Lawyers for the Applicants call on the Committee of Ministers to ask Russia to explain its complete failure to implement the European Court’s judgment

Lawyers for the Applicants have lodged an urgent submission at the Committee of Ministers at the Council of Europe.  In it they call on the Committee of Ministers to demand an explanation from the Russian Government as to its complete failure to implement the European Court’s judgment on the applications that arose from the first criminal trial of the Applicants.

The submission concerns the European Court’s judgment in Khodorkovskiy and Lebedev (no. 2) v Russia, no. 11082/06, which was given on 25 July 2013 and which became final on 25 October 2013[1] (when it was confirmed that Russia would not seek to overturn it in the Grand Chamber of the European Court).    In the judgment the European Court found numerous serious findings of breaches of the European Convention.  The European Court noted that the Applicant’s lawyers “did not submit any claim for pecuniary damage. Under the head of non-pecuniary damages, he sought a ‘deliberately modest’ amount of EUR 10,000.”  The Court went on to grant the applicant “the sum sought, i.e. EUR 10,000, plus any tax that may be charged on that amount”.    The Russian Government had until 25 January 2014 to pay that sum.  In breach of its international obligations, the Russian Government has yet to pay the money which had been awarded and which the Applicant has indicated he wishes to be given to charity.

One of the European Court’s most important findings was in relation to the massive civil damages award that was made imposed on the two men in the first trial.   The trial court ordered the Applicants to pay 17.4 billion roubles (equivalent at the date to €500 million) that was said to relate to taxes paid in 1999-2000 by YUKOS affiliates in YUKOS promissory notes.   The European Court was damning in its criticism of that decision. It found the entirety of the award to be in breach of Article 1 of Protocol No 1 of the Convention.  The European Court said the Meshchanskiy District Court’s judgment “had no support either in the law or in judicial practice”[2] and concluded that “neither the primary legislation then in force nor the case-law allowed for the imposition of civil liability for unpaid company taxes on that company’s executives. This leads the Court to the conclusion that the award of damages in favour of the Tax Service was made by the Meshchanskiy District Court in an arbitrary fashion and thus contrary to Article 1 of Protocol No. 1 to the Convention.”[3]

Under Russian law a finding by the European Court of a violation of the Convention is a ground for resuming proceedings in a criminal case.  Consequently the Russian Supreme Court was asked to reconsider the judgment which it did in January 2014.   Despite the unequivocal terms of the European Court’s decision, the Russian Supreme Court left the civil damages award entirely unchanged.  The reasoning of the Russian Supreme Court has been severely criticised by then Applicant’s lawyers.  In their submission to the Committee of Ministers they say the Supreme Court’s decision “wholly fails to engage with the European Court’s detailed analysis and judgment in relation to the violation of Article 1 of Protocol No 1.  It is contradicted by the facts as well as the applicable law.  There can be no doubt that by dint of the RF Supreme Court’s judgment the Government of the Russian Federation has wholly failed to give effect to this aspect of the European Court’s judgment.”

The lawyers went to argue that the Russian Government’s non-compliance had “grave consequences” for the Applicants “because of the enormous size of the falsified damages award in the suit that have been left in place against Mr Khodorkovskiy (and Mr Lebedev).   It represents a Sword of Damocles hanging over their heads. As a consequence Mr Khodorkovskiy is unable to return to Russia whilst Mr Lebedev has been denied a passport and so cannot leave Russia. Each of them undoubtedly suffers “grave consequences” because of the failure to give effect to the European Court’s unequivocal findings.”

In their submission, lawyers for the Applicants have called on the Committee of Ministers to pass a resolution asking the Russian Government “to explain the steps that they intend to take so as to “ensure that the violation has ceased and that the injured party is put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention” as required under the Rules of the Committee of Ministers.”