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KHODORKOVSKIY v. RUSSIA - 5829/04 [2011] ECHR 841 (31 May 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/841.html
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[2011] ECHR 841
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FORMER
FIRST SECTION
CASE OF
KHODORKOVSKIY v. RUSSIA
(Application
no. 5829/04)
JUDGMENT
STRASBOURG
31 May
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Khodorkovskiy v. Russia,
The
European Court of Human Rights (Former First Section), sitting as a
Chamber composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Khanlar
Hajiyev,
Dean
Spielmann,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 5829/04) against the
Russian Federation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Russian national, Mr
Mikhail Borisovich Khodorkovskiy (“the applicant”), on 9
February 2004.
The applicant was represented by Ms K. Moskalenko,
a lawyer practising in Moscow, Mr Wolfgang Peukert, a lawyer
practising in Strasbourg, Mr Nicholas Blake, and Mr Jonathan
Glasson, lawyers practising in London. The Russian Government (“the
Government”) were represented by Mr P. Laptev
and Ms V. Milinchuk, the former Representatives of
the Russian Federation at the European Court of Human Rights,
and subsequently by their Representative, Mr G. Matyushkin.
The
applicant alleged, in particular, that conditions in the remand
prisons where he was detained and in the courtroom during his trial
were contrary to Article 3 of the Convention, that his arrest
and subsequent detention pending investigation and trial was contrary
to Article 5 of the Convention, and that the criminal
proceedings against him were politically motivated, contrary to
Article 18 of the Convention.
By
a decision of 7 May 2009 the Court declared the application
partly admissible.
The
applicant and the Government each filed further written observations
(Rule 59 § 1) on the merits. The Chamber having
decided that no hearing on the merits was required (Rule 59 § 3
in fine), the parties replied in writing to each other’s
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1963. He was detained in a penal colony in
Krasnokamensk, Chita Region, and he is currently detained in Moscow
in connection with another criminal case pending against him.
A. The applicant’s business and political
activities
Before
his arrest in 2003 the applicant was a businessmen and one of the
richest persons in Russia. Thus, he was a board member and the major
shareholder of Yukos, a large oil company (hereinafter “the
company”, liquidated in 2007). He also controlled several other
mining, industrial and financial companies affiliated with Yukos
(hereinafter referred to as “the Yukos group”). Most of
those companies were created as a result of the privatisation of
State-controlled enterprises in the mid-1990s.
In
the period 2002-2003 the Yukos group was pursuing a number of
large-scale business projects. Thus, Yukos was engaged in merger
talks with Sibneft, another large Russian oil company, and with the
US-based company Exxon Mobil. Yukos was also planning to build a
pipeline to the Arctic Ocean in order to export natural gas to the
western part of Europe. Lastly, Yukos and the State company Rosneft
were involved in a public struggle for control of certain oilfields.
At
the same time the applicant became involved in politics. At the
beginning of 2003 he announced that he would allocate significant
funds to support the opposition parties Yabloko and SPS (Soyz
Pravykh Sil) He also made certain public declarations criticising
alleged anti-democratic trends in Russian internal policy. The
applicant funded a non-profit NGO, “Open Russia Foundation”
in order to promote certain political values in Russian society.
B. The Apatit case
One
of the companies affiliated with Yukos was Apatit, a large mining
enterprise, producing apatite concentrate. Yukos controlled a 20 %
shareholding in Apatit.
Apatit
was privatised in 1994. In the following years the authorities made
several attempts to return Apatit to State control, claiming that the
money due under the privatisation contract had not been paid by the
buyers. In March 2002 Mr Lebedev, one of the top managers in the
Yukos group and the applicant’s personal friend, proposed a
friendly settlement of the dispute on behalf of the buyers. The State
privatisation authority having accepted that offer, on 19 November
2002 a friendly settlement was reached. It was approved by a
commercial court.
In
November 2002 the governors of the Smolensk Region, the Tula Region
and the Tambov Region wrote a letter to the then General Prosecutor
of the Russian Federation, Mr Ustinov. In that letter they
complained that Apatit was abusing its dominant position on the
apatite concentrate market and boosting prices of phosphate
fertilisers, which, in turn, increased food prices. They also alleged
that Apatit was using various schemes to evade or minimise taxes.
They urged General Prosecutor Ustinov to return Apatit to State
control and to apply anti-trust measures in order to make Apatit
reduce prices.
In
December 2002 the governor of the Pskov Region wrote to the then
President of the Russian Federation, Mr Putin. He drew the
President’s attention to the friendly settlement in respect of
the Apatit shares and claimed that its terms were contrary to the
interests of the State, since the amount received by the State in
pursuance to that settlement was significantly lower than the market
price of the shares.
On
16 December 2002 the then President Putin issued Directive
No. Pr-2178 requiring reports to be obtained in relation to the
acquisition of the Apatit shares. In particular, he inquired whether
there had been “violations of the existing legislation
committed during the sale of shares in Apatit plc” and
whether the State had suffered any loss as a consequence of the
friendly settlement that had been approved by the Commercial Court of
Moscow in 2002.
A
wide ranging investigation then took place involving the Prime
Minister, the General Prosecutor, the Ministry of Finance, the
Ministry of Natural Resources, the Ministry of Industry and Science,
and the Ministry of Taxes. In January 2003 the General Prosecutor
wrote to the President that the privatisation of Apatit and its
business activities had been suspicious, and that further inquiry was
needed.
On
28 April 2003 the General Prosecutor wrote to the President informing
him that the General Prosecutor’s Office (GPO) had concluded
that there was no need to take further action. The inquiry had not
established that Apatit had been abusing its position on the market
or that the amount of the friendly settlement reached with the State
privatisation agency had been unfair. The terms of the friendly
settlement had been approved by the Prime Minister, Mr Kasyanov.
Apatit’s tax payments had been constantly monitored by the
Ministry of Taxes; although Apatit and its affiliates had been
subjected to various penalties and financial sanctions in the past,
and a new audit was underway, the General Prosecutor’s Office
did not see any reason to start criminal proceedings in this respect.
Nonetheless,
on 20 June 2003 a criminal case was opened against Apatit; the
situation concerning the acquisition of the Apatit shares later
formed one of the main charges against the applicant. In the
following months the scope of the investigation was broadened: the
investigative team discovered evidence of tax evasion and business
fraud in the business activities of the companies affiliated with
Yukos.
On
2 July 2003 Mr Lebedev was arrested in connection with the Apatit
case.
On
4 July 2003 the applicant was summoned to the General Prosecutor’s
Office and interviewed as a witness in the Apatit case.
In
the summer and autumn of 2003 the prosecution carried out several
searches of the premises of Yukos and the offices of the applicant’s
lawyer, Mr Drel, and also searched the headquarters of the political
party Yabloko. Further, several leading executives of Yukos and
affiliated companies were arrested; several others left Russia. Some
of those who had left then settled in the United Kingdom. The
prosecution authorities sought their extradition to Russia, but the
British courts refused on the grounds that their prosecution was
politically motivated and they would not receive a fair trial in
Russia. The applicant produced copies of the decisions of the British
courts in those extradition proceedings.
At
the same time senior officials in the General Prosecutor’s
Office publicly declared that charges might be brought against other
senior managers of Yukos and affiliated companies. The applicant
did not leave the country and continued his activities, including
business trips in Russia and abroad.
C. The applicant’s apprehension and detention
pending investigation and trial
1. The applicant’s apprehension in Novosibirsk on
25 October 2003
On
23 October 2003, whilst the applicant was away from Moscow on a
business trip to eastern Russia, an investigator summoned him to
appear in Moscow as a witness on 24 October 2003 at noon. The
summons was delivered to the applicant’s office on 23 October
at 3 p.m. by investigators Mr F. and Mr Sh. The
applicant’s staff told them that the applicant was away from
Moscow until 28 October 2003. Yukos staff also sent the General
Prosecutor’s Office a telegram explaining the reasons for the
applicant’s absence from Moscow.
On
24 October 2003 Mr F. and Mr Sh. wrote a report to the
leading investigator, Mr K., in which they informed Mr K.
about the applicant’s absence. On the same day, the applicant
having missed the appointment, the investigator K. ordered his
enforced attendance for questioning and instructed the police to
implement that order.
In
the early morning of 25 October 2003 a group of armed
law-enforcement officers approached the applicant’s aeroplane
on an airstrip in Novosibirsk, apprehended him, and flew him to
Moscow.
The
applicant’s lawyer complained about the enforced attendance
order to the Basmanniy District Court of Moscow. He asserted that the
applicant had had a good reason for missing the interview: he had
been out of town on a business trip and had not personally received
the summons. As a witness he had been free to travel. On 27 January
2004 the court dismissed the complaint. The court stated that it had
been impossible to hand over the summons of 23 October 2003
directly into the applicant’s hands, so the applicant had been
notified about the questioning through the Yukos headquarters. The
court concluded that the decision of 24 October 2003 to bring
the applicant to Moscow for questioning had been issued in compliance
with the Code of Criminal Procedure and the Constitution.
2. First detention order (25 October 2003)
Once
in Moscow the applicant was brought before the investigator at
11 a.m. on 25 October 2003. The investigator explained to
the applicant why he had been apprehended and interviewed him as a
witness in connection with the applicant’s personal income tax
payments for the years 1998-2000. Thereafter the applicant was
informed that he was being charged in connection with a number of
crimes, namely the fraudulent acquisition of the Apatit shares in
1998, misappropriation of the Apatit proceeds, misappropriation of
Yukos assets and corporate tax evasion and personal tax evasion
schemes allegedly used by Yukos and the applicant personally in
1999-2000. The investigator drew up a charge sheet describing the
essence of the charges against the applicant. It was 35 pages
long and was read out to the applicant at 2.20 p.m. The
applicant was then interviewed as a defendant in that case but
refused to testify since one of his lawyers was absent. Following the
interview, at 3 p.m. on 25 October 2003 the investigator
requested the Basmanniy District Court to detain the applicant
pending investigation. The request was nine pages long and, according
to the applicant, had been prepared in advance.
The
court heard this request at 4.35 p.m. The applicant was assisted
by one of his lawyers, Mr Drel. The prosecution requested the
proceedings to be held in camera, referring to the materials of the
case file which should not be disclosed. The defence requested a
public hearing, but the court, on an application by the prosecutor,
decided to hold the hearing in camera, referring to a need to
guarantee the defendant’s rights. The court heard the public
prosecutor, the applicant and the applicant’s counsel and
examined certain documents from the case file produced by the
prosecution. The defence submitted that the applicant had attended
promptly for questioning when he had first been requested to do so,
in July 2003, and that he had been unable to attend the second
questioning for legitimate reasons, as he had had no personal
knowledge of the summons. The defence pleaded in favour of the
applicant’s release on bail. However, as the Government
indicated, the defence did not indicate the amount of the proposed
bail.
At
the end of the hearing, which lasted about five hours, the court
issued a detention order, referring to Articles 108 of the Code
of Criminal Proceedings (see the “Relevant domestic law”
part below). The court summarised the charges against the applicant,
the arguments put forward by the parties and the procedural history
of the case. The main reasons for the detention were as follows:
“[The applicant] is accused of serious crimes
punishable by over two years’ imprisonment, committed in
concert with others and over a long period. The circumstances of the
crimes, [the applicant’s] personality, and his position as head
of Yukos suggest that, if he remained at large, the applicant may
influence witnesses and other participants in the trial, hide or
destroy evidence ..., or commit further crimes.
[The applicant’s] accomplices have fled from the
prosecution. [The applicant] might also flee because he has a travel
passport and money in foreign banks”.
The
court referred to the applicant’s family situation, his
residence in Moscow and his health condition, and found that there
was no reason for choosing a milder measure of restraint. As to the
applicant’s assertion that the prosecution had produced no
evidence of his implication in the impugned crimes, the court noted
as follows:
“This argument ... shall not be examined on the
merits, since the criminal case is still at the stage of the
pre-trial investigation, and the court cannot express its opinion as
to the guilt [of the applicant], proof of his guilt or the
correctness of the legal qualification of Mr Khodorkovskiy’s
acts”.
The
court order did not establish the duration of the applicant’s
pre-trial detention.
On
3 November 2003 the applicant resigned from his position as Chief
Executive of Yukos.
On
5 November the applicant’s lawyer handed over the applicant’s
foreign travel passports to the prosecution.
On
6 November 2003 the applicant’s lawyers appealed against the
detention order. They asserted, among other things, that the reasons
for the detention were insufficient, that the hearing in camera had
been unlawful and that the applicant had not committed any criminal
offences.
On
11 November 2003 the Moscow City Court upheld the detention
order. The hearing took place in camera, without the applicant but in
the presence of his lawyers. The city court expanded on the district
court’s reasons:
“[The applicant] owns a large stake in Group
Menatep Ltd., a company registered in Gibraltar ..., has financial
influence, [and] enjoys prestige with public bodies and companies.
Employees of companies controlled by [the applicant] depend on him
financially and otherwise....”
The
City Court also found that the materials of the case file contained
sufficient evidence to suspect the applicant of having committed the
impugned offences. It established, further, that the domestic law
allowed the detention hearing to be held in camera, in order to keep
the materials of the pre-trial investigation secret and protect the
interests of the defendant. The City Court also failed to fix the
duration of the period of detention.
3. Seizure of a written note from the applicant’s
lawyer
On
10 November 2003 the applicant was charged with a number of
additional crimes, including abuse of trust, misappropriation of
property, tax evasion, large-scale fraud and forgery of official
documents.
On
11 November 2003 Ms Artyukhova, one of the applicant’s
lawyers, visited him in prison. As she was leaving, guards searched
her and seized a handwritten note with ideas about the case she had
prepared overnight and a typed draft of the legal position in
Mr Lebedev’s case.
According
to the Government, Ms Artyukhova had received a note from the
applicant entitled “Written directions to the defence”.
These “directions” contained the following instructions
(it appears that the Government quoted from this note): “to
ensure that Mr Lebedev gives negative or vague answers about the
participation in the RTT, to speak to the witnesses about their
testimony of 6 November 2003, to check the testimonies of the
defence witnesses to ensure that they do not contain any indication
as to intent”. It also contained directions as to investment
activities and tax payments. The prison officials also seized from
Ms Artyukhova a 16-page typewritten memo entitled “Preliminary
criminal-law analysis of the charges in the case of Mr Lebedev P.P.”.
The Government produced a report dated 11 November
2003 by a prison officer who had participated in the search.
According to the report, the search had been ordered by inspector B.
In the report inspector B. indicated that he had ordered the
search because he had sufficient grounds to believe that
Ms Artyukhova was carrying prohibited goods. The Government also
produced a report by inspector F., who informed his superiors
that he saw that the applicant and Ms Artyukhova “exchanged
a notebook with some notes, and also made notes in it” during
their meeting.
According
to the applicant, the handwritten note was drafted by Ms Artyukhova
It stated as follows:
“- Kodirov
[the applicant’s cell-mate]: expects a second visit by the
lawyer Solovyev;
- to work on the question of sanctions
concerning violation of rules on keeping in custody SIZO (active <->
passive forms of behaviour (ex. hunger strike);
- to work on the question of receiving money
for consultancy fees on the purchase of shares by various
companies involved in investment activities;
- expert analysis of signatures, to work on
this question because the documents submitted are not the originals
but photocopies (expert analysis of photocopies of signatures of
M.B.);
- to work through questions with witnesses
Dondonov, Vostrukhov, Shaposhnikov (questioning on 06.11.03 -
according to circumstances);
- concerning participation in RTT Lebedev
must give negative (indecisive) answer;
- prerogatives of executives of Rosprom and
Menatep - to show the scope of their prerogatives, how promotions are
made;
- check witnesses of the defence (former
managers and administration of Rosprom, Menatep position about 100,
the essence of testimonies
1) absence of intention;
2) absence of instructions, advise on methods
of investment and tax activity;
It is necessary to work on testimonies of witnesses
Fedorov, Shaposhnikov, Michael Submer, tax people;
Other - to conduct, by Western audit and law firms,
audit of personal fortune, in the following context ‘I have
right to receive income in accordance with decision of meeting of
shareholders ‘ counsel. ... in the case ...”.
On
25 November 2003 the applicant’s lawyers were informed that the
pre-trial investigation had finished. The defence was given access to
the materials of the investigation file for examination and
preparation for the trial.
The Government produced a copy of a report by
investigator Mr. K. to Mr B., the Head of the General
Department of the Ministry of Justice, concerning the episode of
11 November 2003. Mr K. informed Mr B. about the
content of the note seized from Ms Artyukhova According to
Mr K., that note contained the applicant’s instructions to
the defence team as to the tactics of the defence and, in particular,
was aimed at ensuring coordination with Mr Lebedev, the
applicant’s co-accused. According to Mr K., the applicant
“dictated” the note to Ms Artyukhova. Mr K.
concluded that this note had evidentiary value in the applicant’s
criminal case.
4. Second detention order (23 December 2003)
On
28 November 2003 the defence made an application to the General
Prosecutor for the measure of restraint to be changed, arguing that
as the pre-trial investigation had finished and all the witnesses had
been questioned there was no longer even a theoretical possibility
that the applicant might interfere with the proceedings. They also
argued that there was no reason to believe that the applicant would
resume his alleged criminal activities or that he would flee
jurisdiction. Sureties and bail were also offered. On 3 December 2003
the prosecution dismissed the application for release.
On
17 December 2003 the prosecution requested the Basmanniy Court to
extend the applicant’s detention until 30 March 2004. The
prosecution referred to the “note seized from one of the
lawyers [of the applicant] containing instructions from Khodorkovskiy
to exert pressure on witnesses for the prosecution”. The
prosecutor was apparently referring to the note seized from Ms
Artyukhova. The prosecution’s application for an extension was
lengthy and carefully reasoned; it ran to over three hundred pages.
In
the evening of Friday 19 December 2003 the applicant’s
lawyers learned that the court would hear the request at 10 a.m.
on Monday, 22 December 2003. The lawyers did not receive a copy
of the request before the hearing.
The
hearing began at 3.05 p.m. on 22 December 2003. The defence
sought an adjournment of the hearing to 24 December, but the
court instead allowed the lawyers a two-hour break to prepare their
pleadings. During those two hours the lawyers stayed in the courtroom
and took instructions from the encaged applicant in the presence of
guards and court staff.
The
court decided to hold the hearing in camera. The applicant’s
lawyers objected, referring, in particular, to the fact that the
General Prosecutor had previously publicly stated that there was
nothing in the applicant’s case that would lead to the
necessity for any hearings in camera. The court refused the
applicant’s request that the hearing be in public, without
giving any reasons.
In
the course of the hearing the defence produced documents in support
of their view that the applicant was no longer a board member of
Yukos, that he had no shares in Yukos or other companies which,
according to the prosecution, had been involved in the impugned scam
operations, and that before his arrest he had permanently resided in
the Moscow Region. On that basis, the defence asserted that the
applicant would not abscond. However, the court refused to examine
the documents provided by the defence.
In
the evening of 22 December 2003 the hearing was adjourned. It
was resumed on 23 December 2003. On that day the defence
obtained a copy of the prosecution’s request for an extension
of the detention. At the same time the prosecution filed with the
court new pieces of evidence, including the note seized from
Ms Artyukhova. The court admitted Ms A’s note in
evidence. The defence sought an adjournment for a day to examine
those documents. They also contested their admissibility, claiming
that the documents had been obtained in breach of the privilege
pertaining to lawyer-client communications. They claimed, further,
that they had not enough information about the origin of this
document. However, the court ruled that a one-hour adjournment would
suffice.
The
next day the applicant’s representative, Ms Moskalenko,
requested the court to adjourn the hearing for one day in order to
allow the defence to study new materials submitted by the
prosecution. The court ordered a one-and-a-half hour break but
refused to adjourn the hearing to the next day.
On
23 December 2003 the court extended the detention until 25 March
2004, essentially for the same reasons it had relied on before. The
District Court examined the applicant’s family situation, and
the “personal sureties” proposed by several individuals
who guaranteed the applicant’s appearance at the trial.
However, those elements did not persuade the District Court that the
applicant could be released. The District Court referred to the fact
that the applicant’s presumed accomplices had fled from trial,
and that the applicant controlled business structures which were
implicated in the alleged crimes and could therefore use them to
continue his criminal activities or influence witnesses who worked in
those structures. The court noted that the applicant had a foreign
passport and personally owned shares in a foreign company and through
a trust company. In addition, the court stated that the applicant had
tried to intimidate witnesses. It did not refer directly to Ms A’s
note in its analysis, although it mentioned it when summarising the
submissions by the prosecution. The court also had regard to the
necessity of carrying out further investigative actions. It concluded
that, if released, the applicant might flee from justice, influence
witnesses and continue his activities.
On
30 December 2003 the applicant’s lawyers appealed against this
decision. The appeal was received by the Moscow City Court from the
first-instance court on 14 January 2004.
On
15 January 2004 the Moscow City Court upheld it. The hearing in the
Moscow City Court took place in public in the presence of the
applicant’s lawyers. The applicant was absent from that
hearing. From that moment on the detention hearings in the
applicant’s case were held in public. In the decision of
15 January 2004 the Moscow City Court held, inter alia,
that the lower court had had evidence that the applicant had tried to
exert pressure on witnesses.
5. Third detention order (19 March 2004)
On
an unspecified date the prosecution requested the Basmanniy District
Court to extend the applicant’s detention again because the
applicant needed more time to study the prosecution files. In support
of his request the prosecutor mentioned in his submissions the
“seizure from one of the defendants of the written notes
containing the instruction of Khodorkovskiy to put pressure on the
witnesses for the prosecution”.
On
19 March 2004 the court held a hearing. The defence lawyers
complained that they had been unable to see the applicant in private
to take instructions as the applicant had only been informed that day
of the hearing and had had insufficient time to review the new case
materials submitted by the prosecutor. They themselves had only been
informed of the hearing on the previous day. They asked for an
adjournment of three days. They also submitted to the court an expert
handwriting analysis report showing that the document seized from Ms
A had been written by her and not by the applicant. The defence
claimed, further, that the applicant would not abscond. In support of
that claim, the defence referred to one of the co-accused, Mr K.,
who had signed a written undertaking not to leave his city of
residence and had not absconded. The defence indicated that the
applicant’s passports had been handed over to the prosecution
and that his family were once again offering to put up bail for him.
In the opinion of the defence it was absurd to suggest that the
applicant would continue with criminal activity, since he was not
charged with crimes of violence but with economic crimes: it would be
impossible for him to commit such crimes if bailed on condition of
house arrest. The prosecution objected to the applicant being granted
bail on the condition of house arrest.
After
having examined the materials of the case file and having heard the
parties, the court extended the detention until 25 May 2004
essentially for the same reasons as before. In support of its
conclusions, the court referred to the fact that some of the
applicant’s co-defendants had fled from Russia, that the
applicant had several foreign passports, that he owned a considerable
amount of shares in a foreign company, and that he had tried to exert
pressure on the prosecution witnesses. The court also referred to the
fact that some of the witnesses were dependent on the applicant. In
the detention order the court did not, however, refer to the risk
that, if released, the applicant would engage in criminal activities.
The District Court also held that the detention could not be replaced
by personal sureties because the court was not entitled to take such
a decision under Article 109 of the CCrP.
The
Government maintained that the applicant’s appeals against the
detention order of 19 March 2004 were received by the District
Court on 25 March (appeal by Mr Padva) and 2 April
2004 (appeal by Ms Moskalenko). On 27 April 2004 the
materials of the case were forwarded by the District Court to the
Moscow City Court. The parties were informed of the date and venue of
the appeal court hearing. On 12 May the Moscow City Court upheld
the decision of 19 March 2004.
6. Detention orders of 20 May and 8 June 2004;
application for release of 16 June 2004
On
14 May 2004 the prosecution submitted the case to the Meshchanskiy
District Court for trial.
On
20 May 2004 the Meshchanskiy District Court decided to hold a
preliminary hearing on 28 May and ordered that the applicant
should stay in prison. The decision was taken in camera and without
the attendance of either the applicant or his lawyers or the
prosecution. No reasons for the continued detention of the applicant
were given and the period of detention was not specified.
On
26 May 2004 one of the applicant’s lawyers, Ms Moskalenko,
lodged an appeal against the decision of 20 May 2004. She
complained, inter alia, that the detention hearing had been
held without the applicant or his lawyer, and that the decision
extending the detention did not contain any reasons. After having
obtained a reply from the prosecution, the Meshchanskiy District
Court forwarded the appeal to the Moscow City Court. The applicant’s
appeal against the decision of 20 May 2004 was dismissed by the
Moscow City Court on 21 June 2004. It appears that neither the
applicant nor his lawyers were present at the hearing of 21 June
2004. According to the Government, the summons was sent to six
lawyers representing the applicant; however, the summons was not sent
to Ms Moskalenko, as her power of attorney did not entitle her
to represent the applicant before the appeal court. The Government
did not produce copies of the summons. The Moscow City Court found
that the decision of 20 May 2004 had been taken by a competent
court in compliance with the relevant legislation. It did not specify
the reasons for extending the applicant’s detention.
Preliminary
hearings in the trial court took place on 28 May and 8 June
2004. On the latter date the court decided to open the trial on
16 June 2004 and to join the cases of the applicant and
Mr Lebedev. It also ordered that the applicant should stay in
prison pending trial. No reason for that decision was given and the
court did not specify the period of detention. Ms Moskalenko
appealed against that decision, claiming, inter alia, that the
decision of 8 June 2004 to detain the applicant had not been
reasoned. On 29 July 2004 the detention order of 8 June
2004 was upheld by the Moscow City Court. The City Court in its
decision indicated that it had reviewed the materials of the case
file, examined the submissions of the parties, and concluded that the
detention order by the first-instance had not violated the criminal
procedure law. The City Court also indicated that, taking into
consideration the materials available in the case file, the
first-instance court had not found any grounds to reverse or modify
the measure of restraint in the form of detention pending trial.
According to the applicant Ms Moskalenko was unable to
participate in the hearing on medical grounds. However, the
applicant, several of his lawyers and the lawyers representing
Mr Lebedev were present at that hearing.
On
16 June 2004, when the trial started, the applicant’s lawyer
requested the trial court to release the applicant because he was
detained unlawfully. The court dismissed that request. In its ruling
the court established that during the investigation the detention had
been ordered and extended by the Basmanniy District Court. The
Meshchanskiy District Court declared itself incompetent to reassess
those detention orders. The Meshchanskiy District Court further noted
that on 20 May 2004, following receipt of the case file from the
prosecution, it had maintained the measure of restraint imposed
earlier. That decision was later confirmed on 8 June 2004. Those
decisions were not quashed, and only an appeal court could examine
the lawfulness of previously imposed detention orders. The court
concluded that it did not detect any “breaches of the existing
legislation that would prevent the applicant’s detention”.
Ms
Moskalenko appealed against that ruling, but on 29 July 2004 the
Moscow City Court upheld both the above decision and the earlier
decision of the same court of 8 June 2004 (cf. above).
7. Detention orders of 1 November 2004, 28 January
2005, and 24 March 2005
On
an unspecified date the prosecution requested the court to extend the
applicant’s detention because the trial was continuing.
On
1 November 2004 the Meshchanskiy District Court held a public
hearing, in the presence of the applicant and his lawyers. During the
hearing the applicant’s lawyers asked the court to consider
alternative measures of restraint. Having examined the parties’
submissions the District Court extended the applicant’s
detention until 14 February 2005, essentially for the same
reasons that the Basmanniy Court had given earlier, at the pre-trial
stage (without, however, mentioning the applicant’s property
abroad). The detention order indicated that there was a risk that the
applicant would try to put pressure on witnesses, and that the
detention was the only appropriate option.
On
9 November 2004 the applicant appealed against the extension
order. The appeal was rejected by the Moscow City Court on 1 December
2004.
On
28 January 2005 the Meshchanskiy District Court extended the
applicant’s detention until 14 May 2005, repeating the reasons
given in the earlier decisions in that regard. The court repeated in
particular that the applicant had tried to influence witnesses in the
case, that many witnesses worked in companies affiliated with him,
that the applicant had international connections, and that other
suspects had fled Russia. The applicant’s lawyers during the
hearing asked the court to consider alternative preventive measures.
The applicant’s appeal against that decision was rejected by
the Moscow City Court on 17 February 2005.
On 24
March 2005 the court extended the applicant’s pre-trial
detention until 14 July 2005, again with essentially the same
reasoning. In the detention order the District Court noted that by
that time both parties had completed presenting their evidence and
the proceedings were reaching the stage of oral pleadings (preniya),
which would then be followed by the closing address of the accused
persons and the court’s deliberations. However, it was still
possible for the court to re-open the judicial examination of
evidence, if need be. Further, the court assumed that the pleadings,
addresses and deliberations could take a long time, given the
complexity of the case and the number of parties involved. The appeal
by the applicant against this decision was also unsuccessful, as the
Moscow City Court rejected it on 21 April 2005.
On
31 May 2005 the applicant was found guilty of the charges brought
against him and sentenced to nine years’ imprisonment. On
22 September 2005 the Moscow City Court upheld the judgment in
the main, excluded several charges and reduced the sentence to eight
years. Some time afterwards the applicant was transferred to a
correctional colony in the Chita Region, where he is currently
serving his sentence.
D. Conditions of detention; contacts with the
applicant’s lawyers
1. Conditions in remand prisons nos. 99/1 and 77/1
From
25 until 27 October 2003 the applicant was detained at remand prison
no. 77/1 in Moscow, known as “Matrosskaya Tishina”. From
27 October 2003 until 8 August 2005 the applicant was detained
at remand prison no. 99/1 in Moscow, which is a special-purpose block
of the “Matrosskaya Tishina”. Thereafter, and until his
transferral to the penal colony the applicant was again detained at
remand centre 77/1. On 9 October 2005 the applicant was sent to
serve his sentence at penal colony FGU IK-10 in the town of
Krasnokamensk, Chita Region.
(a) The applicant’s account
The
applicant indicated that from 27 October 2003 to 18 June
2005 he had been held in cells 501, 503 and 506. In those cells
the partition dividing the toilet from the rest of the cell was no
more than 85 cm high. The applicant insisted that the partition
was not high enough to ensure his privacy when using the toilet. He
insisted that the toilet had not been separated or soundproofed and
allowed inmates to see and hear everything happening in the toilet.
The smell from the toilet pervaded the cell. The applicant had to eat
his meals in the cell in such conditions. The prison authorities did
not supply curtains to separate the toilet from the rest of the cell.
He noted that no such curtain (or curtain mark) was visible in the
photographs of cells 501, 503 and 506 provided by the
Government. The applicant’s bed was very close to the lavatory.
It was only on 18 June 2005, after the end of the trial and the
applicant’s conviction, that he was transferred to the
refurbished cell no. 610, where the partition was 175 cm high.
According
to the applicant, his cell in remand centre no. 99/1 housed four
or five persons. Thus, each detainee had at the most four square
metres of space in the cell, which contained beds, a worktable that
also served as a dining table and the toilet bowl and washbasin. The
applicant was incarcerated in such a cell for 23 hours a day for
almost two years. At remand centre 77/1 the applicant shared a
cell with about fifteen people.
In
summer the unventilated cells of the remand centres became too hot –
over 30 degrees – and in winter too cold – about
18 degrees. The effect of the lack of ventilation was
particularly acute on the applicant because he was a non-smoker and
was constantly forced to inhale tobacco smoke. On many days the
applicant was unable to have his one-hour walk as he had to attend
court. Moreover the walking areas were totally enclosed roofed yards
at the top of the remand centre. The applicant therefore never had
any access to fresh air on these walks. The dimensions of some of the
walking areas were very small: between twelve and sixteen square
metres. Additionally, the applicant was only permitted weekly
washing facilities.
The
applicant further submitted that the authorities had consistently
denied independent observers the opportunity to inspect the
conditions of his detention. Thus, the authorities had refused to
grant permission to the PACE Special Rapporteur to visit the
applicant; the head of the remand centre had refused a Russian member
of Parliament access to visit the applicant and inspect the
conditions of his detention. On 22 January 2004 a Russian Member
of Parliament, Mr Stolyarov, sent a request to the then Head of
IZ-99/1 asking to inspect the “incarceration conditions of
Mikhail Borisovich Khodorkovskiy”. Under Russian law
members of parliament have an unfettered right to visit remand
prisons and penal colonies. However, when Mr Stolyarov visited
the remand centre on 30 January 2004 the head of the remand
prison unlawfully refused him access to the applicant. Further, the
applicant was denied access to his doctors in connection with his
gastric problems.
On 9 November 2004 and 7 February 2005, in his appeals
to the Moscow City Court against the decisions of 1 November 2004 and
28 January 2005 extending his detention pending trial, the
applicant described the poor conditions in which he was detained. On
1 December 2004 and 17 February 2005 the Moscow City Court
dismissed the applicant’s complaints. Those decisions did not
contain any analysis of the applicant’s allegations about the
conditions of his detention. The applicant also described the
conditions of his detention in his cassation appeal against the
judgment of the Meshchanskiy District Court of 31 May 2005.
(b) The Government’s account
According
to the Government, in remand centre IZ-77/1 the applicant was
detained in cells nos. 276 and 144. Cell no. 276, where the
applicant was placed for three days after his arrival, measured
20.44 square metres. The applicant was detained there with four
other people. Cell no. 144 measured 52.7 square metres. The
applicant was detained there between 8 August 2005 and 9 October
2005 with thirteen other people.
The
cells in remand centre no. 99/1 were also not overcrowded. In
remand centre no. 99/1 the applicant had an individual sleeping
place and 4.4-5.9 square metres of personal space in each cell
where he was detained. They produced a report indicating the surface
area and number of sleeping places in each cell in which the
applicant was detained. According to the information provided by the
Government, an average cell measured approximately 3 metres by
5 metres. The applicant was detained in cells nos. 501, 503
and 506. On 18 June 2005 the applicant was transferred to newly
refurbished cell no. 610.
Each
cell had windows, electric lighting, hot and cold water, a lavatory
and a toilet pan. Although the electric light was on during the
night, it was of a lesser intensity than the daytime lighting. The
toilet pan was separated from the rest of the cell by a partition
measuring 175 cm (cell no. 610) and 85 cm (cells
nos. 501, 503, 506), so that the person using the toilet pan was
not seen by his cellmates or from the spy-hole in the door. The
Government submitted photos of the cells in which the applicant had
been detained and of the toilet cubicles. In their post-admissibility
submissions the Government indicated that in all cells the partition
was at least one metre high.
All
the cells were equipped with a TV-set, a fridge, an electric kettle
and a ventilator, in addition to the standard furniture (bunk beds,
stools, table, food locker, coat-hanger, garbage bin, and washing
bowls). The cells were properly heated, and ventilated through open
windows and through a forced ventilation system, which was always in
order. The cells were inspected on the daily basis by the prison
staff, who checked that all systems functioned properly. The
applicant did not make any complaints about temperature or
ventilation in the cell where he was detained.
The
applicant was given bed linen and cutlery and was allowed to have his
own bed linen.
The
applicant could have a one-hour daily walk in one of the ten
courtyards equipped with a metal shelter and benches. When he had
arrived at the remand prison late after the court hearings, he had
been unable to take exercise. According to the information provided
by the Government, remand centre no. 99/1 had ten walking yards
(the smallest measured 15.9 square metres, the largest
36.6 square metres; the average area was about 29 square
metres). Each walking yard was equipped with a roof and benches. The
Government also produced several reports showing the number of people
from each cell who could have a walk outside; these reports concerned
about two dozen cells and were dated 18-19 November 2003,
28-29 April, and 30-31 July, 28-29 September 2004 and
6-7 August 2005. The Government also produced documents on the
quality and quantity of food distributed to detainees. They
submitted, further, a copy of the applicant’s medical history
showing that the applicant, while in detention, had not had major
health problems, although there had been some medical incidents and
the applicant had on many occasions been examined by doctors.
The
applicant could also take a shower for fifteen minutes once a week,
and, for additional payment, take a shower more often, go to a
fitness room, wash his underwear and bed linen, and receive other
extra services. Thus, he visited the fitness room of the prison
59 times. In the fitness room he was also able to take a shower.
The last visit to the fitness centre was dated 23 July 2005.
Three
times a day he was given hot food of an appropriate standard. On
court days the applicant received dry food or, alternatively, was
allowed to take food sent to him by his relatives.
The
Government indicated that while in the remand centres the applicant
had been examined by a doctor with the use of special medical
equipment. In particular, doctors examined him in order to define
whether further examination of the internal organs was necessary.
In
support of their submissions the Government also submitted reports
from prison officials, dated 2006, which certified the above
information on the sanitary conditions in the cells where the
applicant had been detained. The Government also submitted a copy of
the applicant’s personal cash account, which showed that he had
been receiving money from his relatives and was able to spend it on,
among other things, food, extra visits to the shower room or the
sports room or renting additional equipment.
2. Conditions in the courtroom
During
the trial the applicant sat on a wooden bench in a small cage in the
courtroom. He had to instruct his lawyers through the bars, while a
convoy officer was always present next to him. Whenever the applicant
left the cage, he was handcuffed to convoy officers. According to the
applicant, on court days he received little food, no exercise, and no
fresh air. The Government submitted that on court days the applicant
had been unable to have a walk because he had regularly arrived at
the remand centre late, when all the walking yards had been closed.
The applicant was always provided with hot food, and, depending on
the time of his departure from the remand centre, with a travel
ration.
E. Reaction of international organisations, NGOs and
political figures to the criminal prosecution of the applicant
The
applicant’s case attracted considerable public attention in
Russia and abroad. In the course of the trial and afterwards 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.
Thus,
according to the applicant, his allegations were endorsed by the
comments of leading Russian politicians and foreign governments; the
findings of the Special Rapporteur of the Parliamentary Assembly of
the Council of Europe; the Parliamentary Assembly, which concluded
that the circumstances of the applicant’s case went “beyond
the mere pursuit of criminal justice, and include 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”
(Resolution 1418 (2005), adopted on 25 January 2005); the
judgment of the London Extradition Court in the case of Chernysheva
and Maruev v. Russian Federation, in which the judge
concluded that “it is more likely than not that the prosecution
of Mr Khodorkovskiy is politically motivated” and that
“President Putin had directed that ... Mr Khodorkovskiy should
be prosecuted”; the granting on 6 April 2005 by the United
Kingdom authorities of political asylum to other individuals closely
linked to the applicant who had also been granted refugee status. The
applicant also referred to the decisions of the Nicosia District
Court (Cyprus) of 10 April 2008 in an extradition case
concerning former Yukos managers, and to some other European
jurisdictions. The applicant considered that in those proceedings the
courts had established that his prosecution and that of his
colleagues was politically motivated.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Pre-trial detention
The Code of Criminal Procedure of 2001 provides:
Article 101. Rulings on application of a
measure of restraint
“1. Having chosen a measure of
restraint ... the court ... renders a ruling which should specify the
charges against the suspect or accused persons, and the grounds for
applying the measure of restraint.”
Article 108. Pre-trial detention
“1. Pre-trial detention shall be
applied as a measure of restraint by a court only where it is
impossible to apply a different, less severe precautionary measure
... When the court decides to apply pre-trial detention as a measure
of restraint it should specify in its ruling the specific facts which
lead the court to reach such a decision. ...
3. Where it is necessary to apply detention
as a measure of restraint ... the investigating officer shall apply
to the court accordingly...
4. [The request] shall be examined by a
single judge of a district court ... with the participation of the
suspect or the accused, the public prosecutor and defence counsel, if
one has been appointed to act in the proceedings. [The request shall
be examined] at the place of the preliminary investigation, or of the
detention, within eight hours of receipt of the [request] by the
court.... The non-justified absence of parties who were notified
about the time of the hearing in good time shall not prevent [the
court] from considering the request [for detention], other than in
cases of absence of the accused person. ...
7. Having examined the request [for
detention], the judge shall take one of the following decisions:
(1) apply pre-trial detention as a measure
of restraint in respect of the accused;
(2) dismiss the request [for detention];
(3) adjourn the examination of the request
for up to 72 hours so that the requesting party can produce
additional evidence in support of the request. ...
9. Repeated requests to extend detention of
the same person in the same criminal case after the judge has given a
decision refusing to apply this measure of restraint shall be
possible only if new circumstances arise which constitute grounds for
taking the person into custody.”
Article 109. Time-limits for pre-trial
detention
“1. A period of detention during the
investigation of criminal offence shall not last longer than two
months.
2. If it is impossible to complete the
preliminary investigation within two months and there are no grounds
for modifying or lifting the preventive measure, this time-limit may
be extended by up to six months by a judge of a district or
military garrison court of the relevant level in accordance with the
procedure provided for in Article 108 of the present Code. This
period may be further extended up to 12 months in respect of
persons accused of committing grave or particularly grave criminal
offences only in cases of special complexity of the criminal case,
and provided that there are grounds for application of this
preventive measure, by a judge of the same court upon an application
by the investigator, filed with the consent of a prosecutor...
3. The period of detention may be extended
beyond 12 months and up to 18 months only in exceptional
cases and in respect of persons accused of committing grave or
particularly grave criminal offences by [a judge] on an application
by an investigator filed with the consent of the Prosecutor General
of the Russian Federation or his deputy.
4. Further extension of the time-limit shall
not be allowed. ...
13. Examination of [the prosecution’s]
request for extension of the detention is not allowed, except where
the suspect or accused is undergoing in-hospital psychiatric
examination or in other circumstances which exclude his participation
in the court hearing, which should be supported by appropriate
documents. In any event the participation of the defendant’s
lawyer is mandatory.”
Article 110. Lifting or modifying a
preventive measure
“1. A preventive measure shall be
lifted when it ceases to be necessary or replaced by a stricter or a
more lenient one if the grounds for application of a preventive
measure ... change.
2. A preventive measure shall be lifted or
modified by an order of the person carrying out the inquiry, the
investigator, the prosecutor or the judge or by a court decision.
3. A preventive measure applied at the
pre-trial stage by the prosecutor, the investigator or the person
carrying out the inquiry, on his written instructions, may be lifted
or modified only with the prosecutor’s approval.”
Article 113. Enforced attendance
“1. If a witness fails, without
reasonable excuse, to attend court when summoned ... he or she may be
brought forcibly.
2. Enforced attendance ... shall consist of
the person being brought by force before the inquirer, the
investigator or the public prosecutor, or the court.
3. If there are reasons preventing their
appearance in response to the summons at the designated time, the
persons mentioned in paragraph 1 of this Article shall immediately
notify the authority by which they have been summoned accordingly.
4. A person who is to be forcibly brought
before the relevant authority shall be notified accordingly by an
order of the person carrying out the inquiry, the investigator, the
public prosecutor or the judge, or a ruling of the court, and this
notification shall be confirmed by his signature on the order or
ruling.
5. Enforced attendance cannot be carried out
at night-time, except in circumstances when the matter cannot wait.
6. Underage persons who have not reached
fourteen years of age, pregnant women and sick persons who cannot
leave their place of residence on account of poor health, which shall
be certified by a doctor, shall not be forced to attend. ...”
Article 123. Right of appeal
“Actions (omissions) and decisions of the agency
conducting the inquiry, the person conducting the inquiry, the
investigator, the prosecutor or the court may be appealed against in
accordance with the procedure set forth in the present Code by
participants in the criminal proceedings or other persons, to the
extent that the procedural actions carried out and procedural
decisions taken affect their interests.”
Article 188. Procedure for issuing a
summons for questioning
“... 3. A person who is summoned for
questioning shall attend at the appointed time or notify the
investigator in advance of any reason preventing him from attending.
If a person summoned for questioning fails to appear without any
valid reasons he may be brought forcibly ...”
Article 227. Judges’ powers in
respect of a criminal case submitted for trial
“1. When a criminal case is submitted
[to the court], the judge shall decide either
(i) to forward the case to an [appropriate]
jurisdiction; or
(ii) to hold a preliminary hearing; or
(iii) to hold a hearing.
2. The judge’s decision shall take the
form of an order...
3. The decision shall be taken within 30 days
of submission of the case to the court. If the accused is detained,
the judge shall take the decision within 14 days of submission
of the case to the court...”
Article 228. Points to be ascertained in
connection with a criminal case
submitted for trial
“Where a criminal case is submitted for trial, the
judge must ascertain the following points in respect of each accused:
(i) whether the court has jurisdiction to
deal with the case;
(ii) whether copies of the indictment have
been served;
(iii) whether the measure of restraint should
be lifted or modified;
(iv) whether any applications filed should be
granted ...”
Article 231. Setting the case down for
trial
“1. When there are no grounds to take
one of the decisions described in sub-paragraphs (i) or (ii) of the
first paragraph of Article 227, the judge shall set the case down for
trial ... In the order ... the judge shall decide on the following
matters: ...
(vi) The measure of restraint, except for
cases where pre-trial detention or house arrest are applied...”
Article 255. Measures of restraint during
trial
“1. During the trial the court may
order, modify, or lift a precautionary measure in respect of the
accused.
2. If the defendant has been detained before
the trial, his detention may not exceed six months from the time the
court receives the case for trial to the time when the court delivers
the sentence, subject to the exceptions set forth in § 3 of
this Article.
3. The court ... may extend the accused’s
detention during trial. It is possible to extend detention only in
respect of a defendant charged with a serious crime or an especially
serious crime, and each time for a period of up to 3 months...”
Article 376. Setting the case down for the
appeal hearing
“1. Having received the criminal case
with the notice of appeal ... the judge shall fix the date, time and
venue of the [appeal] hearing.
2. The parties shall be notified of the date,
time and venue [of the appeal hearing] no later than fourteen days
beforehand. The court shall decide whether the convicted detainee
should be summoned to the hearing.
3. A convicted detainee who has expressed a
wish to be present [at the appeal hearing] shall have the right to be
present personally or to submit his arguments by video link. The
court shall decide in what form the participation of the convicted
person in the hearing is to be secured. ...”
Article 241. Public nature of the trial
“1. Trials of criminal cases in all
courts shall be public, with the exception of the cases indicated in
the present Article.
2. Judicial proceedings in camera are
admissible on the basis of a determination or a ruling of the court
in the event that:
(i) proceedings in the criminal case in open
court may lead to disclosure of a State or any other secret protected
by the federal law;
(ii) the criminal case being tried relates to
a crime committed by a person who has not reached sixteen years of
age;
(iii) the trial of criminal cases involving a
crime against sexual inviolability or individual sexual freedom, or
another crime where the trial may lead to disclosure of information
about the intimate aspects of the life of the participants in
the criminal proceedings or of humiliating information.
(iv) this is required in the interest of
guaranteeing the safety of those taking part in the trial proceedings
and that of their immediate family, relatives or persons close to
them;
Where a court decides to hold a hearing in camera, it
shall indicate the specific circumstances in support of that decision
in its ruling on this point. ...”
On
8 April 2004 the Constitutional Court of the Russian Federation
delivered decision no. 132-O in which it held that
Articles 108 and 109 of the CCrP should be interpreted as
guaranteeing to the accused the right to participate in any detention
hearing, in particular when the judge sets down the case for the
trial under Article 231 of the Code.
On
22 March 2005 the Constitutional Court of the Russian Federation
adopted Ruling no. 4-P. In particular, the Constitutional
Court held:
“Since deprivation of liberty ... is permissible
only pursuant to a court decision, taken at a hearing ... on
condition that the detainee has been provided with an opportunity to
submit his arguments to the court, the prohibition on issuing a
detention order ... without a hearing shall apply to all court
decisions, whether they concern the initial imposition of this
measure of restraint or its confirmation.”
On 22 January 2004 the Constitutional Court delivered
decision no. 66-O on a complaint about the Supreme Court’s
refusal to permit a detainee to attend the appeal hearings on the
issue of detention. It held:
“Article 376 of the Code of Criminal Procedure,
which regulates the presence of a defendant remanded in custody
before the appeal court ... cannot be interpreted as depriving the
defendant held in custody... of the right to express his opinion to
the appeal court, by way of his personal attendance at the hearing or
by other lawful means, on matters relating to the examination of his
complaint about a judicial decision affecting his constitutional
rights and freedoms...”
B. Confidentiality of lawyer-client contacts in prison
The
Pre-trial Detention Act of 1995 (Federal Law on the Detention of
Suspects and Defendants, no. 103-FZ of 15 July 1995), as in
force at the material time, provides in section 18 that a detainee
has a right to confidential meetings with his lawyers. That section
does not define whether the lawyer and the client are entitled to
make notes during such meetings and to exchange any documents. The
meeting should be conducted out of the hearing of prison staff, but
the prison staff should be able to see what is happening in the
hearing room. Section 18 establishes that a meeting can be
interrupted if the person meeting the detainee tries to hand him
“prohibited objects, substance, or food stuff” or to give
him “information which may obstruct the establishment of truth
in the criminal case or facilitate criminal acts”.
Section
20 establishes that all correspondence by detainees goes through the
prison administration, which may open and inspect the mail.
Correspondence addressed to the courts, to the ombudsman, to the
prosecuting authorities, to the European Court of Human Rights, etc.,
is free from perusal but lawyers are not mentioned in this list (for
more details see Moiseyev v. Russia, no. 62936/00,
§ 117, 9 October 2008). It appears (see the paragraphs
immediately below) that the Pre-trial Detention Act was routinely
interpreted by the prison authorities as allowing the former to seize
and inspect correspondence between a detainee and his lawyer.
Section
34 of the Pre-trial Detention Act establishes as follows:
“Where there are sufficient reasons to suspect
that a person entering or leaving the prison carries prohibited
objects, substances [or] food stuff, the prison officials may search
their clothes and belongings ... and seize the objects, substances
and food stuff ... which [detainees] are not allowed to have or to
use.”
The
Internal Regulations for Remand Prisons, introduced by Decree no. 189
of the Ministry of Justice of 14 October 2005, contained
section 146, which established that lawyers cannot use
computers, audio- and video-recording equipment, copying machines,
etc., during meetings with their clients in remand prisons unless
authorised by the prison administration. On 31 October 2007 the
Supreme Court of the Russian Federation struck down that provision as
unlawful (decision confirmed on 29 January 2008).
On
29 November 2010 the Constitutional Court of the Russian Federation
interpreted the above provisions of the Pre-trial Detention Act in
their constitutional meaning. The Constitutional Court held that the
law may legitimately introduce certain limitations on the
lawyer-client confidentiality, including perusal of their
correspondence. However, such limitations should not be arbitrary,
should pursue a legitimate aim and be proportionate to it. Legitimate
aims may include preventing further criminal activity by the accused,
and preventing him from putting pressure on witnesses or otherwise
obstructing justice. The general rule is that the lawyer-client
correspondence is privileged and cannot be perused. Any departure
from this rule is permissible only in exceptional circumstances where
the authorities have valid reasons to believe that the lawyer and/or
his client are abusing the confidentiality rule. Further, the
Constitutional Court specified that the prison authorities should
have “sufficient and reasonable grounds to believe” that
the correspondence contains unlawful content and that they may peruse
such correspondence only in presence of the persons concerned and on
the basis of a written motivated decision. The results of the
inspection of the mail should also be recorded. At the same time the
Constitutional Court ruled that any correspondence addressed by a
detainee to his lawyer but not submitted “through the prison
administration”, as provided by the federal law, can be checked
by the prison administration.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION
The
applicant complained about the conditions in remand centres
nos. IZ-99/1 and IZ-77/1 in Moscow where he was detained from
25 October 2003 until 9 October 2005. He referred to
Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The Government’s observations
The
Government claimed in their observations that the applicant had been
detained in appropriate conditions (see their account of the
conditions of detention in the “Facts” part above). They
also claimed that the applicant had not lodged any complaint with the
bodies mentioned in section 21 of the 1995 Pre-trial Detention
Act. The Government indicated that the conditions in the cells
were appropriate both before and after the renovation works carried
out in 2005. The repairs of 2005 were of a purely cosmetic character;
their goal was to change the decorative appearance of the cells.
As
to the refusal to allow the PACE Special Rapporteur and a Russian
Member of Parliament permission to visit the applicant to inspect the
conditions of his detention, the Government maintained as follows:
the request of the PACE Special Rapporteur was addressed to the
Ministry of Justice, which was in charge of remand prisons. However,
the Ministry of Justice was not supposed to allow a visit to a
detainee without the approval of the investigator or other body which
is responsible for the criminal case against that detainee. The PACE
Special Rapporteur had no special status under the domestic law that
would allow her to visit the applicant without prior authorisation.
In such circumstances the Meshchanskiy District Court rightly
considered that she should not be allowed to visit the applicant. As
to the alleged refusal to allow a member of parliament to visit the
applicant, the Government claimed that throughout the period under
consideration the administration of the penitentiary institution had
never received any requests from any MP to allow a visit to the
applicant.
B. The applicant’s observations
The
applicant submitted that the toilet facilities, cramped accommodation
and lack of ventilation in his cell were such as to be described as
degrading. He referred in this respect to Popov v. Russia,
no. 26853/04, 13 July 2006, and Peers v. Greece,
application no. 28524/95, §§ 70-72,
ECHR 2001-III. The Government’s account was based on an
inspection made in 2006, after the refurbishment of the cells.
The
applicant further claimed that he had exhausted domestic remedies by
lodging the complaints of 9 November 2004 and 7 February
2005 with the Moscow City Court. The applicant had also described the
conditions of his detention in similar terms in his cassation appeal
against the judgment of the Meshchanskiy District Court.
The
applicant was left with no means of obtaining independent
verification of his cell conditions. The applicant’s lawyers
were not permitted access to the cells in which the applicant was
detained. Members of the Russian parliament, members of the European
Parliament, and the Special Rapporteur of the Parliamentary Assembly
of the Council of Europe had similarly been denied access to visit
the applicant.
C. The Court’s analysis
1. General principles
As
the Court has held on many occasions, legitimate measures
depriving a person of his liberty may often involve an element of
suffering and humiliation. Yet it cannot be said that detention on
remand in itself raises an issue under Article 3 of the Convention.
What the State must do under this provision is to ensure that a
person is detained in conditions which are compatible with respect
for his human dignity, that the manner and method of execution of the
measure do not subject him to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention
and that, given the practical demands of imprisonment, his health and
well-being are adequately secured (see Valašinas
v. Lithuania, no. 44558/98, § 102,
ECHR 2001-VIII.). When assessing conditions of detention, one
must consider their cumulative effects as well as the applicant’s
specific allegations (see Dougoz v. Greece, no. 40907/98,
§ 46, ECHR 2001-II).
The
Court reiterates that in certain cases the lack of personal space
afforded to detainees in Russian remand prisons has been found to be
so extreme as to justify, in its own right, a finding of a violation
of Article 3 of the Convention. In several previous cases
against Russia where the applicants were held in cells with less than
three square metres of personal space the Court found a violation of
Article 3 on that account alone (see, for example, Kantyrev
v. Russia, no. 37213/02, §§ 50-51,
21 June 2007; Andrey Frolov v. Russia, no. 205/02,
§§ 47-49, 29 March 2007; Mayzit v. Russia,
no. 63378/00, § 40, 20 January 2005; and Labzov
v. Russia, no. 62208/00, § 44, 16 June
2005). In addition, such factors as access to natural light or air,
adequacy of heating arrangements, compliance with basic sanitary
requirements, the opportunity to use the toilet in private and the
availability of ventilation are relevant to the assessment of whether
the acceptable threshold of suffering or degradation has been
exceeded (see, for example, Vlasov v. Russia,
no. 78146/01, § 84, 12 June 2008; Babushkin
v. Russia, no. 67253/01, § 44, 18 October
2007; and Peers v. Greece, no. 28524/95, §§ 70-72,
ECHR 2001-III). That list is not exhaustive; other conditions of
detention may lead the Court to the conclusion that the applicant was
subjected to “inhuman or degrading treatment” (see, for
example, Fedotov v. Russia, no. 5140/02, § 68,
25 October 2005; Trepashkin, cited above, § 94;
and Slyusarev v. Russia, no. 60333/00, § 36,
ECHR 2010-...).
2. Application to the present case
(a) Conditions in remand prison IZ-77/1 (25-27
October 2003)
The
Court notes that on the day of his arrest the applicant was placed in
cell no. 276, measuring 20.44 square metres, which he
shared with three other detainees. Thus, the applicant had over five
metres of personal space in that cell. The applicant was detained
there for less than three full days. Given the shortness of his
detention in that cell, the Court considers that there was no breach
of Article 3 of the Convention on account of the conditions of
his detention during that period.
(b) Conditions in remand prison IZ-99/1 (27
October 2003 – 8 August 2005)
From
27 October 2003 the applicant was detained in another remand
prison, no. IZ-99/1. He claimed that he had had slightly over
4 square metres of personal space in that remand prison. He
acknowledged at the same time that the number of inmates had not
exceeded the number of sleeping places. The Government produced
different figures: they maintained that the applicant had had from
4.45 to over 5 square metres of personal space, depending on the
cell. In support of their claims, the Government submitted the
exact measurements the cells and indicated the number of sleeping
places in each of them. The Court has no reason to distrust those
documents, at least in so far as the data on the size of the cells
and the number of inmates is concerned. The Court thus accepts the
figures provided by the Government. The Court does not lose sight of
the fact that the applicant’s cells were equipped with some
furniture and contained such fittings as a toilet, beds, etc, which
must have further reduced the floor space available to him (see
Andreyevskiy v. Russia, no. 1750/03, § 85,
29 January 2009). However, even taking into account that factor
the Court cannot conclude that the cells in which the applicant was
detained in remand prison IZ-99/1 were seriously overcrowded, and
that the applicant was affected by the general overpopulation problem
that exists in many Russian remand prisons. It has therefore to be
ascertained whether the other conditions of his detention were
compatible with the requirements of Article 3 of the Convention.
As
regards the sanitary and hygienic conditions in the cells, the
parties’ descriptions differed significantly. Thus, the
applicant complained of insufficient ventilation, inadequate
temperature control and the lack of privacy in using the toilet
facilities, whereas the Government denied those allegations. The
applicant also complained about the conditions in the walking yards.
The
first question for the Court to decide in this respect concerns the
establishment of the facts. The applicant’s own words are
insufficient to prove his allegations. In practice it may be very
difficult for a detainee to collect evidence about the material
conditions of his detention, and the Court has already observed the
difficulties experienced by applicants in substantiating their
grievances in respect of the conditions of pre-trial detention in
Russia (see Shcherbakov v. Russia (no. 23939/02,
§ 81, 17 June 2010). Generally, a detainee cannot
question witnesses, take photos of his cell, measure the levels of
humidity, temperature, etc. Such inspections are usually made either
by the prison authorities themselves or by special bodies supervising
the prisons. Ideally, the material conditions of detention
should be assessed by independent observers. That being noted, the
Court does not consider that the refusal of the State to allow
independent observers to visit the applicant (irrespective of whether
that refusal was lawful or not) gave rise to a separate problem under
the Convention. At the same time, had such an inspection taken place,
it could have helped the Government to refute the applicant’s
allegations. The Court reiterates that in the context of
complaints about conditions of detention it is permissible, under
certain circumstances, to shift the burden of proof from the
applicant to the Government (see, among other authorities, Zakharkin
v. Russia, no. 1555/04, § 123, 10 June
2010; Kokoshkina v. Russia, no. 2052/08, § 59,
28 May 2009, and Ahmet Özkan and Others v. Turkey,
no. 21689/93, § 426, 6 April 2004). A failure on
the part of a Government to submit convincing evidence on conditions
of detention may give rise to the drawing of inferences as to the
well-foundedness of the applicant’s allegations (see Gubin
v. Russia, no. 8217/04, § 56, 17 June
2010; Timurtaş v. Turkey, no. 23531/94, § 66
in fine, ECHR 2000-VI).
The
Court notes that poor sanitary and hygienic conditions in various
Moscow remand prisons have been at the heart of a large number of
cases before it. The Court has examined several cases where the
applicants presented very similar complaints to those of the
applicant in the case at hand (see, for example, the case of
Andreyevskiy v. Russia, cited above, §§ 30
et seq.; see also Gubin v. Russia, cited above, §§ 20
et seq., 17 June 2010; Starokadomskiy v. Russia,
no. 42239/02, § 23, 31 July 2008; Popov
v. Russia, no. 26853/04, §§ 50 et seq.,
13 July 2006; Denisenko and Bogdanchikov v. Russia,
no. 3811/02, §§ 37 et seq., 12 February
2009; Sudarkov v. Russia, no. 3130/03, §§ 17
and 22, 10 July 2008; Belashev v. Russia,
no. 28617/03, § 35, 4 December 2008; and
Trepashkin v. Russia (no. 2) (dec.), no. 14248/05,
22 January 2009). Most of the cases cited above concerned remand
prison no. 77/1, whereas at least one application concerned the
conditions in remand prison no. 99/1, where the applicant in the
present case was detained (Vlasov v. Russia,
no. 78146/01, §§ 53 et seq., 12 June 2008).
The Court observes in this respect that both remand prisons
(nos. 77/1 and 99/1) belong to the same detention centre
commonly known as “Matrosskaya Tishina”. Furthermore, in
a number of Russian cases the Court has examined complaints about
conditions in the walking yards of various remand prisons (see, for
example, Moiseyev v. Russia, no. 62936/00, § 125,
9 October 2008, Trepashkin v. Russia (no. 2),
cited above, Mamedova v. Russia, no. 7064/05, § 43,
1 June 2006; Khudoyorov v. Russia, no. 6847/02,
§ 67, ECHR 2005-X (extracts); and Kokoshkina
v. Russia, no. 2052/08, § 56, 28 May
2009).
The
Court is mindful that those other cases do not concern exactly the
same remand prison, the same cells, or the same time-period.
Therefore, they cannot be a decisive element in the Court’s
analysis in casu. However, they create a certain factual
context which adds credibility to the applicant’s description
of the conditions of detention in remand prison IZ-99/1 in 2003-2005.
The Court further notes that the applicant complained about the
conditions of his detention to the Moscow courts, but received no
meaningful answer to his complaints (see paragraph 75 above). In such
circumstances, and given the consistency of the applicant’s
submissions, the Court deems it possible to shift the burden of proof
to the Government.
The
Court notes that the Government, in order to rebut the applicant’s
account, produced photos of the cells and reports by prison
officials. In the Court’s opinion the photos are not very
persuasive – either they are incapable of refuting the
applicant’s account, or they were taken after the completion of
the renovation works and, therefore, do not necessarily reflect the
situation existing at the relevant time. This is true in so far as
the conditions in cells no. 501, 503 or 506 are concerned, where
the applicant was detained before his transferral on 18 June
2005 to newly refurbished cell no. 610.
Likewise,
the reports by the prison officials were drafted several years after
the end of the period under consideration (2003–2005). It
appears that those reports were not based on any exact measurements
or inspections conducted at the relevant time, or any other source
material. The Court would reiterate that on several previous
occasions it has declined to accept the validity of similar
certificates on the ground that they could not be viewed as
sufficiently reliable given the lapse of time involved and the
absence of any supporting documentary evidence (see Kokoshkina,
cited above, § 60; Sudarkov v. Russia, no.
3130/03, § 43, 10 July 2008; Belashev v. Russia,
no. 28617/03, § 52, 13 November 2007; and
Zakharkin, cited above, § 124). Their evidentiary
value is therefore relatively low. In other words, the applicant’s
account of the sanitary conditions in the cells is not refuted by any
reliable reports of examinations contemporary with the situation
complained of.
In
such circumstances the Court is prepared to conclude that the
Government failed in its duty to refute the applicant’s account
of the sanitary and hygienic conditions in the cells. It follows that
for over a year and a half the applicant was detained in cells with
poor ventilation, that the applicant, as well as his co-detainees,
did not have sufficient privacy in using the toilet facilities (at
least until 18 June 2005, when the applicant was transferred to cell
no. 610, where conditions were admittedly better). As to the
system for temperature control, the Court cannot share the
applicant’s view that a temperature of 18 C (the minimum
temperature in the cell) was clearly unacceptable, although it can be
admitted that the cell was occasionally too hot in the summer.
These
conclusions do not, however, automatically lead to a finding of a
violation of the applicant’s rights under Article 3 of the
Convention. First, the Court observes that the applicant shared the
cells with two or a maximum of three other people. This means that
the sanitary and hygienic conditions in those cells were not as bad
as where the number of people detained together in the same cell was
significantly higher.
Second, it follows from the documents submitted by
the Government that the applicant was able to make use of extra
services provided in the remand prison for a fee, namely to exercise
in a fitness room. From the documents submitted by the Government it
follows that the applicant used that opportunity regularly, and the
applicant did not seem to contest that information. Thus, he was not
confined to his cell 23 hours out of 24, as was the case for
many other prisoners in Russia, who only enjoyed a forty-minute walk
or so in a small walking yard (cf. with the case of Andreyevskiy,
cited above, § 86). The Court reiterates in this respect
that, in the context of conditions of detention in correctional
colonies, the Court, while assessing the sufficiency of personal
space in the dormitory, takes into account the greater freedom of
movement enjoyed by detainees (as compared to the remand prisons)
(see Solovyev v. Russia (dec.), no. 76114/01,
27 September 2007; Nurmagomedov v. Russia (dec.),
no. 30138/02, 16 September 2004; and Valašinas
v. Lithuania, no. 44558/98, §§ 103
and 107, ECHR 2001-VIII).
It
is worth noting that the applicant was also able to receive food and
medicine from his relatives, in addition to the free meals
distributed in the prison, and to take a shower on request, i.e. more
often than once a week as provided by the general regime (cf. with
Nedayborshch v. Russia, no. 42255/04, § 32,
1 July 2010, or Skachkov v. Russia,
no. 25432/05, § 54,
7 October 2010). Those extra
services were most probably not available to most detainees, but this
was not the applicant’s case, and the Court cannot disregard
this factor.
Finally,
the Court notes that during the period under consideration the
applicant did not have any serious health problems or grave medical
incidents which could have been exacerbated by poor ventilation,
inadequate hygiene, etc.
In
conclusion the Court notes that the conditions of the applicant’s
detention during the period under consideration were indeed very
uncomfortable, but not so harsh as to reach the threshold of severity
required to bring the situation within the ambit of Article 3 of
the Convention. It follows that Article 3 was not breached on
account of that period.
(c) Conditions in remand prison IZ-77/1 (8
August 2005 - 9 October 2005)
The
Court notes that on 8 August 2005 the applicant was transferred
back to remand prison IZ-77/1, where he was placed in cell no. 144.
It appears that conditions in that remand prison were much worse than
those in remand prison no. IZ-99/1. Thus, in cell no. 144 the
applicant had slightly over 4 square metres of personal space and was
detained with thirteen other people. In practice, the personal space
available to each detainee in that cell was even less than 4 metres,
if one considers the space occupied by the furniture, toilet, and
other equipment listed by the Government in their submissions.
Furthermore,
as follows from the documents submitted by the Government, during
that period the applicant ceased to visit the fitness room, probably
because remand prison no. IZ-77/1 did not have one. There is no
information on whether the applicant was able to use a shower cabinet
on request, as in prison no. IZ-99/1. Since the applicant was
awaiting examination of his appeal during this period, he was not
taken to the court as often as previously, and, consequently, was
confined to his cell most of the time. The applicant also
complained of deplorable sanitary and hygienic conditions in cell
no. 144. That assertion was not rebutted by the Government
convincingly, with reference to reliable source materials or reports
contemporary with the situation complained of (see the Court’s
analysis above, concerning the conditions of detention during the
previous period). The applicant was detained in such conditions for
two months. The Court concludes that conditions of his detention
during that period were much worse than those in remand prison
no. IZ-77/1 and amounted to “inhuman and degrading
treatment” within the meaning of Article 3 of the
Convention. There was thus a violation of that provision in respect
of the last period of the applicant’s detention pending trial.
(d) Conclusions
To
recapitulate the above findings, the Court concludes that the
conditions of the applicant’s detention from the moment of his
arrest on 25 October 2003 until his transferral to remand prison
no. IZ-77/1 on 8 August 2005 were not incompatible with
Article 3 of the Convention. In contrast, between 8 August
2005 and 9 October 2005 the applicant was detained in conditions
which amounted to inhuman and degrading treatment within the meaning
of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE CONDITIONS IN THE COURTROOM
The
applicant complained that during the court hearings he was placed in
a metal cage and was exposed in this manner to the public and the
media. He referred in this respect to Article 3 of the
Convention, cited above.
The
Government claimed that such arrangement in the court room had been
justified by security considerations.
The
applicant maintained that there had been no proper reason to conduct
the trial with the applicant placed inside a cage. He had been
accused of economic crimes and had no previous criminal record or any
history of violence. The decision to try the applicant whilst caged
had humiliated him in his own eyes, and had been perceived by the
public as a humiliation. The applicant had been brought in the
courtroom handcuffed, and had always been guarded by armed men.
The
Court notes that the practice of placing a criminal defendant in a
sort of a “special compartment” in a court room existed
and probably continues to exist in several European countries
(Armenia, Moldova, Finland). In some countries (such as Spain, Italy,
France or Germany) the accused are sometimes placed in a glass cage
during the hearing. Such a practice has occasionally been examined in
the context of the guarantee of the presumption of innocence under
Article 6 § 2 of the Convention (see Auguste
v. France, no. 11837/85, Commission Report
of 7 June 1990, D.R. 69, p. 104; see also Meerbrey
v. Germany, no. 37998/97, Commission decision of 12
January 1998). In recent years the Court has begun to examine the
practice also from the standpoint of Article 3 of the
Convention. Thus, in the case of Sarban v. Moldova
(no. 3456/05, § 90, 4 October 2005) the applicant
was brought to court in handcuffs and held in a cage during the
hearings, even though he was under guard and was wearing a surgical
collar (see, a contrario, the case of Potapov v. Russia
((dec.), no. 14934/03, 1 August 2006). A violation of
Article 3 of the Convention was found in a case where the
applicant was unjustifiably handcuffed during public hearings (see
Gorodnichev v. Russia, no. 52058/99, §§ 105-109,
25 May 2007). Handcuffing of the applicant gave rise to a
violation of Article 3 of the Convention in a situation where no
serious risks to security could be proved to exist (see Henaf
v. France, no. 65436/01, §§ 51 and 56,
ECHR 2003-XI; Istratii and Others v. Moldova,
nos. 8721/05, 8705/05 and 8742/05, §§ 57 and 58,
27 March 2007).
Lastly,
in the recent case of Ramishvili and Kokhreidze
v. Georgia, (no. 1704/06,
§§ 98 et seq., 27 January 2009) the Court,
in a very similar factual context, decided as follows:
“...The public watched the applicants [in the
courtroom] in ... a metal cage.... Heavily armed guards wearing black
hood-like masks were always present ... the hearing was broadcast
live .... Such a harsh and hostile appearance of judicial proceedings
could lead an average observer to believe that ‘extremely
dangerous criminals’ were on trial. Apart from undermining the
principle of the presumption of innocence, the disputed treatment in
the court room humiliated the applicants .... The Court also accepts
the applicants’ assertion that the special forces in the
courthouse aroused in them feelings of fear, anguish and inferiority
....
The Court notes that, against the applicants’
status as public figures, the lack of earlier convictions and their
orderly behaviour during the criminal proceedings, the Government
have failed to provide any justification for their being placed in a
caged dock during the public hearings and the use of ‘special
forces’ in the courthouse. Nothing in the case file suggests
that there was the slightest risk that the applicants, well-known and
apparently quite harmless persons, might abscond or resort to
violence during their transfer to the courthouse or at the hearings
.....”
This
approach was recently confirmed by the Court in the case of Ashot
Harutyunyan v. Armenia (no. 34334/04, §§ 126
et seq., 15 June 2010) where the applicant had been kept in a
metal cage during the entire proceedings before the Court of Appeal,
and where the Court found a violation of Article 3 of the
Convention on that account.
In
the Court’s opinion, most of the decisive elements in the
Georgian and Armenian cases referred to above were present in the
case at hand. Thus, the applicant was accused of non-violent crimes,
he had no criminal record, and there was no evidence that he was
predisposed to violence. The Government’s reference to certain
“security risks” was too vague and was not supported by
any specific fact. It appears that “the metal cage in the ...
courtroom was a permanent installation which served as a dock and
that the applicant’s placement in it was not necessitated by
any real risk of his absconding or resorting to violence but by the
simple fact that it was the seat where he, as a defendant in a
criminal case, was meant to be seated” (see Ashot
Harutyunyan v. Armenia, cited above, § 127). Furthermore,
the applicant’s own safety or the safety of the co-accused was
not at stake. Finally, the applicant’s trial was covered by
almost all major national and international mass media, so the
applicant was permanently exposed to the public at large in such a
setting. As in Ashot Harutyunyan the Court concludes that
“such a harsh appearance of judicial proceedings could lead an
average observer to believe that an extremely dangerous criminal was
on trial. Furthermore, [the Court] agrees with the applicant that
such a form of public exposure humiliated him in his own eyes, if not
in those of the public, and aroused in him feelings of inferiority”
(§ 128).
In
sum, the security arrangements in the courtroom, given their
cumulative effect, were, in the circumstances, excessive and could
have been reasonably perceived by the applicant and the public as
humiliating. There was, therefore, a violation of Article 3 of
the Convention in that the treatment was degrading within the meaning
of this provision.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 (b)
OF THE CONVENTION
Under
Article 5 of the Convention the applicant complained that his
apprehension in Novosibirsk on 25 October 2003 was contrary to
Article 5 § 1 (b) of the Convention, which
provides:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law; ”
A. The Government’s observations
The
Government indicated in their observations that the applicant had
been summoned to the General Prosecutor’s office on 24 October
2003. They maintained that the applicant had failed to appear before
the investigator without good reason. As a result, the investigator
had decided that the applicant should be brought to him for
questioning by 5 p.m. However, the applicant had not been at his
usual place of residence. As chief executive of his company, the
applicant had been capable of organising his working time in such a
way as to arrive in time for questioning. Moreover, an aircraft was
always at his disposal. His absence from Moscow for business reasons
was not an adequate excuse for his failure to attend the General
Prosecutor’s Office for questioning.
The
Government further argued that the applicant had not been “arrested”
but merely “conveyed” before the investigator, or
“subjected to attachment”, or enforced attendance
(privod), since Russian law did not provide for the “arrest”
(arest) of witnesses. The Government concluded that this
measure fell outside the scope of Article 5 of the Convention.
The Government denied that the applicant had been brought to Moscow
by FSB officers.
The
Government also noted that on 27 January 2004 the Basmanniy
District Court had confirmed the lawfulness of the decision of the
investigator to subject the applicant to enforced attendance.
B. The applicant’s observations
In
the applicant’s words, being seized at gunpoint at an airport
and forcibly returned to Moscow clearly amounted to a deprivation of
liberty. If this deprivation was not for a purpose recognised by
Article 5 § 1 then there had been an infringement of
that Article.
The
applicant insisted that he had been arrested by FSB officers. The
Government’s assertion that the FSB had not played any part in
arresting him had been contradicted by the ruling of investigator B.,
which had been sent to the Deputy Director of the FSB, Mr Z.,
for enforcement. Moreover, at the hearing of 25 October 2003
Mr L., the State prosecutor, had explicitly stated that the
ruling had been enforced by FSB officers.
Further,
it was incorrect to assert that the applicant had been repeatedly
summoned and had failed to attend for questioning. He had been
summoned once, on 4 July 2003, when he had attended as requested
and answered questions. Thereafter he had consistently stated that he
would not leave Russia and that he was prepared to answer the GPO’s
questions. After being questioned in July 2003, the next time that he
was summoned for questioning was on Friday 24 October 2003.
However, the applicant had left Moscow on Tuesday 21 October
2003 on a highly publicised tour of the Russian regions. On the day
the applicant was summoned he had been in a meeting with the Governor
of Nizhny Novgorod Region and representatives of President Putin’s
administration. Staff at the applicant’s offices noted on the
summons for questioning, issued on 24 October 2003, that the
applicant would not be back in Moscow until Tuesday 28 October
2003. A fax to the same effect was also sent by his office to the
investigator. By supplying that information the applicant had clearly
established legitimate reasons for being unable to appear on the
dates requested. In the applicant’s view, it was apparent that
summoning someone to appear in Moscow at short notice when it was
known that he was attending a governmental meeting elsewhere in the
country was absurd, and not a bona fide attempt to obtain
assistance from a witness. He was not assigned to residence and was
perfectly entitled to travel anywhere in the country on business.
C. The Court’s assessment
The
Government claimed in their observations that the applicant had not
been “arrested” but merely “subjected to
attachment”. However, this distinction is irrelevant, since,
for the purposes of the Convention, he was deprived of his liberty:
the “attachment” lasted many hours, excluded any
possibility for the applicant to leave, and served the purpose of
bringing him for questioning. In Convention terms he was thus
deprived of liberty in order “to secure the fulfilment of an
obligation prescribed by law”. That situation thus falls to be
examined under Article 5 § 1 (b).
This
deprivation of liberty must be “lawful”. “Lawful”
means essentially compliant with domestic law (see Nowicka v.
Poland, no. 30218/96, § 58, 3 December 2002).
The Court observes that a Russian court found the apprehension
lawful: the law permits a witness who fails to turn up for no good
reason to be seized, and the court rejected the reason provided by
the applicant, namely a business trip. That conclusion is not
unreasonable. The Court accepts that domestic authorities have a
certain margin of appreciation in assessing such matters. The Court
thus concludes that the applicant’s apprehension had a basis in
the Russian law.
At
the same time, the Court reiterates that Article 5 § 1
requires in addition that any deprivation of must respect the
guarantees provided by Article 5, and to protect individuals
from arbitrariness. An arrest will only be acceptable in the
Convention terms if “the obligation prescribed by law”
cannot be fulfilled by milder means (see McVeigh and Others v. the
United Kingdom, nos. 8022/77, 8025/77, and 8027/77,
Commission’s report of 18 March 1981, Decisions and
Reports (DR) 25, p. 15). Or, to paraphrase the case of
Vasileva v. Denmark, there must be a balance between the
public interest in complying with the obligation, and the private
interest in staying free (no. 52792/99, § 37,
25 September 2003).
The
Court accepts that where a witness fails to turn up for questioning
for no good reason, he may be brought to the investigator or to the
court by force. However, the decision-making process in such matters,
where the person’s liberty is at stake, should not be overly
formalistic, and should take into account all relevant circumstances
of the case. Thus, the same reason (a business trip, an illness, a
family event, etc.) may be a valid excuse in one context and not in
another.
The
Court finds it established that the applicant was informed about the
summons and had 21 hours to return to Moscow, but did not do so.
Formally speaking, he missed the questioning, so there was an
unfulfilled obligation incumbent on the applicant (see Nowicka
v. Poland, cited above, § 60). But the Court is
not persuaded that this was a sufficient reason for bringing him
forcibly to Moscow on the following morning, and for doing so in the
manner chosen.
First,
it is hard to see why the investigator could not wait. By 25 October
2003 the investigation had lasted for several months. The
investigator had previously interviewed the applicant, and he would
have returned to Moscow in three days. The applicant’s previous
behaviour did not give rise to any legitimate fear that he would
evade questioning on his return. Finally, in case of urgency, the
investigator could have asked his Siberian colleagues to interview
the applicant on the spot or sent a member of the investigation team
there.
Secondly,
the manner in which the apprehension occurred was unusual. The
applicant was arrested like a dangerous criminal rather than a simple
witness: an entire police operation involving a group of armed
officers was mounted within a very short time, the applicant was
traced to Novosibirsk and arrested on the airfield in the early
morning. The Court reiterates in this respect that an arrest must not
be punitive (see Vasileva, cited above, § 36).
Finally,
the timing of the events is worth attention. No sooner had the
investigator interviewed the applicant as a witness than he charged
him and lodged a 9-page application with the Basmanniy District Court
of Moscow requesting the applicant’s detention. Such speed
suggests that in fact the investigator had been prepared for such a
development and wanted the applicant as a defendant, not a witness.
The
Court reiterates in this respect that an arrest may be unlawful if
its outer purpose differs from the real one (see Bozano v. France,
18 December 1986, Series A no. 111, § 60).
In the present case, if the applicant had been arrested as a suspect
in Novosibirsk, he would have been taken to a local court. Instead,
as a witness he was forced to return to Moscow where the General
Prosecutor’s Office could then be assured that he would be
tried in the Basmanniy District Court for the purpose of the
detention proceedings. The circumstances of the applicant’s
arrest show that, albeit formally, he was apprehended as a witness,
and despite complying with the letter of the national law, the
investigator’s real intent was to charge the applicant as a
defendant and, thus, to change the venue of the eventual detention
proceedings to a more convenient one.
In
sum, the Court concludes that the applicant’s apprehension in
Novosibirsk on 25 October 2003 was contrary to Article 5
§ 1 (b) of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 (c)
OF THE CONVENTION
The
applicant further complained that his detention pending investigation
and trial (i.e. between 25 October 2003 and 31 May 2005)
had not been imposed or extended by the courts in accordance with a
procedure prescribed by law as required by Article 5 § 1 (c)
of the Convention. This provision reads:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
... (c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so.”
A. The Government’s observations
The
Government maintained that the domestic courts had not breached the
domestic law when ordering or extending the applicant’s
pre-trial detention. As regards the initial detention order
(that of 25 October 2003), and the subsequent extensions, it is
true that they did not specify the time-period for the detention.
However, under Article 109, section 1 of the CCrP pre-trial
detention is imposed for a period of up to two months. The law also
specified the maximum duration of any extension thereof. The fact
that the courts had not indicated the periods of detention did not
mean that the applicant had been subjected to an unlimited
deprivation of liberty.
Furthermore,
Article 241, section 2, point 1 of the CCrP allowed
the court to conduct proceedings behind closed doors. The prosecutor
requested to close proceedings, explaining that some of the materials
of the case had to remain secret, that some of the applicant’s
accomplices were still at large and that they might put pressure on
the participants in the trial and thus impede the proceedings. Having
discussed the request with the parties the court decided to grant it,
in order to protect the rights of the defendant. As from 15 January
2004 the detention hearings were open to the public and since then
the course of the proceedings has been widely publicised.
As
regards the decision of 20 May 2004, the Government indicated
that, under the Code of Criminal Procedure, after having received the
case from the prosecution, the court had to decide on the measure of
restraint to be applied to the accused person during the trial. The
Code did not stipulate that the accused or his lawyer had to be
present at that stage of the proceedings. On 20 May 2004 the
court decided to extend the applicant’s detention. That
decision was based on the information available from the case file.
In addition, the applicant and his defence lawyers had not asked the
court to modify or lift the measure of restraint. The Government
insisted that the court did not apply the measure of restraint or
extend it, but merely decided that it should remain the same.
The
Government indicated that on 8 June 2004, as a result of the
preliminary hearing, the court had made several orders. Among other
things, the court decided that there were no grounds to modify the
measure of restraint applied to the applicant. Again, this was not a
formal extension of the applicant’s detention but a mere
confirmation of the decision taken earlier. At the hearing of 8 June
2004 the defence did not make an application for release.
As
to the decision of the Constitutional Court of 8 April 2004
(no. 132-O), the Government indicated that it had been
published in the Rossiyskaya Gazeta (the official daily
newspaper) only on 9 June 2004. Therefore, the constitutional
interpretation of the relevant provisions of the CCrP became publicly
available only after the detention orders by the Meshchanskiy
District Court had been delivered.
The
Government claimed that on 20 May and 8 June 2004 the
Meshchanskiy District Court had not imposed or extended the measure
of restraint but simply decided that it should have been maintained
for a further six months.
The
Government claimed that on 16 May 2004 the Meshchanskiy District
Court had examined the applicant’s application for release, but
had refused to reconsider the earlier decisions of the Basmanniy
District Court, in order not to act as a court of appeal vis-à-vis
the latter court.
B. The applicant’s observations
The
applicant maintained that the first detention order (that
of 25 October 2003) had been contrary to the domestic law
in a number of respects. It had been issued following a hearing that,
for no valid reason, had been conducted in camera. The
detention order had not specified the period of detention or
explained why it was impossible to impose a less severe
measure of restraint. Further, the appeal against the detention order
had also been unlawfully heard in camera. The second
detention order of 23 December 2003 had been deficient for the
same reasons.
The
detention order of 20 May 2004 had been imposed on the initiative of
the court and had therefore been contrary to the law. The court’s
jurisdiction to order detention arose only when an appropriate
request had been made by the investigating officer or prosecutor.
Furthermore, contrary to rulings of the Constitutional Court of
Russia, the authorities had not secured the applicant’s
presence at the hearing of 20 May 2004. The order had not
contained any reasons for his detention. Nor had the detention order
of 8 June 2004 contained any reasons.
C. The Court’s assessment
The
main grievance of the applicant in respect of the first two detention
orders (of 25 October 2003, confirmed on 11 November 2003
by the court of appeal, and of 23 December 2003) concerns the
fact that the hearings in which those orders were imposed were held
in private. The Court reiterates its findings in the case of the
applicant’s co-defendant, Mr Lebedev (Lebedev
v. Russia, no. 4493/04, 25 October 2007) where, in
reply to a similar complaint by the applicant, the Court ruled as
follows:
“82. As regards the fact that the
detention hearing of 3 July 2003 was held in private, the Court
observes that there is no basis in its case-law to support the
applicant’s claim that hearings on the lawfulness of pre-trial
detention should always be public (see Reinprecht v. Austria,
no. 67175/01, 15 November 2005, where the Court examined
this issue under Article 5 § 4). The Court sees no
reasons to depart from its case-law in this respect, and concludes
that this aspect of the detention proceedings per se does not
raise an issue under Article 5 § 3 either.”
That
being said, the Court notes that it was a requirement of Russian law
that the hearings (including the detention hearings) should be in
principle public, with exceptions provided by Article 241 of the
CCrP, referred to by the Government. In other words, the question of
the public nature of the detention proceedings in the case at hand is
raised in connection with the “lawfulness” requirement of
Article 5 § 1 of the Convention, and not the
“procedural fairness” requirement inherently contained in
Articles 5 §§ 3 and 4 thereof (see Lebedev
v. Russia, cited above, §§ 75 et seq.). In
particular, in needs to be established whether the “procedure
prescribed by law” allowed the court to hear the detention
hearing in private.
In
many cases the Court has reiterated that
the logic of the system of safeguards established by
the Convention sets limits on the scope of the review by the Court of
the internal “lawfulness” (see Kemmache v. France
(no. 3), 24 November 1994, Series A no. 296-C, §
37). Not each and every disregard of the domestic formalities
automatically entails a breach of the Convention under Article 5 § 1
– the core task of the Court is to detect manifest cases of
arbitrariness (see Ječius v. Lithuania,
no. 34578/97, § 56, ECHR 2000-IX, and Baranowski
v. Poland, no. 28358/95, §§ 50-52,
ECHR 2000-III). A period of detention will in principle be
“lawful” if it is carried out pursuant to a court order
(see, among recent authorities, the case of Matyush
v. Russia, no. 14850/03,
§ 68, 9 December 2008), provided that the trial
court “had acted within its jurisdiction ... [and] had power to
make an appropriate order” (see Korchuganova
v. Russia, no. 75039/01, § 62, 8 June
2006).
In order to define the standard of assessment of the
domestic lawfulness the Court proposed to distinguish between “ex
facie invalid” detention orders and other potentially
flawed orders, sometimes referring to a comparable distinction
existing under English law (cf. Benham, Benham v. the
United Kingdom, 10 June 1996, §§ 43-46,
Reports of Judgments and Decisions 1996-III; and Lloyd and
Others v. the United Kingdom, nos. 29798/96 and others,
§§ 102, 105 et seq., 1 March 2005). Only such
breaches of the domestic procedural and material law which amount to
a “gross or obvious irregularity” in the exceptional
sense indicated by the case-law should attract the Court’s
attention. The notion of “gross or obvious irregularity”
does not lend itself to a precise definition: depending on the
circumstances it may include excess of jurisdiction (Marturana
v. Italy, no. 63154/00, § 78, 4 March
2008), failure to hear the detainee (Khudoyorov, cited above,
§ 129, Tám v. Slovakia, no. 50213/99,
§§ 58-59, 22 June 2004), failure to give reasons
for the detention (Stašaitis v. Lithuania,
no. 47679/99, § 67, 21 March 2002), bad faith on
the part of the authorities, etc. (see the recapitulation of the
applicable principles in the case of Mooren v. Germany [GC],
no. 11364/03, §§ 72 et
seq., ECHR 2009-...).
Turning
to the present case the Court notes that the courts at two instances
decided to close the proceedings in order to protect the applicant’s
own interests. The applicant consistently objected to the closure; in
other words, his perception of his interests was quite different from
the view of the domestic courts on that point. The Court fails to
understand what “interests” the courts sought to protect
by excluding the public from the proceedings. The applicant was not a
minor or a rape victim; he did not fear publicity, but, on the
contrary, sought it. The decision of the domestic courts to hold the
proceedings in private was therefore dubious at best, and the courts
failed to interpret the relevant legislation correctly.
Nevertheless,
this did not necessarily make the detention proceedings “unlawful”
within the meaning of Article 5 § 1 of the
Convention. The Court reiterates that the Convention itself does
not require detention proceedings to be public (see the Reinprecht
and Lebedev cases, cited above). The standards under Article 5
§§ 3 and 4 cannot automatically be extrapolated to
Article 5 § 1: Article 5 paragraph 1 and its
paragraphs 3 and 4 are separate provisions and the
non-observance of the latter does not necessarily entail also
non-observance of the former (compare, for instance, Winterwerp
v. the Netherlands, 24 October 1979, § 53,
Series A no. 33, and Douiyeb v. the Netherlands
[GC], no. 31464/96, § 57, 4 August 1999). The
Court cannot overlook the fact that the Convention case-law itself
does not include the requirement of a public hearing in the list of
“core” procedural guarantees inherent to the notion of
“fairness” in the specific context of detention
proceedings. By analogy, even if the domestic courts erred in their
interpretation of the domestic law and held the proceedings in
camera for no good reason, this did not amount to a “gross
or obvious irregularity” invalidating the proceedings. It
follows that the exclusion of the public from the detention hearings
of 25 October and 23 December 2003, and from the appeal
hearing of 11 November 2003 did not amount to a breach of
Article 5 § 1 of the Convention.
The
next issue raised by the applicant was the allegedly insufficient
reasoning of the three detention orders under examination and the
court’s failure to indicate the periods for which the detention
was imposed and prolonged. The Court reiterates in this respect
that both the Convention and the domestic law require that the
reasons for detention should be given and other preventive measures
should be considered by a court deciding on whether a criminal
suspect should be detained or released. The absence of any grounds
given by the judicial authorities in their decisions authorising
detention for a prolonged period of time is incompatible with the
principle of protection from arbitrariness enshrined in Article 5 § 1
(see Stašaitis v. Lithuania, cited above),
especially when coupled with the failure of the court to indicate a
time-limit for the detention, directly or by reference to the
applicable provisions of the domestic law (see Nakhmanovich
v. Russia, no. 55669/00, § 71, 2 March
2006).
The
Court observes that the detention orders under examination contained
some reasoning. Even if that reasoning was flawed or, in the
applicant’s opinion, insufficient, those orders cannot be
characterised by any standard as “arbitrary” (see
Moskovets v. Russia,
no. 14370/03, § 59, 23 April 2009). The
sufficiency and relevance of the reasons relied on by the domestic
courts will be discussed below from the standpoint of Article 5 § 3
of the Convention, but this does not deprive the detention orders of
their “lawful” character under Article 5 § 1
of the Convention.
The
Court finally observes that no time-limits for the applicant’s
detention were set out in the court’s detention orders of
25 October and 23 December 2003. Furthermore, those
decisions did not refer explicitly to Article 109, section 1 of the
CCrP, which fixes the maximum duration of the pre-trial detention and
any extension thereof. That omission is regrettable. However, in the
circumstance it did not amount to a “gross or obvious
irregularity”, especially given that the applicant was
well-represented and the maximum duration of a detention order could
have been easily ascertained from the law, which was accessible to
the applicant.
In
sum, the Court concludes that the applicant’s detention imposed
on 25 October 2003, and extended on 23 December 2003 and
19 March 2004, was lawful, and was imposed in accordance with a
procedure prescribed by law. There was no violation of Article 5 § 1
of the Convention on that account.
As regards the applicant’s detention after
20 May 2004, the Court notes that, unlike the first three
detention orders, the detention order of 20 May 2004 did not
contain any reasoning at all. In principle, depending on the
type of detention involved and other relevant factors, the absence of
reasoning in a detention order may give rise to a violation of
Article 5 § 1 of the Convention (see Nakhmanovich
v. Russia, cited above; see also Belevitskiy
v. Russia, no. 72967/01, § 91, 1 March
2007; and Bakhmutskiy v. Russia,
no. 36932/02, §§ 111 et seq., 25 June
2009; cf. with Liu v. Russia, no. 42086/05, § 81,
6 December 2007).
That
being said, the Court notes that the applicant’s complaint
under Article 5 § 1 overlaps to a large extent with
his complaint under Article 5 § 3 about the
authorities’ failure to adduce relevant and sufficient reasons
justifying the extensions of his detention pending criminal
proceedings. The Court reiterates that Article 5 § 1
(c) is mostly concerned with the existence of a lawful basis for a
detention within criminal proceedings, whereas Article 5 § 3
deals with the possible justification for such detention. The Court
deems is more appropriate to deal with this complaint under Article 5
§ 3 of the Convention. In so far as the applicant
complained that the detention proceedings in his case were
incompatible with the procedural requirements of the domestic law,
the Court will address those complaints under Article 5 § 4
of the Convention, which guarantees the right to judicial review of
the lawfulness of the detention.
V. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that his detention was not justified and had
thus exceeded the “reasonable time” requirement of
Article 5 § 3 of the Convention. This provision reads:
“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 observations
The
Government submitted that the applicant’s pre-trial detention,
ordered by the judge on 25 October 2003, had been warranted by
his status as the head of Yukos. In that capacity he was able to
influence witnesses and other participants in the proceedings and to
destroy or conceal evidence, and thus hinder the normal course of the
trial or continue his criminal activities. In the subsequent
detention orders the courts relied on various reasons which warranted
the applicant’s detention and supported them with relevant
facts. The Government indicated when and on what grounds the
applicant’s detention pending investigation and trial had been
extended. In total it had lasted one year, six months and twenty-one
days. Having regard to the amount of materials in the case (434
volumes) the applicant’s detention had not exceeded the
“reasonable time” requirement of Article 5 § 3
of the Convention.
As
to alternative measures of restraint, the Government admitted that on
25 October 2003 the applicant’s lawyer had asked the court
to release the applicant on bail, without, however, indicating its
amount. The Basmanniy District Court found that there was no reason
to apply that measure of restraint. In the proceedings of 22 December
2003 the defence lawyers did not propose bail.
The
fact that the applicant’s co-defendant, Mr Kraynov, had
been released pending trial was, in the Government’s opinion,
irrelevant. The courts had to assess each individual case separately;
having examined the personal situation of Mr Kraynov and the
charges against him (which had been less serious than those in
respect of the applicant), the court had assessed the risks
accordingly and decided to release him.
In
so far as the use of Ms Artyukhova’s note in the detention
proceedings was concerned, the Government made the following
comments. They confirmed that the documents seized from
Ms Artyukhova. in the remand prison after the meeting with her
had been added to the case file and referred to by the court as proof
of the applicant’s intention to exert pressure on witnesses.
However, Ms Artyukhova had breached the law and was not
therefore covered by the lawyer-client privilege. In the Government’s
words, the applicant’s “written directives” had
been de facto aimed at distorting testimonies and other
evidence, which could not be regarded as a part of the defence’s
normal function.
The
Government referred to Article 34 of the Pre-trial Detention Act
which provided that prison officials had a right to search the
applicant’s lawyer. In the Government’s words, the
administration of the remand prison had had sufficient reasons to
believe that Ms Artyukhova and the applicant’s another
lawyer, Mr Schmidt (who had been searched on 11 March
2004), were carrying “materials which contained information
which could have obstructed the establishment of truth in the
criminal case or facilitated criminal acts”. The notes seized
by the prison officials from Ms Artyukhova and Mr Schmidt,
in the Government’s words, were therefore “prohibited
goods” within the meaning of Article 34 of the Pre-trial
Detention Act.
The
Government confirmed that a convoy officer was always placed near the
applicant in the courtroom. Such a practice was authorised by virtue
of the directions issued by the Ministry of Justice. The role of the
convoy officer was to observe the applicant, to prevent the applicant
from contacting other persons or taking and giving them letters,
notes, and other objects. During the breaks in the hearing the
applicant was allowed to speak to his lawyers; however, the convoy
officer was always present nearby. The applicable rules did not
establish any minimal distance between the defendant and the convoy
officer in the courtroom.
B. The applicant’s observations
The
applicant submitted that as from the first detention order
of 25 October 2003, the reasons put forward for refusing
him bail did not meet the “relevant and sufficient”
standard of Article 5 § 3. In particular, the
detention orders did not address the following submissions by the
applicant: that there had been no evidence that he had any
reason to abscond; that he had not absconded when his colleagues
had been arrested and detained and his offices had been searched;
that he had publicly declared that he would face the prosecution and
answer questions rather than be forced into exile; that the State had
failed to meet the requirement under both domestic and Convention law
to explain why less severe measures of restraint were inopportune.
The
continued detention of the applicant after the preliminary
investigation had closed on 25 November 2003 (when the alleged
risk of the applicant interfering with witnesses had necessarily
abated), was also contrary to Article 5 § 3.
As
to the second detention order (that of 23 December 2003), the
court had failed to meet its statutory obligation to review the
necessity for detention when the pre-trial stage of the proceedings
had been concluded. It had also failed to address the defence’s
strong arguments that bail would be appropriate. The applicant’s
co-accused, Mr Kraynov, had remained at large, and the applicant
considered that he should not have been treated differently. The
applicant had offered to abide by strict conditions of house arrest,
yet the court had failed to consider such a possibility at all in its
judgment.
As
to the admission of Ms Artyukhova’s note, the applicant
submitted as follows. In his words, the Government claimed that the
note indicated that she was to carry out actions which were intended
to falsify evidence. However, the applicant, referring to the text of
the note, considered that such an interpretation was arbitrary.
The note recorded the steps that would reasonably be expected
to be undertaken by a lawyer in preparing the case and identifying
the issues on which she had to work in the performance of her
professional obligations.
The
applicant alleged that the search of Ms Artyukhova had been
unlawful and a blatant violation of the lawyer-client privilege. The
record of the search of Ms Artyukhova indicated that the search
had been conducted under section 34 of the Pre-trial Detention
Act. In accordance with that section, a search could only be
conducted if there were sufficient grounds for suspecting individuals
of attempting to smuggle in prohibited items, substances or food. It
was claimed in the report following Ms Artyukhova’s search
that the duty officer had seen “the lawyer and the defendant
repeatedly passing to each other notepads with some notes, making
notes therein from time to time”. There had thus been no
legal grounds for conducting the search of Ms Artyukhova because
there had been no indication in the report that the officer had
witnessed any attempt to pass any prohibited items, substances or
food.
At
the hearing the prosecutor had alleged that the note had been written
by the applicant. Thus, at the hearing on 22 December 2003 the
prosecutor had argued: “new information has been obtained that
Mr Khodorkovskiy passed a note via the lawyer
Ms Artyukhova in which he instructs those of his accomplices at
liberty to influence witnesses who have made incriminating statements
against him”. However, the handwritten note had not been
written by the applicant, contrary to the assertions of the
prosecutor, as had been conclusively proved by the independent
evidence of three handwriting experts.
As
to the detention orders of 20 May and 8 June 2004, the
applicant noted that they did not contain any reasons at all and were
thus contrary to Article 5 § 3 of the Convention.
On
1 November 2004 the Meshchanskiy District Court ordered that the
applicant should be detained for a further three months. In its
ruling the court appeared to place very considerable reliance upon
the earlier decisions to refuse bail, despite its continuing duty to
review the appropriateness of pre-trial detention. There was once
again a formalistic recital of matters which the court was said to
have considered. Once again there was no reasoned analysis of why it
was impossible to apply a less severe measure of restraint. In
particular, there was no consideration of the fact that the danger of
absconding necessarily receded as the period of detention was
extended, of the fact that the trial was under way, and that it was
not sufficient to rely on a reasonable suspicion against the
applicant. In the next decision the Meshchanskiy Court ordered that
the applicant should be detained for a further three months, reciting
stereotypical reasoning and failing to address the applicant’s
arguments.
C. The Court’s assessment
The
Court notes that the applicant’s pre-trial detention lasted
from 25 October 2003 until 31 May 2005, thus amounting to
one year, seven months and six days. Given the complexity of the case
and the pace of the proceedings, this period does not look
unreasonable in itself. However, the issue of whether a period of
detention is reasonable cannot be assessed in abstracto.
The Court has to examine how the domestic courts justified that
period.
1. General principles
The
Court reiterates that a person charged with an offence must always be
released pending trial unless the State can show that there are
“relevant and sufficient” reasons to justify the
continued detention (see, as a classic authority, Wemhoff
v. Germany, 27 June 1968, Series A no. 7,
§ 12; Yagci and Sargin v. Turkey, 8 June
1995, Series A no. 319-A, § 52).
Under Article 5 of the Convention the presumption is
in favour of release. As the Court has consistently held, the second
limb of Article 5 § 3 does not give judicial
authorities a choice between either bringing an accused to trial
within a reasonable time or granting him provisional release pending
trial. Until his conviction, the accused must be presumed innocent,
and the purpose of the provision under consideration is essentially
to require him to be released provisionally once his continuing
detention ceases to be reasonable (see, for instance, Castravet
v. Moldova, no. 23393/05, § 30, 13 March
2007; McKay v. the United Kingdom [GC], no. 543/03,
§ 41, ECHR 2006-...; Jablonski v. Poland,
no. 33492/96, § 83, 21 December 2000; and
Neumeister v. Austria, 27 June 1968, Series A
no. 8, § 4).
The
Convention case-law has developed four basic acceptable reasons for
refusing bail (or any other measure of restraint not related to
deprivation of liberty): the risk that the accused will fail to
appear for trial (see Stögmüller v. Austria,
10 November 1969, Series A no. 9, § 15); the
risk that the accused, if released, would take action to prejudice
the administration of justice (see Wemhoff, cited above, §
14) or commit further offences (see Matznetter v. Austria,
10 November 1969, Series A no. 10, § 9) or
cause public disorder (see Letellier v. France, 26 June
1991, Series A no. 207, § 51).
Further,
the Court has reiterated that shifting the burden of proof to the
detained person in matters of detention is tantamount to overturning
the rule of Article 5 of the Convention, a provision which makes
detention an exceptional departure from the right to liberty and one
that is only permissible in exhaustively enumerated and strictly
defined cases (see Rokhlina v. Russia, no. 54071/00,
§ 67, 7 April 2005, and Ilijkov v. Bulgaria,
no. 33977/96, §§ 84-85, 26 July 2001). The
national judicial authorities must examine all the facts arguing for
or against the existence of a genuine requirement of public interest
justifying, with due regard to the principle of the presumption of
innocence, a departure from the rule of respect for individual
liberty, and must set them out in their decisions. Arguments for and
against release must not be “general and abstract” (see
Clooth v. Belgium, 12 December 1991, § 44,
Series A no. 225), but contain references to the specific
facts and the applicant’s personal circumstances justifying his
detention (see Panchenko v. Russia, no. 45100/98,
§ 107, 8 February 2005). Thus, the danger of
absconding cannot be gauged solely on the basis of the severity of
the possible sentence; it must be assessed with reference to a number
of other relevant factors which may either confirm the existence of a
danger of absconding or make it appear so slight that it cannot
justify pre-trial detention. In this context regard must be had in
particular to the character of the person involved, his morals, his
assets, his links with the State in which he is being prosecuted and
his international contacts (see W. v. Switzerland,
26 January 1993, Series A no. 254-A, § 33,
with further references).
The
Court further stresses that the existence of a particular risk which
may hinder the proper conduct of the proceedings (even if that risk
was sufficiently established) does not necessarily mean that the
suspect must be detained. The domestic authorities should consider
having recourse to other, less intrusive preventive measures or, “at
the very minimum, seek to explain in their decisions why such
alternatives would not have ensured that the trial would follow its
proper course” (see Mishketkul and Others v. Russia,
no. 36911/02, § 57, 24 May 2007; see also see
Sulaoja v. Estonia, no. 55939/00, § 64,
15 February 2005, and Jabłoński v. Poland,
no. 33492/96, § 83, 21 December 2000).
The
Court finally reiterates that in order to assess the “relevance”
and “sufficiency” of the reasons for preventive detention
(i.e. detention under Article 5 § 1 (c)) it uses
a dynamic approach. Thus, for example, as regards the suspect’s
presumed potential to interfere with the establishment of the truth,
“with the passage of time this ground inevitably becomes less
and less relevant” (see Panchenko cited above, § 103;
see also Muller v. France, 17 March 1997, § 40,
Reports 1997-II; and Debboub alias Husseini Ali v. France,
no. 37786/97, § 44, 9 November 1999) and even
disappears completely with the passing of time (see Letellier
v. France, 26 June 1991, § 39, Series A
no. 207).
2. Application to the present case
The
Court observes that the applicant was arrested as a criminal suspect
on 25 October 2003. In the first detention order the Basmanniy
District Court referred to three particular risks the applicant’s
release might have posed, namely the risks that the applicant might
abscond, interfere with the course of justice, and continue his
criminal activity. The facts, referred to by the domestic courts as a
proof that such risks existed, were the following: the applicant
faced a long prison sentence, he had allegedly been involved in
organised criminal activity for a long time, he was a very
influential person, he had money abroad and a passport for foreign
travel, his presumed accomplices had fled Russia, and the applicant
still controlled companies where prospective witnesses continued to
work. Furthermore, the court referred to the applicant’s
personality (without, however, explaining what particular features of
the applicant’s character increased the likelihood of him
fleeing, exerting pressure on witnesses, etc).
The
Court acknowledges that the logic of the District Court was not
flawless (see, for example, the cases of Lind v. Russia,
no. 25664/05, § 81, 6 December 2007, with further
references, and Korshunov v. Russia, no. 38971/06,
§ 51, 25 October 2007, where the Court criticised the
Russian courts for relying on broadly the same arguments as in the
case at hand). However, the Court considers that in choosing a
measure of restraint for the first time the courts may rely on
relatively loose presumptions (such as the gravity of charges, the
suspect’s position in society, the nature of the impugned
offences, etc.). Furthermore, the exceptional character of the case
at hand, where the applicant was one of the richest persons in the
country and, unofficially, a politically influential person, should
not be disregarded. The Court is aware that the existence of a
potential risk, for example, the risk of fleeing or re-offending,
cannot be demonstrated with the same degree of certitude as the
existence of a fact that has already occurred. This is a fortiori
true at the beginning of a criminal investigation, when the
prosecuting authorities have less information about the suspect, his
connections, the circumstances of the case, etc. It explains why the
Court’s standard of review of the original detention order is
usually quite relaxed (see in this respect the partial
inadmissibility decision in the case of the applicant’s
co-defendant, Lebedev v. Russia, no. 4483/04,
25 November 2004; see also the Court’s finding in the case
concerning another Yukos top executive, Aleksanyan v. Russia,
no. 46468/06, §§ 184-190, 22 December 2008;
see also the case of Aleksandr Makarov v. Russia,
no. 15217/07, § 125, 12 March 2009). Having
applied this standard, the Court concludes that the District Court
cannot be considered as having erred in its assessment of the
evidence but, taking into account the cumulative effect of the
elements before it, came to a reasonable conclusion as to the
potential risks posed by the applicant.
As
to the possible alternative measures of restraint, it is regrettable
that the District Court did not develop this point further, and did
not explain why it was impossible to apply bail, house arrest, etc.
However, the Court is mindful that the Russian courts faced the
applicant for the first time, and, admittedly, the prosecution had
little time to prepare detailed submissions on this point, and in
particular, to evaluate the applicant’s assets and to define a
reasonable amount of bail. In such circumstances the Court is ready
to consider the brevity of the formula used by the Basmanniy District
Court as an implicit rejection of all alternative preventive measures
provided by the domestic legislation.
In
sum, the Court is prepared to admit that the combination of the above
arguments could justify the applicant’s detention as a suspect
in the criminal proceedings for some time. The question arises
whether the arguments adduced by the courts were sufficient to
justify the whole period of the applicant’s detention in
custody.
First,
the Court observes that the two subsequent detention orders were
justified by reference to broadly the same risks as the first one.
However, the applicant’s personal situation during that period
had evolved: he had ceased to exercise managerial functions within
the Yukos group and had submitted his travel passports to the
investigator. Furthermore, by that time the pre-trial investigation
was already over. The closure of the investigation excluded virtually
any risk of tampering with material or documentary evidence, and
significantly reduced the ability of the applicant to exert pressure
on the witnesses, who had already been questioned by the prosecution
(see Aleksanyan v. Russia, cited above, § 191).
Nevertheless, the Court is prepared to assume that the risks of
tampering with evidence existed for some time after the start of the
proceedings, at least until the witnesses testified before the court.
Furthermore, bearing in mind its subsidiary role in fact-finding, the
Court accepts that the applicant remained a rich and influential
person with international connections and property abroad, which
would have made it relatively easy for him to live in another
country.
That being said, the Court is struck by the fact that
the detention order of 20 May 2004, as well as the decision of 8
June 2004 by which the detention order of 20 May 2004 was
confirmed, were not supported by any reason at all. The Court
reiterates that it is essentially on the basis of the reasons given
in these decisions and of the established facts stated by the
applicant in his appeals that the Court is called upon to decide
whether or not there has been a violation of Article 5 § 3
(see, for example, Weinsztal v. Poland, no. 43748/98,
§ 50, 30 May 2006). As a matter of principle, the
Court should not guess what the reasons behind a particular detention
order could have been – those reasons should be set out in the
detention order, especially at the moment when the case passes from
the investigation to the trial stage. In the absence of any reasoning
in the detention order of 20 May and in the decision of 8 June
2004 the Court concludes that those extensions of the applicant’s
detention were unjustified.
Second,
the Court observes that at no point during the whole period of the
applicant’s detention did the District Court or City Court take
the trouble to explain why it was impossible to apply bail or house
arrest to the applicant, or to accept “personal sureties”.
There
is no single standard of reasoning in those matters, and the Court is
prepared to tolerate an implicit rejection of the alternative
measures at the initial stages of the investigation. However, the
time that had elapsed since the applicant’s arrest should have
given the authorities sufficient time to assess the existing options,
to make practical arrangements for their implementation, if any, or
to develop more detailed arguments as to why alternative measures
would not work. Instead, the Russian courts simply stated that the
applicant could not be released. The District Court’ reference
in the detention order of 19 March 2004 to the fact that
Article 109 did not provide for personal sureties was
irrelevant: Article 109 concerns extensions of pre-trial
detention and it is thus natural that it does not mention other
preventive measures. The reference to Article 109 only shows
that the court did not seriously consider any preventive measures
other than detention.
Further,
the context of the case was not such as to make the applicant
obviously “non-bailable”. The Court reiterates its
findings in McKay v. the United Kingdom [GC], no. 543/03,
§ 46, ECHR 2006-X), where it held that “the
Court’s case-law has not yet had occasion to consider the very
early stage of pre-trial detention [in the context of the ‘reasonable
length’ requirement of Article 5 § 3], presumably as, in
the great majority of cases, the existence of suspicion provides a
sufficient ground for detention and any unavailability of bail has
not been seriously challengeable”. The Court acknowledges that
in some circumstances, for example where the suspect allegedly
belongs to a gang implicated in violent crimes, or, probably, in
terrorist cases, the “unavailability of bail” can be
self-evident (see, mutatis mutandis, the case of Galuashvili
v. Georgia, no. 40008/04, §§ 6 et seq.,
17 July 2008; see also Kusyk v. Poland,
no. 7347/02, § 37, 24 October 2006, and
Celejewski v. Poland, no. 17584/04, §§ 35-37,
4 May 2006), although even in such circumstances detention
should not be automatic. However, this approach cannot be applied in
casu. The applicant was accused of a number of non-violent
crimes; he did not have any criminal record and he lived permanently
with his family in Moscow, where he had his main business interests.
In
sum, the domestic courts ought to have considered whether other, less
intrusive, preventive measures could have been applied, and whether
they were capable of reducing or removing completely the risks of
fleeing, re-offending or obstructing justice. Their failure to
do so seriously undermines the Government’s contention that the
applicant had to be detained throughout the whole period under
consideration.
Third,
the Court is struck by the unqualified reliance by the District Court
in the second detention order on the note seized from the applicant’s
lawyer, Ms Artyukhova. The Court reiterates that respect for
lawyer-client confidentiality is equally important in the context of
both Article 6 §§ 1 and 3 (c) and
Article 5 §§ 3 and 4 of the Convention (see the
case of Castravet, cited above; see also, mutatis mutandis,
Sakhnovskiy v. Russia [GC], no. 21272/03,
§ 97, 2 November 2010; see also the Court’s
findings under Article 8 in the case of Campbell v. the
United Kingdom, 25 March 1992, § 48, Series A
no. 233). Any interference with privileged material, and, a
fortiori, the use of such material against the accused in the
proceedings, either detention proceedings or at the main trial,
should be exceptional, be justified by a pressing need and will
always be subjected to the strictest scrutiny by this Court.
As
transpires from the wording of the detention order of 23 December
2003 and from the report of the investigator on that incident (see
paragraph 42. above), the note was written by Ms Artyukhova
during Ms Artyukhova’s interview with the applicant and
concerned the applicant’s criminal case. For any reasonable
observer that note should have been a privileged material, at least
a priori (see, mutatis mutandis, in the context of
searches in lawyers’ offices, the cases of Iliya Stefanov
v. Bulgaria, no. 65755/01, § 41, 22 May
2008, and Niemietz v. Germany, 16 December 1992,
§ 37, Series A no. 251-B).
Any
assumption to the contrary must have been based on some knowledge of
the content of that note or of the applicant’s conversation
with Ms Artyukhova. However, the Government did not claim that
the authorities had been aware of what had been discussed in the
meeting room. Nor did the behaviour of the applicant and his lawyer
during the meetings give rise to any reasonable suspicion of abuse of
confidentiality. It is also doubtful whether the prison officials had
the power under the domestic law to search the lawyer and in what
circumstances. The Court reiterates that any limitations imposed on a
criminal defendant in the remand prison, including those concerning
his contacts with lawyers, should have a lawful basis and that the
law should be sufficiently precise (see, mutatis mutandis,
Nolan and K. v. Russia, no. 2512/04, §§ 98-99,
12 February 2009, with further references; see also the judgment
of the Russian Constitutional Court of 2010 which makes the same
point). The Government did not refer to any provision of Russian law
prohibiting a lawyer from keeping notes during meetings with his
client, or the client from dictating instructions to his lawyer or
studying materials prepared by the defence lawyer. Various provisions
of the Pre-trial Detention Act concerning the perusal of the
detainees “correspondence”, and the search of “visitors”
carrying “prohibited objects” do not seem to apply to the
meetings between the defendant and his lawyer.
The
Court concludes that Ms Artyukhova’s note was to all
intents and purposes privileged material, that the authorities had no
reasonable cause to believe that the lawyer-client privilege was
being abused, and that the note was obtained from Ms Artyukhova
deliberately and in an arbitrary fashion. Despite the fact that the
seizure of the note constituted an encroachment on
Ms Artyukhova’s professional secrecy and on the
applicant’s right to effective legal assistance, the note was
admitted in evidence and used by the court to substantiate the second
detention order without any discussion as to its admissibility and
reliability. Against this background, the question of whether the
note objectively contained any unlawful instructions to the
applicant’s lawyers is not so important.
In
conclusion the Court finds that in the present case the proceedings
in which detention was extended were flawed in many respects: the
Russian courts on two occasions failed to indicate reasons for the
continued detention of the applicant, they relied on material
obtained by way of a violation of the lawyer-client privilege, and
never seriously considered other measures of restraint. In such
circumstances the Court concludes that the applicant’s
continuous detention was not justified by compelling reasons
outweighing the presumption of liberty. There was therefore a breach
of Article 5 § 3 of the Convention on this account.
VI. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF
THE CONVENTION ON ACCOUNT OF PROCEDURAL FLAWS IN THE DETENTION
PROCEEDINGS
The
applicant complained of various defects in the proceedings concerning
his detention, namely the detention orders of 25 October 2003,
22-23 December 2003, 20 May, 8 and 16 June 2004. He
referred to Article 5 §§ 3 and 4 in this
respect. The Court considers that this complaint falls to be examined
under paragraph 4 of Article 5 of the Convention, which
provides:
“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 observations
The
Government submitted that, since the applicant’s detention had
been ordered and extended in accordance with the domestic law, it had
also been in compliance with the procedural requirements of Article 5
of the Convention. In particular, the courts had taken a lawful and
justified decision to close the detention hearing to the public at
the initial stages of the proceedings; during the trial the detention
hearings were held openly.
The
Government maintained that the defence had had sufficient time to
read the case file and prepare for the detention hearing of
22 December 2003. They had learned of the hearing on 19 December
2003; in addition, they had had two hours during the hearing of
22 December 2003 to read the materials of the case file and
speak to the applicant. As could be seen from the record of the
hearing, the applicant’s lawyers had been perfectly aware of
all of the documents produced by the prosecution. On the second day
of the hearing, on 23 December 2003, the defence had been given
an extra one and a half hours to allow them to read additional
documents produced by the prosecution. The Government listed fifteen
documents which constituted a “major part” of the
detention request lodged by the prosecution. According to the
Government, the defence had been given access to those documents well
in advance of the hearing. The fact that the defence was able to
formulate an application for release at the hearing of 23 December
2003 shows that it was perfectly prepared for the hearing.
The
Government further maintained that the applicant had not complained
to the court that he did not have enough time to meet with his
lawyers. One of his lawyers had complained in the appeal brief that
the applicant was unable to meet the lawyers in the remand prison
where he was detained. However, he had received such an opportunity
in the courtroom. In general, during the period under consideration
the applicant had 505 meetings with his lawyers, which lasted
906 hours in aggregate. He was meeting them almost on a daily basis,
except for holidays. In addition, the applicant had 36 visits from
his relatives which lasted 40 hours in aggregate. The head of
the remand prison refused the applicant permission to meet his
lawyers Ms M. and Mr Pr. because de facto they had
not been involved in the applicant’s legal representation
before the first instance court or before the court of appeal.
As
to the detention proceedings pending trial, the Government maintained
as follows. Under the Code of Criminal Procedure, after having
received the case from the prosecution, the court must decide on the
measure of restraint to be applied to the accused person during the
trial. The Code did not stipulate that the accused or his lawyer
should be present at this stage of the proceedings. On 20 May
2004 the court had decided to extend the applicant’s detention.
That decision had been based on information available from the case
file. In addition, neither the applicant nor his defence lawyers had
asked the court to modify or lift the measure of restraint. The
Government insisted that the court had not applied the measure of
restraint or extended it, but merely decided that it should remain
the same.
The
Government indicated that on 8 June 2004, as a result of the
preliminary hearing, the court had made several orders. Among other
things, the court had decided that there were no grounds to alter the
measure of restraint applied to the applicant. This was not a formal
extension of the applicant’s detention, but a mere confirmation
of the decision taken earlier. In addition, the applicant could
always have lodged a complaint about that decision.
As
to the absence of the applicant’s lawyer, Ms Moskalenko, at the
appeal hearings of 21 June and 29 July 2004, the Government
confirmed that, indeed, neither she nor the applicant had been
present. However, the applicant himself had failed to indicate in his
appeal that he had wished to take part in the appeal proceedings in
person, although the law (Article 372 part 2 of the CCrP)
provided that such an explicit request was necessary. The same was
true with regard to appeals lodged by Ms Moskalenko – she
did not request in her appeals to be present at the hearing.
Nevertheless, Ms Moskalenko was informed about the first appeal
hearing by summons, sent to her by fax. The fax was received by one
of the lawyers working in her office. On the day of the hearing the
court of appeal received a letter from Ms Moskalenko’s
office, informing it that she was on a business trip to Strasbourg.
Given that Ms Moskalenko did not lodge any written request for
her personal presence at the appellate hearing, or for the
adjournment of the appeal hearing, it was decided to hold it in her
absence. As regards the appeal hearing of 29 July 2004, the
Government indicated that Ms Moskalenko had been informed about
it by telephone. The authorities had not been informed of the reasons
which prevented Ms Moskalenko from attending the second hearing.
At the same time, other lawyers for the applicant were present at
that hearing, namely Ms Liptser, Ms Lvova and Mr Rivkin.
B. The applicant’s observations
The
applicant maintained his complaints that the detention hearings in
his case had not complied with the minimum procedural requirements.
More specifically, as regards the second detention order, the GPO’s
request to extend the term of detention had been filed with the court
(though not served on the applicant’s lawyers) on Tuesday,
16 December 2003; the applicant’s lawyers had been told at
the close of business on Friday, 19 December 2003, that there
would be a hearing on Monday, 22 December 2003. The GPO request
had run to over three hundred pages. The applicant’s lawyers
had not received a copy of the request until the second day of the
bail hearing, that is, 23 December 2003.
The
District Court had initially indicated that it wished to move the
proceedings to the remand prison. The court had refused to hear the
request in public. The court had refused the applicant’s
requests for a relatively short adjournment until 24 December
2003. Mr Padva, for the applicant, had explained that he had
been unable to meet with his client and had not been given sufficient
opportunity to review the prosecutor’s request. Ms Moskalenko,
also for the applicant, had explained that the necessity for an
adjournment was even greater for her as she had only been retained
that day. The applicant had himself addressed the court and asked for
an adjournment so that he could consult with his lawyers and review
the prosecution materials. The judge had refused to adjourn the
hearing to 24 December 2003 and had granted only a two-hour
adjournment. No reasoning had been given at all for that decision.
The very short adjournment had not permitted the applicant to consult
his lawyers in private; nor had it allowed sufficient time for his
lawyers to review the prosecution material.
The
applicant, contrary to the principle of equality of arms, had been
unable to prepare written submissions in response to the very
detailed and lengthy prosecution petition and documents. Thus, Ms
Moskalenko’s written submissions to the court had remained
incomplete.
The
applicant further noted that the Government had not challenged his
claim that during the adjournment he had had to speak to his lawyers
in the presence of guards and the district court personnel. These
difficulties had been compounded by the fact that the applicant was
incarcerated in an iron cage.
As
to the hearing on 20 May 2004, the applicant submitted that it
had not complied with domestic law and that the absence of his
lawyers had inevitably meant that the proceedings were not
adversarial. The applicant considered that Article 5 § 4
was applicable to the hearing on 20 May 2004, contrary to what
the Government seemed to be suggesting. As to the appeal hearings on
21 June and 29 July, the applicant submitted that his
lawyer’s absence from them necessarily led to the conclusion
that they were incompatible with the requirement of adversarial
proceedings.
Moreover,
he submitted that he had wished to be represented at the hearings by
his lawyer. The Ruling of the Constitutional Court of Russia of
22 March 2005 held that the presence of a detainee at a hearing
concerning his detention was required in all circumstances,
irrespective of whether the court was imposing or extending the
detention or confirming its lawfulness. On 21 June 2004 (the
hearing of the appeal against the 20 May 2004 detention order),
the applicant’s lawyer, Ms Moskalenko, had been absent
from the appeal hearing as she had been working in Strasbourg for two
days. The court had been notified of that fact, but had nonetheless
decided to proceed in her absence. The Government had submitted the
notification from Ms Moskalenko’s office informing the
Court that Ms Moskalenko was in Strasbourg. The purported
endorsement on the certificate to the effect that Ms Moskalenko
did not have a lawyer-client agreement was incorrect. Further, the
identity of the signatory to the endorsement was unclear and the
identity had not been provided by the Government. The court had
proceeded to hear the appeal filed by Ms Moskalenko in her
absence and, in the absence of the applicant but in the presence of
the prosecutor, who had advanced oral arguments. In such
circumstances, the applicant submitted that the hearing had been
incompatible with the requirement of adversarial proceedings and
equality of arms.
On
19 July 2004 Ms Moskalenko had attended the Moscow City
Court and provided proof of her authority to act. The Moscow City
Court had adjourned the hearing of Ms Moskalenko’s appeal
against the detention order of 8 June 2004. The hearing had
resumed on 29 July 2004 but had been heard in the absence of
both the applicant and his lawyer, Ms Moskalenko,
notwithstanding the fact that the court had been notified that
Ms Moskalenko had been taken into hospital. The Moscow City
Court had heard oral argument from the prosecutor. Accordingly, the
applicant submitted that the hearing had been manifestly incompatible
with the requirement of adversarial proceedings and equality of arms.
The
applicant further maintained that the detention orders of 20 May
and 8 June 2004 had not contained any reasoning. For the
applicant, it was axiomatic that for there to be an effective
appeal the accused had to know the reasons for the decision at first
instance.
As
to the court’s decision of 16 June 2004, the applicant
made the following submissions. The Meshchanskiy District Court had
dismissed the applicant’s application for release, stating that
it had no jurisdiction under Article 255 of the CCrP to alter
the decision of the Basmanny District Court that the applicant should
be detained. However, Article 255 of the CCrP expressly
permitted the trial court to select or modify the measure of
restraint. Further, the Constitutional Court had made clear in its
Decree of 22 March 2005 that the domestic courts had a
continuing duty, throughout the pre-trial period, to determine the
appropriate measure of restraint. Even if, contrary to the express
provisions of the CCrP and the guidance of the Constitutional Court,
there was a jurisdictional bar, such a limitation would be contrary
to Article 5 § 1 (see Jecius v Lithuania,
no. 34578/97, 31 July 2000, § 60-63). The
applicant maintained his argument that the decision of 16 June
2004 was contrary to Article 5 of the Convention.
C. The Court’s assessment
Article 5
§ 4 has been consistently interpreted by the Court as
providing certain minimal procedural guarantees to a detainee while
the court decides on whether the preventive detention should be
imposed, extended or cancelled. The outline of the case-law in this
respect was made in the Lebedev case, cited above, §§ 75
et seq., which mostly concerned the same detention proceedings as
those at the heart of the present case, so the Court will not repeat
them.
1. Detention hearing of 25 October 2003
220. Insofar
as the first of the two detention hearings is concerned, the
applicant complained that it was held in camera. The Court reiterates
that there is no basis in the Court’s case-law to support the
applicant’s claim that hearings on the lawfulness of the
pre-trial detention should be public (see Reinprecht v. Austria,
no. 67175/01, 15 November 2005; see also Lebedev
v. Russia, cited above, § 82). Therefore, this
aspect of the detention proceedings does not raise any issue under
the Convention.
221. The
second grievance of the applicant in respect of that first detention
hearing concerned the fact that the applicant’s lawyer had had
little time to prepare written observations. This situation might be
regrettable, but it did not put the defence at a significant
disadvantage vis-à-vis the prosecution (see, mutatis
mutandis, Sanchez-Reisse v. Switzerland, cited above,
§ 51), because the defence was at least able to present
their arguments orally. The nature of the first detention hearing is
such that the time to examine the case file and prepare the arguments
may be reduced to the very minimum, in order to allow the court to
take the decision “speedily”, as Article 5 requires.
The
applicant further suggested that the courts at two instances had
failed to address his arguments militating in favour of his
conditional release. In Nikolova v. Bulgaria [GC]
(no. 31195/96, ECHR 1999-II) the Court concluded that the
courts should not disregard arguments of the defence, insofar as they
refer to “concrete facts ... capable of putting in doubt the
existence of the conditions essential for the ‘lawfulness’
... of the deprivation of liberty”. On the other hand, the
right to a reasoned decision is not absolute: this guarantee “cannot
be understood as requiring a detailed answer to every argument”
(Van de Hurk v. the Netherlands, 19 April 1994,
Series A no. 288, § 61). In the Court’s
view, having in mind that the proceedings were at their earliest
stage, the relative conciseness of the court’s analysis of the
circumstances of the case did not make its decisions unintelligible
or arbitrary.
In
sum, the Court concludes that the first detention hearing in the
applicant’s case was compatible with the minimal procedural
requirements inherently contained in Articles 5 § 4 of
the Convention.
2. Detention hearing of 22-23 December 2003
224. As
regards the second detention hearing (22-23 December 2003), it
was also held in private. The Court repeats that, by itself, this
characteristic of the detention proceedings is not incompatible with
the requirements of Article 5 of the Convention. Furthermore,
the detention order of 23 December 2003 was confirmed on
15 January 2004 by the appeal court in a public hearing.
Therefore, the Court does not detect any unfairness in respect of
this aspect of the proceedings. Other aspects, however, require
closer examination.
(a) Access to the prosecution file
225. The
applicant claimed that the defence had obtained a full copy of the
prosecution’s request for detention (which was 300-page long)
only on the second day of the hearing. The time allowed by the court
(one hour) to examine it and additional documents filed by the
prosecution in the course of the first day of the hearing was clearly
unsufficient.
226. The
Court reiterates that in Lamy v. Belgium
the Court found a violation of Article 5 § 4 because
the defence had no access to documents which would have enabled the
applicant to challenge his detention (judgment of 30 March
1989, § 29, Series A, no. 151). In
Garcia Alva v. Germany (no. 23541/94, § 42,
13 February 2001), the Court held that “information which
is essential for the assessment of the lawfulness of a detention
should be made available in an appropriate manner to the suspect’s
lawyer”. In this context the duty of disclosure is not the same
as under Article 6 of the Convention; however, the “essential”
materials should be made available to the defence some time in
advance.
The
Government in the present case do not seem to contest the applicant’s
assertion that the file submitted by the prosecution for the
detention hearing had run to over three hundred pages. Furthermore,
they implicitly acknowledged that while the defence had learned about
the prosecution request on 19 December 2003, on Friday, they did
not see the file until the day of the hearing (Monday 22 December
2003). Since week-end meetings were not allowed in the remand prison,
the defence lawyers could have consulted with their client only in
the courtroom. Finally, it is uncontested that the prosecution
submitted additional evidence on the second day of the hearing, and
the defence obtained only a one-hour adjournment to study it.
The
Court accepts, in line with the Government’s argument, that the
defence was aware of the content of some of the documents submitted
by the prosecution, for example, of the applicant’s own
testimonies. Nevertheless, it is difficult for a lawyer to defend his
client’s interests where the former has only a vague idea of
what could be in the materials relied on by the prosecution and
submitted to the court. Furthermore, as transpires from the
Government’s submissions, the file contained some other
documents, not available to the defence earlier.
The
Court is also mindful of the fact that the applicant was represented
by a group of skilful lawyers, and that the hearing lasted two days.
Most likely, at the end of the second day the defence learned about
the main arguments forwarded by the prosecution and became aware of
the content of the materials submitted by them. Furthermore, it is
also conceivable that not all of the documents in the 300-pages long
detention request were strictly relevant. However, in order to
ascertain whether that was so the defence team had to work under
tremendous time pressure. That time constraint cannot be explained by
the urgency of the situation. Whereas in the original detention
proceedings the Court was prepared to tolerate some haste (see above,
the Court’s analysis of the detention proceedings of 25 October
2003), it is not so where the subsequent detention orders are
concerned, especially where, as in the case at hand, the preliminary
investigation was closed and the case was ready to be transferred to
the trial court.
(b) Conditions in which the applicant had to
communicate with his lawyers
230. The
applicant also complained that during the detention hearings the
defence lawyers had been able to communicate with him only in
presence of a convoy officer and through the bars of the cage. The
Government did not dispute that assertion. They claimed that it was a
part of a standard security arrangement taken in every trial pursuant
to the instructions of the Ministry of Justice.
231. The
Court observes that although the Russian law provided that prison
officials should not be able to hear a conversation between a
detainee and his lawyer during their meeting in prison, no similar
provision existed insofar as the contacts between a defendant and his
lawyer in the courtroom were concerned. At least, the Government did
not point at any rules or instructions to that end. Quite the
contrary, the rules referred to by the Government did not define a
minimal distance between the defendant and the convoy officer,
leaving it at the officer’s discretion. The Court does
not know about any specific security considerations which would
justify a departure from the general rule of confidentiality of
lawyer-client contacts. The Court considers that such a
situation, where the conversation between the lawyer and his client
in the courtroom can be overheard by a law-enforcement official,
irrespective of the particulars of the case, can be an issue under
the Convention in itself.
Effective
legal assistance is inconceivable without respect for lawyer-client
confidentiality, which “encourages open and honest
communication” between them (see Castravet v. Moldova,
no. 23393/05, § 49, 13 March 2007). Moreover, “an
interference with the lawyer-client privilege ... does not
necessarily require an actual interception or eavesdropping to have
taken place. A genuine belief held on reasonable grounds that their
discussion was being listened to might be sufficient, in the Court’s
view, to limit the effectiveness of the assistance which the lawyer
could provide” (ibid, § 51). In the present case the
applicant had every reason to believe that his conversation with the
lawyers might be overheard. Such arrangements represented a serious
obstacle for effective legal assistance during the detention
proceedings.
(c) Effect of the appeal proceedings
Finally,
the Court cannot disregard the fact that the detention order of
23 December 2003 was confirmed by the court of appeal at the
hearing of 15 January 2004. By that date the defence were well
informed about the content of the prosecutor’s request for
detention, and they had, most likely, met with their client in normal
conditions. However, the Court considers that this did not cure the
defects of the hearing before the Basmanniy District Court. In the
Lebedev judgment the Court noted that the detention order
tainted with procedural defects became effective immediately, and it
took the appeal court twenty days to review it. Given that lapse of
time, the Court refused to accept such a retroactive validation of
the procedurally flawed detention order. The same logic applies here.
In view of the delays involved (more than two weeks), the appeal
hearing of 15 January 2004 was unable to cure the defects of the
detention order of 23 December 2004, at least retrospectively.
(d) Conclusions
The
Court notes that the detention hearing of 22-23 December 2003
was marked by the belated receipt of the detention
request and by the defence lawyers’ inability to communicate
freely with their client. Taking those defects in conjunction, it
placed the defence at a serious disadvantage vis-à-vis the
prosecution. In such circumstances the Court concludes that the
judicial review of the applicant’s detention was not compatible
with the minimal procedural requirements of Article 5 § 4
of the Convention.
3. Detention hearing of 20 May
2004
235. The
Court notes that the detention hearing of 20 May 2004 was held
without the attendance of either the applicant or his lawyers
or the prosecution. The Court notes that by that time the
Constitutional Court in its decision no. 132-O had
already interpreted the relevant provisions of the CCrP as giving the
accused a right to participate in a hearing where the question of his
further detention might eventually be decided. That approach was
later confirmed in the Constitutional Court’s Ruling no. 4-P
of 2005 (both authorities are cited in the “Relevant Domestic
Law” part above). The Government claimed that on
20 May 2004 that interpretation had not been known to the
Meshchanskiy District Court, since the decision of the Constitutional
Court of 8 April was published only on 9 June 2004. However,
this argument is irrelevant for the Court’s analysis under
Article 5 § 4. It is not so important when the
position of the Constitutional Court of Russia on the matter became
known to the authorities, since the situation under examination was
in any event contrary to the requirement of Article 5 § 4
of the Convention. The Court notes that at the hearing of 20 May
2004 the District Court extended the applicant’s detention for
up to six months, in the first detention order after the receipt of
the case-file by the court for the upcoming trial. In such
circumstances the applicant should have been given an opportunity to
plead his case, either personally, or at least through his lawyers,
if not both. As transpires from the materials of the case the
applicant was not given such an opportunity, for reasons which remain
unknown. The Court concludes that there was a breach of Article 5
§ 4 of the Convention on this account.
4. Detention hearing of 8 June 2004
It
appears that at the hearing of 8 June 2004 the applicant and his
lawyers were present and were capable of making submissions. The
Court does not detect any other major procedural irregularity which
would make this hearing “unfair” within the meaning of
Article 5 § 4 of the Convention. The fact that the
District Court gave no reasons at that hearing for its decision to
keep the applicant in detention has been addressed under Article 5
§ 3 above. The Court concludes that the hearing of 8 June
2004 was compatible with Article 5 § 4 of the
Convention.
5. The application for release of 16 June 2004
At
the hearing of 16 June 2004 the applicant lodged an application
for release with the Meschanskiy District Court, but the court
refused to consider it. The Meschanskiy District Court ruled that it
was not competent to review the lawfulness of the detention ordered
and extended by the Basmanniy District Court during the investigation
and by the Meschanskiy District Court itself on 20 May and
8 June 2004.
The
Court notes that, indeed, the District Court did not have the
competence to review previous detention orders retroactively, as a
court of appeal would do. However, nothing prevented the District
Court from assessing the need for the applicant’s continuing
and future detention, since the reasons initially warranting
detention might have ceased to exist, and the two previous detention
orders contained no reasons at all.
The
Court observes in this respect that no limitations on the right of
review of the continued detention could be derived from the
applicable law (see Article 255 of the CCrP, quoted in the
“Relevant Domestic Law” above). The CCrP does not
establish how often the trial court should return to the issue of a
defendant’s pre-trial detention. In principle, the defence may
lodge as many applications for release as it wishes.
The
Convention only guarantees review of the detention “at
reasonable intervals” (see, mutatis mutandis, Musiał
v. Poland [GC], no. 24557/94, § 43,
ECHR 1999 II). However, such intervals were not established
in the domestic law, and the applicant therefore had no clear
indication as to when it would be appropriate to lodge a new
application for release. Under Russian law the court was entitled to
impose detention for up to six months during the trial, but that
provision cannot be reasonably construed as establishing a mandatory
period of detention. To be detained under Article 5 § 1 (c)
for such a long period of time without any possibility for review
would be contrary to Article 5 § 4 of the Convention,
especially in circumstances where, as in the present case, the two
previous detention orders (of 20 May and 8 June 2004) were
clearly deficient and did not contain any reason for the continuing
detention.
The
Court concludes that in such circumstances the Meschanskiy District
Court ought to have considered the application for release of 16 June
2004, at least in so far as the need for the continuing detention was
concerned. By failing to do so the District Court breached the
applicant’s right under Article 5 § 4 of the
Convention.
6. Conclusions
The
Court finds that the detention hearings of 25 October 2003 and
8 June 2004 were compatible with the minimum procedural
guarantees required under Article 5 § 4 of the
Convention. In so far as the hearings of 22-23 December 2003,
20 May and 16 June 2004 are concerned, the authorities
failed to provide the applicant with an adequate review of the
lawfulness of his detention. There was therefore a breach of Article
5 § 4 on that account.
VII. ALLEGED VIOLATION OF ARTICLE 5 § 4
OF THE CONVENTION ON ACCOUNT OF DELAYS IN THE APPELLATE REVIEW OF THE
DETENTION ORDERS
The applicant further complains that it took the
Moscow City Court too long to hear his appeals against the original
detention order (of 25 October 2003) and its two extensions
(of 23 December 2003 and 19 March 2004). He referred to
Article 5 § 4 of the Convention, cited above.
A. The parties’ observations
In
the Government’s opinion, there were no unjustified delays in
the examination of the applicant’s appeals against the
detention orders, given that his appeals had always been sent to the
prosecution for comments. The applicant’s appeals against the
detention orders extending his detention pending trial had always
been considered within less than one month of their receipt by the
court, that is, within the time-limits stipulated in the domestic
legislation. In four instances the appeals had been examined within
ten to twenty days of their receipt by the appeal court; in two
instances these delays had been longer, but that had been justified
in the circumstances.
The
applicant argued that, contrary to the requirements of domestic law,
there had been a significant delay in the appeal hearings concerning
the first, second and third detention orders. According to the
applicant, consideration of the defence’s appeals against the
first three detention orders had lasted 17, 23 and 54 days
respectively.
B. The Court’s assessment
The
Court reiterates that under Article 5 § 4 a detainee
is entitled to take proceedings by which the lawfulness of his
detention shall be decided speedily. The Court has already addressed
the problem of delays in the appellate review of the detention orders
in a number of Russian cases, including the case of Lebedev,
cited above (§ 95). When determining
whether an application for release was decided “speedily”
the Court applies the same approach as with the reasonable time
guarantees of Articles 5 § 3 and 6 § 1: it must
be determined in the light of the circumstances of the individual
case. What is taken into account is the diligence shown by the
authorities, the delay attributable to the applicant and any factors
causing delay for which the State cannot be held responsible (cf. the
cases of Rehbock v. Slovenia,
no. 29462/95, §§ 82-88, ECHR 2000-XII);
Jablonski v. Poland, no. 33492/96, §§ 91-94,
21 December 2000; and G.B. v. Switzerland,
no. 27426/95, §§ 34-39, 30 November 2000).
1. Speediness of review
of the detention orders of 25 October and 23 December 2003.
Turning
to the present case the Court notes that the applicant calculated the
delays in the examination of his appeals starting from the dates of
the respective detention order by the Basmanny District Court.
However, it is more appropriate to calculate the time elapsed from
the moment when the defence lodged the appeal, because the preceding
period cannot be attributed to the State. It follows that, insofar as
the first two detention orders are concerned, the Government is
responsible for delays of five and sixteen days respectively. The
Court notes that it is called to consider the speediness of the
appeal proceedings, where the original detention order was imposed by
a judicial authority. In such circumstances it concludes that delays
of five and sixteen days do not amount to a breach of the
“speediness” requirement of Article 5 § 4.
2. Speediness
of review of the detention order of 19 March 2004.
As
regards the third delay, which amounted to one month and nine
days (i.e. between 2 April 2004, the date when the last brief of
appeal was lodged, until 12 May 2004, the date when the appeal
hearing was held), the Government explained it
by the need to obtain written submissions from the prosecution. The
Government did not invoke any other objective cause which might have
delayed the examination of the appeal. The Court considers in the
circumstances that the delay involved in the examination of the
appeal against the third detention order was excessive (see the case
of Lebedev,
cited above, § 102, where the period of 27 days was
found excessive in similar circumstances). The Court thus concludes
that there was a violation of Article 5 § 4 on this
account.
VIII. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION
The
applicant complained under Article 18 that the State had used
the criminal prosecution for a political end and in order to
appropriate the company’s assets. Article 18 of the
Convention provides:
“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 parties’ observations
The
Government submitted that the applicant’s allegations that his
criminal prosecution had been politically motivated were not
supported by the materials of the case. The Government referred to
the judgment delivered in the applicant’s case as proof that
the charges against him were serious and genuine. They also described
the events which had preceded the start of the investigation into the
activities of the Yukos management, especially with regard to the
Apatit case.
The
applicant maintained his allegation that his criminal prosecution had
been politically motivated. The applicant submitted that the above
materials were powerful evidence of ulterior purposes contrary
to Article 18. He had at the very least adduced “prima
facie evidence pointing towards the violation of that provision”
(Oates v. Poland (dec.), no. 35036/97, 11 May
2000), which the Government had entirely failed to address. The
fact that he had been convicted in no way precluded improper motives
in bringing the charges. Further, as a matter of Convention law, it
was immaterial whether there was evidence justifying the bringing of
the prosecution, if, as a matter of fact, it was brought for
“other purposes” (see Gusinskiy v Russia,
no. 70726/01, 19 May 2004). Indeed, the fact that he had
received a long sentence supported the inference of political
motivation. The travaux préparatoires for Article 18
indicated that the drafters of this provision were concerned to
ensure that an individual was thereby protected from the imposition
of restrictions arising from a desire of the State to protect itself
according “to the political tendency which it represents”
and the desire of the State to act “against an opposition which
it considers dangerous”. The applicant maintained his argument
that his arrest and consequent detention on 25 October, just a
few weeks before the Duma elections on 7 December 2003 and
shortly before the completion of the Sibneft/Yukos merger, had been
orchestrated by the State to take action against an opposition which
it considered “dangerous”, contrary to Article 18.
The
applicant asserted that those activities had been perceived by the
leadership of the country as a breach of loyalty and a threat to
national economic security. As a counter-measure the authorities had
undertaken a massive attack on the applicant and his company,
colleagues and friends.
In
support of his allegations the applicant submitted reports from
international and Russian media, various governmental and
non-governmental organisations, the PACE report “On the
circumstances surrounding the arrest and prosecution of leading Yukos
executives” (published
on 23 June 2009 by Mrs Leutheusser-Schnarrenberger, the Special
Rapporteur for the Parliamentary Assembly of the Council of Europe),
the US Senate resolutions on this subject, European Parliament
reports, documents of the UK House of Commons, decisions by the UK
courts in cases of extradition of several former Yukos managers to
Russia, and decisions by the Cypriot, Dutch, and Swiss courts to the
effect that the prosecution of the applicant was politically
motivated. In particular, the applicant referred to the words of the
Swiss Federal Tribunal, which in August 2007 found that the facts, if
analysed together, “clearly corroborate the suspicion that
criminal proceedings have indeed been used as an instrument by the
power in place, with the goal of bringing to heel the class of rich
‘oligarchs’ and sidelining potential or declared
political adversaries”. The applicant also quoted public
statements by several high-ranking Russian officials who had
acknowledged that “the Yukos case” had political
overtones (Mr Gref, Mr Illarionov, Mr Shuvalov,
Mr Mironov, Mr Kasyanov and some others). The applicant
produced witness statements by several former Yukos managers. He
further referred to his submissions within the case Khodorkovskiy
v. Russia (no. 2), no. 11082/06,
which contain a more detailed analysis of his political
activities and business projects.
B. The Court’s assessment
The
Court reiterates that it has already found that, at least in one
respect, the authorities were driven by improper reasons. Thus, the
Court found that the applicant had been arrested in Novosibirsk not
as a witness but rather as a suspect. However, the applicant’s
claim under Article 18 is different from his grievances under Article
5. The applicant maintained that the entire criminal prosecution of
Yukos managers, including himself, had been politically and
economically motivated. The Court reiterates in this respect that
“Article 18 of the Convention does not have an autonomous role.
It can only be applied in conjunction with other Articles of the
Convention” (Gusinskiy v. Russia, no. 70276/01,
§ 75, ECHR 2004-IV). In the light of the above
the Court will consider the applicant’s allegations under
Article 18 of the Convention in conjunction with his complaints under
Article 5 of the Convention, cited above.
The
Court reiterates that the whole structure of the Convention rests on
the general assumption that public authorities in the member States
act in good faith. Indeed, any public policy or an individual measure
may have a “hidden agenda”, and the presumption of good
faith is rebuttable. However, an applicant alleging that his rights
and freedoms were limited for an improper reason must convincingly
show that the real aim of the authorities was not the same as that
proclaimed (or as can be reasonably inferred from the context). A
mere suspicion that the authorities used their powers for some other
purpose than those defined in the Convention is not sufficient to
prove that Article 18 was breached.
When
an allegation under Article 18 is made the Court applies a very
exacting standard of proof; as a consequence, there are only few
cases where the breach of that Convention provision has been found.
Thus, in Gusinskiy v. Russia (no. 70276/01, § 73–78,
ECHR 2004-... (extracts), the Court accepted that the
applicant’s liberty was restricted, inter alia, for a
purpose other than those mentioned in Article 5. The Court in
that case based its findings on an agreement signed between the
detainee and a federal minister of the press. It was clear from that
agreement that the applicant’s detention was applied in order
to make him sell his media company to the State. In Cebotari
v Moldova (no. 35615/06, §§ 46 et seq.,
13 November 2007) the Court found a violation of Article 18
of the Convention in a context where the applicant’s arrest was
visibly linked to an application pending before the Court. However,
such cases remain rare (see, as an opposite example,
Sisojeva and Others v. Latvia [GC], no. 60654/00,
§ 129, ECHR 2007-II). Particularly, the Court notes
that there is nothing in the Court’s case-law to support the
applicant’s suggestion that, where a prima facie case of
improper motive is established, the burden of proof shifts to the
respondent Government. The Court considers that the burden of proof
in such a context should rest with the applicant.
In
the case at hand the applicant referred to various sources which
confirm his allegations of “improper motive”. First, he
invited the Court to consider the facts surrounding
his business and political activities, as well as the major policy
lines adopted by the President’s administration at the relevant
time. Indeed, those facts cannot be ignored. In particular,
the Court acknowledges that the applicant had
political ambitions which admittedly went counter to the mainstream
line of the administration, that the applicant, as a rich and
influential man, could become a serious political player and was
already supporting opposition parties, and that it was a State-owned
company which benefited most from the dismantlement of the
applicant’s industrial empire.
On
the other hand, any person in the applicant’s position would be
able to make similar allegations. In reality, it would have
been impossible to prosecute a suspect with the applicant’s
profile without far-reaching political consequences. The fact that
the suspect’s political opponents or business competitors might
directly or indirectly benefit from him being put in jail should not
prevent the authorities from prosecuting such a person if there are
serious charges against him. In other words, high political status
does not grant immunity. The Court is persuaded that the charges
against the applicant amounted to a “reasonable suspicion”
within the meaning of Article 5 § 1 (c) of the
Convention.
Nevertheless,
the combination of the factors mentioned above
have caused many people to believe that the applicant’s
prosecution was driven by the desire to remove him from the political
scene and, at the same time, to appropriate his wealth. The applicant
strongly relies on those opinions; in particular, he relies on
resolutions of political institutions, NGOs, statements of various
public figures, etc. The Court took note of those opinions. However,
it must recall that political process and adjudicative process are
fundamentally different. It is often much easier for a politician to
take a stand than for a judge, since the judge must base his decision
only on evidence in the legal sense.
Finally,
the Court turns to the findings of several European courts in the
proceedings involving former Yukos managers and Yukos assets. Those
findings are probably the strongest argument in favour of the
applicant’s complaint under Article 18 of the Convention.
However, the evidence and legal arguments before those courts might
have been different from those in the case under examination. More
importantly, assuming, that all courts had the same evidence and
arguments before them, the Court reiterates that its own standard of
proof applied in Article 18 cases is very high and may be
different from those applied domestically. The Court admits that the
applicant’s case may raise a certain suspicion as to the real
intent of the authorities, and that this state of suspicion might be
sufficient for the domestic courts to refuse extradition, deny legal
assistance, issue injunctions against the Russian Government, make
pecuniary awards, etc. However, it is not sufficient for this Court
to conclude that the whole legal machinery of the respondent State in
the present case was ab intio
misused, that from the beginning to the end the authorities were
acting with bad faith and in blatant disregard of the Convention.
This is a very serious claim which requires an incontrovertible and
direct proof. Such proof, in contrast to the Gusinskiy
case, cited above, is absent from
the case under examination.
In
such circumstances the Court cannot find that Article 18 was
breached in this case.
IX. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
Article
46 of the Convention, insofar as relevant, provides:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
A. Damage
The
applicant did not claim any pecuniary damage, although, in his words,
his pecuniary losses due to his arrest and subsequent criminal
prosecution were very considerable. As to non-pecuniary damage, the
applicant claimed EUR 10,000, which he characterised as a
“deliberately modest” claim. The Government insisted that
even such a claim was excessive and that, if the Court found any
violation of the Convention, a simple finding of a violation would
suffice.
The
Court observes that it has found several violations of Articles 3
and 5 of the Convention in this case. Those violations caused the
applicant certain stress and frustration, which cannot be compensated
solely by the findings of violations. Making its assessment on an
equitable basis, it awards the applicant the amount claimed, i.e.
EUR 10,000 under this head, plus any tax that may be chargeable.
B. Costs and Expenses
The
applicant claimed EUR 14,543 under the head of costs and
expenses incurred by the participation in the proceedings of one of
his lawyers, Ms Moskalenko. The applicant submitted a copy of
the agreement between the applicant’s wife, Ms Khodorkovskaya,
and Ms Moskalenko, concerning the representation of the
applicant’s interests before the European Court, as well as
several receipts confirming payment to Ms Moskalenko of the sums
due under the contract. The overall amount due from the applicant for
the services of Ms Moskalenko was 500,000 Russian Roubles (which
corresponded to EUR 14,543 at the time when the agreement was
concluded).
The
Government claimed that the costs claimed by the applicant were
unsubstantiated.
Having
regard to the documents submitted by the applicant, to the subject
matter under the Convention, and to the procedure adopted before the
Court in this case, the Court finds that the amount claimed by the
applicant was both necessarily incurred and reasonable as to
quantum. In such circumstances the Court considers it reasonable
to award the applicant the whole amount claimed for the costs and
expenses incurred by the applicant’s legal representative,
namely EUR 14,543, plus any tax that may be chargeable to the
applicant.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
D. Specific individual measures
Referring
to the Court’s case-law under Article 46 of the
Convention, the applicant finally asked the Court to indicate to the
Russian Government certain specific individual measures, as the Court
had done in several previous cases. In particular, he asked the Court
to direct the Government to ensure that the applicant is not kept in
a cage of any sort during subsequent proceedings and that
international observers be allowed to visit him in prison, if needed,
to investigate the conditions of his incarceration. The Government
did not make any specific submissions in respect of this claim by the
applicant.
The Court reiterates in this respect that its
judgments are essentially declaratory in nature and that, in general,
it is primarily for the State concerned to choose, subject to
supervision by the Committee of Ministers, the means to be used in
its domestic legal order in order to discharge its obligation under
Article 46 of the Convention. The Court will seek to indicate the
type of measure that might be taken only exceptionally, for example
to put an end to a systemic problem, as in Broniowski
v. Poland [GC] (no. 31443/96, § 194,
ECHR 2004-V), or to discontinue a continuous situation, as in
Hasan and Eylem Zengin v. Turkey (no. 1448/04, § 84,
ECHR 2007-XI; see also L. v. Lithuania,
no. 27527/03, § 74, ECHR 2007 X). In other
exceptional cases, the nature of the violation found may be such as
to leave no real choice as to the measures required to remedy it and
the Court may decide to indicate only one such measure
(see Assanidze, referred to above; see also Abbasov
v. Azerbaijan, no. 24271/05, §§ 35 et
seq., 17 January 2008, and Aleksanyan v Russia,
no. 46468/06, § 240, 22 December 2008). Finally,
in some situations the Court indicated to the respondent Government
how to remedy a violation found in the applicant’s case, for
example, by way of reopening of the proceedings which had been
fundamentally unfair (see Maksimov v. Azerbaijan,
no. 38228/05, § 46, 8 October 2009), or by
transferring the applicant’s pension rights to a specific
pension fund (see Karanović v. Bosnia and Herzegovina,
no. 39462/03, §§ 28 et seq., 20 November
2007).
Turning
to the present case the Court considers that the applicant’s
request for specific measures does not belong to any of these
categories. The applicant did not request the Court to indicate to
the Government how past violations should be remedied but rather
asked the Court to prevent future possible violations of the same
kind. However, the Court’s primary role is to examine facts,
and not to make assumptions for the future, especially where those
assumptions would depend on a multitude of factors and be, therefore,
speculative. The Court considers that the circumstances of the
present case are different from those of Broniowski, Hasan
and Eylem Zengin or Aleksanyan, referred to above. The
Court considers that in casu there is no need to indicate any
specific measure under Article 46 of the Convention to the
respondent Government other than the payment of the just satisfaction
award. The determination of other measures, in pursuance to the
substantive findings of the Court in this case, is therefore left to
the discretion of the Committee of Ministers.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of
Article 3 of the Convention in respect of conditions of the
applicant’s detention in remand prison IZ-77/1 between 25 and
27 October 2003;
Holds that there has been no violation of
Article 3 of the Convention in respect of the conditions of
the applicant’s detention in remand prison IZ-99/1 between
27 October 2003 and 8 August 2005;
Holds that there has been a violation of
Article 3 of the Convention in respect of the conditions of
the applicant’s detention in remand prison IZ-77/1 between
8 August 2005 and 9 October 2005;
Holds that there has been a violation of
Article 3 of the Convention in respect of the conditions in the
courtroom before and during the trial;
Holds that there has been a violation of
Article 5 § 1 (b) of the Convention in respect of
the applicant’s apprehension in Novosibirsk on 25 October
2003;
Holds that there has been no violation of
Article 5 § 1 (c) of the Convention;
Holds that there has been a violation of Article
5 § 3 of the Convention in that the applicant’s
continuous detention was not justified by compelling reasons
outweighing the presumption of liberty;
Holds that there has been no violation of
Article 5 § 4 of the Convention on account of the procedure
in which the detention was imposed on the applicant on 25 October
2003;
Holds that there has been a violation of
Article 5 § 4 of the Convention on account of the
procedure in which the applicant’s detention was extended at
the hearings of 22-23 December 2003;
Holds that there has been a violation of
Article 5 § 4 of the Convention on account of the
procedure in which the applicant’s detention was extended on
20 May 2004;
Holds that there has been no violation of
Article 5 § 4 of the Convention on account of the
procedure in which the extension of the applicant’s detention
was confirmed on 8 June 2004;
Holds that there has been a violation of
Article 5 § 4 of the Convention on account of the
Meschanskiy District Court’s refusal to consider the
applicant’s application for his release on 16 June 2004;
Holds that there has been no violation of
Article 5 § 4 of the Convention on account of the
speediness of review of the detention orders of 25 October and
23 December 2003;
Holds that there has been a violation of
Article 5 § 4 of the Convention on account of the
speediness of review of the detention order of 19 March 2004;
Holds that there has been no violation of
Article 18 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian Roubles at the rate applicable
at the date of settlement:
(i) EUR
10,000 (ten thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
14,543 (fourteen thousand five hundred and forty-three euros), plus
any tax that may be chargeable to the applicant, in respect of costs
and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the applicant’s request for
indication of specific measures under Article 46 of the Convention;
Done in English, and notified in writing on 31 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
