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Khodorkovsky Wins At ECHR, Press Loses – OpEd

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The judgment handed down on Tuesday by the European Court of Human Rights (ECHR) on the case of Khodorkovsky vs. Russia (Application 5829/04) represents a clear victory for the plaintiff, as the court ruled in their favor on 8 out of 15 claims, most critically declaring that Russia had violated Khodorkovsky’s rights under the European Convention on Human Rights in several instances.  The court found that “the applicant’s continuous detention was not justified by compelling reasons outweighing the presumption of liberty” and as a result ordered Russia to pay out $35,000, which the legal team will donate to charity.

And yet, judging by the poor understanding of this legal decision by the media, you’d think that Putin and the gang scored a coup.  On one claim regarding the political motivation behind the trial, the court requested further “incontestable evidence” to be presented, while also noting that the court now held “reasonable suspicion,” paving the way for a future application.

There’s more patently false headlines than I can count.  Numerous media are describing the news as “a legal setback” or unfurling clueless headlines like “Court Finds No Politics” in the arrest of Khodorkovsky.  No need for them to bother to actually read the judgment, which at no point stated that there wasn’t “evidence” of politics guiding the case against them, but rather that they needed further documentation to be submitted (and given that this application was filed in 2004, there are copious stacks of new evidence of political persecution to submit in a subsequent filing).

The judgment actually acknowledges specific reference submitted to the court under section 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 23 June 2009 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.

Further, under section 260 of the judgment, the ECHR explains that there are several legal technicalities, not lack of evidence, which hold it back from confirming the political motivation:

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.

The above-stated reasoning on the evidence necessary to breach Article 18 goes right back to a frequent theme on this blog:  the presumption of regularity of the Russian government, and all the problems that this trust in the good faith of state institutions to abide by the law has caused.  The ECHR, it should be noted, did not examine the merits of any criminal case against Khodorkovsky, and this technical ruling which requests further evidence is a far cry from any type of exoneration of the Russian government’s criminal conduct in the case.  In fact, it is a willful deception to present the result as such, and I believe that we can count upon the court’s position being rectified once the legal team is provided with the opportunity to make a new application with evidence from after 2004.

This principle of good faith was recently analyzed by Todd Weiler of TreatyLaw.com on an email forum I subscribe to:  “The general international law principle of good faith, no doubt, informs the interpretation of treaty provisions.  Moreover, the substantive issue of whether a lack of good faith has been demonstrated (by either the complainant or the respondent) is already a part of the analysis – both for treaty standards such as “fair and equitable treatment” and customary international law, as informed by (increasingly) archaic arbitral ‘jurisprudence.’  It seems to me, however, that in resurrecting the hoary bromide, that a State must be presumed to have acted in good faith, the Court was demonstrating its incapacity to accept and properly evaluate evidence in a manifestly complicated and extremely high profile political case.  The lesson to be learned from this decision, accordingly, is not doctrinal, but strategic and practical.  There are some cases, whose political heft is so overwhelming, that they are just not suited to be heard by an international institution.

The ECHR judgment is an impressive and hard-won victory by the legal team headed up by lawyer Karinna Moskalenko and all the others working for so many years in Strasbourg, and I send my heartfelt congratulations to them.

It is nevertheless a great disappointment to see how so many journalists couldn’t be bothered to take the time to read the decision and consider its meaning.

Robert Amsterdam

Robert Amsterdam

Robert Amsterdam is an international lawyer and founding partner of the law firm Amsterdam & Peroff.

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