CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 31 mai 2011

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display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid }     FORMER FIRST SECTION             CASE OF KHODORKOVSKIY v. RUSSIA   (Application no. 5829/04)                 JUDGMENT     STRASBOURG   31 May 2011     FINAL   28/11/2011     This judgment has become final under Article 44 § 2 (c) 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 1.     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. 2.     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. 3.     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. 4.     By a decision of 7   May 2009 the Court declared the application partly admissible. 5.     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 6.     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 7.     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. 8.     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. 9.     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 10.     One of the companies affiliated with Yukos was Apatit, a large mining enterprise, producing apatite concentrate. Yukos controlled a 20   % shareholding in Apatit. 11.     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. 12.     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. 13.     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. 14.     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. 15.     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. 16.     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. 17.     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. 18.     On 2 July 2003 Mr Lebedev was arrested in connection with the Apatit case. 19.     On 4 July 2003 the applicant was summoned to the General Prosecutor’s Office and interviewed as a witness in the Apatit case. 20.     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. 21.     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 22.     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. 23.     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. 24.     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. 25.     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) 26.     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. 27.     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. 28.     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”. 29.     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”. 30.     The court order did not establish the duration of the applicant’s pre-trial detention. 31.     On 3 November 2003 the applicant resigned from his position as Chief Executive of Yukos. 32.     On 5 November the applicant’s lawyer handed over the applicant’s foreign travel passports to the prosecution. 33.     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. 34.     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....” 35.     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 36.     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. 37.     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. 38.     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.”. 39 .     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. 40.     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 ...”. 41.     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. 42.     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) 43.     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. 44.     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. 45.     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. 46.     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. 47.     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. 48.     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. 49.     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. 50.     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. 51.     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. 52.     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. 53.     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) 54.     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”. 55.     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. 56.     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. 57.     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 58.     On 14 May 2004 the prosecution submitted the case to the Meshchanskiy District Court for trial. 59.     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. 60.     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. 61.     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. 62.     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”. 63.     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 64.     On an unspecified date the prosecution requested the court to extend the applicant’s detention because the trial was continuing. 65.     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. 66.     On 9   November 2004 the applicant appealed against the extension order. The appeal was rejected by the Moscow City Court on 1   December 2004. 67.     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. 68.     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. 69.     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 70.     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 71.     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. 72.     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. 73.     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. 74.     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 conditi