CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 7 mai 2009

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s22AD35D4 { width:34.94pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sFA5ED050 { margin-top:0pt; margin-bottom:0pt; text-indent:14.15pt; text-align:justify } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s1BB3B17 { width:31.07pt; display:inline-block } .sB8084949 { width:138.49pt; display:inline-block } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s4BAE41EE { font-family:Arial; font-size:11pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 5829/04 by Mikhail Borisovich KHODORKOVSKIY against Russia The European Court of Human Rights (First Section), sitting on 7 May 2009 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,     Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having regard to the above application lodged on 9 February 2004, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court. Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Mikhail Borisovich Khodorkovskiy, is a Russian national who was born in 1963. He is currently detained in a penal colony in Krasnokamensk, Chita Region. He is represented before the Court by Ms   K.   M. 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, the former Representative of the Russian Federation at the European Court of Human Rights A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1. The background to the criminal prosecution The applicant was a board member and the major shareholder of Yukos, a large oil company which was liquidated in 2006. He also controlled several other mining, industrial and financial companies affiliated with Yukos. In 2002-2003 Yukos was pursuing a number of large-scale business projects. Thus, Yukos was engaged in merger talks with Sibneft, another big Russian oil company, and with the US-based Exxon Mobil company. 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. In the beginning of 2003 he announced that he would allocate significant funds to support the opposition parties Yabloko and SPS. He also made certain public declarations criticizing alleged anti-democratic trends in Russian internal policy. In order to promote certain values in Russian society the applicant funded a non-profit NGO, “Open Russia Foundation”. The applicant asserts that those activities were 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 undertook a massive attack on the applicant and his company, colleagues and friends. Thus, some old criminal cases in respect of the companies’ business activities were revived, in particular the investigation into the acquisition of a 20% shareholding in Apatit, a large mining enterprise belonging to the Yukos group and privatised in the 1990s. In December 2002 the then President Putin issued Directive No. Pr-2178 requiring reports to be obtained in relation to whether there had been “violations of the existing legislation committed during the sale of shares in the OAO Apatit” and whether the State had suffered any loss as a consequence of the friendly settlement that had been approved by the Moscow Arbitration Court 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 April 2003 the General Prosecutor of the Russian Federation, wrote to the President informing him that the General Prosecutor’s Office (GPO) had concluded that there were no grounds for it to take action. On 29   April 2003 the Prime Minister wrote to the President informing him that the law-enforcement agencies had stated that they would not commence a criminal prosecution as there was no corpus delicti in relation to the circumstances surrounding the acquisition of the 20% block of shares in Apatit. Nonetheless, a criminal case regarding Apatit was reopened in June 2003; the situation with the acquisition of the Apatit shares later formed one of the main charges against the applicant. On 19   June 2003 a Yukos security official, Mr Pichugin, was arrested and charged with murder. On 2 July 2003 Mr Lebedev, one of the top managers of the company and the applicant’s personal friend, was arrested in connection with the Apatit case. The applicant was summoned to the General Prosecutor’s Office and interviewed as a witness. 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. In October 2003 Mr Shakhnovskiy, another major Yukos shareholder, was charged with tax evasion. As a result of this several leading executives of Yukos and affiliated companies left Russia. Some of them have 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 since they would not receive a fair trial in Russia. The applicant produced copies of the decisions of the British courts to this end. At the same time senior officials of the General Prosecutor’s Office publicly declared that charges might be brought against other top managers of Yukos and affiliated companies. The applicant did not leave the country and continued his activities, including business trips in Russia and abroad. 2. The applicant’s apprehension On 23 October 2003, whilst the applicant was away from Moscow on a business trip in 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., and the applicant’s staff told the investigator that the applicant was away until 28   October 2003. Yukos staff also sent to the General Prosecutor’s Office a telegram explaining the reasons for the applicant’s absence from Moscow. The applicant having missed the appointment, on 24 October 2003 the investigator ordered his enforced attendance for questioning. In the early morning on 25 October 2003 armed law-enforcement officers approached the applicant’s aeroplane on an airstrip in Novosibirsk. The applicant submits that, without explaining the reasons, the officers 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: as a witness he had been free to travel, he had been out of town on a business trip, and he had not personally received the summons. On 27 January 2004 the court rejected the complaint. The court stated that it had been impossible to hand the summons of 23 October 2003 in the applicant’s own hands, so the applicant had been notified about the questioning through the head-quarters of Yukos. 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. 3. First detention order Once in Moscow, at 11 a.m. on 25 October 2003, the applicant was brought before the investigator. The investigator explained to the applicant why he had been apprehended and interviewed him as a witness in connection with the personal income tax payments of the applicant related to 1998-2000. Thereafter the applicant was informed that he was charged in connection with a number of crimes, namely the fraudulent acquisition of the Apatit shares in 1998, misappropriation of the proceeds of Apatit, misappropriation of the assets of Yukos, corporate tax evasion and personal tax evasion schemes allegedly applied by Yukos and the applicant personally in 1999-2000. The applicant was interviewed as a defendant in that case but refused to testify since one of his lawyers was absent. Following the interrogation, at 3 p.m. on 25 October 2003, the investigator requested the Basmanniy Court to detain the applicant pending investigation. The request was nine pages long and, according to the applicant, had been prepared beforehand. 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. At the end of the hearing, which lasted about five hours, the court issued a detention order, referring to Article 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 time. 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 health conditions 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 the position of the Chief Executive of Yukos. On 5 November the applicant’s lawyer handed the applicant’s foreign travel passports over 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 enlarged 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 did not fix the duration of the period of detention either. 4. Second detention order 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 A., 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 A. 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 A. 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 A. 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 A. during their meeting “exchanged a notebook with some notes, and also made notes in it”. According to the applicant, the handwritten note was drafted by Ms   A. It stated as follows:   “- Kodirov [the applicant’s cell-mate]: expects a second visit by the lawyer Solovyev [1] ; - 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. 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 the 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 asserted, among other things, that the note seized from Ms A had, in fact, been written by the applicant, and that in that note the applicant had instructed his accomplices at large to intimidate prosecution witnesses. 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 on 22 December 2003, at 3.05 p.m. 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 A. 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. It referred to the fact that the applicant’s presumed accomplices had fled from trial, that the applicant controlled business structures which were implicated in the alleged crimes and that he 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. 5. Third detention order On an unspecified date the prosecution requested the Basmanniy 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 the day before. They asked for an adjournment of three days. They also produced 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 put pressure on the witnesses of the prosecution. 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 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 pending trial On 14 May 2004 the prosecution submitted the case to the Meshchanskiy District Court for trial. On 20 May 2004 the Meschanskiy 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. After having obtained a reply from the prosecution, the Meschanskiy 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, but on 29 July 2004 it was upheld by the Moscow City Court. The City Court found that, taking into consideration the materials of the case-file, the first instance court had not found any grounds to lift of modify the measure of restraint. According to the applicant Ms   Moskalenko was unable to participate in the hearing on medical grounds. However, Ms Lvova, Ms Liptser and Mr Rivkin (lawyers representing Mr   Lebedev) were present at that hearing. On 16 June 2004, when the trial started, the applicant’s lawyer requested the court to release the applicant because he was detained unlawfully. The court refused to examine that request because only an appeal court could examine the lawfulness of detention imposed earlier. 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). 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, in a public hearing and in the presence of the applicant and his lawyers, extended the applicant’s detention until 14 February 2005 essentially for the same reasons that the Basmanniy Court had given earlier (see above). The court mentioned that there was a risk that the would try to put pressure on witnesses. 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. In the detention order the court also held that the applicant had tried to influence witnesses in the case. 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. 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. 7. Conditions in the remand centres nos. 99/1 and 77/1 From 25 October 2003 until 8 August 2005 the applicant was detained at remand centre no. 99/1 in Moscow. Thereafter he was detained at remand centre 77/1, known as “Matrosskaya Tishina”. In October 2005 the applicant was sent to serve his sentence at penal colony FGU IK-10 in the town of Krasnokamensk, Chita Region. 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. 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 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 had been 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 Government authorities had consistently denied independent observers the opportunity to inspect the conditions of his detention. Thus, the Government authorities had refused to allow the PACE Special Rapporteur permission 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. 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 poor conditions in which he was detained. He claimed that such conditions amounted to a breach of Article 3 of the Convention. 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 conditions of his detention. The applicant also described the conditions of his detention in his cassation appeal against the judgment of the Meschanskiy District Court of 31 May 2005. According to the Government, the cells in remand centre no. 99/1 were 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 had been 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. 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 spyhole in the door. The Government submitted photos of the cells in which the applicant had been detained and of the toilet cubicles. 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. 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 once a week, and, for additional payment, take a shower more often, go to a sports room, wash his underwear and bed linen, and receive other extra services. 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. 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. 8. 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. Whenever the applicant left the cage, he was handcuffed to guards. 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 been arriving to the remand centre late, when all 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 travel ration. 9. Application to the European Court of Human Rights On an unspecified date in 2004 Ms Moskalenko, one of the applicant’s lawyers, visited the applicant in prison. According to her, she tried to pass to the applicant the documents she had received from the European Court: a blank application form, an information notice and a covering letter. The prison administration seized the documents and never passed them to the applicant. The Government produced a report from the prison administration, dated 8 July 2006. According to that report, any documents which a lawyer wants to pass to his detained client should pass through the administration of the remand prison. Any other way of passing documents to the detainee is illegal. However, they denied that they had ever seized from Ms   Moskalenko, or from the applicant himself, any documents sent to him by the European Court. 10.     Reaction of international organisations, NGOs and political figures 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 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 the prosecution of the applicant and his colleagues was politically motivated. B. Relevant domestic law 1. Rules on pre-trial detention Section 16 of the Pre-trial Detention Act of 15 July 1995 (no. 103-FZ) provides: “The Ministry of Justice, the Ministry of the Interior, the Federal Security Service or the Ministry of Defence shall adopt, upon approval of the Prosecutor General, the Internal Rules for Remand Centres, for the purpose of ensuring order in remand centres. The Internal Rules establish the procedure for: .... (15)     organising meetings between suspects and defendants and the persons listed in section 18 of the present Act...” Section 18 of the Act provides that detained suspects may be visited by their legal representative in privacy. Visits are not limited in frequency or duration. Under section 20, correspondence by detainees is to be conveyed through the administration of the remand prison and is subject to censorship. Censorship is carried out by the administration of the remand prison and, if necessary, by the official or authority in charge of the criminal case. Section 21 of the Act stipulates that detainees can address their proposals, petitions or complaints to State bodies, bodies of local self-government or public associations through the administration of the remand prison. Complaints addressed to the prosecutor’s office or to the courts or other State bodies which oversee the remand prisons are not subject to censorship. This section further stipulates the modalities for dispatching various letters. Section 22 of the Act provides that detainees must be given free food sufficient to maintain them in good health according to the standards established by the Government of the Russian Federation. Section   23 provides that detainees must be kept in conditions which satisfy sanitary and hygienic requirements. They must be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate must have no less than four square metres of personal space in his or her cell. Section 34 of the Act provides: “... If there are sufficient grounds for suspecting a person of attempting to bring prohibited items, substances or foodstuffs in or out, the employees of the places of detention shall be entitled to examine their personal effects and clothes both at the entrance to and exit from the place of detention, examine incoming and outgoing transport vehicles and withdraw items, substances or foodstuffs which suspects and accused persons are forbidden to keep or use. The personal effects and clothes of persons who are in charge of the criminal cases initiated in respect of suspects and accused persons and have the right to exercise control and supervision of the places of detention shall not be subject to examination. Operational and search activities shall be conducted in accordance with the procedure established by law in places of detention, for the purpose of revealing, preventing ... crimes there.” 2. Measures of restraint The Code of Criminal Procedure of 2001 provides: 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 ... 3.     When the need arises 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 or of a subject of the Russian Federation or a military prosecutor of equal status. 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. ...” 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 or the investigator or the person carrying out the inquiry, upon 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 going 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 cann