CEDH · CASELAW;CLIN;ENG — 31 mai 2011

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law 141 May 2011 Khodorkovskiy v. Russia - 5829/04 Judgment 31.5.2011 [Section I] Article 5 Article 5-1-b Secure fulfilment of obligation prescribed by law Outer purpose of arrest different from the real one: violation Article 18 Restrictions for unauthorised purposes Allegedly politically and economically motivated criminal proceedings against applicant: no violation Article 46 Article 46-2 Execution of judgment Individual measures Request for individual measures to prevent future similar violations: no individual measures indicated Facts – The applicant was a board member and the major shareholder of the Yukos oil company and one of the richest men in Russia. He was also politically active in that he announced he would allocate significant funds to support opposition parties. In 2003 certain members of the Yukos management were arrested in connection with the privatisation of another company called Apatit. In July 2003 the applicant was interviewed as a witness in that case. In October 2003, while the applicant was on a business trip to eastern Russia, an investigator summoned him to appear in Moscow as a witness at noon the following day. The applicant’s staff informed the investigator that the applicant would not be able to attend as he was away on a business trip and was not due to return for a few days, but the chief investigator ordered his enforced attendance for questioning. The following day a group of armed law-enforcement officers approached the applicant’s aeroplane on an airstrip in Novosibirsk, apprehended him and flew him to Moscow, where he was questioned by the investigator as a witness. Immediately afterwards, the applicant was informed that he was being charged with a number of economic crimes relating to the privatisation of Apatit. In 2005 he was convicted and sentenced to eight years’ imprisonment. Law – Article 3: In response to the applicant’s complaint that he had been placed in a metal cage during the court hearings, the Court noted that the practice of placing a criminal defendant in a “special compartment” in a court room existed in several European countries. However, the applicant was accused of non-violent crimes and had no previous criminal record and there was no evidence that he was predisposed to violence. His trial was covered by almost all major national and international mass media, so he had been permanently exposed to the public in such a setting. Such security arrangements, given their cumulative effect, had in the applicant’s case been excessive and could reasonably have been perceived by the applicant and the public as humiliating. (See also Ashot Harutyunyan v.   Armenia , no.   34334/04, 15   June 2010, Information Note no.   131) Conclusion : violation (unanimously). The Court also found a violation of Article   3 in respect of the conditions in one of the facilities in which the applicant had been held pending trial. Article 5 § 1 (b): The applicant’s arrest had had a basis in domestic law, which permitted the apprehension of a witness who failed to attend for questioning without good reason. However, any deprivation of liberty had to protect individuals from arbitrariness and was only acceptable if the obligation prescribed by law could not be fulfilled by alternative means. Although, formally speaking, the applicant had failed to attend for questioning and therefore had an unfulfilled obligation vis‑à-vis the State, the Court was unable to accept that this was sufficient reason for bringing him forcibly to Moscow the following morning and for doing so in the manner chosen. First of all, it was unclear why the investigator was not prepared to wait for the applicant to return to Moscow three days later, given that the investigation had already lasted several months and that the applicant’s previous behaviour had not given rise to any legitimate fear that he would evade questioning on his return. Furthermore, the applicant was arrested like a dangerous criminal rather than a simple witness and immediately after questioning him the investigator had lodged a nine-page application requesting his detention. Such a line of events suggested that the investigator had in fact been prepared for such a development and wanted to charge the applicant, not simply question him as a witness. Given that an arrest might be unlawful if its outer purpose differed from the real one, the applicant’s apprehension in Novosibirsk had been contrary to Article 5 §   1   (b). Conclusion : violation (unanimously). Article 5 § 1 (c): The applicant had complained that the hearings in which the detention orders were made were not held in public and that the decisions were not properly reasoned. As to the first part of the complaint, even though the Convention itself did not expressly require that hearings on the lawfulness of pre-trial detention be held in public, the domestic law did contain such a requirement. However, not each and every disregard of domestic formalities automatically entailed a breach of the Convention. Even if the domestic courts had erred in their interpretation of domestic law and held the impugned proceedings in camera for no good reason, this had not amounted to a gross or obvious irregularity invalidating the proceedings. As to the second part of the complaint, the detention orders contained some reasoning and could not be characterised as arbitrary. Conclusion : no violation (unanimously). Article 5 § 3: In the first detention order against the applicant the domestic courts relied on three particular risks: the risk of absconding, interfering with the course of the investigation or continuing his criminal activity. Even though some of these were rather loose presumptions, the fact that the applicant was one of the richest people in the country and, unofficially, a politically influential person could not be disregarded. However, while the reasons adduced by the domestic courts may have been sufficient to justify some of the period of the applicant’s detention, the Court was not convinced that they were sufficient to justify the whole period. Firstly, two subsequent detention orders contained the same reasons as the initial order, even though the applicant’s personal situation had evolved in that he had ceased to exercise managerial functions within the Yukos group and had surrendered his travel documents to the investigator. The detention order dated 20   May 2004 and the subsequent decision confirming that order were not supported by any reasons for continuing detention whatsoever. Those extensions of the applicant’s detention had therefore been unjustified. Finally the domestic courts had relied on material obtained in violation of the lawyer-client privilege and had never seriously considered alternative, less intruding measures. Conclusion : violation (unanimously). Article 18: The whole structure of the Convention rested on the general assumption that public authorities in the member States act in good faith. While any public policy or an individual measure might have a “hidden agenda” and while the presumption of good faith was rebuttable, an applicant alleging that his rights and freedoms were limited for an improper reason had to show convincingly that the real aim of the authorities was not the same as that proclaimed (or as could be reasonably inferred from the context). A mere suspicion that the authorities had used their powers for some other purpose than those defined in the Convention was not sufficient to prove a violation of Article   18; instead a very exacting standard of proof was applied. That standard had not been met in the applicant’s case. In that connection, the Court noted that it was open to anyone in the applicant’s position as a rich, influential and potentially serious political opponent to make allegations about “improper motives”. However, the fact that a suspect’s political opponents or business competitors might directly or indirectly benefit from his detention should not prevent the authorities from prosecuting if there were serious charges against him. In other words, high political status did not grant immunity. For its part, the Court was persuaded that the charges against the applicant amounted to a “reasonable suspicion” within the meaning of Article 5 §   1   (c) of the Convention. The fact that suspicion as to the real intent of the authorities had prompted several European national courts to find against the Russian authorities in proceedings involving Yukos was not sufficient for the European Court to conclude that the whole legal machinery of the respondent State had been ab initio misused and that from beginning to end the authorities had been acting in bad faith and blatant disregard of the Convention. That was a very serious claim which required incontrovertible and direct proof that was absent from the applicant’s case. Conclusion : no violation (unanimously). Article 46: The applicant had requested individual measures, such as directions to the Government not to keep him in a cage during any subsequent proceedings and to allow international observers to visit him in prison and investigate the conditions of his incarceration. However, that request did not belong to any of the categories of situation in which specific Article   46 measures were, exceptionally, ordered (for example, to put an end to a systemic problem, to discontinue a continuous situation or to indicate the remedy required when the nature of the violation left no real choice). The applicant had not requested the Court to indicate to the Government how past violations should be remedied but rather asked the Court to prevent future possible violations of the same kind. However, the Court’s primary role was to examine facts, not to make assumptions for the future, especially where those assumptions would depend on a multitude of factors and therefore be speculative. Accordingly, there was no need to indicate any specific measure in the applicant’s case other than the payment of the just-satisfaction award; the determination of other measures was left to the discretion of the Committee of Ministers of the Council of Europe. The Court also found violations of Article 5 §   4 of the Convention on account of numerous procedural irregularities concerning the review of his detention as well as the speediness of that review. Article 41: EUR 10,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes