Saturday, June 18, 2011

Khodorkovskiy v. Russia: Process Rights for Individuals, Political Rights for States

The European Court of Human Rights has published its opinion in Case of Khodorkovskiy v. Russia (Application no. 5829/04); ECHR May 31, 2011).  What emerges is both the willingness of the Court to protect a litigant's process rights in connection with incarceration and trial, but also the extreme deference of the Court of Human Rights to the discretion of states in applying its criminal law.  

Here is a brief description recently published by the American Society of International Law website:

Khodorkovskiy v. Russia (May 31, 2011)
Click here for document (approximately 49 pages)
The European Court of Human Rights has held that Russia violated several provisions of Articles 3 and 5 of the European Convention on Human Rights in connection with the arrest, trial, and detention of Mikhail Borisovich Khodorkovskiy ("applicant"), a businessman, who, before his arrest in 2003, was the major shareholder of a large oil company (Yukos) and one of the richest persons in Russia. The Court did not find, however, that Khodorkovskiy's criminal prosecution in Russia was politically motivated or commenced to enable the Russian government to appropriate his shares in Yukos. According to the Court, "[t]his is a very serious claim which requires an incontrovertible and direct proof. Such proof . . . is absent from the case under examination."
Khodorkovskiy claimed that his arrest, detention, and trial were carried out in a manner that violated his human rights and dignity. Khodorkovskiy has been detained since 2003 in different prisons, and the Court reviewed each facility to determine whether the conditions experienced by Khodorkovskiy were severe enough to amount to inhuman and degrading treatment prohibited by Article 3 of the Convention. The Court concluded that the situation at one prison amounted to "'inhuman and degrading treatment' within the meaning of Article 3 of the Convention" and that conditions in another were "very uncomfortable, but not so harsh as to reach the threshold of severity required to bring the situation within the ambit of Article 3 of the Convention."
Khodorkovskiy also complained that the security arrangements in the courtroom—he was held in a cage and surrounded with guards during the hearings—were degrading and humiliating and in violation of Article 3 of the Convention. The Court agreed, ruling that the cumulative effect of the courtroom measures "could have been reasonably perceived by the applicant and the public as humiliating."
Finally, the Court also found the manner in which Russian authorities apprehended Khodorkovskiy was in violation of Article 5 § 1 (b) of the Convention.
The Court awarded the applicant 14,543 euros for costs and expenses (the whole amount claimed) and 10,000 euros for non-pecuniary damage.
(Picture of ECHR Building, from What ECHR’s Khodorkovsky Ruling Really Means, Committee for Russian Economic Freedom, June 3, 2011)

Most interesting is that portion of the opinion the develops the framework of analysis for the assertion of the prosecutorial power of states, especially when asserted against the principle of a large economic enterprise with a strong connection to the state.

As the Court noted, the case generated a significasnt amount of political as well as economic interest within and outside of Russia.
The applicant's case attracted considerable public attention in Russia and abroad. In the course of the trial and afterwards many prominent public figures and influential organisations expressed their doubts as to the fairness of the criminal proceedings against the applicant and his colleagues. The applicant submitted documents to that effect.
Thus, according to the applicant, his allegations were endorsed by the comments of leading Russian politicians and foreign governments; the findings of the Special Rapporteur of the Parliamentary Assembly of the Council of Europe; the Parliamentary Assembly, which concluded that the circumstances of the applicant's case went “beyond the mere pursuit of criminal justice, and include elements such as the weakening of an outspoken political opponent, the intimidation of other wealthy individuals and the regaining of control of strategic economic assets” (Resolution 1418 (2005), adopted on 25 January 2005); the judgment of the London Extradition Court in the case of Chernysheva and Maruev v. Russian Federation, in which the judge concluded that “it is more likely than not that the prosecution of Mr Khodorkovskiy is politically motivated” and that “President Putin had directed that ... Mr Khodorkovskiy should be prosecuted”; the granting on 6 April 2005 by the United Kingdom authorities of political asylum to other individuals closely linked to the applicant who had also been granted refugee status. The applicant also referred to the decisions of the Nicosia District Court (Cyprus) of 10 April 2008 in an extradition case concerning former Yukos managers, and to some other European jurisdictions. The applicant considered that in those proceedings the courts had established that his prosecution and that of his colleagues was politically motivated. (Khodorkovskiy v. Russia (Application no. 5829/04); supra, at Para. 85).
Khodorkovskiy asserted that the proceedings themselves were politically motivated--they served the state's interests in working through Russia's economic relationships with a large corporation.  In effect, the arrest and subsequent prosecution improperly used the prosecutorial arm of the state in the state's economic relationship with a domestic corporation and its controlling shareholder. But the court was unmoved, and in the process has now helped better define the parameters within with the state may use its criminal power in its relationships with large economic actors. This portion fo the opinion is reproduced here:

249. The applicant complained under Article 18 that the State had used the criminal prosecution for a political end and in order to appropriate the company's assets. Article 18 of the Convention provides:

“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

A. The parties' observations

250. The Government submitted that the applicant's allegations that his criminal prosecution had been politically motivated were not supported by the materials of the case. The Government referred to the judgment delivered in the applicant's case as proof that the charges against him were serious and genuine. They also described the events which had preceded the start of the investigation into the activities of the Yukos management, especially with regard to the Apatit case.

251. The applicant maintained his allegation that his criminal prosecution had been politically motivated. The applicant submitted that the above materials were powerful evidence of ulterior purposes contrary to Article 18. He had at the very least adduced “prima facie evidence pointing towards the violation of that provision” (Oates v. Poland (dec.), no. 35036/97, 11 May 2000), which the Government had entirely failed to address. The fact that he had been convicted in no way precluded improper motives in bringing the charges. Further, as a matter of Convention law, it was immaterial whether there was evidence justifying the bringing of the prosecution, if, as a matter of fact, it was brought for “other purposes” (see Gusinskiy v Russia, no. 70726/01, 19 May 2004). Indeed, the fact that he had received a long sentence supported the inference of political motivation. The travaux préparatoires for Article 18 indicated that the drafters of this provision were concerned to ensure that an individual was thereby protected from the imposition of restrictions arising from a desire of the State to protect itself according “to the political tendency which it represents” and the desire of the State to act “against an opposition which it considers dangerous”. The applicant maintained his argument that his arrest and consequent detention on 25 October, just a few weeks before the Duma elections on 7 December 2003 and shortly before the completion of the Sibneft/Yukos merger, had been orchestrated by the State to take action against an opposition which it considered “dangerous”, contrary to Article 18.

252. The applicant asserted that those 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 had undertaken a massive attack on the applicant and his company, colleagues and friends.

253. In support of his allegations the applicant submitted reports from international and Russian media, various governmental and non-governmental organisations, the PACE report “On the circumstances surrounding the arrest and prosecution of leading Yukos executives” (published on 29 November 2004 by Mrs Leutheusser-Schnarrenberger, the Special Rapporteur for the Parliamentary Assembly of the Council of Europe), the US Senate resolutions on this subject, European Parliament reports, documents of the UK House of Commons, decisions by the UK courts in cases of extradition of several former Yukos managers to Russia, and decisions by the Cypriot, Dutch, and Swiss courts to the effect that the prosecution of the applicant was politically motivated. In particular, the applicant referred to the words of the Swiss Federal Tribunal, which in August 2007 found that the facts, if analysed 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”. The applicant also quoted public statements by several high-ranking Russian officials who had acknowledged that “the Yukos case” had political overtones (Mr Gref, Mr Illarionov, Mr Shuvalov, Mr Mironov, Mr Kasyanov and some others). The applicant produced witness statements by several former Yukos managers. He further referred to his submissions within the case Khodorkovskiy v. Russia (no. 2), no. 11082/06, which contain a more detailed analysis of his political activities and business projects.

B. The Court's assessment

254. The Court reiterates that it has already found that, at least in one respect, the authorities were driven by improper reasons. Thus, the Court found that the applicant had been arrested in Novosibirsk not as a witness but rather as a suspect. However, the applicant's claim under Article 18 is different from his grievances under Article 5. The applicant maintained that the entire criminal prosecution of Yukos managers, including himself, had been politically and economically motivated. The Court reiterates in this respect that “Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention” (Gusinskiy v. Russia, no. 70276/01, § 75, ECHR 2004-IV). In the light of the above the Court will consider the applicant's allegations under Article 18 of the Convention in conjunction with his complaints under Article 5 of the Convention, cited above.

255. The Court reiterates that the whole structure of the Convention rests on the general assumption that public authorities in the member States act in good faith. Indeed, any public policy or an individual measure may have a “hidden agenda”, and the presumption of good faith is rebuttable. However, an applicant alleging that his rights and freedoms were limited for an improper reason must convincingly show that the real aim of the authorities was not the same as that proclaimed (or as can be reasonably inferred from the context). A mere suspicion that the authorities used their powers for some other purpose than those defined in the Convention is not sufficient to prove that Article 18 was breached.

256. When an allegation under Article 18 is made the Court applies a very exacting standard of proof; as a consequence, there are only few cases where the breach of that Convention provision has been found. Thus, in Gusinskiy v. Russia (no. 70276/01, § 73–78, ECHR 2004-... (extracts), the Court accepted that the applicant's liberty was restricted, inter alia, for a purpose other than those mentioned in Article 5. The Court in that case based its findings on an agreement signed between the detainee and a federal minister of the press. It was clear from that agreement that the applicant's detention was applied in order to make him sell his media company to the State. In Cebotari v Moldova (no. 35615/06, §§ 46 et seq., 13 November 2007) the Court found a violation of Article 18 of the Convention in a context where the applicant's arrest was visibly linked to an application pending before the Court. However, such cases remain rare (see, as an opposite example, Sisojeva and Others v. Latvia [GC], no. 60654/00, § 129, ECHR 2007-II). Particularly, the Court notes that there is nothing in the Court's case-law to support the applicant's suggestion that, where a prima facie case of improper motive is established, the burden of proof shifts to the respondent Government. The Court considers that the burden of proof in such a context should rest with the applicant.

257. In the case at hand the applicant referred to various sources which confirm his allegations of “improper motive”. First, he invited the Court to consider the facts surrounding his business and political activities, as well as the major policy lines adopted by the President's administration at the relevant time. Indeed, those facts cannot be ignored. In particular, the Court acknowledges that the applicant had political ambitions which admittedly went counter to the mainstream line of the administration, that the applicant, as a rich and influential man, could become a serious political player and was already supporting opposition parties, and that it was a State-owned company which benefited most from the dismantlement of the applicant's industrial empire.

258. On the other hand, any person in the applicant's position would be able to make similar allegations. In reality, it would have been impossible to prosecute a suspect with the applicant's profile without far-reaching political consequences. The fact that the suspect's political opponents or business competitors might directly or indirectly benefit from him being put in jail should not prevent the authorities from prosecuting such a person if there are serious charges against him. In other words, high political status does not grant immunity. The Court is persuaded that the charges against the applicant amounted to a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention.

259. Nevertheless, the combination of the factors mentioned above have caused many people to believe that the applicant's prosecution was driven by the desire to remove him from the political scene and, at the same time, to appropriate his wealth. The applicant strongly relies on those opinions; in particular, he relies on resolutions of political institutions, NGOs, statements of various public figures, etc. The Court took note of those opinions. However, it must recall that political process and adjudicative process are fundamentally different. It is often much easier for a politician to take a stand than for a judge, since the judge must base his decision only on evidence in the legal sense.

260. Finally, the Court turns to the findings of several European courts in the proceedings involving former Yukos managers and Yukos assets. Those findings are probably the strongest argument in favour of the applicant's complaint under Article 18 of the Convention. However, the evidence and legal arguments before those courts might have been different from those in the case under examination. More importantly, assuming, that all courts had the same evidence and arguments before them, the Court reiterates that its own standard of proof applied in Article 18 cases is very high and may be different from those applied domestically. 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 intio 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.

261. In such circumstances the Court cannot find that Article 18 was breached in this case.  (Khodorkovskiy v. Russia (Application no. 5829/04); supra, at Paras. 249-261).
The rationale is elegant.  First the Court declared that Article 18 is not an autonomous provision but must be read as supporting a substantive right otherwise contained in the Charter (for this purpose they chose to rest that connection on Article 5).  Then the Court read into Article 18 a strong presumption of good faith by states.  To rebut this presumption the applicant must show " must convincingly show that the real aim of the authorities was not the same as that proclaimed", which is reviewed applying a "very exacting standard of proof."  The Court then dismisses the proof offered by the applicant as either not worthy of much weight because it was not produced as a result of a court proceeding ("However, it must recall that political process and adjudicative process are fundamentally different. It is often much easier for a politician to take a stand than for a judge, since the judge must base his decision only on evidence in the legal sense." PARA 259) or where it was produced as a result of a court hears as distinguishable from the issues the applicant precisely raises ("the evidence and legal arguments before those courts might have been different from those in the case under examination." PARA 260). 

The standard, then, becomes clear:  there must be direct and incontrovertible proof that "the whole legal machinery of the respondent State in the present case was ab intio misused, that from the beginning to the end the authorities were acting with bad faith and in blatant disregard of the Convention." (PARA 260).  The Court does not provide more explanation, other than to suggest that the test is exacting and that the burden of proof never shifts from the applicant tot he state, even where the applicant offers a prima facie case of improper motive. It does suggest that it is disposed to work backwards (from a jurisprudential point of view) from the presumed result--the state always acts in good faith.  It then implies the range of cases with respect to which it might be inclined to find improper motive--where press freedom appears to be at stake (in the guise of economic arrangements--(Gusinskiy v. Russia (no. 70276/01, § 73–78, ECHR 2004)); or where the integrity of the judicial process itself is at issue (Cebotari v Moldova (no. 35615/06, §§ 46 et seq., 13 November 2007)).  Beyond that, the Court implies, it is not prepared to go and it will rationalize that decision through the veil of the "exacting standard presumption test"). 

(From Dmitry Gololobov, Commentary: Yukos Case In Strasbourg Is An Uphill Battle, Radio Free Europe, 2010 ("A year ago at a Russian justice-system awards ceremony, Russia's representative to the European Court of Human Rights, Pavel Laptev, said: "Members of the press -- write this down: Russia will win the [Yukos] case. It is possible to win under the procedures of the European Court of Human Rights." "))

What one is left with is the sense that, Article 18 might be used against the state where political rights are challenged, but it cannot be used when mere economic rights are at stake.  As far as economic rights are concerned, and most particularly, the rights of stakeholders within corporations and the corporate entity itself, the state retains a substantial power to do as it likes, and to deploy the whole of its domestic legal order for that effort, even where its essence incorporates subterfuge.  This should come as no surprise to Americans; the celebrated use of the tax laws to incarcerate criminals has been celebrated since the early part of the last century.  This has little do do with the quality of the evidence; it has everything to to with the character of the right. Thus, the issue wasn't so much whether the case was politicized, but whether it was politicized in a way that affected rights more carefully protected under the ECHR framework.  In the struggle between states and the largest economic entities within globalization, as states gauge their maneuvering room, this decision will likely have have some impact.     

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