CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 octobre 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s8578A85B { margin-top:0pt; margin-bottom:0pt; text-indent:11.6pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s5752D6FA { font-family:Arial; font-weight:bold; font-variant:small-caps } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3338BAA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 11 October 2018   THIRD SECTION Application no. 26679/08 Leonid Borisovich NEVZLIN against Russia lodged on 20 May 2008 STATEMENT OF FACTS The applicant, Mr Leonid Borisovich Nevzlin, is a Russian and Israeli national, who was born in 1959 and lives in the city of Herzliya, Israel. He is represented before the Court by Mr P. Gardner and Mr   D.   Kharitonov, lawyers practicing in London and Moscow respectively. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background information 1 .     The applicant occupied various high-ranking positions at an investment holding company GML (Group Menatep Limited) and its subsidiary, OAO Neftyanaya kompaniya Yukos (hereinafter referred to as “Yukos”). The applicant left Russia for Israel in 2003. 2 .     Between 2003 and 2004 the authorities filed a series of tax claims against Yukos and also froze its assets. As a result of a series of court proceedings, the company was ordered to pay the arrears and fines. Being unable to pay, it was later declared bankrupt and eventually liquidated. 3 .     At about the same time several high-ranking Yukos officials, including its owners, managers and lawyers, were arrested and subsequently convicted for fraud, tax evasion and money laundering. The head of the company’s security department, Mr P., was convicted for organizing criminal activities, including robbery, murder and attempted murder. 4 .     On 4 July 2003 senior investigator for especially important cases of the General Prosecutor’s Office Mr B. (hereinafter referred to as “investigator B.”) interviewed the applicant in the presence of his lawyer counsel D. Kh. 5 .     On 30 July 2003 the applicant left Russia for Israel, where he acquired an Israeli nationality. 2.     Initial indictment and attempts of the Russian authorities to seek the applicant’s extradition 6 .     On 12 January 2004 an investigator Mr Ka. (hereinafter referred to as “investigator Ka.”) decided to prosecute the applicant for personal income tax evasion. 7 .     On 21 January 2004 investigator Mr Ka. additionally charged the applicant with embezzlement. 1 .     On 21 July 2004 the investigation additionally indicted the applicant in respect of the following episodes. He was accused of having organised an attempt on Mr Kol., Ms O.K., Mr Ry. and also having organised a murder of Mr Go. and Ms O.G. (Article 30 (3), 33 (3) and 105 (2) of the Criminal Code of Russia, see paragraphs 153, 154 and 156 respectively below). The authorities declared an international search for the applicant. 9 .     On 23 July 2004 the Basmannyy District Court of Moscow decided to arrest the applicant in his absence. 10 .     On 7 July 2005 the Russian authorities made a request to Israel for the applicant’s extradition on the basis of the allegation of his involvement in the mentioned episodes. 11 .     On 28 August 2006 the Ministry of Justice of Israel informed the Russian authorities that Israel could not grant the extradition request. It stated that the evidence produced by the Russian authorities had been inadequate. 12 .     The investigation into the mentioned episodes was completed on an unspecified date in 2006. It appears that insofar as the investigation concerned the alleged personal tax evasion and embezzlement, the authorities decided not to pursue it. 13 .     It appears that the Russian authorities also requested the authorities of various other countries to extradite the applicant with reference to the pending criminal case against him. 14 .     On 13 August 2007 the Swiss Federal Tribunal ruled that Switzerland could not comply with a Russian request for mutual legal assistance concerning the applicant. It decided that all of the facts of the extradition case, taken together, “clearly corroborate the suspicion that criminal proceedings have indeed been used as an instrument by the power in place, with the goal of bringing to heel the class of rich ‘oligarchs’ and sidelining potential or declared political adversaries”. 15 .     In a number of other decisions reached by various other courts and authorities, including in Cyprus, Liechtenstein, Lithuania, Switzerland and the United Kingdom a variety of requests for mutual legal assistance and extradition connected with the Yukos case were rejected. In those cases the conclusion has been reached that the Russian requests were impermissibly tainted by the political nature of the Russian authorities’ decision to investigate and prosecute those closely involved with Yukos. In most of the extradition cases the national courts also concluded that there was no prospect that the former Yukos employee concerned could obtain fair trial in Russia, because of their close involvement with Yukos and because of the political influence over the Russian courts related to Yukos. Similar concerns led the authorities in these countries to grant asylum to those fleeing Yukos-related prosecution in Russia. 16 .     The Russian authorities furnished further evidence to Israel as to the applicant’s pending criminal case, but on 23 October 2007 Israel reiterated its position that the evidence was insufficient to order the applicant’s extradition. 3.     Pre-trial stage of the criminal proceedings (a)     The appointment of counsel B. and counsel D.Kh.’s attempts to delay the case-file examination 17 .     On 14 December 2007 investigator B. wrote to the Moscow Bar Association seeking the appointment of a lawyer to represent the applicant. 18 .     On 17 December 2007 investigator B. wrote to counsel D.Kh. a letter, inviting him to appear at 10.30 a.m. on 23 December 2007 to inspect the prosecution case-file. On 20 December 2007 investigator B. wrote to counsel D.Kh. another letter, inviting him to appear at 10.30 a.m. on 25   December 2007 to study the prosecution case-file. 19 .     In response, on 20 and 24 December 2007 counsel D. Kh. requested to postpone the examination. He referred to the fact that on 23 December he would be occupied in a different criminal case, whereas on 25 December he would be on a previously scheduled vacation. He sought to postpone the examination of the file to any date after 11 January 2008, confirming that the applicant’s defence intended to study all criminal case file materials and to exercise its procedural rights. Counsel D.Kh.’s motions apparently remained unanswered. 20 .     On 26 December 2007 the Moscow Bar Association appointed a lawyer, counsel L., to act as the applicant’s representative in the criminal case. Counsel L. agreed to study the criminal case and signed the confidentiality clause concerning the preliminary investigation. It does not appear that the applicant or counsel D.Kh. were informed of this appointment. Counsel L. never contacted the applicant. (b)     Counsel L.’s study of the case file and counsel D.Kh’s attempts to complain about the investigator’s actions 21 .     Counsel L. started to study the case file on 26 December 2007. He was to examine 84 volumes of case files of up to 300 pages each (18,926   pages in total, comprising the records of more than 500 witnesses, numerous forensic reports and other evidence), as well as physical evidence and video recordings. 22 .     On 21 January 2008 counsel D.Kh. requested the General Prosecutor’s Office to arrange to study the file. 23 .     On 22 January 2008 counsel D.Kh. complained to the General Prosecutor’s Office about the failure of the investigator to examine the first two motions (see paragraph 19 above). This complaint also drew attention to the possibility that the senior investigator might have asked another lawyer to review the case file and pointed out that this would be inconsistent with the provision of Article 50 of the Code of Criminal Procedure of the Russian Federation (see paragraph 153 below). Counsel D.Kh. asked in the complaint to investigate the circumstances of the complaint and to grant to him an opportunity to review the case. The complaint remained unanswered. 24 .     On 31 January 2008 counsel L. confirmed having completed the study of case-file. He was issued with an electronic copy of the applicant’s indictment of 18   December 2007. Counsel L. also moved for a preliminary hearing. Under Article 229 of the Criminal Procedure Code (see paragraph   161 below) as a result of a preliminary hearing some evidence could be excluded from the case-file, the case could be sent back to the prosecution, the case could be suspended or terminated, and a question of possible participation of jurors could also be resolved. When submitting that motion, counsel L. stated that he had no motions to summon witnesses for the defence, experts or specialists. He did not make any other motions for the defence. 25 .     In a letter dated 15 January 2008 (dispatched on 4 February 2008), the investigator wrote to counsel D.Kh., refusing to recognise him as the applicant’s lawyer, unless he presented proof. He further considered that counsel D.Kh. avoided his professional obligations in the case and informed him about possible arrangements to study the case file. 26 .     By a letter of the investigator dated 12 January 2008 (dispatched on 5   February 2008 and received on 14 February 2008), counsel D.Kh. received a decision, by which his motion of 24 December 2007 to postpone the examination of the criminal case file was rejected. It was stated in the decision that the motion had been filed on 10 January 2008. 27 .     On 6 February 2008 counsel D.Kh. filed a complaint with the Basmanny District Court of Moscow regarding the senior investigator’s inaction, namely his failure to respond, or to notify him of any decision made as to his request to be permitted to examine the file. 28 .     On 11 February 2008 the court notified the prosecution of the hearing date on 26 February 2008, followed up by another letter to the same effect sent on 12 February 2008. 29 .     According to a record in the case file, the court started the trial on 12   February 2008, but it did not actually conduct the proceedings on that day because of the absence of both the prosecution and defence. The court adjourned the proceedings until 26 February 2008. Counsel D.Kh. was not notified about that hearing. (c)     The indictment of 14 February 2008 and subsequent court hearings 30 .     On 12 February 2008 counsel D.Kh. was notified of the hearing scheduled for 26 February 2008. 31 .     On 14 February 2008 the case file together with the final indictment was sent to the Moscow City Court for examination on the merits. On the same day, a copy of the indictment was served on counsel L., but not on the applicant or counsel D.Kh. 32 .     According to the indictment, the applicant created a criminal group, which included Mr Go., Mr Gor., Mr S., Mr R., Mr T., Mr O., Mr A.P., Mr   Kor., Mr Po., Mr E., Mr Kab. A criminal case against Mr Go. and Mr   Gor. had earlier been terminated due to their deaths. The other members of the group had earlier been convicted for participation in the same episodes now attributed to the applicant. In particular, the applicant was indicted with having organised the murders of Ms Ko., Mr Pe., Mr Fe., Mr   Go. and Ms O.G. and attempted murders of Mr Kok., Mr Kol., Mr Ry., Ms O.K., Mr Iv. and Mr Fil. 33 .     On 17 February 2008 the applicant wrote to the Moscow City Court, stating that his defence counsel had been bypassed through an appointment of a sham counsel, who never contacted the applicant, but had allegedly examined the very voluminous case file on his behalf in a very short span of time. 34 .     On 18 February 2008 counsel D.Kh. wrote to the Moscow City Court, enclosing an authority form authorising him to act on the applicant’s behalf in this case. 35 .     Counsel L. was quoted by the Russian nation-wide newspaper Kommersant on 21 February 2008 as stating that he saw no reason to contact or speak with the applicant about his appointment. 36 .     On 21 February 2008 counsel D.Kh. filed complaints with the General Prosecutor’s Office and the Investigative Committee against the investigator’s actions, which crippled the applicant’s rights at the pre-trial stage of the proceedings. 37 .     On 26 February 2008 the Basmannyy District Court, acting as a judicial review court in respect of the actions of the investigation, disallowed counsel D.Kh.’s complaint of 06 February 2008 about the delays in examination of counsel D.Kh.’s motion of 21 January 2008. The court stated that it had no authority to supervise the investigator’s actions during the pre-trial period now that this stage was over. 4.     Preliminary hearings in the case and the arrangement for the case-file study by counsel D.Kh. (a)     The hearing of 4 and 5 March 2008 38 .     On 4 March 2008 the Moscow City Court, acting as a first instance court in the applicant’s criminal case, held a preliminary hearing. Counsel   L. did not attend. Presiding judge N. (hereinafter referrred to as “the judge”) asked the parties if they had any motions. Counsel D.Kh. was unhappy that the prosecution had failed to give him a copy of the final indictment. In response, the judge offered him a copy, having explained that this would constitute notification and would not be in breach of the domestic law. 39 .     Counsel D.Kh. moved to return the case to the prosecution. He considered, in particular, that the late notification of indictment at the preliminary hearing (instead of at an earlier stage of the proceedings) was in breach of the domestic law and made it impossible for the trial court to rule on it (Article 237 (1) of the Criminal Procedure Code, see paragraph 162 below); that the investigation failed to inform the defence about the composition of the investigative team, which deprived them of a right to challenge investigators (Article 163 (2) of the Criminal Procedure Code, see paragraph 155 below); that the expert examination ordered by the investigation had been invalid because the applicant had been unaware of them and therefore deprived of his procedural rights in connection with it; that the defence could not study the case-file and exercise its procedural rights in this connection (Article 217 of the Criminal Procedure Code, see paragraph 159 below). In addition, counsel D.Kh. sought to delay the proceedings by three months to give him time to study the file. 40 .     On 5 March 2008 the judge examined counsel D.Kh.’s request for more time and gave him fourteen days to study the file starting from that date. 41 .     According to the applicant, the 14 days granted by the judge for the purpose of reviewing the case file fell on holidays and weekends. As a result, there were only seven and a half working days that could be used for the study of the file. 42 .     The judge further refused as unfounded the motions to return the case to the prosecution. It stated, in particular, that any alleged breaches of the domestic law could be remedied in court, that counsel L. properly represented and defended the applicant’s procedural rights, that counsel D.Kh. essentially protracted the proceedings, which made it necessary to appoint counsel L., that, despite the applicant’s decision to flee, his rights were adequately secured by two counsels, counsel L. and counsel D.Kh., and that a copy of the indictment had been served on the defence through notification of counsel L. That decision was not amenable to appeal. 43 .     The trial was due to start at 10.00 a.m. on 19 March 2008. (b)     The applicant’s appeal against the Moscow City Court decisions of 4 and 5   March   2008 44 .     On 6 March 2008 counsel D.Kh. again complained that the time for study of the file was insufficient, this time to the Supreme Court, acting on appeal. 45 .     Counsel D.Kh. received a copy of the applicant’s final indictment on 6 March 2008. (c)     The applicant’s various motions to the Moscow City Court 46 .     On 7 March 2008 counsel D.Kh. requested the Moscow City Court to have access to a copy of the transcript of the hearing of 4 March 2008. The request was made again in a letter sent to the judge on 12 March 2008. These requested remained unanswered. 47 .     On 17 March 2008 counsel D.Kh. filed with the Moscow City Court an authority form (“ ордер № 25, 07.03.2008” ) issued by his law firm confirming his powers to act on the applicant’s behalf at the Moscow City Court. On the same day counsel D.Kh. informed the Moscow Bar Association about his authority to act on the applicant’s behalf. (d)     Case-file study by counsel D.Kh. 48 .     During the 14 days granted by the judge on 5 March 2008 counsel   D.Kh. studied the file each time when this was possible (except for 14   March 2008, when he was unavailable). As a result, he reviewed 10 out of 84 volumes in the case. 5.     Trial proceedings (a)     Preliminary issues before the beginning of the trial 49 .     On 19 March 2008 the judge put in doubt D.Kh.’s authority to act on the applicant’s behalf. In response, counsel D.Kh. showed the judge a receipt of his authority by the Moscow City Court on 17 March 2008. 50 .     Counsel L. failed to show on that day and he also stopped attending the court hearings in the applicant’s case altogether. 51 .     According to the applicant, the judge made no steps to ensure counsel L.’s participation in the proceedings. 52 .     Counsel D.Kh. unsuccessfully challenged the judge, accusing him of personal bias. He relied, in particular, on the judge’s unwillingness to give counsel more time. 53 .     Counsel D.Kh. then moved to postpone the trial for two months in order to complete the study of the case file which consisted of sixteen volumes. The judge denied the motion, having stated that counsel D.Kh. had first been invited to study the case on 18 December 2007 and since then had been procrastinating. The judge asserted that the motion was intended to delay the examination of the case and decided that counsel D.Kh. could review the case file after each trial session. 54 .     As regards the essence of the criminal case, counsel D.Kh. explained that the applicant denied his guilt and deplored the lack of an adequate time for preparation and emphasised the need to study the entire case file. (b)     The applicant’s conviction and the evidence against him 55 .     As a result of the trial, the applicant was convicted to life imprisonment on account of six episodes: (a)     organising, in liaison with Mr P., the murder of Ms Ko. The conviction was essentially based on the statements of witnesses Mr S. and Mr O.; (b)     organising, in liaison with Mr P., the murder of Mr Pe. The conviction was essentially based on the statements of witnesses Mr S., Mr   T., Mr   R., Mr Pi. and Mr G.; (c)     organising, in liaison with Mr P., the robbery of Kol. The conviction was essentially based on the statements of witnesses Mr A.P., Mr T., Mr   R. and Mr S.; (d)     organising, in liaison with Mr P., the attempted murder of Mr Ry., the murder of Mr Fe. and the attempted murder of Mr I.Fi. and Mr E.Fi. The conviction was essentially based on the statements of witnesses Mr Ry., Mr   D., Mr G., Mr Sk., Mr R., Mr T., Mr S., Ms O. and Mr A.P.; (e)     organising, in liaison with Mr P., the attempted murder of Ms   O.K. The conviction was essentially based on the statements of Mr A.P. and Ms   O.K.; (f)     organising, in liaison with Mr P., the murder of Mr Go. and Ms O.G. The conviction was essentially based on the statements of Mr A.P. and Mr   Kor. (c )     The events of the trial 56 .     The examination of the witnesses at the trial did not take place in a specific order. It does not appear that counsel D.Kh. had any access to information on the exact order of attendance. (i)     Questioning of Mr Si., Mr Ry.and Mr D.K. on 20 March 2008 57 .     On 20 March 2008 during the examination of witness Mr   Si. counsel   D.Kh. stated that he was unfamiliar with statements by this witness because he had not been granted time to review the case file and that he would ask questions only based on his statements made in court. 58 .     In response to questioning by counsel D.Kh. on 20 March 2008, Mr   Ry. indicated that he had been interrogated during the investigation 65   times. Counsel D.Kh. asked the court for two hearing days to allow him to study all 65 interrogation records, as well as documents involving East Petroleum’s litigation which were essential to the understanding of the case. The court dismissed the motion on the ground that the defence had had three months to review all criminal case file materials after the conclusion of preliminary investigation. 59 .     On 20 March 2008 during the examination of victim Mr D.K., counsel D.Kh. stated that the defence was unfamiliar with his written evidence given at the pre-trial stage of proceedings and unsuccessfully sought further two months to review the case file. (ii)     Questioning of Mr A and Mr X on 20 March 2008 60 .     On 21 March 2008 the court examined witnesses Mr A. and Mr X. The applicant’s counsel stated that he was unfamiliar with the records of their interrogations and pointed out his inability fully to participate as his questions would be based only on the witnesses’ evidence given to the trial court. 61 .     According to the applicant, during the examination of witness Mr X. the judge reminded the witness the name of a street, to which counsel   D.Kh. objected. (iii)     The attendance of witnesses on 24-27 March 2008 62 .     On 24 March 2008 the court was informed by the prosecution that victim Ms O.K. and Ms I. would give evidence the following day. Counsel   D.Kh. used the period after the court session to review their interrogation records. 63 .     It appears that on 25 March 2008 these witnesses failed to attend and that instead the court heard victim Mr Iv. and witnesses Mr Bor., Mr G. and Mr Sh. It does not appear that counsel D.Kh. knew that these people would attend the hearing on that day and be heard. 64 .     As regards Ms O.K. and Ms I., they gave their evidence on 18 April and 26 March 2008 respectively. 65 .     As regards witness Mr G., counsel D.Kh. asked for additional time for preparation until the following day with reference to the need to review the file. The judge granted him 45 minutes. 66 .     On 27 March 2008 witnesses Mr D. and Mr V.K. appeared at the hearing despite not being on the list of witnesses summoned for that day. Counsel D.Kh. was given half an hour to review their pre-trial statements to prepare. 67 .     Ms I. asked witness Mr V.K. about the identity of potential beneficiaries of the death of Ms Ko. In response, counsel D.Kh. asked the judge to disallow the question on the ground that the witness should testify about the circumstances of the case rather than express her opinion. The judge permitted the question regardless. Mr V.K. stated in the court that, in his view, “it was all coming from [the applicant]”. 68 .     Counsel D.Kh. asked for permission to read out Mr V.K.’s statements, but was only permitted to read parts containing contradictions. Counsel D.Kh. challenged the statements of this witness arguing that the applicant’s name had not been not mentioned during the interrogations. The court rejected the applicant’s challenge on the ground that “the witness [had not] asked a question about the organizer of the crime and about those involved in it”. (iv)     The applicant’s letter of 27 March 2008 to the trial court 69 .     On 27 March 2008 the applicant personally sent a letter to the Moscow City Court. He stated that he had received the summons only after the trial had begun, that the allegations against him had no factual basis, that the proceedings were unfair, that the officially appointed counsel had been ineffective and that counsel D.Kh. had been deprived of the opportunity properly to prepare defence. He also stated that the prosecution was politically motivated. (v)     Judge’s alleged comments relating to the prosecutor’s statements on 2   April   2008 70 .     According to the applicant, on 2 April 2008 the prosecutor stated in the hearing that there were reports and statements on surveying the residential area and the murder scene of Mr Pe. The judge responded as follows: “Here, you have to mark c.p. 3-4: reports, and c.p. 115-21 – information memorandum”. 71 .     The defence objected to the actions of the judge which it deemed as having actively assisted the prosecution. The judge rejected the objections. (vi)     The events in the proceedings on 7-10 April 2008 72 .     On 7 April 2008 witness Mr Nu. was examined. According to the applicant, the witness was not listed in the indictment. The prosecutor asked the witness a question about the procedure for obtaining Israeli citizenship and inquired as to what he knew regarding the applicant obtaining that citizenship. Counsel D. Kh. objected against asking that question to the witness, but his objection was dismissed. 73 .     On 9 April 2008 the applicant’s appeal against the decision of the Basmanny District Court of Moscow of 26 February 2008 was rejected (see paragraph 37). 74 .     On 10 April 2008 witness Mr S. was questioned in the hearing. (vii)     The applicant’s objection against the prosecutor’s reliance on certain documents on 16 April 2008 75 .     On 16 April 2008 counsel D.Kh. submitted that the prosecutor had referred in his submissions in court to certain documents, which were never examined in court. He also submitted that these documents were not probative of the offences of which the applicant had been accused. 76 .     The prosecutor, in reply, refused to give any clarifications and promised to comment later. According to the applicant, he never did so. (viii)     Court decision of 18 April 2008 to disallow the applicant’s question to Ms   O.K. 77 .     On 18 April 2008 witness Ms O.K. was questioned in the court hearing. The applicant wished to ask the witness about the time when the witness had become an FSB advisor and on whose initiative. The judge disallowed the question as irrelevant. (ix)     Questioning of Mr R. and Mr T. on 21 April 2008 78 .     On 21 April 2008 witness Mr R. was examined in the hearing. He stated that he had only heard the applicant’s name from his interrogators and only then started to mention him during interviews. 79 .     On 21 April 2008 witness Mr T. was examined in the hearing. Mr T. stated that on 16   April 2008 the senior investigator visited him in the detention centre, to which he had been transferred for the purpose of giving evidence in the applicant’s trial, and told him to give the same evidence as he had done in the trial of Mr P. He further stated that he had implicated Mr   P. in his evidence after the senior investigator had offered him a reduced sentence if he were to cooperate in this way and to implicate Mr P. The judge claimed that the witness was always changing his statements. The prosecutor submitted a motion to read the pre-trial statements of the witness. Counsel D.Kh. objected to the motion, stating that the court had taken inculpatory stance and was ‘indulging the General Prosecutor’s Office’. The judge granted the motion and reprimanded Counsel D.Kh. for ‘totally baseless contempt of court’ and warned him that he would be removed from the courtroom if he did not change his behaviour. (x)     Questioning of Mr P. and the judge’s inquiry about the statements of Mr T. on 23 April 2008 80 .     On 23 April 2008 Mr P. was questioned in the court hearing. He talked about the use of psychotropic drugs on him in the course of the interrogation. The witness insisted on his own innocence and refused to incriminate the applicant. Counsel D.Kh. requested the records of the witness interrogation of 15 July 2003 from criminal investigation file no.   18/35-03 or from the criminal case examined by the Moscow City Court to be read in court. He also asked to suspend the examination of this witness until the court had the interrogation record available. The judge denied the motion on the ground that the record was irrelevant to the criminal case under examination and that Counsel D.Kh. could request the record on his own. 81 .     On 23 April 2008 the judge announced that he had made an inquiry on 22 April 2008 to Remand prison no. 1 as to how long Mr T. had been there and whether he had been visited by anyone from the General Prosecutor’s Office. The reply to the inquiry stated that the witness arrived there on 13 April 2008 and that no one visited him at the detention facility between that day and 21 April 2008. The judge consequently drew the conclusion that Mr T. had ‘made the whole thing up’. (xi)     The applicant’s attempt to challenge the judge on 24 April 2008 82 .     On 24 April 2008 counsel D.Kh. moved to enter into the record the interrogation of Mr P. by investigator De. at the investigative detention facility on 15 July 2003. The judge denied that motion, saying the record of interrogation was irrelevant. Counsel D.Kh. moved to recuse the judge on the ground that the judge had made evaluation of the statements of Mr T. the previous day. The judge denied the motion on the ground that he had no direct or indirect interest in the outcome of the case. (xii)     Reading of pre-trial statements of witnesses on 25 April 2008 83 .     On 25 April 2008 the statements of Mr Go. and victim Mr Kok. were read because it was impossible for them to appear in court. On the same day the judge also granted the motion of the prosecution to read the statements of Ms Kop., Ms M., Mr Y., Mr Ga., Mr Z., Mr Bo. and Mr Pa. Counsel   D.Kh. objected with reference to the fact that the reasons given were either insufficient to justify the reading of statements or there were doubts about the actual existence of the documents, or that the copies of the documents had not been properly authenticated. The objection did not apply to the first witness of this list who had died. On the same day the judge refused a motion by counsel D.Kh. to read the record of interrogation of Mr   Y. (xiii)     The decision of the Israeli Supreme Court of 14 May 2008 on the applicant’s extradition request towards Russia 84 .     On 14 May 2008 the Israeli Supreme Court, acting on appeal, confirmed the decision not to extradite the applicant. It noted, in particular, that the Israeli Ministry of Justice had reached its decision to decline extradition after comprehensive and thorough examination of the evidence. The Israeli Supreme Court stated that the test as to whether the evidence of the applicant’s involvement in the alleged crimes existed was “not a trial on the merits” but intended to establish whether “according to the laws of evidence accepted in Israel ... the prosecution is in possession of admissible evidence (apart from hearsay...), which is such as to justify prosecution and enquiry into the guilt or innocence of the accused”. 85 .     The Israeli Supreme Court also noted: “The extradition request dealt with five events in the course of which several citizens met their deaths and others were injured. According to the suspicion, the applicant sent henchmen to do those acts but in the evidence which was produced in the extradition request there was not a single piece of direct evidence linking the applicant to involvement in those acts. In four incidents the evidence was limited to the admissions of the henchmen, who asserted on interrogation that the person who had sent them had claimed to them that he himself had been sent by the applicant. Those who committed the offences had therefore never met the applicant and merely heard from a third person that it was he who stood behind the commission of the offences. That is hearsay which is not admissible according to the law applicable in Israel. Here it is appropriate to mention that the particular third party, whose version might have shed light on the whole affair, was not called to give evidence, because, according to the extradition request, he was murdered in November 2002. That last occurrence is also attributed to the applicant, although the extradition request does not specify a single piece of evidence connecting the applicant with it.” (xiv)     Examination of witnesses on 21 May – 02 June 2008 86 .     On 21 May 2008 counsel D.Kh. was given the names of witnesses to be called at the six hearings between 27 May 2008 and 3 June 2008. There were 115 witnesses on that list in total with around 20 witnesses per hearing. 87 .     The applicant alleges that most of these witnesses failed to appear in court and that the court heard some other witnesses, not mentioned on the list at all, instead. According to the applicant, counsel D.Kh. received no proper notification about the appearance of these witnesses and could not prepare. 88 .     On 27 May 2008 witness Mr Sk., a witness not listed in the indictment, was examined. 89 .     On the same day counsel D.Kh. submitted a motion to read the record of the interrogation of witness Ms Mi. The motion was granted. 90 .     On 27 May 2008 witness Ms Ba. was questioned in the court hearing. According to the applicant, the judge displayed bias by actively talking to the witness and putting her questions, instead of listening to the answers given in responses to the parties’ questions. 91 .     On 28 May 2008 witness Mr Ye., a witness not listed in the indictment, was examined in court. 92 .     On 28 May 2008 the defence moved to call Mr Kol. for a supplementary examination as a victim. The request was granted. 93 .     On 28 May 2008, upon the motion of the prosecutor, the statements by witnesses Mr Dr. and Mr Shi. were read out in the court hearing. The defence objected to admitting the evidence of Mr Shi. in this form, as that evidence could not be tested. 94 .     On 29 May 2008 the judge granted the prosecutor’s motion to read the statements and records of interrogation of Ms Kar. and Ms Ma., as they could not appear in court. The defence objected to the motion. The statement of Ms Ma. related to Ms O.G., whose murder the applicant was accused of ordering. The evidence of Ms Ma. concerned an alleged meeting between the witness and two Yukos employees. 95 .     On 30 May 2008 witness Mr Kon. was questioned in the court hearing. The judge questioned the witness on the motives of the involvement of Mr P. in the murder of Mr Pe. and about the relations between Mr P. and the applicant. 96 .     On 02 June 2008 witness Mr O. was questioned in a hearing by Mr   D.Kh. He testified that the investigators had asked him to incriminate the applicant under threat of being charged as an organiser of a crime group. 97 .     On 2 June 2008 Counsel D.Kh. submitted a motion to send a summons to Mr Ry. in order to examine him as a victim. The court denied the motion, noting that it was unnecessary since Mr Ry. had been examined previously and counsel D.Kh. had had a chance to ask him questions. (xv)     Watching of video evidence by the court and the applicant’s requests to call witnesses for further examination between 2 June and 14 July 2008 98 .     On 2 June 2008 the prosecutor moved to read Mr T.’s statements and watch a video cassette of his interrogation. Counsel D.Kh. objected to the motion citing Article 281 (1) of the Code of Criminal Procedure (see paragraph 167 below) which permitted such reading out or viewing ‘with the consent of the parties in the case of the non-appearance of the victim or witness’, while in the present case Mr T. had appeared and testified previously before the court. The court granted the prosecutor’s motion, as the law did not prohibit the reading out of statements and viewing a video cassette in an individual’s absence. After viewing the video recording of the supplemental interrogation of Mr T., counsel D.Kh. referred to the fact that the witness statements made during the preliminary investigation had been explained by Mr T. at the trial on 21 April 2008 as arising from the investigator’s offer to him of a reduced sentence if he implicated Mr P. and the applicant. 99 .     On 3 June 2008 the prosecutor asked the court to view a video recording of Mr R.’s statement of 16 June 2005. The defence objected, stating that Mr R. had been examined and the prosecutor had had the opportunity to ask him any questions. The judge granted the motion. 100 .     On 3 June 2008 the prosecutor asked the court to view the video cassette with the recording of Mr Go.’s automobile inspection. Counsel   D.   Kh. did not object to the motion, and it was granted. The judge suggested, on his own initiative, that the examination of the area near Khovanskoye cemetery should also be viewed on the same cassette. 101 .     Mr Ne. and Mr Sm. were examined on 9 and 10 June 2008 respectively. Counsel D.Kh. was not advised that these particular witnesses would be appearing at these specific hearings. During the questioning of witness Mr Ne. the judge indicated that “there are also different budget line items; you can’t allocate to salaries alone”. Counsel D.Kh. objected to the comments of the judge, stating that “it is the witness who testified, not the judge who should explain what happened in Nefteyugansk”. 102 .     On 10 June 2008 the judge granted the prosecutor’s motion to view a video cassette with the recording of a recreational trip to the mountains by Yukos executives and an interview with Mr G. given on television. Mr   D.Kh. objected that the interview could not be examined at the proceedings, stating that it was not physical evidence within the meaning of the Criminal Procedure Code of Russia. 103 .     On 11 June 2008 the prosecutor entered a motion to hear Mr Kor.’s and Mr A.P.’s videotaped statements in the interests of ‘fullness of court examination’. Counsel D.Kh. objected, indicating that the law did not provide for the right to hear such statements on the ground announced by the prosecutor. He further stated that Mr Kor. and Mr A.P. had earlier been examined in court, and the prosecutor did not claim that there were any contradictions in their statements at the time. The judge permitted the viewing of the statements. 104 .     On 25 June 2008 the judge’s clerk told the assistant of counsel   D.Kh. that the prosecutor would ask to view two more video cassettes and would then finish presenting the evidence. The clerk had indicated that the judge had asked that it be passed on to the applicant’s lawyer, that the defence should try to ensure that the witnesses for the defence appear in court between 30 June and 04 July 2008 and that defence witnesses could be brought the week after but that would be highly undesirable. 105 .     On 8 July 2008 a video recording of the interrogation of witness Mr   S. was shown in court. The applicant’s lawyer objected to the court receiving the video evidence, stating that such a video may only be viewed after his statements were read. He subsequently made a motion, asking for Mr   S. to be summoned in court. The motion was rejected. 106 .     On 9 July 2008 counsel D.Kh. moved for Mr R. to be examined again on matters arising from his written statements in the course of interrogations during the preliminary investigation, which were read out at the prosecutor’s request. The motion was rejected by the judge. Counsel   D.Kh. also asked the judge to grant him three weeks in order to prepare for the presentation of the evidence. He was granted three working days in this respect. 107 .     On 14 July 2008 the applicant moved to summon and conduct supplemental examination of victims Ms Kol. and Mr Ry. The motion was rejected by the judge on the ground that these victims had already been examined in the court in detail. (xvi)     The motions of the defence on 14 July 2008 108 .     On 14 July 2008 counsel D. Kh. asked the court to summon witnesses Mr Lu., Mr V.S., Mr F., Mr S.B., Mr Y.K., Mr Tz., Mr Kl., Mr   Mu., Mr Xa., Mr And. and Mr As. Summonses had earlier been sent by the court to all of these witnesses, but the witnesses did not respond. The first three witnesses had not been interrogated during the preliminary investigation, the rest of them were examined during preliminary investigation. The judge denied that motion. He also stated that the defense was entitled to ask that the statements, which had been given by the witnesses during preliminary investigation, were read out in court. Counsel   D.Kh. then asked the court for the opportunity to question Mr Kh. at his place of incarceration. The judge denied that motion on the basis that Mr Kh. was not at that time within the jurisdiction of the Moscow City Court. the judge also stated that the defence had the right to ask his place of incarceration – a correctional facility in the city of Chita – for permission to question him. 109 .     On 14 July 2008 counsel D.Kh. moved to exclude the video cassette of the interview with Mr G. and of the Yukos trip to the mountains, as well as the records of interrogations and videotaped statements of witness Mr T. on the grounds that they were irrelevant. The judge denied the motion on the basis that there were no procedural violations committed in obtaining these items of evidence. 110 .     On 14 July 2008 counsel D.Kh. submitted a motion to examine and adduce documents in the criminal case, namely: a copy of the 14 May 2008 Israeli Supreme Court decision in Mr Nu.’s and Mr E.S.’s petition to strip the applicant of his State of Israel citizenship and extradite him to Russia; a copy of the 13 August 2007 decision by Switzerland’s First Public Law Court of the Swiss Federal Tribunal on the applicant’s complaint against the 15 December 2006 decision by the Swiss Federal Prosecutor’s Office regarding International Legal Assistance to the Russian Federation, as well as copies of Statement and documents with reference to which the Swiss Federal Supreme Court made a decision in the case; a copy of the 10   April 2008 decision by Nicosia’s District Court regarding Russian Federation’s request to extradite Mr V.Ka.; a copy of the English Bow Street Magistrates Court decision of 18 March 2005 regarding Russian Federation Government’s request for International Legal Assistance and Extradition of Mr Mar. and Ms C.; a copy of the English Bow Street Magistrates Court decision regarding the Russian Federation Government’s request for the extradition of Mr Te.; a copy of the 24 August 2007 decision by the Senior Prosecutor of the Department of International Relations and Legal Assistance of the Lithuanian Republic’s General Prosecutor’s Office Request to take into custody and extradite Russian Federation citizen Br.; statements by Mr Du., Mr She., Mr V.Sh., Mr Li. and Mr Pav. The judge agreed to admit the copy of the Israeli Supreme Court decision, the Swiss Federal Tribunal’s decision on the applicant’s complaint, and statements by Mr She., Mr Du., Mr V.Sh. and Mr Pav. The rest of the motion was denied by the judge. The part of the motion concerning adducing the documents was denied by the judge on the basis that he considered them to have no relevance to the case. 111 .     On 14 July 2008 counsel D. Kh. submitted a motion for recusal of the judge, noting that he was not given sufficient time for preparation of presentation of defence evidence, the defence was deprived of the opportunity to examine the victims and certain witnesses, as well as to adduce certain documents to the case file, the motion of the defence to exclude evidence obtained in violation of law was denied. The judge refused to deal with the motion, stating that he had already twice dealt with similar recusal motions, submitted by the defence. After that counsel D.Kh. submitted a statement regarding the political motivation for prosecuting the applicant and regarding the impossibility to continue presenting evidence. (xvii)     Reading out of the statements of absent witnesses on 15 July 2008 112 .     On 15 July 2008 the prosecutor entered a motion to read out statements by six witnesses – Mr V. Sh., Mr Du., Mr Br., Mr Ta., Mr Pav. and Mr She. Counsel D.Kh. did not object to the motion, because one of the witnesses had since died and the remaining witnesses were abroad. On the same day the prosecutor entered a second motion to read out statements by over twenty witnesses: Mr Zo., Mr D.D., Mr Kal., Mr A.Sh., Mr A.Y., Ms   R. P., Mr V.Y., Mr S.K., Mr Baz., Ms Za., Ms N.K., Mr Boc., Ms   T.Sh., Ms N.Ko., Mr Be., Mr Pi., Mr Ash., Mr So., Mr Ru. and Mr Sa. The prosecutor cited as a ground for doing so that the summons sent to these witnesses had been returned to the court by the post office as the individuals concerned had not come to the post office to pick them up or they did not reside at the stated addresses. 113 .     Counsel D.Kh. objected to the reading of the statements of the witnesses without an opportunity to examine them. The court granted the motion, stating that the summons had been sent to the witnesses, but they did not appear in court for various reasons. 114 .     Statements by Mr Pi., Ms T. Sh., Mr Be., Ms N.K., Mr A.Sh. and Mr Zo. were read out on 15 July 2018. The remaining statements were read out the following day. (xviii)     The motion of the defence dated 16 July 2008 to summon additional witnesses 115 .     On 16 July 2008 counsel D.Kh. asked the court to summon witnesses Mr   A.Sh., Mr Pi., Mr Zo., Mr Sa., Mr Kal. after evidence taken from them during the preliminary investigation had been read out by the prosecution, but the motion was rejected. After that the judge announced a recess until 23   July 2008, setting oral arguments for that date. (xix)     Closing speech of the prosecutor on 23 July 2008 116 .     On 23 July 2008 the prosecutor read a closing speech. The prosecutor changed the charge in relation to Mr Kol. so that the applicant became charged with organising Mr Kol.’s assault and robbery. The prosecutor also stated that Mr T. had tried to falsely accuse the prosecutors, which is why he recanted his testimony and so his earlier statements have to be believed. The prosecutor also asked the court to exclude both the Swiss and Israeli court decisions as inadmissible evidence, saying that they were irrelevant, did not contain information on the object to be proven, the translator had no