article 3. The State must ensure that given the practical demands of imprisonment, the health and well-being of a detainee are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000-XI). In examining complaints about the alleged lack of medical aid in a prison one must consider how ill the detained person is, what medical treatment he receives, and whether his condition allows detention (see Telecki v. Poland (dec.), no. 56552/00, 3 July 2003; see also Farbtuhs v. Latvia, no. 4672/02, § 57, 2 December 2004). At the same time, in order to fall under Article 3, ill-treatment must be at least marginally severe. This margin is relative and depends, for example, on the duration of a particular treatment, on its physical and mental effects, and on the victim's sex, age, and health (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).
174. The Court also reiterates its case-law confirming the standard of proof “beyond reasonable doubt” in its assessment of the evidence (see Avsar v. Turkey, no. 25657/94, § 282, ECHR 2001 VII (extracts)). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in a large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. In such cases it is up to the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002).
175. Turning to the present case, the Court notes that the applicant sought to be examined by doctors of his choosing, claiming that he had such a right under both Russian and international law. However, such an examination was refused or, at least, certain preconditions were set by the authorities. In the applicant's view, an external examination was refused because his state of health was in fact worse than was officially recognised. From that he inferred that the medical treatment he received was inadequate.
176. However, in the circumstances the Court cannot accept that line of reasoning. The Court notes that the applicant was already ill at the time of his arrest, and, consequently, he would necessarily suffer from the effects of his medical condition while in detention. He felt pain in the liver area and on one occasion nearly fainted during a hearing because of hypertension. The “health factor” allegedly exacerbated the hardships of the detention, and the Court will examine this aspect of the case separately when it comes to the applicant's complaints about the conditions of his detention. Further, it appears that the medical facilities of the remand prison and the correctional colony were quite basic. Finally, from the case file it transpires that the applicant received medication not from the prison administration but from his relatives. These facts are regrettable, but by themselves they do not amount to “ill-treatment” (see Aleksanyan v. Russia, no. 46468/06, § 149, 22 December 2008). In the Court's view, a failure to provide proper medical aid to a detainee would not fall under Article 3 unless there was an actual detriment to his physical or mental condition, or avoidable suffering of a certain intensity, or an immediate risk of such detriment or suffering.
177. The Court took note of the reports prepared by two British and one Russian doctor in 2006 at the request of the applicant's lawyers. All of them anticipated possible complications in the applicant's condition and recommended further examinations. However, those doctors did not examine the applicant in person, for which reason their report cannot be regarded as conclusive (see Lebedev v. Russia (dec.), no. 4493/04, 18 May 2006). And, in any event, the applicant did not produce evidence showing that such complications had indeed occurred or that they were due to improper medical treatment. On the contrary, the Court observes that the State-affiliated doctors did not report any serious worsening of the applicant's condition in 2004-2006. The applicant challenged that opinion, alleging, among other things, that they were biased and under-qualified and that his condition was not monitored properly. However, besides that criticism he did not provide any alternative account of his situation. In particular, he did not claim before the Court that during the relevant period he had had any specific medical emergencies or had otherwise been exposed to severe or prolonged pain owing to a lack of adequate medical assistance. To report such facts the applicant did not need the assistance of an outside doctor. The applicant's medical record produced by the Government shows that the applicant has chosen not to complain to the prison doctors about his health problems. Lastly, the applicant repeatedly refused to receive medical aid from the prison doctors (contrast Sarban v. Moldova, no. 3456/05, § 90, 4 October 2005). The Court is not aware of any particular reason why the applicant decided not to cooperate with the prison doctors, except his general lack of trust in their competence and integrity. In the circumstances the Court is unable to make the inferences suggested by the applicant. Having regard to the applicant's relatively stable health condition and his unwillingness to cooperate with the State doctors, the Court concludes that the authorities' attitude to the applicant's health problems did not amount to “ill-treatment”.
178. It follows that the complaint about the lack of medical treatment in the detention facilities is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. Conditions in the courtroom
179. The applicant further complained about having been placed in an iron cage during the hearings before the District Court. He referred to Article 3, cited above.
(a) The Government's submissions
180. The Government claimed that the treatment complained of did not reach the minimum threshold of severity to fall within the scope of Article 3 of the Convention. First, the applicant had not shown “beyond reasonable doubt” that this practice had caused him any severe mental or physical suffering. Further, his placement in the cage in the courtroom had pursued a legitimate aim – it was supposed to protect the participants in the trial and the applicant himself, and to prevent him from escaping, putting pressure on witnesses or perverting the course of justice. It was also supposed to guarantee public order during the hearing and limit the applicant's movements within the courtroom. This security measure had respected the confidentiality of contacts between the applicant and his lawyers. It was a measure applied to all criminal defendants, not only the applicant.
(b) The applicant's submissions
181. The applicant pointed out that during the hearings in the Meshchanskiy District Court he had been confined in an iron cage in the courtroom for exceedingly long periods (up to nine hours a day). This condition was not warranted by his aggressive or dangerous behaviour; there had been no risk that he might escape. He could not have influenced witnesses if he had been standing between two guards.That condition was particularly painful for a man of his stature. It had been impossible to pass him any water or acceptable food through the bars, so for the whole day the applicant had been left without appropriate food. The applicant was thus subjected to physical suffering and humilitated in the eyes of the public and in his own eyes.
182. The applicant disagreed that the confidentiality of his communication with his lawyers had been respected. It was unreasonable to suppose that keeping a defendant in an iron cage was a better way of enabling him to speak to his lawyers than the normal situation - adopted in all courtrooms around the world - of simply putting a guard next to the defendant.
(c) The Court's assessment
183. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
3. Climatic conditions in the region where the applicant was serving his sentence
184. Under Article 3 of the Convention cited above the applicant complained that despite the precarious state of his health he had been sent to serve his sentence in a remote “correctional colony”, were the climatic conditions were very harsh.
(a) The Government's submissions
185. At the outset, the Government noted that the place where the applicant was serving his sentence was situated in the Yamalo-Nenetskiy autonomous region, but did not belong to the Yamal peninsula, as the applicant's lawyers had wrongly suggested.
186. First, they claimed that sending the applicant there had been justified. The city of Moscow had no “ordinary regime” correctional colonies. Therefore, persons convicted in Moscow were sent to different colonies in different regions in order to avoid overcrowding. Such practice was authorised by Article 73 of the Code of Execution of Criminal Sentences. The applicant was on an equal footing with other convicts in this respect. There were no reasons to provide the applicant with any privilege because of his financial status or family situation. Certain convicts from Moscow were sent even further from the capital than the applicant.
187. Second, the Government indicated that the authorities would take necessary steps to build new colonies or add “ordinary regime” sectors to the existing ones, in order to comply with the requirements of the Code of Execution of Criminal Sentences.
188. Third, the Government maintained that the applicant's health condition was not incompatible with the climate in the Yamalo-Nenetskiy region. The diseases he suffered from were not included in the list established by the Ministry of Health and the Ministry of Justice in their Joint Decree no. 346/254 of 28 August 2001. At present the doctors characterised the applicant's state of health as “satisfactory”. Since 29 December 2005 the applicant had refused to undergo examination by medical staff of the colony.
(b) The applicant's submissions
189. In the applicant's submission, the main issue was that he had not been sent, for the purpose of serving his sentence, to the region where he had been living and had been convicted (as provided for by law), but 2,000 kilometres away from the place of residence of his family and young children, to a region with harsh climatic conditions for which he was unfit owing to his state of health.
190. Pursuant to Article 8 of the Code of Execution of Criminal Sentences, the applicant had to serve his sentence in accordance with the procedure applicable to all other convicts. However, in practice exceptions were made to the detriment of people from Moscow, St. Petersburg, and a number of North Caucasus regions who had to serve their sentences in an “ordinary regime” correctional colony. This practice, unsupported by any legal enactment, made them unequal to convicts from other regions, subjecting them to gross discrimination. Thus, the requirement of Article 73 of the Code of Execution of Criminal Sentences was observed in the Kharp colony in respect of local residents who were serving their sentences there. The sole exception to this rule was the case of the applicant, who was the only Muscovite.
191. The applicant insisted that at the time of his conviction there had been other, closer, “ordinary regime” colonies to which he could have been sent to serve his sentence. A note was produced from a colony in Kaluga region showing that that colony had vacant places in October 2005.
192. The applicant disagreed with the Government's statement that he had been under constant medical supervision. Furthermore, he indicated that the list of diseases incompatible with serving a prison sentence in certain regions of Russia included “chronic active hepatitis”. When the decision was taken to send him to serve his sentence in the Yamalo-Nenetskiy Autonomous Region, nobody had checked whether his hepatitis had become active. The applicant insisted that his unlawful dispatch to serve his sentence in a part of the country with harsh climatic conditions without a thorough examination aimed at ascertaining whether his hepatitis had turned into “chronic active hepatitis” – which would have made him unfit to serve his sentence in that region – had amounted to nothing other than inhuman and degrading treatment and punishment. The applicant was exposed to the high risk that his illness might worsen. A liver biopsy by a specialist would have had to be carried out by a specialist in a hospital specially equipped for that purpose, not just a routine check, which could not have any real value without such special equipment. Additionally, under those conditions the applicant feared for his life and was suffering mentally, a fear that was exacerbated by his involuntary separation from his family, especially from his young children and grandchildren, who would be exposed to a serious risk if they visited him.
(c) The Court's assessment
193. The Court notes that climatic conditions in the Yamalo-Nenetskiy Autonomous District are indeed difficult, with minimum winter temperatures falling sometimes below minus 50 degrees Celsius. Further, the Court does not exclude the possibility that, in domestic terms, the applicant's health condition may prevent the authorities from placing him in a colony situated in that region. However, the findings of the domestic courts did not support that allegation; moreover, this is not a decisive element for the Court's analysis under Article 3. Even if a given treatment is unlawful in domestic terms it does not necessarily make that treatment “inhuman” or “degrading”. The Court reiterates its finding that there is no evidence that the applicant's health has deteriorated in any way during his prison term. In other words, the evidence does not show that the fact of the applicant's exposure to a harsh climate is in itself sufficient to bring the situation within the ambit of Article 3 of the Convention. This aspect of the case will be taken into account in the analysis of the applicant's complaint under Article 8 of the Convention (see below).
194. As regards the applicant's complaint under Article 3 about the effects the climate in the Yamal peninsula had on his health and well-being, the Court concludes that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. General conditions of detention
195. Under Article 3 of the Convention, cited above, the applicant complained about the conditions of detention in remand prison IZ-77/1 in Moscow where he had been detained from the end of October 2003 until his transferral to colony FGU IK-3 in the end of Spetember 2005.
(a) The Government's submissions
196. The Government indicated that in August 2005 the applicant had been placed in an isolation cell for seven days, as a disciplinary punishment for having refused to take a shower. The Government produced their description of the conditions in the isolation cell (see the “Facts” part above). In their opinion, detention in such conditions did not amount to an inhuman and degrading treatment. In support of their account the Government produced certificates issued by the head of the remand prison, Mr Tagiev.
(b) The applicant's submissions
197. The applicant noted that he had been held in two remand prisons: Lefortovo and IZ-77/1. The Court's question referred to just one remand prison (the second one), and moreover, to the conditions not in the remand prison itself but in the isolation cell, where the applicant was placed in August 2005, and also to the absence of daily walks and appropriate food during the trial and pending appeal. In the present application, the applicant did not at all raise the issue of detention conditions in remand prisons in the period encompassed by his first application (no. 4493/03), from 2 July 2003 to 29 July 2004.
198. Furthermore, the applicant insisted that he had complained about his placement in an isolation cell, in particular, by raising this issue before the Preobrazhenskiy District Court. He also insisted that his description of the conditions in the isolation cell was accurate.
199. The applicant alleged that the reason for his placement in the isolation cell lay in the fact that he had filed with the Prosecutor General a complaint under Article 141 of the Code of Criminal Procedure seeking to prosecute the director of the remand prison, Mr Tagiev, for his failure to release him from detention on the night of 30-31 March 2004, when the term of his court-ordered detention had expired. Therefore, Mr Tagiev, who had submitted the information about the conditions in the isolation cell, definitely had an interest in providing an untrue account. The applicant believed that the documents appended to the Government's memorandum had been drawn up by interested persons.
200. The applicant complained that on the days of court sessions, which had taken place almost every day for more than a year, he had been deprived of hot food and outside walks.
(c) The Court's assessment
201. The Court considers, in the light of the parties' submissions, that the complaint concerning conditions of detention in remand prison IZ-77/1 raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
B. Complaints under Article 5 of the Convention
1. Length of detention
202. Under Article 5 § 3 the applicant complained that his detention pending investigation and trial had not been justified and had exceeded a “reasonable time”. Article 5 § 3 of the Convention, referred to by the applicant, reads as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
(a) The Government's submissions
203. The Government indicated that the applicant's complaints under Article 5 § 3 of the Convention about the length of his detention were essentially the same as his complaints in case no. 4493/03, dismissed by the Court on 24 November 2004.
204. The Government further claimed that the applicant's continued detention had been based on “relevant and sufficient” reasons. Thus, according to the General Prosecutor's Office, the applicant, at the time of his arrest, had three “international passports”. His money in foreign currency was kept “on the plastic cards emitted by foreign banks”. As a leading Yukos executive the applicant had access to the company's private jets that were based at Vnukovo-3 airport.
205. Further, the applicant had tried to “avoid meetings with the investigative authorities” of the Russian Federation. Thus, on 27 June 2003 the applicant had been summoned for questioning in the building of the General Prosecutor Office. The meeting was scheduled for 2 July 2003, at 10 a.m.; however, ten minutes before the start of the questioning the applicant's lawyer had called the investigator to inform him that the applicant had been taken to hospital. However, “the materials of the case file” showed that the applicant had been simulating his illnesses. He was not admitted to hospital until 12.26 p.m., when the medical panel met.
206. Finally, the Government claimed that the applicant, through his business partners in Russia and abroad and a number of unnamed officers in law-enforcement agencies had tried to “commit unlawful acts and flee from justice”. In particular, as shown in the investigator's report, at the time of his arrest the applicant had threatened, in the presence of several Federal Security Service officers, to initiate criminal prosecution against the investigator and his supervisor, to foster negative public opinion about the prosecution authorities. The Government also referred to a letter of the economic crimes department of the Federal Security Service of 2 July 2002.
207. The Government concluded that the authorities had assessed the applicant's dangerousness, his personality, character, property, links to the home state and other relevant factors. The authorities had also relied on the applicant's position within the company. Given that most of the evidence and testimony in the case could have been obtained only from the company's staff, it had been important to keep them outside the applicant's reach.
208. All these reasons had been directly stated in the decisions of the courts by which the applicant's detention was extended. The fact that they had been repeated in the consecutive detention orders only meant that they had continued to exist throughout the term of the applicant's detention.
(b) The applicant's submissions
209. The applicant maintained that since the violation of Article 5 § 3 of the Convention was a continuous one, the period from 2 July 2003 to 29 July 2004 (dealt with by the first application no. 4493/03) was inevitably touched upon in the present application. It covers the overall length of his detention pending investigation and trial.
210. For the applicant, the reasons given by the Russian courts responsible for extending detention beyond July 2004 were always substantially the same as the previous reasons. Thus, the decisions of the Moscow courts had failed to address any of the points relevant to the applicant's continuing pre-trial detention. The Moscow courts had nowhere acknowledged the principle of the reduced likelihood of absconding the longer the pre-trial detention; had failed to identify precisely how the applicant would be able to interfere materially with witness evidence; had nowhere conducted the essential balancing exercise between the ongoing and prolonged deprivation of liberty as risks involved. House arrest or other alternative measures of restraint has not been considered.
211. The allegation that the applicant had three valid “international passports” in his possession was refuted by the existence of two passports marked “annulled”, attached to his case-file. The applicant had not transferred any money to credit cards issued by foreign banks in any manner that could have shed a negative light on his conduct. In addition, it had been established in the case file that the applicant kept most of his money in accounts with Russian banks, while using his accounts with foreign banks in strict compliance with Licence no. 32-05-1190/97 of the Central Bank of the Russian Federation. The applicant had had no access to the company's private jets. In any event, owing to his status, the applicant could have used the services of any airline in the world. The issue of border crossing in any place should be under the control of the authorities. The applicant could not be blamed for the “powerlessness” demonstrated by the authorities as regards control over the crossing of the State's borders.
212. The applicant had not been attempting to avoid meetings with investigative bodies and would appear for questioning as a witness. The applicant had not been simulating his illnesses, his hospitalisation had been based on the results of his examination by the head of the Vishnevskiy Military Hospital.
213. None of the documents referred to by the Government (notes from the investigator, a letter from the department of economic security of the Federal Security Service) had been produced by them. In addition, those arguments had not been mentioned in the proceedings before the domestic courts, and the corresponding documents had not been produced before the latter. The Government argument that the applicant might have bribed witnesses or coerced them into giving false testimony was unsubstantiated.
(c) The Court's assessment
214. The Court notes that the applicant's complaints in this case relate to the period of his detention pending investigation and trial after 10 September 2004. The period prior to this date was dealt with in case no. 4493/03. In its decision of 25 November 2004 in that case the Court found that the reasons adduced by the domestic courts in support of the consecutive detention orders, covering the period of fourteen months and one week, were such as to warrant the applicant's detention. However, that finding does not prevent the Court from examining the further periods of the applicant's detention through the prism of Article 5 § 3 of the Convention. In doing so the Court will take into account the overall length of the applicant's detention between his arrest (2 July 2003) and his conviction by the Meshchanskiy District Court (16 May 2005), when his pre-trial detention ended (see, among other authorities, Wemhoff v. Germany, 27 June 1968, § 9, Series A no. 7, and Labita v. Italy [GC], no. 26772/95, §§ 145 and 147, ECHR 2000-IV).
215. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. Review of detention
216. The applicant complained, referring to Article 5 § 4 of the Convention, that the proceedings in which the lawfulness of his detention had been reviewed, had not offered sufficient procedural guarantees. Article 5 § 4 reads as follows:
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
(a) The Government's submissions
217. First, the Government maintained that Article 5 § 4 was not applicable to the proceedings before the courts of first instance which had been called upon to decide whether the applicant's detention should be extended.
218. Second, the Government claimed that the applicant's complaint that he had not had enough time to prepare his argument against the detention requests was manifestly ill-founded. The Government noted that virtually all detention hearings concerned the same elements: the applicant's financial status and his failure to appear for questioning on 2 July 2006. Thus, the arguments of the prosecution were well known to the defence. Further, the detention requests and the appeals against the extension orders had been examined without delay and within the time-limits provided for by Russian law. His appeals had been dismissed by duly reasoned decisions. The applicant's complaint had been formulated as if the courts were examining the question of his guilt; however, this had not been the courts' task at that point, and, therefore, the guarantees of Article 6 of the Convention were not applicable. The Government concluded that the applicant's complaint was incompatible with the Convention ratione materiae.
219. Further, the applicant himself had contributed to the length of the proceedings before the second-instance court which was supposed to examine his appeals against the detention orders.
(b) The applicant's submissions
220. The applicant insisted that the issue of the extension of his detention by the first-instance court fell within the scope of Article 5 § 4 of the Convention. Article 5 § 4 applied to proceedings in which a court was called upon to determine whether a person should be detained, including bail hearings in criminal cases before first-instance courts.
221. The applicant stated that the hearings extending his detention had violated the principle of equality of arms because the prosecution had had unlimited time to prepare its requests for the extension of detention and had then made its requests orally, while the defence had not had more than two hours to prepare its response to those requests.
222. Further, the applicant insisted that his rights under Article 5 § 4 of the Convention had been violated during the examination of his appeals against the detention orders of the Meshchanskiy District Court. In particular, the Moscow City Court, whilst delivering the rulings of 13 October 2004 and 19 January 2005, had not taken into account the specific facts set out by the defence in the appeals. Thus, the lawfulness of the purpose pursued by the detention of the applicant had not been verified despite the fact that the defence had directly referred to such a duty of the appellate court.
223. The applicant claimed that the time that it had taken to hear his appeals did not meet the requirement of speediness. Thus, the appeal against the ruling of 19 August 2004, lodged on 30 August 2004, had been considered by the second-instance court on 29 September 2004, 30 days later; the appeal against the ruling of 10 September 2004, lodged on 20 September 2004, had been considered by the second-instance court on 13 October 2004, 23 days later; the appeal against the ruling of 14 December 2004, lodged on 23 December 2004 had been considered by the second-instance court on 19 January 2005, 27 days later. The applicant argued that there had thus been unacceptable delays in the light of the Court's case-law on this subject.
(c) The Court's assessment
224. The Court has taken note of the Government's objection as to the applicability of Article 5 § 4 to the detention proceedings at issue. The Court reiterates that, by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions which are essential for the lawfulness, in the sense of Article 5 § 1, of his or her deprivation of liberty. Although it is not always necessary for the procedure under Article 5 § 4 to be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. In its judgment of 25 October 2007 in Lebedev v. Russia (no. 4493/04, § 73), the Court concluded that Article 5 § 4 was applicable both to the extensions of the applicant's detention and to the appeal proceedings in which his appeals against the detention orders had been heard. The Court does not see any reason to depart from this conclusion in the present case. Therefore, the Government's objection should be dismissed.
225. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
C. Complaints under Article 6 of the Convention
226. The applicant presented various complaints under Article 6 of the Convention about the proceedings in his criminal case. Article 6, in so far as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”
1. Territorial jurisdiction of the Meshchanskiy District Court
227. Under Article 6 § 1 of the Convention, the applicant complained that the Meshchanskiy District Court had no territorial jurisdiction to hear the case and was not therefore a “tribunal established by law”.
228. The Court points out that, according to its case-law, the object of the term “established by law” in Article 6 of the Convention is to ensure “that the judicial organisation in a democratic society [does] not depend on the discretion of the Executive, but that it [is] regulated by law emanating from Parliament” (see Zand v. Austria, no. 7360/76, Commission's report of 12 October 1978, Decisions and Reports (DR) 15, pp. 70 and 80). Nor can the organisation of the judicial system be left to the discretion of the judicial (let alone prosecution) authorities, although this does not mean that the courts do not have some latitude to interpret the relevant national legislation (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 98, ECHR 2000-VII). The Court has often said that “it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation” (see, inter alia, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 31, Reports of Judgments and Decisions 1997 VIII, and Edificaciones March Gallego S.A. v. Spain, 19 February 1998, § 33, Reports 1998 I). Finally, as regards the assessment of facts, the Court has repeated on many occasions that the domestic courts are better placed to assess the evidence adduced before them (see Murray v. the United Kingdom, 28 October 1994, § 66, Series A no. 300 A).
229. Turning to the present case, the Court considers that, given the specific character and complexity of the charges against the applicant, the issue of venue was not obvious. It largely depended not only on the interpretation of the applicable domestic law, but also on the establishment of facts. In both respects the domestic courts were in a better position than this Court. The Court also notes that the appellate court (the Moscow City Court) unequivocally rejected the applicant's complaint in this respect and decided that the Meshchanskiy City Court had jurisdiction to hear the case because most of the alleged offences had been committed within that court's territorial jurisdiction. Finally, the applicant himself did not specify what court should have had jurisdiction to hear his case. In such circumstances the Court would prefer to defer to the national judge and consider that the Meshchanskiy District Court was a court “established by law” under Article 6 § 1.
230. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. Public character of the trial
231. The applicant complained that the hearing in his case had not been truly “public”. The courtroom had held only about 30 people, and the judge had prohibited any video or audio recording or broadcasting of the hearings.
232. The Court notes that the trial was de jure open to the public. It is true that in practice the courtroom could take only a limited number of members of the public, and that many people who wanted to be present at the trial were not allowed in. However, there are inherent limitations in the “publicity” requirement of Article 6: after all, trials are usually held in courtrooms of limited capacity. What the case-law requires is that the proceedings take place in a “regular courtroom large enough to accommodate spectators” (Riepan v. Austria, no. 35115/97, § 29, ECHR 2000 XII). That condition has been met in the present case. There is no evidence that the access of the public or of the press to the courtroom was limited without good cause or in an arbitrary fashion.
233. As to the impossibility of organising a broadcast from the hearing room, the Court reiterates its findings in the case of P4 Radio Hele Norge ASA v. Norway (dec.) (no. 76682/01, ECHR 2003 VI), where the Court held as follows:
“... there seems to be no common ground between the domestic systems in the Contracting States to the effect that live transmission, be it by radio or television, is regarded as a vital means for the press of imparting information and ideas on judicial proceedings ... Depending on the circumstances, live broadcasting ... from a court hearing room may alter its characteristics, generate additional pressure on those involved in the trial ... and hence prejudice the fair administration of justice. ... [T]he Contracting States must enjoy a wide margin of appreciation in regulating the freedom of the press to transmit court hearings live.”
That was said in the context of the rights of the press under Article 10 of the Convention; however, it is also true in the context of the rights of the defence under Article 6: the States have a wide margin of appreciation in regulating technical means by which the public may follow court proceedings. As is apparent from the materials of the case file, the journalists were allowed to sit in the courtroom, to take notes and, during adjournments, to photograph the participants in the trial. The proceedings against the applicant received wide press-coverage in Russia and abroad; many journalists were able to attend the trial and prepare detailed reports on the proceedings. In sum, despite certain limitations, the administration of justice in the applicant's case was sufficiently transparent to be compatible with the “public hearing” requirement of Article 6 § 1 of the Convention.
234. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. Impartiality of Judge Kolesnikova
235. Under Article 6 § 1 the applicant complained that the court deciding his case had not been “impartial” because of the previous involvement of Judge Kolesnikova in the case of Mr Shakhnovskiy, another leading Yukos executive. In that judgment Judge Kolesnikova had declared that the applicant was a co-perpetrator of the crimes imputed to Mr Shakhnovskiy. Further, in the course of the proceedings in the applicant's case the judge had put pressure on witnesses to make them confirm written statements they had given to the prosecution before the trial.
(a) The Government's submissions
236. The Government noted that the judgment in the case of Mr Shakhnovskiy had been rendered on 4 February 2004. The complaint about alleged bias on the part of Mrs Kolesnikova, the presiding judge in the applicant's case, had been lodged on 28 March 2005, that was 13 months and 24 days later. Therefore, the applicant's complaint in respect of that judgment was belated. Furthermore, the applicant could have brought a defamation complaint against the judge. Since he had not done so, his complaint in that respect should be dismissed for non-exhaustion of domestic remedies.
237. On the merits, the Government argued that the Court should start from a presumption of judicial impartiality. The applicant had claimed that Judge Kolesnikova had not been impartial because she had declared him guilty of the impugned offences in the proceedings in another case, namely that of Mr Shakhnovskiy. In that case the applicant's name was mentioned five times. On page 12 of the judgment the court referred to contracts between several leading Yukos executives, including the applicant, and the firm Status Service Limited; it also mentioned corporate American Express credit cards seized during the search of the applicant's country house. On pages 17 and 19 the court again referred to that evidence as proof of tax evasion. In the Government's opinion, the wording used by Judge Kolesnikova had not contained any declaration of the applicant's guilt; his name had simply been mentioned to identify documents and other evidence against Mr Shakhnovskiy. The offences imputed to Mr Shakhnovskiy had not, according to their legal definition in the judgment, been committed “in a group”; in any event, that was not even a characterisation in the Criminal Code for this type of offence. Furthermore, the fact that Mr Shakhnovskiy had been cleared of criminal responsibility on one of the charges showed that Judge Kolesnikova was not biased against the leading executives of Yukos.
238. Finally, the Government indicated that the applicant's case had been examined by the court with the participation of two other judges. Furthermore, the judgment in the applicant's case had been reviewed by the appellate court and the supervisory review court. Thus, if the proceedings were taken “as a whole”, the applicant had been tried by an impartial tribunal.
(b) The applicant's submissions
239. First, the applicant addressed the Government's argument that his complaint about Judge Kolesnikova was time-barred. That argument had been based on the erroneous assumption that any incident occurring during proceedings had to be challenged immediately using appropriate remedies. The normal remedy for a defect in judicial proceedings was the remedy of appeal against the judgment encapsulating the general outcome. In reality, the applicant had on numerous occasions alleged bias and bad faith on the part of Judge Kolesnikova. Both the applicant himself and his lawyers, in the course of the trial, had drawn the court's attention to the interrelation with the case of Mr Shakhnovskiy, to identical violations of the law, and to the need to research the corresponding facts and find the relevant documents.
240. The participation of Judge Kolesnikova in the case of Mr Shakhnovskiy had been one of the reasons for the defence's request for a change in the court's composition. At the same time, the denial of that request had not been reasoned. The court had not contested, on the merits, the argument of the defence about bias on the part of Judge Kolesnikova vis-à-vis the charges laid against the applicant.
241. Further, on 2 February 2004 the applicant complained to the Prosecutor General about unlawful actions of the prosecutor in the case of Mr Shakhnovskiy, who had made public announcements about the involvement of the applicant in events which were at that time the subject of consideration in the Meshchanskiy District Court. On 2 September and 22 December 2005 the applicant wrote to the Prosecutor General with two complaints in relation to Judge Kolesnikova, alleging that she had been biased. Finally, arguments of the applicant in this respect had been set out in his appeal against the judgment of the Meshchanskiy District Court.
242. On the merits the applicant claimed that he had been characterised in the judgment concerning Mr Shakhnovskiy as a member of a criminal group. This was an authoritative statement by a judicial body which could not be dismissed as irrelevant.
243. The applicant emphasised that a careful perusal of the judgment would show that he was referred to as a person involved in a criminal conspiracy. Therefore, Judge Kolesnikova had been biased against him, her opinion having been predetermined by her prior participation in the case of Mr Shakhnovskiy. The fact that two other professional judges participated in the examination of the applicant's case was irrelevant. It was Judge Kolesnikova who, as presiding judge, had led court sessions. Throughout the trial, the two other judges (Judge Maksimova and Judge Klinkova) asked only a few questions, while Judge Kolesnikova had a more comprehensive role, examining witnesses and specialists and adopting procedural and organisational decisions.
(c) The Court's assessment
244. The Court notes that the applicant's complaint in respect of the participation of Judge Kolesnikova in Mr Shakhnovskiy's trial has two limbs. The first limb of the complaint concerns the judgment of 5 February 2004 as such, to the effect that it contained a de facto declaration of his guilt, and was, therefore, in breach of Article 6 § 2 of the Convention. This aspect of this case will be analysed below, together with other complaints under Article 6 § 2.
245. The second limb concerns the alleged predisposition of the judge against the applicant, and should be analysed under Article 6 § 1 of the Convention, which guarantees, among other things, the impartiality of the tribunal. In analysing this aspect of the case the Court will take into account all the facts referred to by the applicant which could have had an influence on the impartiality of the tribunal (previous decisions made by Judge Kolesnikova in the course of the proceedings, the statements of the high-ranking prosecution officials in the trial, etc.).
246. The Government's objection about non-exhaustion of domestic remedies seemingly concerns the first limb of the applicant's complaint (alleged breach of the right to presumption of innocence) and will be examined below. As to the second limb of the applicant's complaint (alleged bias of Judge Kolesnikova) the Court considers that the appeal against the Meshchanskiy District Court judgment of 16 May 2005 was an effective remedy and was properly used by the applicant. The appellate court was capable of examining the issue of the alleged bias of Judge Kolesnikova and remit the case for a fresh examination to another judge or another court.
247. The Court considers, in the light of the parties' submissions, that the complaint concerning bias on the part of the court raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
4. Alleged breach of the right to presumption of innocence by Judge Kolesnikova and the prosecution officials
248. Under Article 6 § 2 of the Convention the applicant complained that before the judgment in his case had been delivered and had become final, the high officials of the General Prosecutor's Office had made a number of public statements de facto affirming his guilt. Further, in the judgment of 5 February 2004 concerning Mr Shakhnovskiy, Judge Kolesnikova had de facto declared the applicant guilty.
(a) The Government's submissions
249. The Government indicated that the impugned statements had been made by the public officials in 2003 and in March-July 2004, whereas the applicant's complaint to the Court in respect of those statements had been lodged on 28 March 2005. The applicant had never complained about these statements to any competent authority; this complaint was therefore inadmissible for failure to exhaust domestic remedies or for being lodged out of time.
250. On the merits, the Government stated that the prosecution authorities were supposed, by virtue of their mandate, to support the accusation and to protect the public interest. The case against the applicant had raised a lot of public attention. The defence, through journalists and with the support of the applicant's sympathisers, had been able to present to the public their vision of the situation. An Internet site in support of the applicant had been created. In such circumstances the prosecution had to inform the public about their position in the case, in order to balance the public opinion, increase the transparency of the proceedings, and guarantee the adversarial character of the proceedings. The prosecution authorities had merely stated their position in this case, which had been consistent throughout the trial and had been known to the applicant; their statements had not infringed the applicant's right to be presumed innocent. The court had been well aware of the position of the prosecution, however, the judges had not been bound by it. The court had consisted of three professional judges who were not, owing to their experience and status, easy to be manipulated.
(b) The applicant's submissions
251. The applicant maintained that there could be no obligation for an accused to avail himself immediately of legal remedies in respect of any incident that was capable of influencing the outcome of the proceedings against him. The normal remedy was the remedy of appeal. Of course, when using a remedy against the judgment of the trial judge, the accused had to raise all the irregularities that had occurred during the proceedings. That had been done in the instant case through the appeal.
252. On the merits, the applicant claimed that the remarks by the prosecution officials had not been made with the appropriate discretion and circumspection that were necessary if the presumption of innocence was to be upheld. The applicant submitted that the comments of the prosecutors had amounted to an unequivocal declaration of his guilt by the most senior prosecutors in the Russian Federation and that this was contrary to Article 6 § 2.
253. There was a valid public interest in the charges that had been brought against the applicant such that the prosecutor was entitled to speak to the press in connection with the case. However, what was wholly inappropriate was to make statements that unabashedly referred to the applicant's guilt as if his guilt had been established as a matter of incontrovertible fact before the end of his trial. Those comments were entirely inconsistent with the presumption of innocence that is a central feature of the concept of fair trial in Article 6 of the Convention.
(c) The Court's assessment
(i) Alleged breach by Judge Kolesnikova of the right to be presumed innocent
254. As to the alleged breach, by the findings made in the Shakhnovskiy judgment, of the applicant's right to be presumed innocent, the Court is not persuaded by the Government's argument that a defamation action against the judge would have been an appropriate remedy here, especially having regard to the immunity that judges enjoy in respect of such claims. On the other hand, the Court does not consider that the appeal against the judgment of 16 May 2005 was an effective remedy either. That appeal was supposed to remedy the alleged defects of the proceedings in which the applicant was a criminal defendant. In the Court's opinion, that was an adequate remedy to complain about bias on the part of the judge (see above); however, that remedy was incapable of refuting the findings of the Shakhnovskiy judgment, or otherwise redress the alleged breach of the right to be presumed innocent resulting from that judgment. The Court is not aware of any remedy in Russian law which would be “effective” in the circumstances (see, as an opposite example, the analysis of the French law in the case of Marchiani v. France (dec.), no. 30392/03, 27 May 2008). There is nothing to suggest that the applicant was not immediately aware of the content of the Shakhnovskiy judgment. Therefore, the six-month time-limit established in Article 35 § 1 of the Convention started running from the time when the impugned statement was made (that is, on the date of the adoption of the judgment, 5 February 2004). The Court notes that the present case was brought before it more than a year after that date: the complaint about a breach by Judge Kolesnikova of the right to be presumed innocent was first formulated in the applicant's letter dated 14 October 2005. The Court concludes that this complaint has therefore been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
(ii) Alleged breach of the right to be presumed innocent by the statements of Mr Kolesnikov, Mr Biryukov, Mr Ustinov and Mr Shokhin
255. The Government raised two alternative pleas of inadmissibility. They claimed that the applicant had either failed to exhaust domestic remedies by lodging a separate civil suit against the prosecution officials, or he had failed to comply with the six-month rule.
256. The Court notes that, unlike Judge Kolesnikova, the prosecution officials were not protected by judicial immunity. Therefore, their statements could have been challenged before a court within separate court proceedings (civil or criminal, by way of a defamation complaint), at least in theory. However, it is unclear what sort of civil suit or criminal complaint the applicant had to use in order to defend his rights under Article 6 § 2 of the Convention. Further, it is questionable whether any legal action of that kind would have had any prospect of success, since the criminal proceedings against the applicant were still pending and the applicant's guilt was ultimately confirmed by the final judgment (see in this respect the facts of the case of Khuzhin and Others v. Russia, no. 13470/02, §§ 1 et seq., 23 October 2008). The Government did not submit any information about the state of the Russian courts' practice in that area. In these circumstances the Court is unable to accept the Government's argument that a separate civil suit or a defamation complaint were remedies to be exhausted. On the other hand, the appeal in the applicant's own criminal case, where he was a defendant, was not an effective remedy either: it is unclear what the Moscow City Court examining the applicant's appeal against his conviction could have done about those statements. The Court is unaware of any other remedies the applicant could have used at national level in order to complain about the breach of his right to be presumed innocent. Therefore, the six-month time-limit under Article 35 of the Convention should be calculated from the time when those statements were made.
257. The Court notes that the complaint about the statements of the prosecution officials was formulated by the applicant in his letter dated 14 October 2005. In such circumstances the Court concludes that the complaint about the statements of the prosecution officials made before 14 April 2005 (see §§ 6 et seq. above) has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
(iii) Alleged breach of the right to be presumed innocent by the statement of Ms Veshnyakova
258. It remains for the Court to analyse the statement of Ms Veshnyakova made on 1 June 2005, less than six months before the complaint was introduced before the Court (see § 10 above).
259. The Court reiterates that Article 6 § 2 cannot prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected (see Allenet de Ribemont v. France, 10 February 1995, § 38, Series A no. 308). In this respect, the Court has emphasised the importance of the choice of words by public officials in their statements to the press before a person has been tried and found guilty of an offence (see Daktaras v. Lithuania, no. 42095/98, §§ 41 and 44, ECHR 2000 X, and Butkevičius v. Lithuania, no. 48297/99, §§ 49 50, ECHR 2002 II (extracts)). Whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see Adolf v. Austria, 26 March 1982, §§ 36 41, Series A no. 49, and Daktaras, cited above, § 41).
260. Turning to the present case the Court notes that Ms Veshnyakova was the official spokesperson of the General Prosecutor's Office at the time. In that capacity she gave an interview after the applicant's conviction by the trial court. In that interview she expressed satisfaction with the results of the trial, and informed the public about the new investigation involving the applicant. Indeed, the applicant's conviction had not yet become final at that point; however, the judgment of the trial court enabled Ms Veshnyakova to say with sufficient certainty that the charges against the applicant had been well-founded. In sum, given the content of her statement and the context in which it was made, it was not prejudicial for the applicant's right to be presumed innocent.
261. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
5. Alleged breach of the right to be presumed innocent by the applicant's placement in a metal cage during the trial
262. The applicant complained about having been placed in an iron cage during the hearings before the District Court. The Court decided that this complaint, besides raising an issue under Article 3 of the Convention, should be examined under Article 6 § 2 of the Convention, cited above.
(a) The Government's submissions
263. The Government reiterated that the applicant had been placed in a metal cage for security reasons. It was not meant to degrade him in relation to other criminal defendants, nor was it a demonstrative act, and, therefore, did not breach his right to be presumed innocent.
(b) The applicant's submissions
264. The applicant's comments in this respect were identical to his arguments under Article 3 of the Convention, in so far as they concerned conditions in the courtroom.
(c) The Court's assessment
265. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
6. Lack of information about “parallel proceedings”
266. The applicant complained that the prosecution authorities had continued to investigate other aspects of his business activities in Yukos, but had failed to inform him about the nature of the accusations or the ongoing investigation. He referred to Article 6 § 3 (a) of the Convention in this respect. The Court notes that the case against the applicant has not yet come to an end. Therefore, his complaint in this respect is premature and must be rejected in accordance with Article 35 § 4 of the Convention.
7. Handling of evidence (taking, admission and examination)
267. Under Article 6 §§ 1 and 3 of the Convention the applicant complained that his conviction had been based on speculation and inadmissible or unreliable evidence, that the judgment had referred to evidence which had not been examined in adversarial proceedings, and that there had been a disparity between the prosecution and the defence in the process of administration and assessment of evidence. The applicant further complained that the prosecution had been trying to intimidate witnesses, that many witnesses for the prosecution had not been questioned in person. He lastly complained about the refusal of the District Court to admit in evidence certain documents and reports and question witnesses indicated by the defence.
(a) The Government's submissions
268. The Government maintained that it was for the domestic authorities to assess the admissibility, reliability and relevance of evidence and interpret it. The Russian courts at two instances examined objections of the defence as to the admissibility of a large number of items of evidence and dismissed them. The fact that the defence had not been satisfied with the decisions of the domestic courts in this respect did not mean that the principle of equality of arms had been breached.
(b) The applicant's submissions
269. The applicant agreed that the task of assessing the way in which evidence was collected was “primarily” incumbent upon the national judges, but the Court was called upon to “ascertain” whether the proceedings, in general, were fair. The Government's contention that the Court was absolutely debarred from reviewing the conduct of the proceedings in the instant case was simply wrong.
270. The applicant did not confine himself to arguing that the relevant criminal courts should have appraised certain items of evidence in a different manner, or that some of the available evidence could have been read in a more positive light for the applicant. Instead, he made very specific allegations, contending that the way in which the Meshchanskiy District Court, in particular, had proceeded was tainted with very serious defects, defects of such gravity that one could not speak of a judgment rendered within the framework of the rule of law and simply affected by some judicial errors such as could occur in any judicial proceedings. The two judgments, and also the cassation ruling, were beset by such fundamental flaws that the Court had to fulfil its task of scrutinising the particular circumstances of the case.
271. The applicant drew attention to the fact that, during the trial phase of the proceedings, there had been a fundamental disparity between the prosecution and the defence. The Meshchanskiy District Court had been eager to examine all of the witnesses presented by the prosecution; on the other hand, many of the witnesses proposed by the defence had not been examined.
272. The applicant also criticised the fact that some of the witnesses proposed by the defence had been arrested. Although only a few witnesses had suffered such persecution, it had been clear to everyone that any statement in favour of the applicant would expose the witness to a threat of similar sanctions. In such circumstances, the situation of the applicant as a defendant had become hopeless.
273. The applicant argued that, contrary to what the Government had submitted, the appellate court had not made an assessment of the most crucial arguments of the defence.
(c) The Court's assessment
274. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
8. “Adequate time and facilities”; effective legal assistance
275. Under Article 6 § 3 (b), cited above, the applicant complained that he had not had enough time or facilities to prepare his defence. He further complained, under Article 6 § 3 (c), also cited above, that his right to professional legal assistance had also been breached. In the courtroom he had been unable to communicate with his lawyers in private; he had also been unable to defend himself because of the conditions of his detention and his poor health.
(a) The Government's submissions
276. The Government indicated that under section 18 of the Pre-trial Detention Act of 1995, the applicant's right to meet his defence lawyers had not been limited. During his detention in the facilities of the Federal Penitentiary Agency the applicant had 505 meetings with his lawyers. Between 3 July 2003 and 12 April 2004 the General Prosecutor's Office issued written authorisations for the applicant to meet the following lawyers: Mr Gridnev, Mr Rivkin, Mr Aleksanyan, Mr Krasnov, Mr Baru, Mrs Simonova, Mrs Lvova, Mr Sharov and Mr Drel.
277. The applicant had been able to work with the case file in the detention facilities, keep his notes with him; he had had paper and writing accessories and law books. The Government denied that the applicant had not been allowed to use a magnifying glass or a calculator: although, as a rule, detainees could not have such objects, the applicant had been allowed to use them during the court hearings and when he had studied the case file.
278. The Government further referred to the record of questioning of the applicant by the investigator dated 15 March 2003-16 March 2005. According to the record, when the applicant was asked whether he had had an opportunity to consult his lawyers in private, he had replied: “Not always, but, in general, yes”. Given that otherwise the applicant had a very critical attitude towards the investigative authorities, this reply suggested that he had been generally satisfied with the degree of confidentiality of his communication with his lawyers.
279. The Government indicated that the investigation in the applicant's case was completed on 20 August 2003. On 23 August 2003 the case file was submitted to the applicant and his lawyers for examination. On 26 March 2004 the case was transmitted to the court for trial. The Government considered that, given that the applicant had been assisted by several lawyers, this gave him sufficient time to prepare his defence. Indeed, owing to the large volume of the case file, at the beginning of 2005 the hearings had been held every day. However, the court, after consulting the parties, had allocated one day in the week for the defence to prepare for the trial, analyse evidence, adjust their position, etc. Moreover, the court had allowed several lawyers from the applicant's defence team not to be present in the courtroom every day, so that they could do some work for their client outside the court building.
280. As regards the proceedings before the appellate court, the Government argued that the applicant had received a copy of the judgment in his case on 7 June 2005, and not on 5 August 2005 as he had wrongly suggested. Furthermore, he had been informed about the date of the hearing before the appellate court 14 days in advance, as provided by law.
281. Concerning the conditions in the courtroom, the Government maintained as follows. First of all, the right of a criminal defendant to talk to his lawyer in private had inherent limitations. Thus, it was necessary to maintain order and discipline in the courtroom. Second, the applicant had not explained how the fact of being behind metal bars had prevented him from talking to his lawyer. The metal cage had been located behind the bench on which the defence lawyers were seated. It was not soundproof. In order to talk to the applicant, his lawyers had needed simply to turn to him and, if necessary, to lower their voice slightly. When requested by the defence, the court had always interrupted the hearing; the applicant had had ample opportunity to answer his lawyers' questions. The Government insisted that a metal cage was a better security arrangement than any other (such as handcuffs).
282. The Government concluded that this part of the complaint was manifestly ill-founded.
(b) The applicant's submissions
283. The applicant maintained that the volume of the materials in the case file would have required a considerably longer period of preparation. The prosecution had worked for many months to build up a framework of accusations. By contrast, the applicant, notwithstanding the assistance received from his lawyers, had hardly been able to familiarise himself with the relevant documentation. The temporary absence of a magnifying glass and of a calculator had seriously impaired the preparation of his defence. The defence had been restricted in the time they were given to submit comments for the trial record and had not had sufficient time to prepare for the session of the appeal court.
284. The case against the applicant had been extraordinarily complex in fact and in law. The case materials had encompassed hundreds of volumes and the bill of indictment had covered a period of over ten years. When the applicant's case had been joined with that of Mr Khodorkovskiy the applicant had been given wholly insufficient time to consider the 228 additional volumes of evidence that he was served with. Further, according to the Government, the court had instituted a four-day court week so as to allow the fifth day to be used for trial preparation. However, at the start of 2005, at a critical moment of the trial, when the defence was about to begin the presentation of their arguments, the arrangements had been changed in order to allow the court to sit five days a week, all day long. Requests by the defence for provision of time for confidential communication with the applicant had not been granted or the time given was clearly insufficient. Therefore, there had not been enough time for confidential communication between the applicant and his lawyer.
285. The hearing of the appeal before the Moscow City Court had been expedited for unknown or irrelevant reasons, and the defence had thereby been denied adequate time to prepare for the appeal hearing. Before the appeal hearing the applicant had on several occasions been denied access to his lawyers. Further, in the cramped conditions of his cell he had been unable to review the hearing record. In addition, seven days prior to the expiration of the time set by the court for the reading of the trial record, he had been placed in an isolation cell where it was completely impossible for him to read the trial record.
286. The applicant maintained that during the trial his access to his lawyers had been significantly restricted. He had only been able to speak with his lawyers through the cage in which he was kept in the courtroom. Conversations had always been within earshot of the guards and frequently of the prosecutors too. All notes passing between the applicant and his lawyers had had to be inspected first by the court, thereby entirely circumventing the lawyer-client privilege. At a key phase in the trial, when the defence had started to present their arguments, the court eliminated the Wednesday recess which had been the main opportunity for the applicant and his lawyers to communicate after the start of the trial.
287. In the courtroom, armed guards had regularly stepped between the applicant and his lawyers when they attempted to communicate directly through the bars of the cage in which the applicant sat. The court had refused to intervene, notwithstanding its duty under the Code of Criminal Procedure to ensure the fairness of its proceedings. On 26 August 2004 the escort guards had informed the court that, with the court's permission, they could allow documents or notes to be passed to and from the applicant. However, the court refused to grant such permission, indicating that all such documents or notes had first to be examined by the court.
(c) The Court's assessment
288. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
D. Other complaints
1. Interpretation of tax law (complaint under Article 7 of the Convention)
289. Under Article 7 of the Convention the applicant complained that he had been convicted of tax evasion, whereas, according to the prevailing practice at the relevant time, his behaviour had not constituted a criminal offence. Article 7 of the Convention reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
(a) The Government's submissions
290. The Government indicated that the guarantees of Article 7 of the Convention, referred to by the applicant, were identical to the provisions of the Russian Criminal Code, namely its Articles 3 and 9. The Government further maintained that the applicant had realised that his acts were criminal, or should have realised, at the time he had committed them. The Criminal Code contained clear and ample definitions of the impugned offences; the text of the Code was publicly available. In case of doubt the applicant, as a senior executive of a big company, could have solicited the opinion of leading lawyers in this area. The complexity of the business structure used by the applicant showed that his acts were well calculated.
291. The Government further maintained that the criminal character of the acts imputed to the applicant had been established in the applicable criminal legislation. It is clear that the sphere of economic crimes at the time when the criminal legislation of the Russian Federation (as well as any other country) was enacted could not cover all possible criminal schemes. The provisions of the Criminal Code of the Russian Federation in question did not change. What changed (or, rather, what has been amplified) was the practice of their application. It was important to note that both the first and second instance courts had established that the applicant's intent had been to develop new schemes of tax evasion.
292. Finally, the Government maintained that the applicant's arguments about the retrospective application of the criminal law had been duly examined by the Moscow City Court and dismissed as unsubstantiated.
(b) The applicant's submissions
293. The applicant maintained that his conviction for tax evasion (the core of his criminal case) had breached the principle of nullum crimen sine lege. The Government had not provided any specific information on the case-law of the Russian Court, if any, concerning the interpretation of the “tax evasion” notion employed by the criminal legislation. They had not provided information on how similar cases had been handled in Russia.
294. The applicant's connection to the “sham” legal entities which, according to the prosecution, had been involved in the tax evasion schemes, had not been proven. As to personal income tax, like many Russian entrepreneurs, the applicant had made use of the right granted by law to a special tax regime, based on the use of a licence and the payment of a single tax. His income-generating activities had been constantly monitored by the tax authorities.
295. The applicant indicated that for many years his personal account and the accounts of the companies he worked for or with had been audited and scrutinised not only by private audit firms, but also by tax authorities. All of a sudden, however, the State had declared his conduct not only unlawful, but criminally punishable. There was no denying the fact that the applicant had made use of the opportunities which Russian tax legislation offered him. The Government argued that the applicant had had access to the advice of lawyers and they could have explained to him that his “minimisation” schemes were illegal. However, the domestic courts had not accepted in evidence expert reports prepared by those lawyers and tax consultants which described the state of the practice at the relevant time.
(c) The Court's assessment
296. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. Separation from family (complaint under Article 8 of the Convention)
297. Under Article 8 of the Convention the applicant complained that he had been sent to serve his sentence in a remote “strict regime” colony. Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
(a) The Government's submissions
298. The Government maintained that there had been no interference with the applicant's rights under Article 8 of the Convention. Kharp township had a direct railway connection with Moscow, where the applicant's family lived. Several trains ran on that line, including a high-class train the “Polar Arrow”. That train had all necessary amenities, including two-bed compartments in “economy” and “business” class, services for children and a restaurant. Further, Moscow had a direct air connection with Salekhard, a nearby town. It was possible to get to Kharp from Salekhard by train or by car, through the town of Labytnangy and across the Ob River. Therefore there were no special logistical problems for visits by the applicant's family.
299. Further, the colony where the applicant was serving his sentence had special facilities for long-term family visits. Those facilities were furnished and equipped with household appliances. The applicant could have six short-term and four long-term family visits per year. Furthermore, he could obtain additional family visits as a reward for exemplary behaviour. The relatives were informed about the time of the visits in advance.
300. The Government emphasised that any limitation of the applicant's rights under Article 8 was related to his criminal conviction and was inherent in the very concept of criminal punishment.
301. In any event, even if there had been an interference with the applicant's rights under Article 8, it was in accordance with paragraph 2 of this Convention provision. The Government repeated their argument, adduced under Article 3 of the Convention, that the applicant had been sent to that particular colony under a system which enabled a reduction in overcrowding of prisons located in Central Russia. Therefore, the measure complained of was lawful. Furthermore, it was necessary to guarantee the security of Mr Lebedev himself. The Government considered that since the applicant's case was widely publicised, it was important to protect the applicant from “unauthorised contacts with journalists, ill-disposed private individuals, in particular those who had suffered as a result of [the applicant's crimes] ... , from unauthorised rallies and picketing”. Furthermore, the Government noted that the applicant's cellmates could have learned that he had money in foreign banks. That could have put him in danger. In the Government's words, the detainees in the Yamalo-Nenetskiy Autonomous region were less informed about the details of the applicant's case than those in Central Russia. Therefore, the applicant was more secure where he was.
302. Finally, the Government indicated that if, by derogation from the general rule, the applicant had obtained a place in a prison closer to Moscow, that would also have disposed his cellmates against him and could have put him in danger.
(b) The applicant's submissions
303. In the applicant's submission, the Government's argument that there was a direct railway connection with Kharp township and direct flights between Salekhard and Moscow was certainly true. However, the train journey usually took 48 hours, while to reach Kharp from Salekhard airport one had to cross the Ob River: there was a ferry in the summer and an ice-crossing in the winter. However, in autumn and spring, when there was no ice, the river could only be crossed by air-cushioned vehicles, which was quite dangerous.
304. The Russian counsel for the applicant had had to overcome all the difficulties of visiting him in the settlement of Kharp (the foreign counsel had been denied access to the applicant to that very day). However, for the applicant's family – his wife and two daughters, who at the relevant time were two and four years old – such trips were all but impossible because of the length of the train journey and the difficulties of crossing the river. In any event, visiting the applicant was a time-consuming, nerve-straining and expensive matter, and for young children it was practically impossible. Had the applicant been sent to serve his sentence somewhere in the Moscow Region or a nearby region, most of these difficulties would have been avoided.
305. Such deliberate social isolation did not meet the requirements of Article 8 § 2 of the Convention. Firstly, it had no legal basis. Under the law, it was incumbent upon the Russian authorities to send the applicant to serve his sentence in a colony in Moscow or in the Moscow Region.
306. Furthermore the Government's allegation that it had been done for the applicant's own safety was untrue. In fact, for more than two years the applicant had been held in the remand prisons of the city of Moscow, and there had not been a single incident involving him during that time in so far as the relations with his cellmates were concerned. In addition, the Russian authorities had failed to produce evidence that the applicant was indeed in danger from other detainees. The Government's assertion that the closest colonies did not have a place for one person did not correspond to the reality. Furthermore, even if no place had been available, such a finding would not have released the authorities from their obligations under Article 8 of the Convention.
(c) The Court's assessment
307. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
3. Abuse of rights
308. The applicant complained that his criminal prosecution was contrary to Article 17 of the Convention, which reads as follows:
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
309. The Court reiterates in this respect that “the general purpose of Article 17 is to prevent individuals or groups with totalitarian aims from exploiting in their own interests the principles enunciated by the Convention” (see Norwood v. the United Kingdom (dec.), no. 23131/03, ECHR 2004 XI). Article 17 cannot be relied on by an individual applicant complaining of the infringement of his rights and freedoms by the public authorities: it is for respondent Governments to invoke that article in order to justify restrictions of rights and freedoms of the applicant (see, for instance, Pavel Ivanov v. Russia (dec.), no. 35222/04, ECHR 2007 II). It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. Political motivation of the prosecution
310. Under Article 18 of the Convention the applicant complained that his criminal prosecution had been politically motivated. Article 18 of the Convention reads as follows:
“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
(a) The Government's submissions
311. The Government submitted as follows:
“[The applicant's] allegations that he was prosecuted for political reasons are ill-founded and not supported by the criminal case files, including the judgment of the Meschanskiy District Court of Moscow of 16 May 2005. No other materials testifying to the contrary are available.”
They did not submit any further comments on the applicant's allegations under Article 18 of the Convention.
(b) The applicant's submissions
312. The applicant maintained that the proceedings against him and other leading Yukos executives had been driven by political motives. He referred to various documents, namely the findings of the Special Rapporteur of the Parliamentary Assembly of the Council of Europe, endorsed by the Parliamentary Assembly, which had concluded that the circumstances of the applicant's case went “beyond the mere pursuit of criminal justice, and include[d] elements such as the weakening of an outspoken political opponent, the intimidation of other wealthy individuals and the regaining of control of strategic economic assets”. The applicant further referred to the judgment of a London court in extradition proceedings against former Yukos executives where the judge concluded that the prosecution of Mr Khodorkovskiy was politically motivated. The applicant further referred to the decision of the Swiss Federal Court which mentioned a “political component” of the case and noted the political and discriminatory character of the proceedings against the applicant and other leading Yukos executives in Russia. The applicant referred to the decision of a Lithuanian court dismissing an extradition request concerning a Yukos manager, which found that the underlying reasons for criminal prosecution of Yukos managers had not been criminal offences, but the destruction of the political opposition and the return of control over strategic economic assets.
313. The applicant further gave an account of what he called “the consistent pattern of harassment and intimidation of the applicant's lawyers”. The applicant indicated that he had been convicted by the judge who had already convicted other leading Yukos executives and following highly prejudicial remarks by the State's senior prosecutors. The applicant also invoked opinions of various publice figures in Russia and abroad who had characterised proceedings against Yukos executives as political. In conclusion, the applicant restated his profound conviction that he had become the victim of a campaign in which prosecutors and judges had been used as instruments of high-ranking officials of the Russian Federation.
(c) The Court's assessment
314. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court by a majority
Declares admissible, without prejudging the merits, the applicant's complaints concerning:
(a) the conditions of his detention in the remand prison IZ-77/1 and in the courtroom (Article 3 of the Convention);
(b) the length of his detention pending investigation and trial and the proceedings in which it was extended (Article 5 §§ 3 and 4 of the Convention);
(c) the trial court's alleged lack of impartiality in the light of Judge Kolesnikova's participation in the trial of Mr Shakhnovskiy (Article 6 § 1 of the Convention);
(d) the alleged breach of his right to be presumed innocent by his placement in a metal cage during the trial (Article 6 § 2 of the Convention);
(e) the alleged unfairness in handling of evidence by the courts (Article 6 §§ 1 and 3 (d) of the Convention);
(f) the alleged lack of adequate time and facilities for the preparation of his defence and the alleged lack of effective legal assistance (Article 6 §§ 1 and 3 (b) and (c) of the Convention);
(g) the allegedly unforeseeable application of the tax law (Article 7 of the Convention);
(h) the applicant's alleged inability to maintain family and social ties from the place where he served his sentence (Article 8 of the Convention); and
(i) the allegedly improper reasons for his criminal prosecution (Article 18 of the Convention);
Declares inadmissible the remainder of the application.
Søren Nielsen Christos Rozakis
Registrar President