KHODORKOVSKIY (2) – v – RUSSIAN FEDERATION[1]

LEBEDEV (2) – v – RUSSIAN FEDERATION[2]

European Court of Human Rights Judgment 25 July 2013[3]

QUESTIONS & ANSWERS

1.  Are you satisfied with this judgment?

Yes.

The Court found that the first trial of Mikhail Khodorkovsky and Platon Lebedev from 2004 to 2005 was riddled with serious violations of the European Convention and was unfair.

Khodorkovsky’s lawyer, Karinna Moskalenko stated: “The Court’s finding is of huge significance: Khodorkovsky and Lebedev did not receive a fair trial.” She further stated: “The judgment that the trial was not fair – and the fact that Khodorkovsky and Lebedev served eight years in prison on the basis of an unfair trial – necessitates the release of both men without further delay.”

2.  Why did the Court say that the case was not politically motivated?

This is completely inaccurate.  That is not what the Court said.

The Court said that it did “not exclude that in…the proceedings [against Khodorkovsky and Lebedev] some of the authorities or State officials might have had a ‘hidden agenda’”[4].  It is also said that it was “prepared to admit that some political groups or government officials had their own reasons to push for the applicants’ prosecution.”[5]

The Court further stated that: “it is clear that the authorities were trying to reduce political influence of ‘oligarchs’, that business projects of Yukos ran counter to the petroleum policy of the State, and that the State was one of the main beneficiaries of the dismantlement of Yukos.”[6]

The Court further noted: “In 2005 Amnesty International stated that it believed there was a ‘significant political context to the arrest and prosecution’ of the applicants and other Yukos staff. Several other NGOs made declarations to the same effect.”[7] In 2011 Amnesty International designated Khodorkovsky and Lebedev as Prisoners of Conscience.

On this aspect of the judgment, Ms Moskalenko stated:

“The Court accepted that it is reasonable to suspect that there was a political motivation in prosecuting Khodorkovsky, but it took the position that Khodorkovsky did not provide ‘incontrovertible and direct proof’ of what the overwhelming majority of experts believe, that, of course, this was a political persecution. The standard of proof the Court requires on Article 18 rulings is inordinately high – it hardly ever rules positively on them.”

Ms Moskalenko commented that the Court “stressed that it did not wish to challenge the findings of the national courts made in the context of the extradition proceedings and other proceedings related to the Yukos case”[8].  All such judgments have concluded that the prosecution of Khodorkovsky was politically motivated.

Ultimately, the Court stressed that its finding did not preclude it from examining under Article 18 – the European Convention on Human Rights provision that prohibits restrictions on rights for reasons not permitted by the Convention itself– the subsequent proceedings concerning the conviction of Khodorkovsky and Lebedev in the second criminal trial, which ran from 2009 to 2010.

3. What did the Court say about the damages that had been ordered to be paid by Khodorkovsky to the tax authorities?

The European Court found that this was unlawful and arbitrary.  The Court said “the decision of the Meshchanskiy District Court, in so far as it concerned ‘civil claims’, had no support either in the law or in judicial practice.”[9]

4. Why did it take so long to get a ruling?

The European Court has a huge backlog of cases.  Nonetheless the delay in this application has been completely unjustified as the Lebedev case was given priority status by the Court and was first lodged with the European Court in March 2005 and the Khodorkovsky case was lodged in March 2006.  Although these were complex applications it is extraordinary that it has taken eight years for there to be a judgment.

5. What does the judgment mean for the potential third case against Khodorkovsky and Lebedev?

The Court has found – as was widely accepted by all those who observed the first trial – that the trial was fundamentally unfair. If yet more charges are brought against Khodorkovsky and Lebedev, then the Strasbourg Court’s judgment means that they can only expect yet more injustice.  There is no prospect of a fair trial for these men in Russia.

6. What will Khodorkovsky do with the compensation that was awarded to him?

Khodorkovsky intends to give this money to charity.

Khodorkovsky’s primary concern has been to secure vindication that his fundamental human rights were indeed violated in Russia’s proceedings against him. This has once again been achieved through the findings of the Court, in this ruling on the second of three applications Khodorkovsky has brought to Strasbourg.  In his first application the Court found that his detention was unlawful and tainted and that thereafter he was detained in inhuman and degrading conditions.  Now the Court has found that the trial itself was gravely flawed and that sending him and Lebedev to Siberia was unlawful.  The Court has consistently judged that the treatment of Khodorkovsky and Lebedev has been marred by breaches of their fundamental human rights.

7. Why was there such a low award of compensation to Khodorkovsky? 

The concern has not been about securing monetary compensation.  Khodorkovsky has been seeking findings from the European Court of Human Rights of what everyone has known for so long – that his trial was fundamentally unfair.  He deliberately asked for a relatively modest award of compensation which was granted in full.  He intends to give the money to charity.