Legal

KHODORKOVSKY AT THE EUROPEAN COURT OF HUMAN RIGHTS

Since 2004, Mikhail Khodorkovsky has brought four applications to the European Court of Human Rights (ECtHR).

Khodorkovsky’s First Application to the ECtHR

On May 31, 2011 the ECtHR gave its judgment (full text available online here: enter 5829/04 in the “Application Number” field on the HUDOC Search Portal) in response to Khodorkovsky’s first application, lodged on February 9, 2004. The ECtHR ruled that there had been violations of Khodorkovsky’s fundamental human rights in connection with his arrest and detention between 2003 and 2005, including degrading prison conditions, inhuman and degrading conditions in the courtroom throughout his first trial, detention unjustified by compelling reasons outweighing the presumption of liberty, and unfair hearings reviewing his detention.

Khodorkovsky did not claim any pecuniary damage, although his pecuniary losses due to his arrest and subsequent criminal prosecution were considerable. Instead he made a deliberately modest claim for non-pecuniary damages of €10,000, awarded to him in full by the ECtHR. Khodorkovsky stated that when these funds are paid by the Russian Federation, he will donate to them to charity.

Khodorkovsky’s first application to the ECtHR claimed in part that his arrest and detention from 2003 to 2005 were politically and economically motivated, but the ECtHR declined to agree fully, stating that Khodorkovsky had not provided “incontrovertible and direct proof” in this regard. Khodorkovsky had invoked Article 18 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, under which restrictions permitted to rights and freedoms “shall not be applied for any purpose other than those for which they have been prescribed”. The ECtHR accepted that it was reasonable to suspect that there were improper motivations behind the prosecution of Khodorkovsky. According to the judgment: “The Court admits that the applicant’s case may raise a certain suspicion as to the real intent of the authorities,” and “this state of suspicion might be sufficient for” domestic European courts “to refuse extradition, deny legal assistance, issue injunctions against the Russian Government, make pecuniary awards, etc.” However, for the purposes of the ECtHR, the judges stated that Khodorkovsky would have to provide “incontrovertible and direct proof” that would enable them to conclude “that the whole legal machinery of the respondent State in the present case was ab initio misused, that from the beginning to the end the authorities were acting with bad faith and in blatant disregard of the Convention.” The judgment in response to Khodorkovsky’s first application to the ECtHR thus created an almost impossible burden for proving politically motivated prosecutions.

To verify the position of the ECtHR, which had never before used this standard of proof for claims under Article 18, Khodorkovsky requested that his application be referred to the ECtHR Grand Chamber for reconsideration. In response to this request, on November 28, 2011, a panel of judges of the ECtHR Grand Chamber reaffirmed the ECtHR’s position by declining to refer Khodorkovsky’s application for reconsideration.

In a response to a question from the Finnish newspaper Helsingin Sanomat, in an interview published January 11, 2011, Khodorkovsky noted that the political motivation behind his arrest and incarceration “is conceded openly even by Russian civil servants”, and he speculated that the ECtHR “is forced to relent in certain matters to those in power in Russia” so as not to endanger “the impact of its decisions on the situation in Russia”.

Nevertheless, it should be noted that Khodorkovsky’s first application dealt only with events that occurred from 2003 to 2005, and since then the amount of evidence of the improper motivations of the authorities has only increased. The ECtHR will consider this evidence in Khodorkovsky’s pending applications.

Khodorkovsky’s Second Application to the ECtHR

Khodorkovsky’s second application concerns his first trial from 2004 to 2005 and his subsequent banishment to eastern Siberia. On November 8, 2011 the ECtHR ruled on the admissibility (full text available online here: tick “Decisions” box and enter 11082/06 in the “Application Number” field on the HUDOC Search Portal) of claims in Khodorkovsky’s second application, lodged on March 16, 2006. Specifically, the ECtHR agreed to hear complaints relating to the partiality of a judge, breaches of the presumption of innocence, the right to adequate time and facilities to prepare a defence, Khodorkovsky’s transfer to a prison in Siberia 6,900 kilometres away from his family and the politically motivated nature of the proceedings. Although the admissibility ruling on the second application does not prejudge the merits of the case, it marks another important step in Khodorkovsky’s legal fight against the actions of the Russian state.

Khodorkovsky’s Third and Fourth Applications to the ECtHR

Khodorkovsky’s third application concerns his treatment in Siberian detention facilities beginning in 2005, along with the bringing of new charges against him in 2007 and violations of his human rights in connection with his second trial from 2009 to 2010.

Khodorkovsky’s fourth application concerns deeply prejudicial comments about him made by then-Prime Minister Vladimir V. Putin on Russian national television in December 2010, violating Khodorkovsky’s right to be presumed innocent.

The calendar of the ECtHR’s rulings on Khodorkovsky’s pending applications has not been announced and cannot be reliably predicted.

PLATON LEBEDEV AT THE EUROPEAN COURT OF HUMAN RIGHTS

Since 2004, Platon Lebedev has brought four applications to the ECtHR, generally in step with the individual applications brought separately by his co-accused business partner Khodorkovsky, described above.

Lebedev’s First Application to the ECtHR

On October 25, 2007 the ECtHR gave its judgment (full text available online here: enter 4493/04 in the “Application Number” field on the HUDOC Search Portal) in response to Lebedev’s first application, lodged on January 22, 2004. The application concerned violations of Lebedev’s fundamental human rights in connection with his arrest and detention between 2003 and 2004, prior to his first trial. The ECtHR found that Lebedev had been detained illegally, that hearings were conducted without his attorneys or Lebedev himself present and that proceedings were repeatedly unlawfully delayed.

In response to the ECtHR’s October 2007 judgment in Lebedev v. Russia, in December 2009, over two years after the ECtHR judgment, Russia’s Supreme Court conceded that Lebedev had indeed been treated illegally. By then Lebedev was again facing prosecution in a second trial, and the Supreme Court’s ruling had no impact on those proceedings.

The ECtHR ordered Russia to pay €10,000 damages to Lebedev. Declaring that his application to the ECtHR was motivated exclusively by the desire to gain justice and objectivity in the assessment of his treatment by the Russian authorities, Lebedev split his award into equal donations to the Andrei Sakharov Museum in Moscow and the Podmoskovny Lyceum in the town of Koralovo, near Moscow.

Lebedev’s Second Application to the ECtHR

On May 27, 2010, the ECtHR ruled on the admissibility of claims by Lebedev in his second application, lodged on March 28, 2005. Without prejudging the merits, the ECtHR declared admissible Lebedev’s complaints concerning the conditions of his detention in a remand prison and in the courtroom during his first trial, the length of his detention pending investigation and trial and the proceedings in which it was extended, the trial court’s lack of impartiality, the breach of his right to be presumed innocent by his placement in a metal cage during the trial, the unfairness in handling of evidence by the courts, the lack of adequate time and facilities for the preparation of his defence and the lack of effective legal assistance, the unforeseeable application of tax law, the inability to maintain family and social ties from the place where he was sent to serve his sentence, and the improper reasons for his criminal prosecution.

Lebedev’s Third and Fourth Applications to the ECtHR

As is the situation for Khodorkovsky, the calendar of the ECtHR’s rulings on Lebedev’s pending applications has not been announced and cannot be reliably predicted.

VASILY ALEXANYAN AT THE EUROPEAN COURT OF HUMAN RIGHTS

Vasily Alexanyan was a Yukos executive and former company lawyer jailed in Moscow in April 2006. Alexanyan was held in inhumane pre-trial detention conditions and deprived of medical treatment despite the fact that the authorities were aware that he was infected with HIV. He was repeatedly pressured to provide false testimony against Mikhail Khodorkovsky in exchange for medical treatment, but he steadfastly refused. With a compromised immune system and lacking appropriate medical treatment in detention for almost two years, he developed tuberculosis and became terminally ill with lymphatic cancer. He died in October 2011 at the age of 39.

During Alexanyan’s detention the ECtHR repeatedly issued interim measures to the Russian authorities (Interim measures are urgent requests to the authorities of a country sent only in limited situations: typically where there are fears of a threat to life or ill-treatment, for example due to torture. Read more here) The ECtHR called upon Russia to secure immediately Alexanyan’s transfer to an appropriate hospital for in-patient treatment, to submit a copy of Alexanyan’s medical file to the ECtHR and to form a medical commission including independent doctors to diagnose Alexanyan’s health problems and suggest treatment. The Russian authorities repeatedly ignored the ECtHR’s interim measures as Alexanyan’s health worsened.

The ECtHR accelerated Alexanyan’s case in view of the gravity of his medical conditions. In a December 22, 2008 judgment concerning Alexanyan’s application lodged on November 16, 2006, the ECtHR ruled that there had been a violation of the prohibition of inhuman or degrading treatment on account of the lack of proper medical assistance in the remand prison, that there had been a violation of the right to liberty and security on account of the failure of the domestic courts to adduce relevant and sufficient reasons to justify Alexanyan’s continuous detention, that there had been a violation of the right to respect for private and family life on account of searches in Alexanyan’s premises, that Russia had failed to meet its obligations under the European Convention on Human Rights by not complying promptly with interim measures, and that Alexanyan’s detention on remand should be discontinued.

The ECHR found that the Russian authorities’ failure to provide timely treatment to Alexanyan “undermined [his] dignity and entailed particularly acute hardship…which amounted to inhuman and degrading treatment” and which put Alexanyan’s “health and even life in danger.” The ECtHR further found that “in view of the gravity of the applicant’s illnesses, the Court considers that the applicant’s continuous detention is inacceptable.”

Alexanyan was released on bail in January 2009. In June 2009 the ECtHR refused a request from the Russian government to refer the Alexanyan case for reconsideration, confirming the finality of the December 2008 judgment. Meanwhile, in Russia, even after Alexanyan’s release, the authorities continued to pursue the case against him until it was finally dismissed in 2010.

YUKOS AT THE EUROPEAN COURT OF HUMAN RIGHTS

On September 20, 2011, the ECtHR released its June 24, 2011 judgment in an application lodged by Yukos on April 23, 2004. The case involved a multi-billion-dollar claim for compensation for Russia’s unlawful expropriation of Yukos. Mikhail Khodorkovsky was not a party to this case and played no part in the proceedings. However, Khodorkovsky’s lawyers welcomed the ECtHR’s findings of serious breaches of fair trial and property rights committed by Russia in its treatment of Yukos. Khodorkovsky’s position has always been that Yukos – the largest private taxpayer in Russia – was forced into an unwarranted and unjust state-orchestrated bankruptcy by corrupt officials at the highest levels, and that long into the future, the Russian people will continue to pay the tremendous economic, political and social costs of the destruction of this company that was on the vanguard of their country’s modernisation.

The considerations the judges faced in assessing Yukos’s claim for compensation are not the same as those in Khodorkovsky’s applications before the ECtHR. Since his detention in 2003, Khodorkovsky has fought to establish that there have been flagrant and relentless violations of fundamental human rights, and in particular the right to a fair trial. Financial redress for breaches of property rights is not the purpose of Khodorkovsky’s applications to the ECtHR.

For more information about the Yukos case at the ECtHR, please visit The Yukos Library.

There is a prevailing consensus internationally that with respect to Yukos-related cases, Russia’s justice system is so politically corrupted that no foreign authorities respecting human rights and the rule of law should morally or legally cooperate with Russian requests for mutual legal assistance, asset freezes or extraditions.

The international nature of Yukos’s operations, and the mobility of people and assets in the globalised world, led the Russian authorities to pursue Yukos-connected individuals and assets abroad. To do so, Russia has repeatedly attempted to exploit mechanisms for international cooperation with other countries. The Russian authorities have sought the arrest and extradition, including through INTERPOL Red Notices, of Yukos-connected individuals and attempted to freeze their assets abroad.

From 2003 to the present day, these efforts by Russian authorities acting in Yukos-related cases have been intended to harass or strike fear into people who have fled to safety abroad in order to coerce their cooperation or obtain false testimony. In addition, Russia is abusing mechanisms of international cooperation in order to smear the reputations of Mikhail Khodorkovsky and others by painting them as international criminals. This smear campaign attempts to counter the overwhelming support and sympathy Khodorkovsky has received worldwide. All of these actions involve not the pursuit of true justice, but rather an effort to legitimise sham criminal proceedings in Russia.

Russia’s abuses of international mechanisms for cooperation in Yukos-connected cases have overwhelmingly failed in their objectives, and in fact have proven counterproductive by exposing the improper motives and baseless charges behind these cases and raising doubts about Russia as an honest and reliable interlocutor.

SWISS FEDERAL TRIBUNAL

Since 2003, Russian authorities have sent requests for mutual legal assistance to their counterparts in various countries where Yukos or other enterprises connected to Khodorkovsky conducted business. These countries have included Lithuania, the Netherlands, Poland, Switzerland and others.

In a landmark decision in August 2007, the Swiss Federal Tribunal – Switzerland’s highest court – ruled that Swiss authorities must not comply with their Russian counterparts’ requests for assistance concerning Khodorkovsky/Yukos cases. The Tribunal validated a series of appeals from Khodorkovsky and several of his former business associates who had asserted that if Swiss authorities assisted their Russian counterparts in response to requests for documents, asset freezes and such actions, grave moral and legal injustices would result.

The judgment cited several legal violations in the criminal proceedings against Khodorkovsky and his associates, and deemed those proceedings to be politically motivated. In assessing the evidence, the Tribunal stated: “All of these facts, taken 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.” According to the judges, “Switzerland would be in breach of its international obligations if it cooperated with a foreign criminal proceeding presenting a risk of treatment of an accused, particularly discriminatory treatment, which is inconsistent with minimal guarantees recognised under international law.” The Tribunal also revealed details of Russia’s inability or refusal to satisfy Switzerland’s requests for justifications regarding the Khodorkovsky-related requests: Russia’s responses to legitimate Swiss questions were deemed “scattered and evasive” and without credibility.

This was the first time in history, outside of extradition cases, that Switzerland rejected a mutual legal assistance request from authorities in another country.

Click here for the full original text of the Swiss Federal Tribunal’s decision, in French, and click here for an unofficial English translation.

In a prelude to its landmark 2007 decision, in 2004, after $5 billion in assets in various Yukos-connected accounts had been frozen upon Russia’s request, the Swiss Federal Tribunal unfroze more than 90% of these assets. The Tribunal found no link between the unfrozen assets and the ostensibly related criminal charges that Russia had brought against Khodorkovsky, and indeed found that the criminal allegations against Khodorkovsky were deficient. The majority of the assets that had been targeted by the Russian authorities were shares held by Veteran Petroleum, the pension fund that had been established for former Yukos employees as one of the company’s groundbreaking corporate social responsibility initiatives.

EXTRADITION CASES

Russian Law Enforcement Agencies’ Abuse of INTERPOL

INTERPOL, the global police organisation with 190 member countries, enables police around the world to cooperate and help each other. Russia has not hesitated to seek the arrest and extradition of Yukos-connected individuals abroad by requesting that INTERPOL publish Red Notices, which seek global assistance in locating and arresting wanted persons with a view to their extradition.

Russian authorities have repeatedly made public comments about their use of INTERPOL in Yukos-related cases. In an interview with Russian news agency ITAR-TASS published in February 2012, the head of Russia’s National Central Bureau for INTERPOL said his country has asked INTERPOL to issue wanted notices for 19 Yukos-connected individuals, many of whom are in the United Kingdom.

As observed by Fair Trials International, INTERPOL membership is open to “democracy and dictator alike”, and therefore INTERPOL “is open to abuse by oppressive states to pursue their political opponents.” Fair Trials International has launched a campaign to prevent the abuse of INTERPOL by prosecutors in member countries. As stated in a July 2011 article published by the Center for Public Integrity, the fact that INTERPOL’s operations are based on the presumption that police from member countries “are telling the truth and are acting with integrity” has raised concerns that INTERPOL can be misused by some regimes to pursue political opponents and refugees.

The international reach of Russia’s law enforcement agencies through INTERPOL has been a means of continued harassment, intimidation, coercion and retribution against Yukos-connected individuals who have fled to safety abroad.

Extradition Requests

In a series of extradition cases outside of Russia, courts and public authorities have consistently sided with Yukos-connected individuals fleeing the Russian justice system. Countries including Cyprus, Israel, Lithuania, Spain and the United Kingdom have all refused to assist Russian justice officials in their efforts against Yukos-connected individuals abroad. Several Yukos-connected individuals abroad have been granted asylum in their host countries.

In 2005, rulings from London’s Bow Street Magistrates’ Court (Government of the Russian Federation v. Dmitry Maruev and Natalya Chernysheva, March 18, 2005, and Russian Federation v. Temerko, December 23, 2005), refusing Russia’s request that the United Kingdom extradite three Yukos-connected individuals, set the tone for similar decisions elsewhere in the world. Senior District Judge Timothy Workman held that the trials that would await the individuals, if extradited, would be politically motivated in the same way the proceedings against Khodorkovsky had been. Judge Workman observed that “Mr Khodorkovsky was seen as a powerful political opponent of Mr Putin”, “it is more likely than not that the prosecution of Mr Khodorkovsky is politically motivated,”and, ultimately, “[I]n respect of this particular case I am satisfied that it is so politically motivated that there is a substantial risk that the judges of the Moscow City Court would succumb to political interference in a way which would call into question their independence.”

Mikhail Khodorkovsky is not a party to and plays no part in the Yukos-related proceedings described below. The information on this page about shareholder suits and other proceedings outside Russia is provided because it is pertinent to Khodorkovsky’s long-held position that Yukos was a victim of an unlawful expropriation through unjust and unwarranted tax claims forcing the company into a state-orchestrated liquidation for the benefit of associates of President Putin.

GML ENERGY CHARTER TREATY ARBITRATION, PERMANENT COURT OF ARBITRATION, THE HAGUE

In the largest-valued international arbitration in history, former Yukos majority shareholders are seeking compensation from Russia for an aggregate amount of approximately $100 billion. The claimants are two GML subsidiaries (Hulley Enterprises and Yukos Universal), and Veteran Petroleum, the pension fund for the benefit of former Yukos employees.

GML is a holding company that had a majority stake in Yukos. Mikhail Khodorkovsky owned a beneficial interest in GML, then known as Group Menatep Limited, until 2004.

In November 2009, GML won a set of crucial decisions on jurisdiction and admissibility in the arbitral proceedings it had commenced against Russia in February 2005 under the Energy Charter Treaty, which protects foreign investments in the energy sector. The arbitral tribunal at the Permanent Court of Arbitration in The Hague allowed GML to pursue claims for approximately $100 billion in damages from Russia for the unlawful destruction of Yukos. GML asserts that measures taken by Russia, including criminal prosecutions, tax reassessments and the annulment of Yukos’s merger with Sibneft, left GML’s investments in Yukos virtually worthless. The arbitral tribunal decided that Russia is bound by its 1994 signature of the Energy Charter Treaty despite the Russian parliament’s subsequent failure to ratify it. This decision cleared the way for GML to proceed to the merits phase of its claims.

The recognition that Russia is bound by obligations that arose with its signature of the Energy Charter Treaty was welcomed by the US Helsinki Commission as an “important step for Russia in promoting investor confidence, investment protection, corporate transparency and adherence to international treaties”.

Click here for more information and the full text of the November 2009 decisions.

ARBITRATION INSTITUTE OF THE STOCKHOLM CHAMBER OF COMMERCE

An arbitration tribunal in Sweden found Russia liable for the expropriation of RosInvestCo UK Ltd, a minority Yukos shareholder. According to the decision of the Arbitration Institute of the Stockholm Chamber of Commerce, dated September 2010, Russia must pay damages to RosInvestCo as a result of the expropriation of Yukos. The tribunal stated that the expropriation of Yukos was “unlawful, not in the public interest, discriminatory and without payment of compensation” (read more). This outcome was significant because it was the first time that a non-Russian court or tribunal had decided on the merits of an expropriation claim filed against Russia by former Yukos investors.

In Rovime Inversiones et al v. Russian Federation, Spanish investors in July 2006 sought compensation from Russia for the forced bankruptcy of Yukos. The former Yukos investors are seeking redress through arbitration in Sweden, on the basis of the Russia-Spain Bilateral Investment Treaty. In April 2009, the Spanish investors won a groundbreaking ruling in the Arbitration Institute of the Stockholm Chamber of Commerce, exposing Russia to potentially dozens of additional lawsuits. The tribunal ruled that the case was admissible and a decision on the merits is expected in 2012.

PROCEEDINGS IN THE NETHERLANDS

In a battle over significant Yukos assets outside Russia, in October 2007 a court in the Netherlands refused to recognize the legitimacy of the Yukos bankruptcy in Russia. The Amsterdam District Court held (click here for the full original text of the decision, in Dutch, and click here for an unofficial English translation) that tax proceedings Russia instituted against Yukos “cannot stand the test of criticism”, violating “fundamental principles of due process of law” such that Yukos’s bankruptcy was “in violation of public order and cannot be recognised in the Netherlands for that reason.” The court held that the Russian bankruptcy order appointing a receiver was “not in accordance with the Dutch principles of due order of process” and thus “in violation of Dutch public order.” The Russian receiver’s decisions affecting assets outside Russia “were taken without authority, are therefore in violation of the law, and for that reason are null and void.” The court further noted that the receiver’s actions were “contrary to public morality since they were inspired by objectionable motives and focused in whole or in part on sidelining the legitimate creditors of Yukos Oil.”

Other legal proceedings underway internationally involve battles between former Yukos management and Rosneft over Yukos assets outside of Russia. For more information, please visit The Yukos Library.