CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 juillet 2013

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RUSSIA   (Applications nos. 11082/06 and 13772/05)             JUDGMENT     STRASBOURG   25 July 2013     FINAL   25/10/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Khodorkovskiy and Lebedev v. Russia, The European Court of Human Rights (Chamber), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Khanlar Hajiyev,   Mirjana Lazarova,   Linos-Alexandre Sicilianos,   Erik Møse,   Ksenija Turković,   Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 2 July 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos. 11082/06 and   13772/05) 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 two Russian nationals, Mr   Mikhail Borisovich Khodorkovskiy (“the first applicant”) and Mr   Platon Leonidovich Lebedev (“the second applicant”) on 16 March 2006 and on 28 March 2005 respectively. 2.     Each applicant was represented by a group of lawyers. The legal team for the first applicant included Mrs K. Moskalenko and Mr A. Drel, lawyers practising in Moscow, Mr N. Blake QC, Lord D. Pannick QC, and Mr   J. Glasson, lawyers practising in London, and Dr W. Peukert, a lawyer practising in Germany. The second applicant’s legal team included Ms   Y.   Liptser and Mr Y. Baru, lawyers practising in Moscow, as well as Dr   W. Peukert, the late Prof A. Cassese, and Prof Ch. Tomuschat. The Russian Government (“the Government”) in the two cases were represented by Mr P. Laptev and Mrs V. Milinchuk, the former Representatives of the Russian Federation at the European Court of Human Rights, and subsequently by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicants complained, in particular, about their criminal conviction for tax evasion and fraud, as well as about other events related to the criminal proceedings against them. They alleged, in addition, that their prosecution was motivated by political reasons, in breach of Article   18 of the Convention. 4.     By decisions of 27 May 2010 (in the second applicant’s case) and 8   November 2011 (in the first applicant’s case), the Court declared the applications partly admissible. 5.     The applicants and the Government each filed further written observations on the merits (Rule 59 § 1 of the Rules of Court). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ), the parties replied in writing to each other’s observations. 6.     On 2 July 2013 the Chamber decided to join the two cases, pursuant to Rule 42 § 1 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     Mr Khodorkovskiy (the first applicant) was born in 1963. He is currently serving a prison sentence in a penal colony in the Karelia Region. Mr Lebedev (the second applicant) was born in 1956 and is now serving a prison sentence in the Yamalo-Nenetskiy Region. A.     Introductory summary 8.     The first applicant is the former head and one of the major shareholders of Yukos Plc, which at the relevant time was one of the largest oil companies in Russia. Before working in Yukos Plc, he was a senior manager and co-owner of the Menatep bank and the Rosprom holding (an industrial holding affiliated with Menatep) and controlled a number of other financial and industrial companies. In particular, he was the Head of the Executive Board of Yukos-Moskva Ltd and later its President. Further below the group of companies affiliated with Yukos will be referred to as “Yukos”. 9.     The second applicant was the first applicant’s business partner and a close friend. In 1990s the second applicant was the chief executive of the Menatep bank and a top-manager of the Rosprom holding. From 1998 the second applicant worked as a one of the directors of Yukos-Moskva Ltd. He was also one of the major shareholders of Yukos. 10.     Yukos was created as a result of the mass privatisation of the State oil and mining industry which took place in the mid-1990s. Following privatisation, new management techniques were introduced and the companies acquired by Yukos were reorganised. In particular, sales of the producing companies were re-directed to new trading companies. As a result, Yukos became one of the most successful businesses in Russia, and the first applicant was mentioned in the press as one of the richest persons in Russia. 11.     Amongst other acquisitions by Yukos in the course of the privatisation were 20 per cent of the shares of a large mining company, Apatit Plc (hereinafter referred to as “Apatit”), a major supplier of the apatite concentrate in the country. The acquisition of Apatit shares gave rise to litigation in which the State Property Fund opposed Yukos. The former claimed that Yukos had failed to meet its obligations under the privatisation agreement. That litigation ended in 2002 with a friendly settlement: the State Property Fund accepted a termination fee while acknowledging the rights of Yukos to 20 per cent of Apatit shares. 12.     Most of the Yukos produce was sold abroad. However, Yukos did not trade directly with foreign firms but sold its output to several Russian companies (“trading companies”) registered in the zones with special tax regime, in particular in the town of Lesnoy, situated in the Sverdlovsk region in the Urals (also referred to as the “ZATO”, an abbreviation translated as “closed administrative territorial formation”). Special taxation in Lesnoy was established by the Federal Law “On Closed Administrative-Territorial Entities” of 14 July 1992 (the “ZATO Act”). The ZATO Act was supposed to attract investors to economicly depressed areas and foster economic growth there. 13.     Such mode of operation persisted for several years; Yukos trading companies were operating on the basis of “preferential taxation agreements” with the administration of the Lesnoy town. Those agreements were renewed every year since 1998. Thus, for example, on 28   January 2000 the town administration concluded a preferential tax agreement with Business Oil Ltd (hereinafter referred to as “Business Oil”), the main trading company of Yukos in Lesnoy, providing it, amongst other tax cuts, a 75 per cent reduction of the “local” part of the corporate income tax (i.e. of the part destined for the local budget). Under that agreement Business Oil was supposed to transfer a certain amount of money to the town budget (5 per cent of the amount of tax cuts obtained). A major part of the profits of Business Oil and other trading companies were later transferred on a gratuitous basis in the form of investments in the “fund for financial support for production development”, which was founded within Yukos on the basis of a resolution of the Board of Directors. 14.     In addition to obtaining tax cuts, the trading companies registered in the low-tax zones paid some of their taxes not with money but with promissory notes issued by Yukos. Those notes were accepted by the local authorities as a method of payment of taxes and were later honoured by Yukos. The trading companies also enjoyed VAT exemption in respect of the oil they were selling abroad. VAT was reimbursed in monetary form from the State budget to the bank accounts of those companies. Tax audits carried out in 1999 confirmed the eligibility of Business Oil for tax cuts. 15.     The applicants’ personal income consisted of the salaries they received from Yukos and the dividends from the Yukos shares they owned. In addition, both applicants earned substantial amounts of money as self-employed contractors (or “individual entrepreneurs”, in the Russian terminology), by providing consulting services to foreign firms. As “individual entrepreneurs” the applicants were entitled to preferential taxation under the Law “On Simplified Form of Taxation, Accounting and Reporting for Small Businesses” (No. FZ-222, 29 December 1995, the “Small Business Act”). 16.     In 2003 the office of the General Prosecutor of the Russian Federation (hereafter “the GPO”) started a criminal investigation into the business activities of Mr Khodorkovskiy and his partners. The charges against the applicants originally concerned fraudulent acquisition of Apatit and another firm during the mass privatisation of 1990s. Later the GPO charged the applicants with large-scale tax evasion. In particular, the GPO suspected that the trading companies registered in the low-tax zones were in fact sham legal entities ( podstavnye , i.e. “frontman companies”; hereinafter referred to as “sham companies”) affiliated with the applicants, as they were neither present nor operated in the place of their registration, had no assets and no employees of their own but were fully controlled from the Yukos head-quarters in Moscow. Therefore, tax cuts had been obtained by them unlawfully. The tax authorities also characterised payment of taxes with promissory notes as tax evasion.   Furthermore, the tax authorities suspected that the firms to which the applicants, in their private capacity, had been rendering consulting service were affiliated with them and that no services had been provided to those firms in reality. 17.     In 2003 both applicants were arrested and detained on remand. That investigation led to a trial which ended with the conviction and imprisonment of the applicants. Facts related to this trial (the “first case”) are at the heart of the present case. The applicants’ prison terms have now expired; however, they both remain in prison on account of new accusations brought against them within related but separate court proceedings (the “second case”). 18 .     In parallel with criminal proceedings against the applicants the Russian Tax Service [1] in 2004 lodged a claim for tax arrears owed by Yukos, which led to proceedings before the Moscow Commercial Court. Those proceedings concerned the operation of the “tax-minimisation scheme” using trading companies, described above. In the following months more claims concerning the tax situation of Yukos and its affiliates were lodged. The commercial courts granted most of the Tax Service’s claims. As a result Yukos had to declare itself insolvent and bankruptcy proceedings were started, which ended up by a forced sale of its assets and, finally, by the liquidation of the company on 12 November 2007. The company ceased to exist, leaving over RUB 227.1 billion (around 9.2   billion US dollars (USD)) in unsatisfied liabilities. For further details on the tax claims and Yukos bankruptcy see the statement of facts in the case of OAO Neftyanaya kompaniya YUKOS v. Russia (no. 14902/04, judgment of 20 September 2011), hereinafter referred to as the Yukos case. 19.     In 2004 and in the following years similar tax claims (related to the operation of trading companies in various low-tax zones within Russia) were lodged against at least three other major oil companies, namely Lukoil, Sibneft, or TNK-BP. However, in respect of those companies the Government ultimately accepted a settlement; tax claims were dropped in exchange of considerable amounts paid by those companies to the State budget, which allowed those companies to survive. B.     Events preceding criminal prosecution of the two applicants 20.     The applicants alleged that the criminal proceedings against them, described below, had been politically and economically motivated. In support of that assertion they referred to a large number of events which preceded the criminal proceedings against them and their partners. Those facts, in so far as relevant, are summarised below. 1.     Business projects of Yukos 21 .     In 2002-2003 Yukos began to pursue a number of ambitious business projects which would make it one of the strongest players on the market and independent of the State. In particular, Yukos challenged the official Russian petroleum policy of tacit alignment with the OPEC policy of reducing oil production. Yukos sought instead to maximise its oil production and market share. Further, from 2003 Yukos was in the process of merging with Sibneft, another large Russian oil company. The merger was supposed to take place in two steps: firstly, completion of the deal on paper, and then unification of the new company’s management structures. The first aspect of the deal was finalised in October 2003; the second was supposed to be implemented by January 2004. Yukos was also engaged in merger talks with the US-based Exxon Mobil and Chevron Texaco companies. According to the applicants, Chevron Texaco was considering the purchase of 25 per cent of Yukos shares, while Exxon Mobil planned to buy at least 40 per cent of the future Yukos Sibneft company. 22.     Yukos was also planning to build a liquid gas pipeline to the Arctic Ocean in order to export natural gas to the western part of Europe without passing through the State-controlled pipelines. Similar plans existed in respect of China; here the applicants advocated building an oil pipeline along an alternative route to that favoured by the Presidential Administration. 23.     Finally, Yukos and the State-owned company Rosneft were involved in a public struggle for control over certain oil fields. Yukos was successfully competing with Gazprom, another State-owned company, on the natural gas market. 2.     Political activities of the first applicant 24 .     In 2000 Mr Putin was elected President of the Russian Federation. One of the points of his political programme was to “liquidate the oligarchs as a class”. Furthermore, President Putin advocated, according to the applicants, the renationalisation of the oil and mining industries, which had been privatised by his predecessor in the mid-90s. 25.     In 2001 the first applicant founded a non-profit NGO, the “Open Russia Foundation”. Its annual budget in 2003 amounted to approximately USD 200 million. This NGO cooperated with other Russian human rights NGOs, such as Memorial, the Moscow Helsinki Group, etc., and was involved in a number of humanitarian and educational projects across the country. 26 .     From at least 2002 the first applicant openly funded opposition political parties, namely Yabloko and the SPS (Union of Right Forces). He also made certain public declarations criticising anti-democratic trends in Russian internal politics. A number of his close friends and business partners became politicians. Thus, Mr Dubov and Mr Yermolin were members of the Duma (the lower chamber of the Russian parliament); Mr   Shakhnovskiy, Mr Nevzlin, Mr Guryev and Mr Bychkov were all at various times members of the upper chamber, the Federation Council. 27.     The first applicant asserted that his political and business activities had been 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, his company, colleagues and friends. 3.     First inquiries into business activities of Yukos in 2002-2003 (a)     The GPO inquiry of 2002 28.     On 6 March 2001 Business Oil, the main trading company of Yukos in the Lesnoy town at the time, terminated its operations and was removed from the register of taxpayers of the Lesnoy town. Sales of Yukos oil were henceforth conducted through other trading companies registered in other low-tax zones. 29.     In July 2001 the Tax Service of the Sverdlovsk Region inspected the activities of the Lesnoy Tax Inspectorate. On 8 July 2001 it issued a report which established that tax cuts granted to Business Oil were lawful. 30 .     In 2002 the administration of the Lesnoy town commissioned an economic study from the Urals Branch of the Russian Academy of Sciences which concerned operations of the trading companies registered in the town. The report (called “legal and economic expert review”) came to a conclusion that the impugned trading companies were all lawfully entitled to claim tax exemptions under the federal law relating to taxation in closed administrative territories. The experts also concluded that the refund of tax overpayments by Yukos promissory notes did not inflict economic loss on the budget and that the trading companies were entitled to pay tax in advance. Finally, the experts concluded that the Lesnoy town administration was entitled to accept tax payments by way of promissory notes in 1999. 31.     On 29 March 2002 a case was opened to investigate the acceptance by the Lesnoy town administration of tax payment by way of promissory notes from Yukos. That case was closed on 29 August 2002. The reasons why the case was closed were summarised by the GPO in July 2003 in the following terms: “According to the conclusions of a legal and economic expert review of the case, there were no losses caused to the federal budget and municipal budget of Lesnoy town as a result of granting tax privileges, receiving taxes in the form of Yukos promissory notes and fulfilling the investment programme. Detected violations of the legislation by conducting these financial operations may be regarded as the subject matter of administrative and economic legislation. The receipt of   taxes by way of promissory notes issued by Yukos was registered in the municipal budget for the 1999-2000 fiscal year, the federal budget received payment only in the monetary form”. It is unclear whether the “legal and economic expert review” referred to by the GPO was the same as the report by the Urals Branch of the Russian Academy of Sciences prepared at the request of the town administration (see paragraph 30 above), or whether a different study was made at the request by the GPO. (b)     Presidential Directive No. Pr-2178 32.     In November 2002 governors of several Russian regions 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. 33.     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 (see paragraph 11 above) 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. 34.     On 16 December 2002 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 of the Apatit and whether the State had suffered any loss as a consequence of the friendly settlement that had been approved by the Moscow Commercial Court in 2002”. The directive was addressed to Prime Minister Kasyanov and General Prosecutor Ustinov. 35.     On 19 February 2003 the first applicant, together with other influential businessmen, met President Putin in the Kremlin. At that meeting the first applicant made critical remarks concerning the recent acquisition of a private oil company by the State-owned company Rosneft. The first applicant implied that that transaction had involved high-level corruption. According to the first applicant, President Putin reacted by reminding the applicant that Yukos had experienced problems with the payment of taxes, which had not yet been fully resolved. 36.     On 27 April 2003 the first applicant met President Putin to discuss the merger between Sibneft and Yukos. According to Mr Dubov, the applicant’s business partner, Mr Putin approved the merger but warned the first applicant against political activity, namely funding the Communist Party. 37.     On 28 April 2003 General Prosecutor Ustinov reported to the President that there was no basis for a criminal case in relation to the circumstances surrounding the acquisition of a 20 per cent block of shares of Apatit. 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 Tax Service; although Apatit and its affiliates had been subjected to various penalties and financial sanctions in the past, and a new audit was underway, the GPO did not see any reason to start criminal proceedings in this respect. At the same time the Government insisted on the expediency of entering into an agreement with Yukos in order to settle the matter. 38.     On 29 April 2003 Prime Minister Kasyanov wrote to President Putin 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 a 20 per cent block of shares of Apatit. (c)     The cases of Mr Pichugin and other senior managers of Yukos 39.     In one of his interviews in April 2003 the first applicant stated publicly that he intended to leave business and go into politics, and confirmed his funding of the SPS and Yabloko parties. He also said that some major Yukos shareholders supported the Communist Party. 40.     On 19 June 2003 a Yukos senior security official, Mr Pichugin, was arrested and charged with murder in an unrelated case. This arrest led to Mr Pichugin’s trial and conviction for murder (for a more detailed description of the facts of the case, see Pichugin v. Russia , no. 38623/03, 23 October 2012). 41.     In the following months several senior executives and shareholders of Yukos, namely Mr Nevzlin, Mr Dubov, Mr Brudno and several others left Russia out of fear of prosecution. Some lower-level Yukos managers or personnel of its contractors also left. Thus, according to the written testimony of Mr Glb., obtained in 2007, in 2003 the first applicant had met him and persuaded him to leave Russia. Later he had been told not to return to Russia. He understood that the security service of Yukos moved a part of its personnel to London. A staff member of one of the trading companies, Ms Kar., testified in 2008 that in 2003 a manager of Yukos persuaded her to leave Russia for Cyprus and paid for her stay there. The applicants, however, remained in the country and continued their professional activities. C.     Arrest of the two applicants. Detention on remand of the second applicant during the trial 42.     On 20 June 2003 the GPO initiated a criminal investigation into the privatisation of Apatit, which eventually led to charges being brought against the applicants. 43.     On 27 June 2003 the second applicant (Mr Lebedev) was summoned for questioning within the Apatit case. The questioning was scheduled for 10 a.m. on 2 July 2003. 44 .     On 2 July 2003 the second applicant was admitted to Vishnevskiy Hospital in connection with his chronic diseases. At 9.50 a.m. Mr Drel, the second applicant’s lawyer, called the investigator and informed him that his client had been urgently hospitalised in an ambulance car. According to a certificate from the hospital the applicant was admitted there at 12.56   p.m. On the same day the GPO investigator accompanied by armed FSS (Federal Security Service) officers arrived at the hospital. At 3.20   p.m., the doctors, at the request of the investigator, examined the applicant. The doctors observed an improvement of his condition and described his condition as “satisfactory”. The second applicant was arrested as a suspect in the criminal case concerning the privatisation of Apatit and brought to the Lefortovo remand prison. According to the FSS officers present during the second applicant’s arrest, he threatened the investigator with criminal liability for his unlawful prosecution. He also threatened to bring a press campaign against the GPO officials involved in his case. In the following months the second applicant’s detention was repeatedly extended. For further details on the second applicant’s detention until November 2004 see Lebedev v. Russia , no. 4493/04, partial decision on admissibility of 25 November 2004, decision on admissibility of 18   May 2006, and judgment of 25 October 2007, hereinafter referred to as the Lebedev (no. 1) judgment. 45.     On 23 October 2003, whilst the first applicant was away from Moscow on a business trip to eastern Russia, chief investigator Karimov summoned him to appear in Moscow as a witness on the next day at noon. The first applicant’s staff informed the GPO that the first applicant was away from Moscow until 28 October 2003. On 24 October 2003, the first applicant having missed the appointment, the investigator Karimov ordered his enforced attendance for questioning. 46.     In the early morning of 25 October 2003 a group of armed law-enforcement officers approached the first applicant’s aeroplane on an airstrip in Novosibirsk, apprehended him, and flew him to Moscow. The first applicant was charged, arrested as a suspect and later detained on remand. For more details concerning the detention on remand of the first applicant see Khodorkovskiy v. Russia, no. 5829/04, §§ 22 et seq., 31 May 2011, hereinafter referred to as the Khodorkovskiy (no. 1) judgment. 1.     Extensions of the second applicant’s detention on remand by the court pending trial 47 .     On 6 April 2004 the Meshchanskiy District Court decided that the second applicant should remain in detention pending trial. No reasons were given for that decision. On 15 April 2004 the District Court dismissed the application for release lodged by the defence. The court held as follows: “[The court] takes into account that [the applicant] is accused of a number of offences, including serious ones, punishable with more than two years’ imprisonment. The combination of the seriousness of the charge and the information about the applicant’s character gives reason to suspect that, if released, the applicant may abscond from trial, interfere with the proceedings and influence witnesses. [In particular], the persons suspected of having committed the offences in concert with [the applicant] have gone into hiding. [The applicant] maintains international connections. [He] is accused of offences committed in his capacity as a manager of commercial companies. The persons with whose assistance, according to the investigating authorities, [the applicant] committed the offences, still work in the companies and depend on [him] financially and otherwise. [The applicant] may therefore influence them ...” The District Court concluded that the second applicant should be kept in custody pending trial. 48.     On 19 August 2004 the second applicant’s lawyers lodged an application for release on behalf of the second applicant, referring, in particular, to his poor health. The District Court refused to release him, on the basis that the second applicant could receive adequate medical aid in the remand prison. The court also held that the second applicant’s continuous detention was justified in view of the gravity of crimes imputed to him, and “information about [the second applicant’s] character”. The District Court also noted that the persons with whose assistance the second applicant had allegedly committed the offences still worked in the companies and depended on him. 49 .     At the hearing of 10 September 2004 the prosecutor requested the court to extend the second applicant’s detention on remand until 26   December 2004, since the previous detention order would expire on 26   September 2004. After that the defence declared that they needed to study the request and asked for a one-hour adjournment. The court gave the adjournment sought. An hour later the second applicant asked for one hour more to prepare a reasoned reply to the detention request. Again, the court granted that motion. At the end of the period the defence lodged a written reply to the prosecutor’s motion. The defence objected but the court granted the request and extended the second applicant’s detention on remand as requested. The reasons given by the District Court in its decision of 10 September repeated the reasons stated in the decision of 15   April 2004. 50.     The defence appealed. According to the Government, the brief of appeal against the extension order of 10 September 2004 was submitted on 20 September 2004. On 13 October 2004 the Moscow City Court upheld the decision of the lower court. The City Court noted that “the circumstances in which the imputed acts had been committed” suggested that, if released, the second applicant might pervert the course of justice by putting pressure on witnesses or otherwise influencing them, or might abscond, and that the City Court “had not discovered any reason to repeal the [lower] court’s decision as requested by the brief of appeal”. 51.     At the hearing of 14 December 2004 the prosecutor again requested an extension of the second applicant’s detention until 26 March 2005. That request was made orally. The defence was given two hours to prepare written submissions. The defence produced written arguments, following which the court granted the request and extended the detention until 26   March 2005, giving the same arguments as in the detention orders of 15   April and 10 September 2004. 52.     The appeal against the detention order of 14 December 2004 was lodged on 24 December 2004 and examined on 19 January 2005 when the Moscow City Court upheld it. 53.     At the hearing of 2 March 2005 the State prosecutor requested a new extension of the second applicant’s detention pending trial. The prosecutor referred to the second applicant’s oral statement of 1 March 2005, when he had said that he “would haunt the prosecutor until his last day”. In reply to the request the defence did not ask for additional time to prepare their arguments. The second applicant explained, in particular, that there had been nothing new in the prosecution’s requests for detention since 2003, and that he was prepared to give his arguments immediately. The court heard the defence and granted the request extending the second applicant’s detention until 26 June 2005. That detention order repeated the reasons given in the previous detention orders. 54.     The detention order of 2 March 2005 was appealed against on 11   March 2005; the first hearing was scheduled for 23 March, but the defence sought an adjournment in order to obtain a Ruling by the Constitutional Court of 22 March 2005 (no. 4-P). The appeal was therefore examined and dismissed on 31 March 2005. 2.     Conditions of detention of the second applicant 55.     The second applicant claimed that in the remand prison IZ–77/1 where he had been detained from 21   October 2003 until his transferral to the correctional colony on 27 September 2005, he had been deprived of all physical exercise. Thus, he constantly missed his daily walks because of the need to read the materials in the case file or participate in the hearings. On weekends and holidays, when there were no court hearings he could not go outside because he was ill. Further, the food in the prison was incompatible with his illnesses, and he only received appropriate food from his relatives or lawyers to a limited extent. It was impossible to have a hot meal at midday when there was a hearing or when he was reading the case file.   During the Christmas holidays the second applicant was transferred to an overcrowded “common” cell. Despite his requests, he was not given a calculator or a magnifying glass. As a result, he was able neither to prepare for the hearings nor to have a rest. 56 .     The second applicant complained to the prison doctors about his health problems. On 2 March 2004 he was examined by a panel of doctors composed of the Chief Physician of the Moscow Health Department, Deputy Medical Director of the Moscow Prisons Department, Healthcare Director of the remand prison, and an infectiologist. The panel described his state of health as follows: “[The applicant] is suffer[ing] from neuroculatory dystonia of the hypertensive type, chronic non-complicated sub-acute hepatitis, i.e. without transformation into cirrhosis and portal hypertension.” 57 .     On 18 August 2005 the second applicant was placed in a solitary confinement cell (or “isolation cell”) as a punishment, allegedly for refusing to go outside for a daily walk. The documents produced by the Government also indicated that the applicant had refused to go to the shower rooms, whereas, according to the applicant, the remand prison did not have a bath-house for inmates. According to the applicant, the cell was very small and had no natural light or ventilation. He did not receive hot meals. It was prohibited to lie or even sit on the bed between 6 a.m. and 10   p.m. The bed was very close to the toilet pan. The water for flushing, drinking and washing was available from the water-tap above the toilet pan. The second applicant spent seven days in that cell. 58 .     The Government described the conditions in the isolation cell as follows. The cell in which the second applicant was placed measured 5.52 square metres, which was more than the minimal surface area established by law. The second applicant was detained in the cell alone. The cell had a folding bed, a washbasin with cold water, a toilet, a shelf for toiletries, a chair and a table. The cell was ventilated naturally, and was lit by a day-time lamp and a night-time lamp (dezhurnoye osvescheniye). In addition, the cell had a window measuring 60 x 90 cm. The cell was equipped with a cistern for boiled water which was supplied by the warders when necessary. Referring to the certificates issued by the head of the remand prison, Mr Tagiyev, dated 7   August 2008, the Government alleged that illumination, temperature and humidity in the isolation cell had corresponded to the sanitary standards. The distance between the toilet and the bed was one metre, which was explained by the small dimensions of the cell; such a distance, however, respected basic requirements of hygiene. The bed was unfolded during the night, namely between 11 p.m. and 6 a.m. During the daytime the second applicant could sit on the chair. The Government also attached a report of inspection of sanitary conditions of certain other premises of the remand prison (not apparently related to the cells where the second applicant was detained), dated January 2006, as well as two reports of the inspection of the ordinary cells where the second applicant was detained dated February 2004 and January 2005, which concluded that sanitary condition of the cells was satisfactory. The Government also produced a contract with a firm in charge of disinfestation of the remand prison, dated 15 August 2005, and several “certificates of completed work”, dated 2006 and later. 59 .     Further, in the Government’s words, while in detention in the isolation cell the second applicant was provided with hot meals three times a day in accordance with the established standards. The Government produced extracts from prison’s kitchen record, describing composition of the meals served to the prisoners. The second applicant had a right to a one-hour daily walk during the daylight hours. 60 .     On the hearing days the detainees were provided with dry meals; in the court building they were given hot water to prepare tea, coffee, or instant food. As follows from the documents submitted by the Government, in 2004-2005 the second applicant took part in over 160 days of hearings. However, he always refused to take the dry meal; he preferred the food he received from his relatives. The Government produced a handwritten waiver by the second applicant whereby he refused to receive dry meals. The doctors did not recommend him any special diet, so he could have eaten the same food as other prisoners. D.     Criminal prosecution of the applicants 1.     Investigative actions by the GPO in 2003 61 .     On 4 July 2003, soon after the arrest of the second applicant, the first applicant was summoned to the GPO and interviewed as a witness in the criminal case concerning Apatit. He appeared before the investigator and gave testimony. During the interview he was assisted by Mr Drel, one of his and the second applicant’s lawyers. 62.     On an unspecified date   in July 2003, the First Deputy General Prosecutor, Mr   Biryukov, ordered that the case concerning tax payments of the trading companies registered in the Lesnoy town, which had been closed on 29 August 2002 (see paragraph 31 above), be re-opened and transferred to the GPO. 63.     On 8 July 2003 the prosecution searched the premises of the regional office of the State Property Fund, situated in Murmansk, which could have held information on the privatisation of Apatit. 64.     On 9 July 2003 the investigators searched the premises of Apatit. 65.     On 10 July 2003 the prosecution searched the premises of the bank Menatep Sankt-Petersburg, which was affiliated with Yukos. The search was authorised by the Deputy General Prosecutor, Mr Biryukov, in a decision of 8 July 2003. 66.     On 29 July 2003 the GPO searched the premises of Russkiye Investory Plc. 67.     On 7, 8 and 14 August 2003 new searches were carried out in the premises of Menatep Sankt-Petersburg. 68 .     On 16 August 2003 the GPO obtained a report by two experts, Mr   Yeloyan and Mr Kupriyanov. That report calculated damages allegedly suffered by Apatit as a result of the manipulation with the trading prices of apatite concentrate. It compared the net profit of Apatit during the periods when apatite concentrate was sold independently and when it was sold through intermediaries proposed by the Yukos management. 69 .     On 3 October 2003, based on the warrant issued by the Deputy Prosecutor General on the same day, the investigative team, headed by investigators Mr Pletnev and Mr Uvarov, carried out the first search in Yukos’s premises and in the homes of its senior managers located in the village of Zhukovka, Moscow Region, building no. 88. In particular, the investigators searched the homes of the second applicant, the homes of Yukos vice ‑ president Mr Brudno, and the home of the applicant’s friend, Mr Moiseyev. The investigators also searched the office of Mr Dubov, a Duma Deputy. According to the applicants, the investigators entered the building and started the searches without having produced a search warrant. The searches were attended by several attesting witnesses, in particular Ms   Ardatova and Ms   Morozova, cleaning ladies. 70.     The applicant indicated that the search had been carried out simultaneously on several floors of the building, so the attesting witnesses had been physically unable to see what materials had been seized. Furthermore, the documents found during the search were seized and packed in bulk, without detailed lists enumerating particulars of those documents. The documents seized during the search were later added to the materials of the case-file. Some of the documents and objects seized during that search were added to the case file by an order of 11 February 2004. 71 .     On 9 October 2003 the investigators, based on a search warrant issued on the previous day by the Deputy Prosecutor General, searched the offices of ALM Feldmans, a law firm providing legal services to Yukos, and the offices of the applicants’ lawyer, Mr Drel, all located in the Zhukovka village. According to Mr Rakhmankulov, who testified about the circumstances of the searches later at the trial, he had asked investigator Mr Karimov whether the latter had been aware that the rooms in question had been rented by the law office of Mr Drel. Mr Karimov had replied in the affirmative. Mr Moiseyev testified that he had informed the investigators that the offices they had been searching belonged to a lawyer. At the entrance to the floor of the building there had been a sign identifying Mr   Drel as a lawyer. The files seized during the search were labelled as containing lawyers’ notes related to the defence of the applicants. The search report mentioned that the seizure had been carried out “in the Moscow Region, village of Zhukovka 88a, 4th floor, rented by ALM Law Bureau ...”, and that one of the offices had a tag indicating “work papers of lawyer Mr Drel”. Some time after the start of the search Mr   Drel arrived in Zhukovka. He informed the investigators that he was a lawyer with the Moscow Bar and protested against the breaking into his office. However, the investigators did not let him enter the building. At the end of the search he was allowed to make his comments on the search record. A separate sheet with comments on the procedure in which the search was carried out stated: “Lawyer Drel, who appeared at   the premises around 7 p.m., despite his protests, was taken by police officers [out] of the territory on   which building No. 88a was located” and notes “breaking and entering into Moscow City Bar Association lawyer Drel’s [office]”. 72.     As a result of those two searches, a large number of documents were seized, as well as hard drives of several computers. The hard drives were examined by the investigators at the GPO premises in the presence of attesting witnesses and then transmitted to experts for the extraction of information contained therein. The experts drew up a list of files that had been found on the drives, but neither the drives themselves nor the list of files were attached by the GPO to the applicants’ criminal case materials. Electronic documents from those drives were presented to the trial court in the form of print-outs. The applicants claimed that there had been a discrepancy between the amount of information on hard drives of the computers seized during the search and the amount of information produced to the court. Furthermore, the applicants claimed that the hard drives seized had not been properly packed and sealed, so it was possible to add information to them while the drives were in the possession of the GPO. 73.     Over the following days the GPO also searched the headquarters of the political party Yabloko and an orphanage which was under the patronage of the first applicant; they removed from the latter premises a computer server, said by the authorities to hold Yukos financial data. 74.     On 10 October 2003 a GPO investigator, Mr Karimov, refused to grant the petition of the second applicant to attach official correspondence related to the inquiry conducted following Presidential Directive No.   Pr ‑ 2178 (see paragraph 32 above) to the case materials. 75.     On 17 October 2003 Mr Drel was summoned to the GPO for questioning in relation to the criminal cases against the second applicant. Mr Drel refused, referring to his status as advocate and his position as the second applicants’ representative in the criminal proceedings at issue. Later the Moscow City Chamber of Lawyers ruled that to answer questions in the circumstances would be a violation of the law “On the Advocacy and the Bar in the Russian Federation”. 76.     On the same day the prosecution brought charges of personal tax evasion against Mr Shakhnovskiy, a close friend and business partner of the first applicant. According to the prosecution, he fraudulently reduced the amount of personal income tax due by using the “individual entrepreneur” scheme (see paragraph 15 above). 77.     On 20 October