European Court: Khodorkovsky’s rights violated



The European Court of Human Rights has ruled that Russia violated the rights of Mikhail Khodorkovsky over his first conviction in 2005 for tax fraud. It has ordered Russia to pay him over 24 thousand euro in compensation.  

Khodorkovsky’s first sentence was due to end this year but was extended in a second court trial which was widely condemned both in Russia and from the international community.  Following the rejection of the appeal against the second sentence, Amnesty International declared Mikhail Khodorkovsky and Platon Lebedev prisoners of conscience.

The Chamber Judgment which is not yet final is given below in full.

Russian businessman Mikhail Khodorkovskiy’s detention in breach of the Convention

In today’s Chamber judgment in the case Khodorkovskiy v. Russia (application
no. 5829/04), which is not final1, the European Court of Human Rights held,
unanimously, that there had been:

No violation of Article 3 (prohibition of inhuman or degrading treatment) of the
European Convention on Human Rights as regards the conditions of Mikhail
Khodorkovskiy’s detention in the remand prison between 25 October 2003 and 8 August

Two violations of Article 3 as regards the conditions in which he was kept in court and
in the remand prison after 8 August 2005;

One violation of Article 5 § 1 (b) (lawfulness of detention for non-compliance

with a lawful order) as regards his apprehension on 25 October 2003;

No violation of Article 5 § 1 (c) (lawfulness of detention of a criminal suspect)

as regards the lawfulness of his detention pending investigation;

One violation of Article 5 § 3 (length of detention) as regards the length of his
continuous detention pending investigation and trial;

Four violations of Article 5 § 4 (judicial review of the lawfulness of pre-conviction detention) as regards procedural flaws related to his detention; and
No violation of Article 18 (limitation of rights for improper purposes) as regards
the claim that his prosecution was politically motivated.

The case concerned the arrest and detention for several years of one of the then richest
people in Russia on charges of economic crimes.

Principal facts

The applicant, Mikhail Khodorkovskiy, is a Russian national who was born in 1963. He is
currently serving a sentence of imprisonment and in parallel he is detained in connection
with a second criminal case against him.

Before his arrest in October 2003, Mr Khodorkovskiy was one of the richest people in
Russia. A businessman, he was the major shareholder in Yukos, a large oil company
liquidated in 2007. He also controlled several other mining, industrial and financial
companies. Around 2002, Mr Khodorkovskiy became involved in politics. In addition to
financing opposition political parties, he openly criticised Russian internal policy at the
time calling it anti-democratic.

Summoned on 23 October 2003 to appear the next day as a witness in a criminal case in
Moscow, Mr Khodorkovskiy was unable to attend due to a business trip in Eastern

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month
period following its delivery, any party may request that the case be referred to the Grand Chamber of the
Court. If such a request is made, a panel of five judges considers whether the case deserves further
examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral
request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for
supervision of its execution. Further information about the execution process can be found here:

Russia, of which he informed the investigating authorities. In the early morning of 25
October 2003, a group of armed law-enforcement officers approached his plane at a
Novosibirsk airport, apprehended him and flew him to Moscow.

Mr Khodorkovskiy was interviewed at 11 a.m. on 25 October, initially as a witness. He
was then charged in connection with a number of economic crimes. The charges were
presented in a 35-page document and read out to him at 2.20 p.m. the same day. About
seven hours later, he was detained by the court which referred in the detention order to
the seriousness of the crimes of which he was accused, and the possibility that he
influence witnesses, destroy evidence or commit further crimes if released. The court did
not specify the period for which Mr Khodorkovskiy was detained.

On 17 December 2003, the prosecution asked the court - in an over 300-page-long
document - to extend Mr Khodorkovskiy’s detention. His lawyers did not receive a copy
of that request before the hearing.

Between 23 December 2003 and 24 March 2005, the Russian courts extended
Mr Khodorkovskiy’s detention seven times. To justify his continuous detention, they used
mostly the same reasons as those mentioned in the initial detention order, and on two
occasions, gave no reasons at all. It did not appear that the judges considered
alternatives to keeping him in detention.

In addition, the first two detention orders were handed down in hearings held in private
during which the courts failed to indicate for how long his detention was being extended.
Also, during those hearings, Mr Khodorkovskiy could only communicate with his lawyers
in the presence of a convoy officer and through the bars of a cage in which he was
placed in court. Further, one of the hearings was held without him or his lawyers, and his
application for release of 16 June 2004 was not considered. Mr Khodorkovskiy appealed
against the court orders extending his detention, unsuccessfully; the courts heard those
appeals at various intervals ranging between five days and a month and nine days.

On 11 November 2003, one of Mr Khodorkovskiy’s lawyers visited him in prison. As she
was leaving, prison guards searched her. They seized a written note with ideas about the
case and a draft of the legal position in the case of Platon Lebedev, who was a co-
accused ex-top manager in the Yukos group. The Russian Government considered that
the note had been transmitted by Mr Khodorkovskiy to his lawyer illegally and had thus
not been covered by lawyer-client privilege; the courts accepted the note into the case
file as proof of Mr Khodorkovskiy’s intention to exert pressure on witnesses.
Mr Khodorkovskiy, on the other hand, insisted that his lawyer had been searched
unlawfully and in blatant violation of lawyer-client privilege.

Pending his trial, Mr Khodorkovskiy was detained in two different remand prisons in
Moscow, and he complained about the conditions there. In particular, he claimed that
the cells were overcrowded, at times too cold or too hot, that he never had access to
fresh air, that the toilet facilities in his cell were humiliating, that he could only wash
once a week and could not be visited by independent observers nor be examined by his
doctors. During the trial, he was placed in a cage and was always handcuffed to a
convoy officer when leaving it.

On 31 May 2005, Mr Khodorkovskiy was found guilty as charged. He was sentenced to
spend eight years in prison and was sent to serve his sentence in the Chita Region.

Complaints, procedure and composition of the Court

Relying on Articles 3, 5, and 18, Mr Khodorkovskiy complained that he was detained
unlawfully and for too long in appalling conditions and that the charges against him had
been politically motivated.

The application was lodged with the European Court of Human Rights on 9 February

Judgment was given by a Chamber of seven, composed as follows:

Christos Rozakis (Greece), President,
Nina Vajic (Croatia),
Anatoly Kovler (Russia),
Khanlar Hajiyev (Azerbaijan),
Dean Spielmann (Luxembourg),
Giorgio Malinverni (Switzerland),
George Nicolaou (Cyprus), Judges,

and also S0renNielsen, Section Registrar.

Decision of the Court

Article 3 (conditions of detention and in court)

The Court found that the conditions in which Mr Khodorkovskiy had been detained
between the day of his apprehension and 8 August 2005 had not breached the
Convention. While the ventilation had been poor and he had had no privacy when using
the toilet, in exchange for a fee he had paid he had exercised in the prison fitness room,
had taken additional showers and had received food and medicine from his relatives
during that period.

However, Mr Khodorkovskiy had been kept in inhuman and degrading condititions
between 8 August and 9 October 2005. In particular, he had had less than 4 square
metres of personal space in his cell, and the santitary conditions had been appalling.
There had therefore been a violation of Article 3.

The Court found a further violation of Article 3 as Mr Khodorkovskiy had been humiliated
by the security arrangements in the court room during the hearings. He had been
accused of non-violent crimes, had no criminal record, and there had been no evidence
that he was predisposed to violence. Despite that, he had been kept in the cage
throughout the trial, exposed to the public at large, which had humiliated him, at least in
his own eyes, and aroused in him feelings of inferiority.

Article 5 § 1 (b) (apprehension)

Mr Khodorkovskiy had missed the questioning as a witness to which he had been
summoned on 23 October 2003. That, however, could not justify taking him forcefully to
Moscow in a manner more appropriate for dealing with dangerous criminals than
witnesses. Further, only hours after the start of his questioning as a witness on 25
October 2005, Mr Khodorkovskiy had become an accused when 35-page-long charges of
criminal offences had been brought against him and a 9-page-long request for his
detention had been filed with the court.

The speed with which the investigating authoritied had acted suggested that they had
been prepared for such a development and had wanted Mr Khodorkovskiy as a defendant
and not as a simple witness. Therefore, his apprehension had been unlawful as it had
been made with a purpose different from the one expressed.

There had therefore been a violation of Article 5 §1 (b).
Article 5 § 1 (c) (further procedure-related complaints)

The Court found no violation of Article 5 § 1 (c) despite the fact the first two detention
hearings had taken place in private, and the detention orders issued then had not
specified the period for which Mr Khodorkovskiy had had to be detained. While it had
been regrettable that no time limit had been mentioned in those detention orders, Mr
Khodorkovskiy had been well represented legally and could have easily established the
maximum period of detention allowed in such cases in Russian law.

Article 5 § 3 (length of detention and lawyer’s note seizure)

The Court found that Mr Khodorkovskiy’s initial detention could have been justified given
the potential risks he had posed as one of the richest people in Russia who had been,
even if unofficially, politically influential. However, his detention had been extended
without justification on two occasions - on 20 May 2004 and 8 June 2004.

In addition, the Russian courts should have considered applying to him alternative
means of restraint, other than detention.

Last, but not least, the note seized from his lawyer had been written by the lawyer,
during her interview with Mr Khodorkovskiy and concerned his criminal case. Therefore,
it should have been treated as privileged material in principle. No Russian law prohibited
a lawyer from taking notes during meetings with clients, nor clients from dictating
instructions to their lawyers or studying material prepared by them. The search of the
applicant’s lawyer had not been justified in the circumstances. However, the Russian
courts had disregarded the fact that the note had been obtained in violation of the
lawyer-client privilege and had relied on it while extending Mr Khodorkovskiy’s detention.

The Court concluded that, therefore, Mr Khodorkovskiy’s continued detention had not
been justified, in violation of Article 5 § 3.

Article 5 § 4 (procedural flaws in detention proceedings)

The Court found four separate violations of Article 5 § 4, because of the reasons
indicated below.

Firstly, in the context of the 23 December 2003 detention hearing, Mr Khodorkovskiy’s
lawyers had received rather late the 300-page long detention request by the prosecution
and had not been able to communicate freely with their client. That had placed
Mr Khodorkovskiy at a disadvantage compared with the prosecution.

Secondly, the detention hearing of 20 May 2004, during which Mr Khodorkovskiy’s
detention had been extended for up to six months, had taken place in his and in his
lawyers’ absence. Therefore, he had not been able to plead his case, not even via his

Thirdly, the Russian courts had not considered Mr Khodorkovskiy’s application for release
of 16 June 2004.

Lastly, the courts had examined Mr Khodorkovskiy’s appeal against detention one month
and nine days after it had been brought on 2 April 2004, which had been too late.

Article 18 (allegation of authorities’ political motivation)

The Court observed that while Mr Khodorkovskiy’s case might raise some suspicion as to
what the real intent of the Russian authorities might have been for prosecuting him,
claims of political motivation behind prosecution required incontestible proof, which had
not been presented.

The fact that Mr Khodorkovskiy’s political opponents or business competitors might have
benefited from his detention should not have been an obstacle for the authorities to
prosecute him if there were serious charges against him. Political status did not
guarantee immunity. Otherwise, anyone in Mr Khodorkovskiy’s position would be able to
make similar allegations, and in reality it would be impossible to prosecute such people.
The Court, persuaded that the charges against Mr Khodorkovskiy had amounted to a
"reasonable suspicion" and hence had been compatible with the Convention, held that
there had been no violation of Article 18 in conjunction with Article 5.

Article 41 (just satisfaction)

Under Article 41, the Court held that Russia was to pay Mr Khodorkovskiy 10, 000 euros
(EUR) in respect of non-pecuniary damage, and EUR 14, 543 for costs and expenses.

Article 46 (measures to implement the judgment)

The Court dismissed Mr Khodorkovskiy’s request for indication of specific measures to
the Russian Government about how to implement the judgment, and held that the
supervision of such measures was up to the Committee of Ministers of the Council of

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