By Tobias Thienel
Today, the European Court of Human Rights – by a Chamber – delivered judgment in the case of Khodorkovskiy v Russia. The applicant is a famous man, and his case in the Russian courts is probably best described as infamous. The European Court has now stepped in to some extent, but has not really thrown the kitchen sink at the Russian authorities.
The Court found, in particular, the the conditions of Mr Khodorkovskiy’s detention (before and during his first trial) had been in violation of Article 3 of the Convention, but only for a comparatively short time. The Court also found that the applicant’s initial arrest had not genuinely been ‘for non-compliance with a court order’ (Article 5(1)(b) ECHR), as the authorities had claimed, but had actually been intended to facilitate his prosecution. This may be regarded, if only by comparison, as a more or less technical error, inasmuch as the authorities could presumably have arrested the applicant as part of the criminal proceedings (Article 5(1)(c) ECHR).
More worryingly, the authorities had also confiscated notes taken by Mr Khodorkovskiy’s defence lawyer, on no apparent legal basis and in complete disregard of legal privilege. To make matters worse, a court had then relied on that note in extending Mr Khodorkovskiy’s detention. This amounted to a violation of Article 5(3) ECHR, which the Court has now duly found. Also, two orders prolonging pre-trial detention were held to have been without proper justification, for a number of worrysome reasons. Moreover, the Court found several violations of Article 5(4), which, taken together, amount to a picture of very serious unfairness.
On a more politically sensitive charge, the European Court did not find a violation. The applicant had submitted, plainly not without justification, that his prosecution and his overall treatment had been politically motivated, and hence had been based on improper motives within the meaning of Article 18 ECHR. He had also referred to the well-known charge that his prosecution had in fact been ordered by Vladimir Putin himself. On this point, the ‘money quote’ from the judgment is as follows:
‘The Court admits that
the applicant’s case may raise a certain suspicion as to the real
intent of the authorities, and that this state of suspicion might be
sufficient for the domestic courts to refuse extradition, deny legal
assistance, issue injunctions against the Russian Government, make pecuniary
awards, etc. However, it is not sufficient for this Court to conclude
that the whole legal machinery of the respondent State in the present
case was ab initio misused, that from the beginning to the end the authorities
were acting with bad faith and in blatant disregard of the Convention.
This is a very serious claim which requires an incontrovertible and
direct proof. Such proof, in contrast to the Gusinskiy case, cited above, is absent from the case under
examination.’
In so holding, the Court did not give the Kremlin the ultimate rap across the knuckles in this case. Even so, the rebuke is obvious (although the bit about refusals of extradition etc. is a reference to certain domestic cases in which such decisions have been taken on account of Mr Khodorkovskiy’s case).
The Court has shown itself to be careful not to push the boat out too much. It found a number of very serious violations, but did not allow its obvious concern to colour its judgment on other points. One wonders, however, how the Court will deal with the second Khodorkovskiy trial when that comes before it. It certainly appears eminently arguable that this involved a violation of Article 18, given that there seems to be much less to the recent charges than to those addressed in today’s judgment.