I incorrectly predicted that there's no violation of human rights in NEVZLIN v. RUSSIA.

Information

• Judgment date: 2022-01-18
• Communication date: 2018-10-11
• Application number(s): 26679/08
• Country:   RUS
• Relevant ECHR article(s): 6, 6-1, 6-3-b, 6-3-c, 14, 18
• Conclusion:
  Remainder inadmissible (Art. 35) Admissibility criteria
  (Art. 35-3-a) Manifestly ill-founded
  Violation of Article 6+6-3-a - Right to a fair trial (Article 6 - Criminal proceedings
  Article 6-1 - Fair hearing
  Adversarial trial
  Article 6-3-b - Adequate facilities
  Adequate time
  Preparation of defence) (Article 6-3-a - Information on nature and cause of accusation
  Article 6 - Right to a fair trial)
  Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings
  Article 6-1 - Fair hearing
  Article 6-3-d - Examination of witnesses) (Article 6-3-d - Examination of witnesses
  Article 6 - Right to a fair trial)
  No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings
  Article 6-1 - Fair hearing
  Article 6-3-d - Examination of witnesses
  Obtain attendance of witnesses) (Article 6-3-d - Examination of witnesses
  Obtain attendance of witnesses
  Article 6 - Right to a fair trial)
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.53447
• Prediction: No violation

• Inconsistent

Communication text used for prediction

The applicant, Mr Leonid Borisovich Nevzlin, is a Russian and Israeli national, who was born in 1959 and lives in the city of Herzliya, Israel.
He is represented before the Court by Mr P. Gardner and Mr D. Kharitonov, lawyers practicing in London and Moscow respectively.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
1.
Background information 1.
The applicant occupied various high-ranking positions at an investment holding company GML (Group Menatep Limited) and its subsidiary, OAO Neftyanaya kompaniya Yukos (hereinafter referred to as “Yukos”).
The applicant left Russia for Israel in 2003.
2.
Between 2003 and 2004 the authorities filed a series of tax claims against Yukos and also froze its assets.
As a result of a series of court proceedings, the company was ordered to pay the arrears and fines.
Being unable to pay, it was later declared bankrupt and eventually liquidated.
3.
At about the same time several high-ranking Yukos officials, including its owners, managers and lawyers, were arrested and subsequently convicted for fraud, tax evasion and money laundering.
The head of the company’s security department, Mr P., was convicted for organizing criminal activities, including robbery, murder and attempted murder.
4.
On 4 July 2003 senior investigator for especially important cases of the General Prosecutor’s Office Mr B.
(hereinafter referred to as “investigator B.”) interviewed the applicant in the presence of his lawyer counsel D. Kh.
5.
On 30 July 2003 the applicant left Russia for Israel, where he acquired an Israeli nationality.
2.
Initial indictment and attempts of the Russian authorities to seek the applicant’s extradition 6.
On 12 January 2004 an investigator Mr Ka.
(hereinafter referred to as “investigator Ka.”) decided to prosecute the applicant for personal income tax evasion.
7.
On 21 January 2004 investigator Mr Ka.
additionally charged the applicant with embezzlement.
1.
On 21 July 2004 the investigation additionally indicted the applicant in respect of the following episodes.
He was accused of having organised an attempt on Mr Kol., Ms O.K., Mr Ry.
and also having organised a murder of Mr Go.
and Ms O.G.
(Article 30 (3), 33 (3) and 105 (2) of the Criminal Code of Russia, see paragraphs 153, 154 and 156 respectively below).
The authorities declared an international search for the applicant.
9.
On 23 July 2004 the Basmannyy District Court of Moscow decided to arrest the applicant in his absence.
10.
On 7 July 2005 the Russian authorities made a request to Israel for the applicant’s extradition on the basis of the allegation of his involvement in the mentioned episodes.
11.
On 28 August 2006 the Ministry of Justice of Israel informed the Russian authorities that Israel could not grant the extradition request.
It stated that the evidence produced by the Russian authorities had been inadequate.
12.
The investigation into the mentioned episodes was completed on an unspecified date in 2006.
It appears that insofar as the investigation concerned the alleged personal tax evasion and embezzlement, the authorities decided not to pursue it.
13.
It appears that the Russian authorities also requested the authorities of various other countries to extradite the applicant with reference to the pending criminal case against him.
14.
On 13 August 2007 the Swiss Federal Tribunal ruled that Switzerland could not comply with a Russian request for mutual legal assistance concerning the applicant.
It decided that all of the facts of the extradition case, taken 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”.
15.
In a number of other decisions reached by various other courts and authorities, including in Cyprus, Liechtenstein, Lithuania, Switzerland and the United Kingdom a variety of requests for mutual legal assistance and extradition connected with the Yukos case were rejected.
In those cases the conclusion has been reached that the Russian requests were impermissibly tainted by the political nature of the Russian authorities’ decision to investigate and prosecute those closely involved with Yukos.
In most of the extradition cases the national courts also concluded that there was no prospect that the former Yukos employee concerned could obtain fair trial in Russia, because of their close involvement with Yukos and because of the political influence over the Russian courts related to Yukos.
Similar concerns led the authorities in these countries to grant asylum to those fleeing Yukos-related prosecution in Russia.
16.
The Russian authorities furnished further evidence to Israel as to the applicant’s pending criminal case, but on 23 October 2007 Israel reiterated its position that the evidence was insufficient to order the applicant’s extradition.
3.
Pre-trial stage of the criminal proceedings (a) The appointment of counsel B. and counsel D.Kh.’s attempts to delay the case-file examination 17.
On 14 December 2007 investigator B. wrote to the Moscow Bar Association seeking the appointment of a lawyer to represent the applicant.
18.
On 17 December 2007 investigator B. wrote to counsel D.Kh.
a letter, inviting him to appear at 10.30 a.m. on 23 December 2007 to inspect the prosecution case-file.
On 20 December 2007 investigator B. wrote to counsel D.Kh.
another letter, inviting him to appear at 10.30 a.m. on 25 December 2007 to study the prosecution case-file.
19.
In response, on 20 and 24 December 2007 counsel D. Kh.
requested to postpone the examination.
He referred to the fact that on 23 December he would be occupied in a different criminal case, whereas on 25 December he would be on a previously scheduled vacation.
He sought to postpone the examination of the file to any date after 11 January 2008, confirming that the applicant’s defence intended to study all criminal case file materials and to exercise its procedural rights.
Counsel D.Kh.’s motions apparently remained unanswered.
20.
On 26 December 2007 the Moscow Bar Association appointed a lawyer, counsel L., to act as the applicant’s representative in the criminal case.
Counsel L. agreed to study the criminal case and signed the confidentiality clause concerning the preliminary investigation.
It does not appear that the applicant or counsel D.Kh.
were informed of this appointment.
Counsel L. never contacted the applicant.
(b) Counsel L.’s study of the case file and counsel D.Kh’s attempts to complain about the investigator’s actions 21.
Counsel L. started to study the case file on 26 December 2007.
He was to examine 84 volumes of case files of up to 300 pages each (18,926 pages in total, comprising the records of more than 500 witnesses, numerous forensic reports and other evidence), as well as physical evidence and video recordings.
22.
On 21 January 2008 counsel D.Kh.
requested the General Prosecutor’s Office to arrange to study the file.
23.
On 22 January 2008 counsel D.Kh.
complained to the General Prosecutor’s Office about the failure of the investigator to examine the first two motions (see paragraph 19 above).
This complaint also drew attention to the possibility that the senior investigator might have asked another lawyer to review the case file and pointed out that this would be inconsistent with the provision of Article 50 of the Code of Criminal Procedure of the Russian Federation (see paragraph 153 below).
Counsel D.Kh.
asked in the complaint to investigate the circumstances of the complaint and to grant to him an opportunity to review the case.
The complaint remained unanswered.
24.
On 31 January 2008 counsel L. confirmed having completed the study of case-file.
He was issued with an electronic copy of the applicant’s indictment of 18 December 2007.
Counsel L. also moved for a preliminary hearing.
Under Article 229 of the Criminal Procedure Code (see paragraph 161 below) as a result of a preliminary hearing some evidence could be excluded from the case-file, the case could be sent back to the prosecution, the case could be suspended or terminated, and a question of possible participation of jurors could also be resolved.
When submitting that motion, counsel L. stated that he had no motions to summon witnesses for the defence, experts or specialists.
He did not make any other motions for the defence.
25.
In a letter dated 15 January 2008 (dispatched on 4 February 2008), the investigator wrote to counsel D.Kh., refusing to recognise him as the applicant’s lawyer, unless he presented proof.
He further considered that counsel D.Kh.
avoided his professional obligations in the case and informed him about possible arrangements to study the case file.
26.
By a letter of the investigator dated 12 January 2008 (dispatched on 5 February 2008 and received on 14 February 2008), counsel D.Kh.
received a decision, by which his motion of 24 December 2007 to postpone the examination of the criminal case file was rejected.
It was stated in the decision that the motion had been filed on 10 January 2008.
27.
On 6 February 2008 counsel D.Kh.
filed a complaint with the Basmanny District Court of Moscow regarding the senior investigator’s inaction, namely his failure to respond, or to notify him of any decision made as to his request to be permitted to examine the file.
28.
On 11 February 2008 the court notified the prosecution of the hearing date on 26 February 2008, followed up by another letter to the same effect sent on 12 February 2008.
29.
According to a record in the case file, the court started the trial on 12 February 2008, but it did not actually conduct the proceedings on that day because of the absence of both the prosecution and defence.
The court adjourned the proceedings until 26 February 2008.
Counsel D.Kh.
was not notified about that hearing.
(c) The indictment of 14 February 2008 and subsequent court hearings 30.
On 12 February 2008 counsel D.Kh.
was notified of the hearing scheduled for 26 February 2008.
31.
On 14 February 2008 the case file together with the final indictment was sent to the Moscow City Court for examination on the merits.
On the same day, a copy of the indictment was served on counsel L., but not on the applicant or counsel D.Kh.
32.
According to the indictment, the applicant created a criminal group, which included Mr Go., Mr Gor., Mr S., Mr R., Mr T., Mr O., Mr A.P., Mr Kor., Mr Po., Mr E., Mr Kab.
A criminal case against Mr Go.
and Mr Gor.
had earlier been terminated due to their deaths.
The other members of the group had earlier been convicted for participation in the same episodes now attributed to the applicant.
In particular, the applicant was indicted with having organised the murders of Ms Ko., Mr Pe., Mr Fe., Mr Go.
and Ms O.G.
and attempted murders of Mr Kok., Mr Kol., Mr Ry., Ms O.K., Mr Iv.
and Mr Fil.
33.
On 17 February 2008 the applicant wrote to the Moscow City Court, stating that his defence counsel had been bypassed through an appointment of a sham counsel, who never contacted the applicant, but had allegedly examined the very voluminous case file on his behalf in a very short span of time.
34.
On 18 February 2008 counsel D.Kh.
wrote to the Moscow City Court, enclosing an authority form authorising him to act on the applicant’s behalf in this case.
35.
Counsel L. was quoted by the Russian nation-wide newspaper Kommersant on 21 February 2008 as stating that he saw no reason to contact or speak with the applicant about his appointment.
36.
On 21 February 2008 counsel D.Kh.
filed complaints with the General Prosecutor’s Office and the Investigative Committee against the investigator’s actions, which crippled the applicant’s rights at the pre-trial stage of the proceedings.
37.
On 26 February 2008 the Basmannyy District Court, acting as a judicial review court in respect of the actions of the investigation, disallowed counsel D.Kh.’s complaint of 06 February 2008 about the delays in examination of counsel D.Kh.’s motion of 21 January 2008.
The court stated that it had no authority to supervise the investigator’s actions during the pre-trial period now that this stage was over.
4.
Preliminary hearings in the case and the arrangement for the case-file study by counsel D.Kh.
(a) The hearing of 4 and 5 March 2008 38.
On 4 March 2008 the Moscow City Court, acting as a first instance court in the applicant’s criminal case, held a preliminary hearing.
Counsel L. did not attend.
Presiding judge N. (hereinafter referrred to as “the judge”) asked the parties if they had any motions.
Counsel D.Kh.
was unhappy that the prosecution had failed to give him a copy of the final indictment.
In response, the judge offered him a copy, having explained that this would constitute notification and would not be in breach of the domestic law.
39.
Counsel D.Kh.
moved to return the case to the prosecution.
He considered, in particular, that the late notification of indictment at the preliminary hearing (instead of at an earlier stage of the proceedings) was in breach of the domestic law and made it impossible for the trial court to rule on it (Article 237 (1) of the Criminal Procedure Code, see paragraph 162 below); that the investigation failed to inform the defence about the composition of the investigative team, which deprived them of a right to challenge investigators (Article 163 (2) of the Criminal Procedure Code, see paragraph 155 below); that the expert examination ordered by the investigation had been invalid because the applicant had been unaware of them and therefore deprived of his procedural rights in connection with it; that the defence could not study the case-file and exercise its procedural rights in this connection (Article 217 of the Criminal Procedure Code, see paragraph 159 below).
In addition, counsel D.Kh.
sought to delay the proceedings by three months to give him time to study the file.
40.
On 5 March 2008 the judge examined counsel D.Kh.’s request for more time and gave him fourteen days to study the file starting from that date.
41.
According to the applicant, the 14 days granted by the judge for the purpose of reviewing the case file fell on holidays and weekends.
As a result, there were only seven and a half working days that could be used for the study of the file.
42.
The judge further refused as unfounded the motions to return the case to the prosecution.
It stated, in particular, that any alleged breaches of the domestic law could be remedied in court, that counsel L. properly represented and defended the applicant’s procedural rights, that counsel D.Kh.
essentially protracted the proceedings, which made it necessary to appoint counsel L., that, despite the applicant’s decision to flee, his rights were adequately secured by two counsels, counsel L. and counsel D.Kh., and that a copy of the indictment had been served on the defence through notification of counsel L. That decision was not amenable to appeal.
43.
The trial was due to start at 10.00 a.m. on 19 March 2008.
(b) The applicant’s appeal against the Moscow City Court decisions of 4 and 5 March 2008 44.
On 6 March 2008 counsel D.Kh.
again complained that the time for study of the file was insufficient, this time to the Supreme Court, acting on appeal.
45.
Counsel D.Kh.
received a copy of the applicant’s final indictment on 6 March 2008.
(c) The applicant’s various motions to the Moscow City Court 46.
On 7 March 2008 counsel D.Kh.
requested the Moscow City Court to have access to a copy of the transcript of the hearing of 4 March 2008.
The request was made again in a letter sent to the judge on 12 March 2008.
These requested remained unanswered.
47.
On 17 March 2008 counsel D.Kh.
filed with the Moscow City Court an authority form (“ордер No 25, 07.03.2008”) issued by his law firm confirming his powers to act on the applicant’s behalf at the Moscow City Court.
On the same day counsel D.Kh.
informed the Moscow Bar Association about his authority to act on the applicant’s behalf.
(d) Case-file study by counsel D.Kh.
48.
During the 14 days granted by the judge on 5 March 2008 counsel D.Kh.
studied the file each time when this was possible (except for 14 March 2008, when he was unavailable).
As a result, he reviewed 10 out of 84 volumes in the case.
5.
Trial proceedings (a) Preliminary issues before the beginning of the trial 49.
On 19 March 2008 the judge put in doubt D.Kh.’s authority to act on the applicant’s behalf.
In response, counsel D.Kh.
showed the judge a receipt of his authority by the Moscow City Court on 17 March 2008.
50.
Counsel L. failed to show on that day and he also stopped attending the court hearings in the applicant’s case altogether.
51.
According to the applicant, the judge made no steps to ensure counsel L.’s participation in the proceedings.
52.
Counsel D.Kh.
unsuccessfully challenged the judge, accusing him of personal bias.
He relied, in particular, on the judge’s unwillingness to give counsel more time.
53.
Counsel D.Kh.
then moved to postpone the trial for two months in order to complete the study of the case file which consisted of sixteen volumes.
The judge denied the motion, having stated that counsel D.Kh.
had first been invited to study the case on 18 December 2007 and since then had been procrastinating.
The judge asserted that the motion was intended to delay the examination of the case and decided that counsel D.Kh.
could review the case file after each trial session.
54.
As regards the essence of the criminal case, counsel D.Kh.
explained that the applicant denied his guilt and deplored the lack of an adequate time for preparation and emphasised the need to study the entire case file.
(b) The applicant’s conviction and the evidence against him 55.
As a result of the trial, the applicant was convicted to life imprisonment on account of six episodes: (a) organising, in liaison with Mr P., the murder of Ms Ko.
The conviction was essentially based on the statements of witnesses Mr S. and Mr O.; (b) organising, in liaison with Mr P., the murder of Mr Pe.
The conviction was essentially based on the statements of witnesses Mr S., Mr T., Mr R., Mr Pi.
and Mr G.; (c) organising, in liaison with Mr P., the robbery of Kol.
The conviction was essentially based on the statements of witnesses Mr A.P., Mr T., Mr R. and Mr S.; (d) organising, in liaison with Mr P., the attempted murder of Mr Ry., the murder of Mr Fe.
and the attempted murder of Mr I.Fi.
and Mr E.Fi.
The conviction was essentially based on the statements of witnesses Mr Ry., Mr D., Mr G., Mr Sk., Mr R., Mr T., Mr S., Ms O. and Mr A.P.
; (e) organising, in liaison with Mr P., the attempted murder of Ms O.K.
The conviction was essentially based on the statements of Mr A.P.
and Ms O.K.
; (f) organising, in liaison with Mr P., the murder of Mr Go.
and Ms O.G.
The conviction was essentially based on the statements of Mr A.P.
and Mr Kor.
(c) The events of the trial 56.
The examination of the witnesses at the trial did not take place in a specific order.
It does not appear that counsel D.Kh.
had any access to information on the exact order of attendance.
(i) Questioning of Mr Si., Mr Ry.and Mr D.K.
on 20 March 2008 57.
On 20 March 2008 during the examination of witness Mr Si.
counsel D.Kh.
stated that he was unfamiliar with statements by this witness because he had not been granted time to review the case file and that he would ask questions only based on his statements made in court.
58.
In response to questioning by counsel D.Kh.
on 20 March 2008, Mr Ry.
indicated that he had been interrogated during the investigation 65 times.
Counsel D.Kh.
asked the court for two hearing days to allow him to study all 65 interrogation records, as well as documents involving East Petroleum’s litigation which were essential to the understanding of the case.
The court dismissed the motion on the ground that the defence had had three months to review all criminal case file materials after the conclusion of preliminary investigation.
59.
On 20 March 2008 during the examination of victim Mr D.K., counsel D.Kh.
stated that the defence was unfamiliar with his written evidence given at the pre-trial stage of proceedings and unsuccessfully sought further two months to review the case file.
(ii) Questioning of Mr A and Mr X on 20 March 2008 60.
On 21 March 2008 the court examined witnesses Mr A. and Mr X.
The applicant’s counsel stated that he was unfamiliar with the records of their interrogations and pointed out his inability fully to participate as his questions would be based only on the witnesses’ evidence given to the trial court.
61.
According to the applicant, during the examination of witness Mr X. the judge reminded the witness the name of a street, to which counsel D.Kh.
objected.
(iii) The attendance of witnesses on 24-27 March 2008 62.
On 24 March 2008 the court was informed by the prosecution that victim Ms O.K.
and Ms I. would give evidence the following day.
Counsel D.Kh.
used the period after the court session to review their interrogation records.
63.
It appears that on 25 March 2008 these witnesses failed to attend and that instead the court heard victim Mr Iv.
and witnesses Mr Bor., Mr G. and Mr Sh.
It does not appear that counsel D.Kh.
knew that these people would attend the hearing on that day and be heard.
64.
As regards Ms O.K.
and Ms I., they gave their evidence on 18 April and 26 March 2008 respectively.
65.
As regards witness Mr G., counsel D.Kh.
asked for additional time for preparation until the following day with reference to the need to review the file.
The judge granted him 45 minutes.
66.
On 27 March 2008 witnesses Mr D. and Mr V.K.
appeared at the hearing despite not being on the list of witnesses summoned for that day.
Counsel D.Kh.
was given half an hour to review their pre-trial statements to prepare.
67.
Ms I. asked witness Mr V.K.
about the identity of potential beneficiaries of the death of Ms Ko.
In response, counsel D.Kh.
asked the judge to disallow the question on the ground that the witness should testify about the circumstances of the case rather than express her opinion.
The judge permitted the question regardless.
Mr V.K.
stated in the court that, in his view, “it was all coming from [the applicant]”.
68.
Counsel D.Kh.
asked for permission to read out Mr V.K.’s statements, but was only permitted to read parts containing contradictions.
Counsel D.Kh.
challenged the statements of this witness arguing that the applicant’s name had not been not mentioned during the interrogations.
The court rejected the applicant’s challenge on the ground that “the witness [had not] asked a question about the organizer of the crime and about those involved in it”.
(iv) The applicant’s letter of 27 March 2008 to the trial court 69.
On 27 March 2008 the applicant personally sent a letter to the Moscow City Court.
He stated that he had received the summons only after the trial had begun, that the allegations against him had no factual basis, that the proceedings were unfair, that the officially appointed counsel had been ineffective and that counsel D.Kh.
had been deprived of the opportunity properly to prepare defence.
He also stated that the prosecution was politically motivated.
(v) Judge’s alleged comments relating to the prosecutor’s statements on 2 April 2008 70.
According to the applicant, on 2 April 2008 the prosecutor stated in the hearing that there were reports and statements on surveying the residential area and the murder scene of Mr Pe.
The judge responded as follows: “Here, you have to mark c.p.
3-4: reports, and c.p.
115-21 – information memorandum”.
71.
The defence objected to the actions of the judge which it deemed as having actively assisted the prosecution.
The judge rejected the objections.
(vi) The events in the proceedings on 7-10 April 2008 72.
On 7 April 2008 witness Mr Nu.
was examined.
According to the applicant, the witness was not listed in the indictment.
The prosecutor asked the witness a question about the procedure for obtaining Israeli citizenship and inquired as to what he knew regarding the applicant obtaining that citizenship.
Counsel D. Kh.
objected against asking that question to the witness, but his objection was dismissed.
73.
On 9 April 2008 the applicant’s appeal against the decision of the Basmanny District Court of Moscow of 26 February 2008 was rejected (see paragraph 37).
74.
On 10 April 2008 witness Mr S. was questioned in the hearing.
(vii) The applicant’s objection against the prosecutor’s reliance on certain documents on 16 April 2008 75.
On 16 April 2008 counsel D.Kh.
submitted that the prosecutor had referred in his submissions in court to certain documents, which were never examined in court.
He also submitted that these documents were not probative of the offences of which the applicant had been accused.
76.
The prosecutor, in reply, refused to give any clarifications and promised to comment later.
According to the applicant, he never did so.
(viii) Court decision of 18 April 2008 to disallow the applicant’s question to Ms O.K.
77.
On 18 April 2008 witness Ms O.K.
was questioned in the court hearing.
The applicant wished to ask the witness about the time when the witness had become an FSB advisor and on whose initiative.
The judge disallowed the question as irrelevant.
(ix) Questioning of Mr R. and Mr T. on 21 April 2008 78.
On 21 April 2008 witness Mr R. was examined in the hearing.
He stated that he had only heard the applicant’s name from his interrogators and only then started to mention him during interviews.
79.
On 21 April 2008 witness Mr T. was examined in the hearing.
Mr T. stated that on 16 April 2008 the senior investigator visited him in the detention centre, to which he had been transferred for the purpose of giving evidence in the applicant’s trial, and told him to give the same evidence as he had done in the trial of Mr P. He further stated that he had implicated Mr P. in his evidence after the senior investigator had offered him a reduced sentence if he were to cooperate in this way and to implicate Mr P. The judge claimed that the witness was always changing his statements.
The prosecutor submitted a motion to read the pre-trial statements of the witness.
Counsel D.Kh.
objected to the motion, stating that the court had taken inculpatory stance and was ‘indulging the General Prosecutor’s Office’.
The judge granted the motion and reprimanded Counsel D.Kh.
for ‘totally baseless contempt of court’ and warned him that he would be removed from the courtroom if he did not change his behaviour.
(x) Questioning of Mr P. and the judge’s inquiry about the statements of Mr T. on 23 April 2008 80.
On 23 April 2008 Mr P. was questioned in the court hearing.
He talked about the use of psychotropic drugs on him in the course of the interrogation.
The witness insisted on his own innocence and refused to incriminate the applicant.
Counsel D.Kh.
requested the records of the witness interrogation of 15 July 2003 from criminal investigation file no.
18/35-03 or from the criminal case examined by the Moscow City Court to be read in court.
He also asked to suspend the examination of this witness until the court had the interrogation record available.
The judge denied the motion on the ground that the record was irrelevant to the criminal case under examination and that Counsel D.Kh.
could request the record on his own.
81.
On 23 April 2008 the judge announced that he had made an inquiry on 22 April 2008 to Remand prison no.
1 as to how long Mr T. had been there and whether he had been visited by anyone from the General Prosecutor’s Office.
The reply to the inquiry stated that the witness arrived there on 13 April 2008 and that no one visited him at the detention facility between that day and 21 April 2008.
The judge consequently drew the conclusion that Mr T. had ‘made the whole thing up’.
(xi) The applicant’s attempt to challenge the judge on 24 April 2008 82.
On 24 April 2008 counsel D.Kh.
moved to enter into the record the interrogation of Mr P. by investigator De.
at the investigative detention facility on 15 July 2003.
The judge denied that motion, saying the record of interrogation was irrelevant.
Counsel D.Kh.
moved to recuse the judge on the ground that the judge had made evaluation of the statements of Mr T. the previous day.
The judge denied the motion on the ground that he had no direct or indirect interest in the outcome of the case.
(xii) Reading of pre-trial statements of witnesses on 25 April 2008 83.
On 25 April 2008 the statements of Mr Go.
and victim Mr Kok.
were read because it was impossible for them to appear in court.
On the same day the judge also granted the motion of the prosecution to read the statements of Ms Kop., Ms M., Mr Y., Mr Ga., Mr Z., Mr Bo.
and Mr Pa.
Counsel D.Kh.
objected with reference to the fact that the reasons given were either insufficient to justify the reading of statements or there were doubts about the actual existence of the documents, or that the copies of the documents had not been properly authenticated.
The objection did not apply to the first witness of this list who had died.
On the same day the judge refused a motion by counsel D.Kh.
to read the record of interrogation of Mr Y.
(xiii) The decision of the Israeli Supreme Court of 14 May 2008 on the applicant’s extradition request towards Russia 84.
On 14 May 2008 the Israeli Supreme Court, acting on appeal, confirmed the decision not to extradite the applicant.
It noted, in particular, that the Israeli Ministry of Justice had reached its decision to decline extradition after comprehensive and thorough examination of the evidence.
The Israeli Supreme Court stated that the test as to whether the evidence of the applicant’s involvement in the alleged crimes existed was “not a trial on the merits” but intended to establish whether “according to the laws of evidence accepted in Israel ... the prosecution is in possession of admissible evidence (apart from hearsay...), which is such as to justify prosecution and enquiry into the guilt or innocence of the accused”.
85.
The Israeli Supreme Court also noted: “The extradition request dealt with five events in the course of which several citizens met their deaths and others were injured.
According to the suspicion, the applicant sent henchmen to do those acts but in the evidence which was produced in the extradition request there was not a single piece of direct evidence linking the applicant to involvement in those acts.
In four incidents the evidence was limited to the admissions of the henchmen, who asserted on interrogation that the person who had sent them had claimed to them that he himself had been sent by the applicant.
Those who committed the offences had therefore never met the applicant and merely heard from a third person that it was he who stood behind the commission of the offences.
That is hearsay which is not admissible according to the law applicable in Israel.
Here it is appropriate to mention that the particular third party, whose version might have shed light on the whole affair, was not called to give evidence, because, according to the extradition request, he was murdered in November 2002.
That last occurrence is also attributed to the applicant, although the extradition request does not specify a single piece of evidence connecting the applicant with it.” (xiv) Examination of witnesses on 21 May – 02 June 2008 86.
On 21 May 2008 counsel D.Kh.
was given the names of witnesses to be called at the six hearings between 27 May 2008 and 3 June 2008.
There were 115 witnesses on that list in total with around 20 witnesses per hearing.
87.
The applicant alleges that most of these witnesses failed to appear in court and that the court heard some other witnesses, not mentioned on the list at all, instead.
According to the applicant, counsel D.Kh.
received no proper notification about the appearance of these witnesses and could not prepare.
88.
On 27 May 2008 witness Mr Sk., a witness not listed in the indictment, was examined.
89.
On the same day counsel D.Kh.
submitted a motion to read the record of the interrogation of witness Ms Mi.
The motion was granted.
90.
On 27 May 2008 witness Ms Ba.
was questioned in the court hearing.
According to the applicant, the judge displayed bias by actively talking to the witness and putting her questions, instead of listening to the answers given in responses to the parties’ questions.
91.
On 28 May 2008 witness Mr Ye., a witness not listed in the indictment, was examined in court.
92.
On 28 May 2008 the defence moved to call Mr Kol.
for a supplementary examination as a victim.
The request was granted.
93.
On 28 May 2008, upon the motion of the prosecutor, the statements by witnesses Mr Dr. and Mr Shi.
were read out in the court hearing.
The defence objected to admitting the evidence of Mr Shi.
in this form, as that evidence could not be tested.
94.
On 29 May 2008 the judge granted the prosecutor’s motion to read the statements and records of interrogation of Ms Kar.
and Ms Ma., as they could not appear in court.
The defence objected to the motion.
The statement of Ms Ma.
related to Ms O.G., whose murder the applicant was accused of ordering.
The evidence of Ms Ma.
concerned an alleged meeting between the witness and two Yukos employees.
95.
On 30 May 2008 witness Mr Kon.
was questioned in the court hearing.
The judge questioned the witness on the motives of the involvement of Mr P. in the murder of Mr Pe.
and about the relations between Mr P. and the applicant.
96.
On 02 June 2008 witness Mr O. was questioned in a hearing by Mr D.Kh.
He testified that the investigators had asked him to incriminate the applicant under threat of being charged as an organiser of a crime group.
97.
On 2 June 2008 Counsel D.Kh.
submitted a motion to send a summons to Mr Ry.
in order to examine him as a victim.
The court denied the motion, noting that it was unnecessary since Mr Ry.
had been examined previously and counsel D.Kh.
had had a chance to ask him questions.
(xv) Watching of video evidence by the court and the applicant’s requests to call witnesses for further examination between 2 June and 14 July 2008 98.
On 2 June 2008 the prosecutor moved to read Mr T.’s statements and watch a video cassette of his interrogation.
Counsel D.Kh.
objected to the motion citing Article 281 (1) of the Code of Criminal Procedure (see paragraph 167 below) which permitted such reading out or viewing ‘with the consent of the parties in the case of the non-appearance of the victim or witness’, while in the present case Mr T. had appeared and testified previously before the court.
The court granted the prosecutor’s motion, as the law did not prohibit the reading out of statements and viewing a video cassette in an individual’s absence.
After viewing the video recording of the supplemental interrogation of Mr T., counsel D.Kh.
referred to the fact that the witness statements made during the preliminary investigation had been explained by Mr T. at the trial on 21 April 2008 as arising from the investigator’s offer to him of a reduced sentence if he implicated Mr P. and the applicant.
99.
On 3 June 2008 the prosecutor asked the court to view a video recording of Mr R.’s statement of 16 June 2005.
The defence objected, stating that Mr R. had been examined and the prosecutor had had the opportunity to ask him any questions.
The judge granted the motion.
100.
On 3 June 2008 the prosecutor asked the court to view the video cassette with the recording of Mr Go.’s automobile inspection.
Counsel D. Kh.
did not object to the motion, and it was granted.
The judge suggested, on his own initiative, that the examination of the area near Khovanskoye cemetery should also be viewed on the same cassette.
101.
Mr Ne.
and Mr Sm.
were examined on 9 and 10 June 2008 respectively.
Counsel D.Kh.
was not advised that these particular witnesses would be appearing at these specific hearings.
During the questioning of witness Mr Ne.
the judge indicated that “there are also different budget line items; you can’t allocate to salaries alone”.
Counsel D.Kh.
objected to the comments of the judge, stating that “it is the witness who testified, not the judge who should explain what happened in Nefteyugansk”.
102.
On 10 June 2008 the judge granted the prosecutor’s motion to view a video cassette with the recording of a recreational trip to the mountains by Yukos executives and an interview with Mr G. given on television.
Mr D.Kh.
objected that the interview could not be examined at the proceedings, stating that it was not physical evidence within the meaning of the Criminal Procedure Code of Russia.
103.
On 11 June 2008 the prosecutor entered a motion to hear Mr Kor.’s and Mr A.P.’s videotaped statements in the interests of ‘fullness of court examination’.
Counsel D.Kh.
objected, indicating that the law did not provide for the right to hear such statements on the ground announced by the prosecutor.
He further stated that Mr Kor.
and Mr A.P.
had earlier been examined in court, and the prosecutor did not claim that there were any contradictions in their statements at the time.
The judge permitted the viewing of the statements.
104.
On 25 June 2008 the judge’s clerk told the assistant of counsel D.Kh.
that the prosecutor would ask to view two more video cassettes and would then finish presenting the evidence.
The clerk had indicated that the judge had asked that it be passed on to the applicant’s lawyer, that the defence should try to ensure that the witnesses for the defence appear in court between 30 June and 04 July 2008 and that defence witnesses could be brought the week after but that would be highly undesirable.
105.
On 8 July 2008 a video recording of the interrogation of witness Mr S. was shown in court.
The applicant’s lawyer objected to the court receiving the video evidence, stating that such a video may only be viewed after his statements were read.
He subsequently made a motion, asking for Mr S. to be summoned in court.
The motion was rejected.
106.
On 9 July 2008 counsel D.Kh.
moved for Mr R. to be examined again on matters arising from his written statements in the course of interrogations during the preliminary investigation, which were read out at the prosecutor’s request.
The motion was rejected by the judge.
Counsel D.Kh.
also asked the judge to grant him three weeks in order to prepare for the presentation of the evidence.
He was granted three working days in this respect.
107.
On 14 July 2008 the applicant moved to summon and conduct supplemental examination of victims Ms Kol.
and Mr Ry.
The motion was rejected by the judge on the ground that these victims had already been examined in the court in detail.
(xvi) The motions of the defence on 14 July 2008 108.
On 14 July 2008 counsel D. Kh.
asked the court to summon witnesses Mr Lu., Mr V.S., Mr F., Mr S.B., Mr Y.K., Mr Tz., Mr Kl., Mr Mu., Mr Xa., Mr And.
and Mr As.
Summonses had earlier been sent by the court to all of these witnesses, but the witnesses did not respond.
The first three witnesses had not been interrogated during the preliminary investigation, the rest of them were examined during preliminary investigation.
The judge denied that motion.
He also stated that the defense was entitled to ask that the statements, which had been given by the witnesses during preliminary investigation, were read out in court.
Counsel D.Kh.
then asked the court for the opportunity to question Mr Kh.
at his place of incarceration.
The judge denied that motion on the basis that Mr Kh.
was not at that time within the jurisdiction of the Moscow City Court.
the judge also stated that the defence had the right to ask his place of incarceration – a correctional facility in the city of Chita – for permission to question him.
109.
On 14 July 2008 counsel D.Kh.
moved to exclude the video cassette of the interview with Mr G. and of the Yukos trip to the mountains, as well as the records of interrogations and videotaped statements of witness Mr T. on the grounds that they were irrelevant.
The judge denied the motion on the basis that there were no procedural violations committed in obtaining these items of evidence.
110.
On 14 July 2008 counsel D.Kh.
submitted a motion to examine and adduce documents in the criminal case, namely: a copy of the 14 May 2008 Israeli Supreme Court decision in Mr Nu.’s and Mr E.S.’s petition to strip the applicant of his State of Israel citizenship and extradite him to Russia; a copy of the 13 August 2007 decision by Switzerland’s First Public Law Court of the Swiss Federal Tribunal on the applicant’s complaint against the 15 December 2006 decision by the Swiss Federal Prosecutor’s Office regarding International Legal Assistance to the Russian Federation, as well as copies of Statement and documents with reference to which the Swiss Federal Supreme Court made a decision in the case; a copy of the 10 April 2008 decision by Nicosia’s District Court regarding Russian Federation’s request to extradite Mr V.Ka.
; a copy of the English Bow Street Magistrates Court decision of 18 March 2005 regarding Russian Federation Government’s request for International Legal Assistance and Extradition of Mr Mar.
and Ms C.; a copy of the English Bow Street Magistrates Court decision regarding the Russian Federation Government’s request for the extradition of Mr Te.
; a copy of the 24 August 2007 decision by the Senior Prosecutor of the Department of International Relations and Legal Assistance of the Lithuanian Republic’s General Prosecutor’s Office Request to take into custody and extradite Russian Federation citizen Br.
; statements by Mr Du., Mr She., Mr V.Sh., Mr Li.
and Mr Pav.
The judge agreed to admit the copy of the Israeli Supreme Court decision, the Swiss Federal Tribunal’s decision on the applicant’s complaint, and statements by Mr She., Mr Du., Mr V.Sh.
and Mr Pav.
The rest of the motion was denied by the judge.
The part of the motion concerning adducing the documents was denied by the judge on the basis that he considered them to have no relevance to the case.
111.
On 14 July 2008 counsel D. Kh.
submitted a motion for recusal of the judge, noting that he was not given sufficient time for preparation of presentation of defence evidence, the defence was deprived of the opportunity to examine the victims and certain witnesses, as well as to adduce certain documents to the case file, the motion of the defence to exclude evidence obtained in violation of law was denied.
The judge refused to deal with the motion, stating that he had already twice dealt with similar recusal motions, submitted by the defence.
After that counsel D.Kh.
submitted a statement regarding the political motivation for prosecuting the applicant and regarding the impossibility to continue presenting evidence.
(xvii) Reading out of the statements of absent witnesses on 15 July 2008 112.
On 15 July 2008 the prosecutor entered a motion to read out statements by six witnesses – Mr V.
Sh., Mr Du., Mr Br., Mr Ta., Mr Pav.
and Mr She.
Counsel D.Kh.
did not object to the motion, because one of the witnesses had since died and the remaining witnesses were abroad.
On the same day the prosecutor entered a second motion to read out statements by over twenty witnesses: Mr Zo., Mr D.D., Mr Kal., Mr A.Sh., Mr A.Y., Ms R. P., Mr V.Y., Mr S.K., Mr Baz., Ms Za., Ms N.K., Mr Boc., Ms T.Sh., Ms N.Ko., Mr Be., Mr Pi., Mr Ash., Mr So., Mr Ru.
and Mr Sa.
The prosecutor cited as a ground for doing so that the summons sent to these witnesses had been returned to the court by the post office as the individuals concerned had not come to the post office to pick them up or they did not reside at the stated addresses.
113.
Counsel D.Kh.
objected to the reading of the statements of the witnesses without an opportunity to examine them.
The court granted the motion, stating that the summons had been sent to the witnesses, but they did not appear in court for various reasons.
114.
Statements by Mr Pi., Ms T.
Sh., Mr Be., Ms N.K., Mr A.Sh.
and Mr Zo.
were read out on 15 July 2018.
The remaining statements were read out the following day.
(xviii) The motion of the defence dated 16 July 2008 to summon additional witnesses 115.
On 16 July 2008 counsel D.Kh.
asked the court to summon witnesses Mr A.Sh., Mr Pi., Mr Zo., Mr Sa., Mr Kal.
after evidence taken from them during the preliminary investigation had been read out by the prosecution, but the motion was rejected.
After that the judge announced a recess until 23 July 2008, setting oral arguments for that date.
(xix) Closing speech of the prosecutor on 23 July 2008 116.
On 23 July 2008 the prosecutor read a closing speech.
The prosecutor changed the charge in relation to Mr Kol.
so that the applicant became charged with organising Mr Kol.’s assault and robbery.
The prosecutor also stated that Mr T. had tried to falsely accuse the prosecutors, which is why he recanted his testimony and so his earlier statements have to be believed.
The prosecutor also asked the court to exclude both the Swiss and Israeli court decisions as inadmissible evidence, saying that they were irrelevant, did not contain information on the object to be proven, the translator had not been warned about criminal liability for deliberately false translation and that there were no judge’s signatures.
Counsel D. Kh.
asked to be provided with a copy of the closing speech.
The prosecutor did not allow him to make a copy of it.
According to the trial transcript, the court granted the prosecutor’s motion and entered the written version of the prosecutor’s speech into the record.
Counsel D.Kh.
asked for a week to prepare in order to analyze the prosecutor’s position.
The judge set the next court session for 10.00 am the following day.
(xx) Closing remarks of counsel D.Kh.
on 24 July 2008 and the end of the trial 117.
On 24 July 2008 counsel D.Kh.
gave his concluding remarks, saying that the charges against the applicant were unsubstantiated and unproven.
He emphasised that both the pre-trial proceedings and the conduct of the trial had failed to observe the requirements of the Russian law and the European Convention on Human Rights.
At the end of the closing submissions the judge announced that the judgment would be read out on 1 August 2008 and withdrew to prepare it.
118.
The trial ended on 01 August 2008.
(d) The judgment of 1 August 2008 119.
By the judgment of the Moscow City Court of 1 August 2008 which counted 160 pages the applicant was found guilty of committing the following crimes: (i) Organising, in liaison with Mr P., the murder of Ms Ko., which was carried out on 21 January 1998 in Moscow by Mr S. aided and abetted by Mr O., who had earlier been convicted by separate judgments.
120.
Ms Ko.
was an owner of a shop in Moscow.
According to the judgment, Mr Go.
and another person negotiated with Ms Ko.
about a possible buy-out, asking her to sell the shop’s premises or to join the charter fund run by the Menatep Bank as a co-founder, in order to enable the reconstruction of the whole building.
When the negotiations failed, the applicant gave instructions to Mr P. to organise the murder of Ms Ko.
Mr P. suggested to his acquaintance Mr Go.
to look for possible candidates to carry out the contract.
Mr Go.
hired Mr S. and Mr O. to carry out the murder.
The murder was carried out by Mr S., who had arrived at the crime scene together with Mr O. and Mr Go.
121.
The applicant’s conviction was based, essentially: - on the statements of Mr S., who testified at the trial and during the pre‐trial proceedings that Mr P. had acted on the instruction of the applicant and that the applicant had financed the murder, providing funds to Mr P.; - on the statements of Mr O., who testified at the trial and during the pre‐trial proceedings that Mr Go.
told him that the applicant had financed the murder.
He also stated that he heard Mr Go.
saying after the murder that Mr P. and the applicant were “now on the hook”.
According to the applicant, in respect of this episode, the court also relied on pre-trial statements of witnesses Mr V. K., Mr Sm., Mr Si., and also Mr Sh., which were not read out or examined in court.
(ii) Organizing, in liaison with Mr P., the murder of Mr Pe., which was carried out on 26 June 2008 in Nefteyugansk by Mr R., aided and abetted by Mr T. and Mr S., who had earlier been convicted by separate judgments 122.
Mr Pe.
was a mayor of Nefteyugansk of the Khanty-Mansiysk Autonomous District.
According to the court judgment, the motive for killing was to impede Mr Pe.’s actions, which were aimed at the collection of taxes to the local budget that had earlier been underpaid by Yukos.
The applicant gave instructions to Mr P. to organise the murder of Mr Pe.
Mr P. suggested to his acquaintance Mr Go.
to look for candidates for this job.
Mr Go.
offered to Mr S. and Mr Gor.
to carry out the murder.
They agreed and, in turn, hired their acquaintances Mr R. and Mr T. to carry out the murder for remuneration.
The murder was carried out by Mr R., who had arrived at the crime scene together with Mr T. 123.
The applicant’s conviction was based, essentially: - on the statements of Mr S., who testified at the trial and during the pre‐trial proceedings that Mr T. told him that the murder was organised by Mr P. and by the applicant; - on the statements of Mr T., who stated at the pre-trial proceedings that the crime was committed in the interests of Mr P. and the applicant, who had organised and financed that crime.
He also stated that Mr Go.
told him that the management of the Yukos Oil Company was interested in committing the crime.
During the trial Mr T. refuted his pre-trial statements and stated that the name of the applicant was mentioned by him before the trial at the request of investigators of the General Prosecutor’s Office Mr B. and Ms Ban.
in exchange for a reduction of his own prison sentence.
He also stated that before the court hearing the investigator came to visit him in the pre-trial detention facility, asking him to reiterate his pre-trial statements.
The court relied on the witness’s pre-trial statements, indicating that it received a response from the head of the pre-trial detention facility, where the witness was staying, affirming that no one had visited the applicant before he was questioned in court; - on the statements of Mr R., who testified at the trial and during the pre‐trial proceedings that the murder was organised by Mr P. and the applicant.
He further stated that Mr S. told him that the applicant and Mr P. were glad to hear the news of murder of Mr Pe.
; - on the statements of Mr Pi., who stated at the pre-trial proceedings that the applicant had sent him on mission to Nefteyugansk in June 1998 in order to analyse the situation regarding the conflict between Mr Pe.
and OAO Yuganskneftegaz.
Mr Pi.
received certain documents from the security service of Yukos Oil Company, which indicated that there were poor relations between Mr Pe.
and Yukos due to the failure of Yukos to pay taxes in full amount.
He arrived in Nefteyugansk on 24 June 1998, where he learned that the management of OAO Yuganskneftegaz intended to replace Mr Pe.
as a mayor with another person, more loyal to Yukos.
The applicant and Mr V.Sh.
asked him to tell to the public and to the investigators that the wife of Mr Pe.
was involved in the murder.
The similar instructions were given to other Yukos employees; - on the statements of Mr G., who testified at the trial and during the pre‐trial proceedings that the applicant told him that Yukos’s official version for Mr Pe.’s murder was a conflict between his wife and local criminals, who vied for control of a local market.
According to the applicant, witness Ms Ol.
gave some oral evidence in favour of the applicant at the trial, but this evidence was later disregarded by the court in its judgment.
(iii) Organizing, in liaison with Mr P., the robbery of Mr Kol., which was carried out on 5 October 1998 in Moscow by Mr R. and Mr T., who had earlier been convicted by separate judgments 124.
Mr Kol.
was an executive officer of ZAO Rosprom.
According to the court judgment, the robbery was advantageous to the applicant since the victim’s professional growth conflicted with some interests of the Yukos management.
The applicant gave instructions to Mr P. to organise the murder of Mr Kol.
Mr P. suggested to his acquaintance Mr Go.
to look for direct perpetrators of the order.
Mr Go.
hired Mr A.P., but for some reason, ordered him to commit a robbery, and not murder.
The latter, in turn, passed an order to his acquaintances Mr Kor., Mr Po.
and Mr Kab.
Later Mr Kor., Mr Po.
and Mr Kab.
refused to carry out the robbery, as Mr Kol.
was allegedly escorted by security guards.
After that Mr Go.
suggested to Mr S. and Mr Gor.
to participate in organizing the robbery, who agreed and hired their acquaintances Mr R. and Mr T. to carry out the robbery for remuneration.
The robbery was committed jointly by Mr R. and Mr T. 125.
The applicant’s conviction was based, essentially: - on the statements of Mr A.P., who testified at the trial and during the pre-trial proceedings that Mr Go.
had told him approximately in 1999 that the main organiser of robbery had been the applicant, who had also financed the crime; - on the statements of Mr T., who stated at the pre-trial proceedings that the crime had been committed at the instructions of Mr P. and the applicant, who had also organised and financed it.
He also stated that he received that information from Mr S., Mr Go.
and Mr Gor.
During the trial Mr T. refuted his pre-trial statements, arguing that he had given the names of Mr P. and the applicant at the request of the investigators; - on the statements of Mr R., who testified at the trial and during the pre‐trial proceedings that Mr P. and the applicant had instructed Mr Gor.
and Mr Go.
to organise the robbery; - on the statements of Mr S., who testified at the trial and during the pre-trial proceedings that he had heard from Mr Go.
and Mr Gor.
that Mr P. and the applicant had been behind the robbery and that the robbery had been financed by the applicant.
(iv) Organizing, in liaison with Mr P., the attempted murder of Mr Ry., which had been carried out on 24 November 1998 in Moscow by Mr R., aided and abetted by Mr T. and Mr S., who had earlier been convicted by separate judgments (first episode), and organizing in liaison with Mr P. the attempted murder of Mr Ry., murder of Mr Fe.
and the attempted murder of Mr I.Fi.
and Mr E.Fi., which had been carried out in the Moscow Region on 5 March 2009 by Mr T. and Mr R., aided and abetted by Mr S., who had earlier been convicted by separate judgments (second episode) 126.
Mr Ry.
was the executive director of East Petroleum Handelsges.m.b.H.
Company, who initiated several lawsuits against the Yukos Oil Company concerning the damage allegedly caused by the unlawful activity of Yukos to East Petroleum regarding its cooperation with OAO ’Tomskneft’ VNK in the development of Zapadno-Poludennoye and Krapivinskoye oil fields.
The applicant gave instructions to Mr P. to organize the murder of Mr Ry.
Mr P. suggested to his acquaintance Mr Go.
to look for direct perpetrators of the murder.
Mr Go.
suggested to Mr S. and Mr Gor.
to participate in organising the murder, who agreed and hired their acquaintances Mr R. and Mr T. to carry out the murder for remuneration.
The failed murder attempt was carried out by Mr R., who had arrived at the crime scene together with Mr T. (first episode).
After the first attempt of murder failed, the applicant again gave instructions to Mr P. to organise the murder of Mr Ry.
Mr P. suggested to his acquaintance Mr Go.
to look for direct perpetrators of the murder.
Mr Go.
suggested to Mr S. and Mr Gor.
to participate in organizing the murder, who agreed and hired their acquaintances Mr R. and Mr T. to carry out the murder for remuneration.
Mr R. and Mr T. set the explosive device on the ground in a place, where the car of Mr Ry.
was to take route.
When the car approached, Mr T. initiated the explosion.
Mr R. threw the grenade at the car.
After that Mr T. and Mr R. shot the car from assault rifles.
As a result of the assault, Mr Fe.
was shot dead, Mr I.Fi.
and Mr E.Fi.
were injured.
Mr Ry.
was not present in a car and he was unaffected by the assault (second episode).
127.
The applicant’s conviction was based, essentially: - on the statements of victim Mr Ry., who testified at the trial and during the pre-trial proceedings that, in his opinion, the attempted murders were organized by the Yukos management, including the applicant, because among his business partners only Yukos was in their debt; he sent a number of letters to the government structures concerning financial irregularities in Yukos; his close acquaintance Mr A.B., a former General Director of TNV Oil Company, who was murdered on 20 October 1998, told him about pressure from the Yukos Oil Company, indicating a person, who worked for the Yukos security service, who threatened him, trying to persuade to commit unlawful actions beneficial to Yukos.
He later identified that person as Mr P.; - on the statements of Mr D., who testified at the trial and during the pre‐trial proceedings that he took part in the court proceedings on the side of the East Petroleum Company against Yukos.
He received a warning from an unknown person named Sergey that he should not contact Mr Ry., as he ‘fell foul’ of very influential persons.
The applicant called him, insulting and threatening Mr Ry.
and himself, demanding that they stop their actions against Yukos.
In his opinion, the Yukos management, and the applicant in particular, organised the attempted murder of Mr Ry.
; - on the statements of Mr G., who testified at the trial and during the pre‐trial proceedings that the issue of debts of Yukos before the East Petroleum Company was discussed at various meetings held by Mr Kh.
and by the applicant.
At a meeting held approximately on 29 January 1999 the applicant in the presence of Mr G. told Mr Kh.
that he needed 2 months so that the problem of Mr Ry.
would disappear.
After the attempted murder Mr G. realized that the applicant was behind the murder.
The applicant held individual meetings with Yukos employees before they were questioned by the criminal authorities on the fact of the attempted murder.
The applicant told Mr G. that one should not be concerned about the investigation, as the investigative authority was under his control.
After the second attempt of murder Mr Kh.
assigned him to negotiate with Mr Ry.
regarding the buyout of shares of VNK and subsidiaries.
Mr Kh.
told him that Mr Ry.
was too frightened by the applicant and would negotiate only with those people who had not exerted pressure upon him; - on the statements of Mr Sk., who testified at the trial that the issue of conflict between Yukos and East Petroleum was discussed among the Yukos management.
He followed the media statements of Mr Ry.
and transferred them to the applicant and Mr P.; - on the statements of Mr R., who testified at the trial and during the pre‐trial proceedings that the attempted murder of Mr Ry.
was organised by Mr P. and by the applicant.
Mr Gor.
told him that the applicant was discontent with the failure of attempted murder and told about that to Mr P., who later told Mr Gor.
about that.
Mr R. also stated that in March 1999 he and Mr T. were at an automobile ‘Niva’ near the hotel ‘Salut’, then there came a ‘Jeep’ with Mr S. and Mr Gor.
in it, then came ‘Volga’ with Mr Go., Mr P. and the applicant, who spoke to Mr Gor.
and went away.
Mr Gor.
and Mr S. said that if they did not manage to ‘take out’ Mr Ry.
that day, ‘their heads will roll’; - on the statements of Mr T., who stated at the pre-trial proceedings that the crime was committed on the instruction of P. and the applicant, who had also organised and financed it.
He also stated that he received that information from Mr S., Mr Go.
and Mr Gor.
He also reasserted the statements of Mr R. regarding the meeting near the hotel ‘Salut’.
During the trial Mr T. refuted his pre-trial statements, arguing that he named the names of Mr P. and the applicant at the request of the investigators; - on the statements of Mr S., who testified at the trial and during the pre‐trial proceedings that he had heard from Mr Go.
and Mr Gor.
that Mr P. and the applicant were behind the attempted murder, which was financed by the applicant.
He also reasserted the statements of Mr R. regarding the meeting near the hotel ‘Salut’; - on the pre-trial statement of Mr O., who stated that in 2004 attorney Mr A.S. exerted pressure upon him, demanding not to disclose information about relations between Mr Go., Mr P. and the applicant; - on the statements of Mr A.P., who testified at the trial and during the pre-trial proceedings that Mr Go.
had told him that the applicant was the organizer of the attempted murder of Mr Ry.
According to the applicant, in respect of this episode, the court also relied on pre-trial statements of witnesses Mr A.Sh.
and Mr Sa., Ms L.Ry., Ms N.Ry., Ms T.Ry., Ms V.Ry.
and Mr Baz., which were not read out or examined in court.
(v) Organising, in liaison with Mr P., the attempted murder of Ms O.K., which had been carried out on 28 November 1998 in Moscow by Mr Kor., Mr Po., Mr Kab.
and Mr E., who had earlier been convicted by separate judgments 128.
Ms O.K.
worked for the Moscow Mayor’s office, having previously worked for Yukos.
According to the court judgment, the attempted murder was committed due to the fact that her actions had conflicted with interests of the Yukos management.
The applicant gave instructions to Mr P. to organize the murder of Ms O.K.
Mr P. suggested to his acquaintance Mr Go.
to look for direct perpetrators of the murder.
Mr Go.
suggested Mr A.P.
to participate in organizing the murder, who agreed and hired his acquaintances Mr Kor.
and Mr Po.
to carry out the murder for remuneration.
Mr Kor.
and Mr Po.
also suggested participating in carrying out the murder to Mr Kab., who agreed.
Mr Kor., Mr Po.
and Mr Kab.
also suggested participating in carrying out the murder to Mr E., who agreed.
The failed attempt of murder by way of explosion near the door of the victim’s apartment was carried out by Mr Kor., Mr Po.
and Mr Kab.
129.
The applicant’s conviction was based, essentially: - on the statements of Mr A.P., who testified at the trial and during the pre-trial proceedings that Mr Go.
had told him approximately in 1999 that the main organizer of robbery had been the applicant, who also financed the crime; - on the statements of victim Ms O.K., who testified at the trial and during the pre-trial proceedings that the applicant had hired her in Group Menatep, where she later met her future husband, which resulted in a negative reaction from the applicant, who tried to dismiss him.
After that Ms O.K.
had to leave the company, and the applicant warned her that the future career of her husband in the company depended on her behaviour.
While working for the Moscow Mayor’s office, Ms O.K.
developed a concept of regional relations for the Moscow government.
She was told by Mr V.Sh.
and Mr Sav.
that she would need to receive the applicant’s approval for the document.
At the meeting with her the applicant stated that she had to be the applicant’s protégé, regardless of her place of work.
After that her project was closed, while the relations between her husband and the applicant worsened.
The applicant told her husband that by working against him in the Moscow Mayor’s Office, she set Mr Lu.
against the applicant and obstructed the work of the applicant’s best friend Mr V.Sh.
After that Mr V.Sh.
and the applicant started to put pressure on her.
The applicant told her husband that the company would take measures to protect its interests against her.
The head of the analytical division of Yukos Mr Kon.
reminded her that she would be fired from her office if the applicant so decided.
During the telephone conversation the applicant blamed her for the problems with management of ZAO Moscow Youth Palace.
After that the applicant suggested her to refer to the security services.
After the attempted murder she left her job.
The applicant then offered her friendship, proposed various suggestions of who might have been behind the attempted murder.
Ms O.K.
conceded that the applicant could have been interested in punishing her.
(vi) Organising, in liaison with Mr P., the murder of Mr Go.
and Ms O.G., which had been carried out on 20 November 2002 in the town of Tambov by the unidentified persons 130.
According to the court judgment, the applicant knew that Mr Go.
had possessed information about the applicant’s involvement in the above‐mentioned crimes and was going to disclose that information in public.
He entered into criminal conspiracy with Mr P. and organised the murder Mr Go.
and his wife Ms O.G.
in order to conceal the committed crimes.
At the applicant’s instruction, Mr P. found unidentified individuals who carried out the murder.
131.
The applicant’s conviction was based, essentially: - on the statements of Mr A.P., who stated at the trial and during the pre‐trial proceedings that the death of Mr Go.
and his wife had been ‘advantageous’ for the applicant; - on the statements of Mr Kor., who testified at the trial and during the pre-trial proceedings that Mr Go.
had showed him three photographs of men.
One of them was Mr P. Mr Go.
told Mr Kor.
that if something were to happen to him, such as murder or accident, the only person to blame would be Mr P. Mr Go.
emphasized that those three men were affiliated with Menatep Bank, he possessed compromising material against that bank, which could be transferred to the criminal authority if something happened to him.
Later on during the photo array identification procedure Mr Kor.
identified the applicant as one of the persons depicted on the photographs.
(vii) The use of evidence given by various witnesses and alleged difference between the judgment delivered orally and in writing 132.
According to the applicant, the judgment read out in court differed materially from that which it subsequently issued in writing.
He also alleges that the judgment repeated passages from the judgment by which Mr P. had been earlier convicted, thus incorporating the evidence of witnesses who appeared at the Mr P.’s trial, but not in the proceedings against the applicant.
In addition, the applicant submits that the judgment repeated passages from the judgment by which Mr P. was convicted, thus incorporating the evidence of witnesses who appeared at the Mr P.’s trial, but not in the proceedings against the applicant.
6.
Appeal proceedings (a) The applicant’s appeal complaint and the appeal arguments 133.
Counsel D.Kh.
lodged an appeal to the Supreme Court of the Russian Federation against the judgment of the Moscow City Court of 1 August 2008.
He asked the court to quash the first-instance judgment and terminate the criminal proceedings against the applicant, raising the following arguments.
134.
He argued that the case was investigated and considered by the lower court in breach of the relevant laws; that the applicant was deprived of sufficient time to prepare defence with the assistance of a lawyer, chosen by him before and during the court proceedings; that the principles of equality of arms and adversarial proceedings were violated; that the lower court disregarded the principle of presumption of innocence.
135.
He further argued that the defence was not familiarised with the case file, in violation of Article 217 of the Criminal Procedure Code (see paragraph 159 above), and could not therefore exercise its right to file motions.
The court also allegedly did not provide counsel D.Kh.
with sufficient time for studying the materials of the case file, thus depriving him of the opportunity to prepare the defence.
136.
Counsel argued that the court did not ensure the attendance of the victims in the proceedings and failed to provide him an opportunity to present evidence and question witnesses, who were not summoned by the prosecution or the defence, that the court groundlessly denied numerous motions (such as on giving three weeks to work with evidence, for summoning and questioning of victims, additional witnesses, attaching documents to the case and excluding allegedly inadmissible evidence), which allegedly denied the applicant his fair trial rights.
137.
Counsel further argued that there were numerous violations of the relevant provisions of the Criminal Procedure Code and that the trial judge did not pronounce the full text of the judgment, that the judgment was based on the evidence that was not examined in court, that the court failed to assess all the evidence, that the evidence of certain witnesses during the preliminary investigation had been given under the influence of investigators as a result of unlawful investigative techniques.
138.
Counsel D.Kh.
asserted that the court had been wrong to exclude the decisions of the courts of Switzerland and Israel, by which the applicant’s extradition to Russia was denied, that the court did not take into account the circumstances that could substantially influence its conclusions, that the judgment was based on presuppositions and inadmissible evidence – video recording; the record of interrogation of witness Mr T., who had allegedly been questioned under the influence of the investigator – and that the pre-trial evidence of certain witnesses had been unlawfully pronounced in court.
139.
Counsel D.Kh.
concluded that the applicant had not committed the incriminated crimes and that the applicant’s guilt had not been properly established.
(b) The appeal judgment of 27 January 2009 140.
By the judgment of 27 January 2009 the Supreme Court dismissed the applicant’s appeal and upheld the judgment of the Moscow City Court of 1 August 2008.
141.
The Supreme Court upheld the first-instance judgment with reference to the following reasons.
142.
The court stated that the applicant’s guilt was established in view of the aggregate evidence examined in court and thoroughly expounded upon in the judgment, that the arguments of the applicant were refuted by the materials of the case file and that they were examined by the first-instance court and properly refuted in the judgment.
143.
The court considered that the circumstances of the applicant’s criminal activities had been confirmed by the evidence of numerous witnesses (Mr S., Mr O., Mr Sm., Mr V.K., Mr D.K., Mr T., Mr R., Mr Fiv., Ms Chi., Mr And., Ms N.Ko., Ms Dub., Mr A.P., Mr Po., Mr Kor., Mr Kos., Mr Gal., Mr G., Mr Kab.
and others; victims Ms K., Ms I., Mr Kol., Ms O.K., Mr Ry., Mr Iv., Mr Fil., Ms Ded., Mr Iz.)
at the pre-trial stage and before the court, on-site inspection reports, forensic medical reports, documents of the case and other material evidence.
144.
The court further noted that the applicant’s involvement in organising murders and attempted murders as well as a robbery was fully confirmed by the evidence that was examined in court and enumerated in the judgment.
145.
According to the court, the arguments of the lawyer that the defence was not familiarised with the case file at the pre-trial stage as well as during the trial were groundless.
It pointed out that, according to the case file, the interests of the applicant during the preliminary investigation and during the trial were represented by the lawyers, who studied the materials of the case file in full.
146.
The court further noted that the criminal case had been investigated and considered by the court comprehensively, fully and fairly and that there had been no violations of the criminal procedure.
147.
The appeal court concluded that the first instance court had examined and assessed all the collected evidence in aggregate and had come to the reasonable conclusion that the applicant’s guilt was established and characterised his actions correctly.
148.
It viewed the conclusions of the trial court set out in the judgment as confirmed by the evidence examined during the trial.
The appeal court further considered that the trial court had taken into consideration all the relevant circumstances of the case, that all of the contradictions in the evidence were examined and assessed by the trial court.
The judgment explained the reasons for various procedural decisions and contained no contradictions.
149.
The appeal court also noted that the trial court had not made any conclusions or statements breaching the applicant’s presumption of innocence, that the trial court had acted without taking sides, having merely created the necessary conditions for the parties to exercise their procedural rights and fulfil their obligations in the proceedings.
150.
The appeal court considered that the applicant’s defence rights were fully respected and dismissed all of the applicant’s arguments in this connection.
151.
The appeal court disagreed with the arguments of the complaint that the court had failed to ensure the presence of the victims in the hearing, had groundlessly denied the motions of the defence, had failed to give the defence an opportunity to present evidence and to question witnesses whose attendance was requested by the defence.
152.
The appeal court finally concluded that contrary to the arguments of the applicant’s counsel, the judgment had been pronounced by the presiding judge and that the punishment had been imposed on the applicant in accordance with the law.
B.
Relevant domestic law Russian Code of Criminal Procedure 153.
Article 50 (Invitation, appointment and replacement of the counsel for the defence, and the remuneration of his labour), as in force at the material time, provided: “... 3.
If the invited counsel for the defence fails to appear in the course of five days from the day of entering an application for inviting the counsel for the defence, the inquirer, the investigator or the court shall have the right to suggest that the suspect or the accused shall invite another counsel for the defence, and if he refuses to do so, to take measures for an appointment of the counsel for the defence.
If the counsel for the defence involved in the criminal case, cannot take part in the proceedings on the concrete procedural action in the course of five days, while the suspect or the accused does not invite another counsel for the defence and does not lodge a petition on an appointment of such, the inquirer or the investigator shall have the right to carry out the given procedural action without the participation of the counsel for the defence, with the exception of the cases stipulated by Items 2-7 of the first part of Article 51 of the present Code ...” 154.
Article 51.
(Obligatory participation of the counsel for the defence), as in force at the material time, provided: “1.
Participation of the counsel for the defence in the criminal court proceedings shall be obligatory, if: 1) the suspect or the accused has not refused from the counsel for the defence in the order established by Article 52 of the present Code; 2) the suspect or the accused is a minor; 3) the suspect or the accused cannot exercise his right to the defence on his own because of his physical or psychological defects; 3.1) the hearing shall be conducted in the procedure envisaged by Part 5 of Article 247 of the present Code; 4) the suspect or the accused does not have a good command of the language in which the proceedings on the criminal case are conducted; 5) the person is accused of committing a crime for which may be meted out a punishment in the form of deprivation of freedom for a term of over fifteen years, of life imprisonment or of capital punishment; 6) the criminal case is subject to consideration by a court with the participation of jurors; 7) the accused has entered a petition for the examination of the criminal case in accordance with the procedure, established by Chapter 40 of the present Code.
2.
In the cases stipulated by Items 1-5 of the first part of the present Article, the participation of the counsel for the defence shall be provided for in the procedure, laid down by the third part of Article 49 of the present Code, and in the cases stipulated by Items 6 and 7 of the first part of the present Article - as from the moment of entering a petition for the consideration of the criminal case by the court with the participation of jurors, or a petition for the examination of the criminal case in accordance with the procedure, established by Chapter 40 of the present Code, if only by a single one of the accused.
3.
If in the cases, stipulated by the first part of the present Article, the counsel for the defence is not invited by the suspect or by the accused himself, or by his legal representative, or by the other persons on the orders of or with the consent of the suspect or of the accused, the inquirer, the investigator or the court shall provide for the participation of the counsel for the defence in the criminal court proceedings.” 155.
Article 163 (Conducting a preliminary investigation by an investigative group).
as in force at the material time, provided: “... 2.
The decision on the performance of a preliminary investigation by an investigative group and on changing the composition thereof shall be taken by the chief of an investigatory agency.
In the resolution shall be listed all the investigators, who are entrusted with conducting the preliminary investigation; among other things, it shall be pointed out what particular investigator is appointed as the head of the investigative group.
Into the work of the investigative group may be involved officials from the bodies engaged in the operational-search activity.
The composition of an investigative group shall be announced to the suspect or to the accused ...” 156.
Article 195 (Procedure for the appointment of a court examination) provided: “... 3.
The investigator shall acquaint the suspect, the accused and his counsel for the defence with the resolution on the appointment of a court examination and shall explain to them their rights, stipulated by Article 198 of the present Code.
About this shall be compiled a protocol, which shall be signed by the investigator and by the persons he has informed about the resolution ...” 157.
Article 198 (Rights of the suspect, the accused, the victim and of the witness in an appointment and the performance of a court examination) provided: “1.
If a court examination is appointed and carried out, the suspect, the accused and his counsel for the defence shall have the right: 1) to get acquainted with the resolution on an appointment of a court examination; 2) to file an objection to the expert or a petition for performing the court examination in another expert institution; 3) to lodge a petition for an involvement in the capacity of experts of the persons he names, or for the performance of the court examination in the concrete expert institution; 4) to file a petition for an introduction into the resolution on an appointment of a court examination additional questions to the expert; 5) to be present, with the investigator’s permission, at the performance of the court examination and to give explanations to the expert; 6) to get acquainted with the expert’s conclusion or communication about it being impossible to make a conclusion and also with the protocol of the expert’s interrogation ...” 158.
Article 215 (Completing a preliminary investigation with the conclusion of guilt), as in force at the material time, provided: “1.
Having recognized that all investigative actions on the criminal case have been performed and the collected proof are sufficient for compiling the conclusion of guilt, the investigator shall notify to this effect the accused and shall explain to him his right, stipulated by Article 217 of the present Code, to get acquainted with all the materials of the criminal case both personally and with the assistance of the counsel for the defence and of his legal representative, about which a protocol shall be compiled in conformity with Articles 166 and 167 of the present Code.
2.
The public prosecutor shall notify about the end of the investigative actions the counsel for the defence and the legal representative of the accused, if these are taking part in the criminal case, as well as the victim, the civil claimant, the civil defendant and their representatives.
3.
If the counsel for the defence and the legal representative of the accused or the representative of the victim, of the civil claimant or of the civil defendant cannot come for getting acquainted with the criminal case materials at the appointed time, the investigator shall put off this acquaintance for a term of not over five days.
4.
If the counsel for the defence, selected by the accused, cannot come for getting acquainted with the criminal case materials, the investigator shall have the right, after an expiry of five days, to suggest to the accused that he select another counsel for the defence, or, on the ground of a petition from the accused, shall take measures for the attendance of another counsel for the defence.
If the accused refuses the appointed counsel for the defence, the investigator shall have the right to present to him the criminal case materials for getting acquainted with them without the participation of the counsel for the defence, with the exception of the cases, when the participation of the counsel for the defence in the criminal case is obligatory in conformity with Article 51 of the present Code.
5.
If the accused, who is not held in custody, does not come for getting acquainted with the criminal case materials, the investigator shall compile the conclusion of guilt and shall direct the materials of the criminal case to the public prosecutor after an expiry of five days from the day of announcing the end of the investigative actions or from the day, when the other participants in the criminal court proceedings indicated in the second part of the present Article, have completed getting acquainted with the criminal case materials.” 159.
Article 217 (Getting acquainted with the criminal case materials by the accused and by his counsel for the defence), as in force at the material time, provided: “1.
After fulfilling the demands of Article 216 of the present Code, the investigator shall present to the accused and to his counsel for the defence the sewn-up and enumerated materials of the criminal case, with the exception of the cases, envisaged by the ninth part of Article 166 of the present Code.
For such acquaintance shall also be submitted the demonstrative proof and, at the request of the accused or of his counsel for the defence, the photographs, the audio and/or video recordings, the cinema shootings and the other enclosures to the protocols of the investigative actions.
Where it is impossible to present exhibits, the investigator shall render a decision on it.
Upon a petition from the accused and from his counsel for the defence, the investigator shall provide for them an opportunity to get acquainted with the criminal case materials separately.
If several accused are involved in the proceedings on the criminal case, the sequence of presenting the criminal case materials to them and to their counsels for the defence shall be established by the investigator.
2.
In the process of getting acquainted with the criminal case materials consisting of several volumes, the accused and his counsel for the defence shall have the right to turn to any one volume of the criminal case repeatedly, to write out any information and in any volume, and also to take the copies of the documents, including with the use of technical devices.
The copies of the documents and the excerpts from the criminal case, in which is contained the information presenting the state or other kinds of secrets protected by the federal law, shall be kept in the criminal case file and shall be submitted to the accused and to his counsel for the defence during the court proceedings.
3.
The accused and his counsel for the defence cannot be restricted in the time necessary for familiarisation with the materials of the criminal case.
If the accused and his/her counsel obviously procrastinate the time of familiarisation with the materials, then on the basis of the judicial decision rendered in the procedure established by Article 125 of this Code there shall be fixed a definite term for familiarization with the materials of the criminal case.
If the accused and his/her counsel have not familiarized themselves with the materials of the criminal case within the time period fixed by the court without sound reasons for doing so, the investigator shall be entitled to decide on termination of the given procedural action, and in this respect the investigator shall render an appropriate decision and shall make a note of it in the record of familiarization of the accused and of his/her defense counsel with the materials of the criminal case.
4.
After the accused and his counsel for the defence have completed their acquaintance with the criminal case materials, the investigator shall find out what kind of petitions or other applications they are going to file.
In this case, it shall also be found out from the accused and from his counsel for the defence, what witnesses, experts and specialists shall be summoned to the court session for an interrogation and for the confirmation of the position of the party of the defence.
5.
The investigator shall explain to the accused his right to file a petition: 1) for an examination of the criminal case by a court with the participation of jurors - in the cases, stipulated by Item 1 of the third part of Article 31 of the present Code.
In this case, the investigator shall explain the specifics of consideration of the criminal case by this court, the rights of the accused during the court proceedings and the procedure for filing an appeal against the court decision.
If one or several accused reject the court with the participation of jurors, the investigator shall resolve the question on setting apart the criminal cases with respect to these accused into a separate procedure.
If it is impossible to sever the criminal case for a separate procedure, the criminal case as a whole shall be considered by a court with the participation of jurors; 2) for trying the criminal case by a court chamber consisting of three judges of a federal court of general jurisdiction – in the instances provided for by Item 3 of Part Two of Article 30 of this Code; 3) for the application of a special order of the court proceedings - in the cases stipulated by Article 314 of the present Code; 4) for carrying out preliminary hearings – in the cases stipulated by Article 229 of the present Code.” 160.
Article 220 (Conclusion of guilt) provided: “4.
To the conclusion of guilt shall be enclosed the list of the persons to be summoned to the court session on the side of the accusation and on the side of the defence, with an indication of their place of residence and/or of their actual place of stay.” 161.
Article 229 (Grounds for conducting a preliminary hearing), as in force at the material time, provided: “1.
If there exist the grounds, mentioned in the second part of this Article, the court shall conduct a preliminary hearing at the petition of a party or at its own initiative, in accordance with the procedure, stipulated by Chapter 34 of the present Code.
2.
A preliminary hearing shall be conducted: 1) if there is a petition from a party for the exclusion of the proof, entered in conformity with the third part of the present Article; 2) if there exists a ground for sending the criminal case back to the public prosecutor in the cases, stipulated by Article 237 of the present Code; 3) if there is a ground for the suspension or for the termination of the criminal case; 4) Abolished; 4.1) if a petition is received from a party for a hearing to be conducted in the procedure in the procedure envisaged by Part 5 of Article 247 of the present Code; 5) to resolve the question about considering the criminal case with the participation of jurors.
3.
The petition for conducting a preliminary hearing may be lodged by a party after it has got acquainted with the criminal case materials or after the criminal case with the conclusion of guilt or with the bill of indictment has been sent to the court, within three days after the day when the accused received a copy of the conclusion of guilt or of the bill of indictment.” 162.
Article 237 (Sending a criminal case back to the public prosecutor), as in force at the material time, provided: “1.
The judge shall return a criminal case to the public prosecutor for eliminating the obstacles to its examination by the court upon a petition from a party or at its own initiative, in the cases, if: 1) the conclusion of guilt or the bill of indictment is compiled with a violation of the demands of the present Code, thus precluding the possibility for the court to pass the sentence or some other decision on the basis of the given conclusion or bill; 2) a copy of the conclusion of guilt or of the bill of indictment is not handed in to the accused, save for instances when a court recognizes as legal and reasoned the prosecutor’s decision rendered by it in the procedure established by Part Four of Article 222 or by Part Three of Article 226 of this Code ...” 163.
Article 231 (Appointment of a court session) provided: “... 2.
In addition to those envisaged by the second part of Article 227 of the present Code, in the resolution shall be resolved the following questions: ... 4) on the summons to the court session of the persons in accordance with the lists, submitted by the parties;” 164.
Article 249 (Participation of the Victim) provided: “1.
The judicial proceedings shall take place with the participation of the victim and/or of his representative, unless otherwise stipulated by the second and the third parts of this Article.
2.
If the victim does not appear, the court shall consider the criminal case in his absence, with the exception of the cases when the court has recognised that the victim’s presence is obligatory ...” 165.
Article 256 (Procedure for passing a ruling or a resolution) provided: “1.
On the questions to be resolved by the court in a court session, the court shall pass rulings or resolutions, which shall be read out in the court session.
2.
The ruling or the resolution on sending the criminal case back to the public prosecutor in conformity with Article 237 of the present Code, on the termination of the criminal case, on the selection, change or cancellation of a measure of restriction with respect to the defendant, on the court hearing in the case set out in Part 5 of Article 247 of the present Code in the absence of the accused, on an extension of the term of keeping him under arrest, on the objections and on an appointment of a court examination, shall be passed in the retiring room and shall be rendered in the form of a separate procedural document, signed by the judge or by the judges, if the criminal case is examined by the court collectively.
All the other rulings or resolutions shall be passed at the court’s discretion in the courtroom and shall be entered into the protocol.” 166.
Article 265 (Identification of the defendant’s person and of the timely handing in to him of a copy of the conclusion of guilt or of the bill of indictment), as in force at the material time, provided: “... 3.
When a criminal case is examined in the procedure envisaged by Part 5 of Article 247 of the present Code the chairperson shall find out if a copy of the indictment or prosecutor’s decision on change of charges.
In this case the hearing of the criminal case cannot be commenced within seven days after the delivery of a copy of the indictment or decision on change of charges to a defence lawyer.” 167.
Article 281 (Announcement of the evidence of the victim and of the witness), as in force at the material time, provided: “1.
The announcement of the testimony of the victim and of the witness given at an earlier date in the course of conducting a preliminary investigation or the judicial proceedings, as well as the demonstration of photography negatives and photographs and slides made during the interrogations, and the reproduction of the audio and/or video recordings and of the cinema shootings of the interrogations, shall only be allowable with the consent of the parties in the event of non-appearance of the victim or witness, save for the instances provided for by Part Two of this Article.
2.
In the event of non-appearance of the victim or witness in court session, the court shall be entitled on the petition of the parties or on its own initiative to decide on the announcement of evidence previously given by them in the event of: 1) the death of the victim or witness; 2) their very poor health impeding their appearance in court; 3) the refusal of the victim or witness - who is a foreign citizen – to appear in court when summoned; 4) a natural calamity or other emergency situation impeding their appearance in court.
3.
A court shall be entitled on the petition of a party to decide on the announcement of evidence of the victim or witness, given earlier in the course of preliminary investigation or in court if there are essential contradictions between previously given evidence and the evidence given in court.
4.
The refusal from giving evidence on the part of the victim or of the witness, announced in court, shall not be seen as an obstacle for the announcement of his evidence, given in the course of the preliminary inquisition, if this evidence was obtained in conformity with the demands of the second part of Article 11 of the present Code.
5.
Demonstration of the photography negatives and of the photographs and slides, made during the interrogation, or the reproduction of the audio and/or the video recordings and of the cinema shooting of the interrogation shall be inadmissible before the preliminary announcement of the evidence, contained in the corresponding protocol of the interrogation or in the protocol of the court session.” 168.
Article 286.
(Enclosure of documents, submitted to the court, to criminal case materials) provided: “The documents, which have been submitted to the court session by the parties or which have been demanded by the court, may be studied and enclosed to the criminal case materials on the ground of a court ruling or resolution.” 169.
Article 291 (Completing the judicial investigation) provided: “1.
After the study of the proof presented by the parties is completed, the presiding justice shall ask the parties whether they would like to make an addition to the judicial investigation.
If a petition for an addition to the judicial investigation is filed, the court shall discuss it and take the corresponding decision.
2.
After dealing with the petitions and carrying out the necessary judicial actions in connection with this, the presiding justice shall declare the judicial investigation to be complete.” 170.
Article 310 (Pronouncement of the sentence), as in force at the material time, provided: “1.
After the sentence is signed, the court shall return to the courtroom and the presiding justice shall pronounce the judgement.
All those present in the courtroom, including the composition of the court, shall listen to the pronouncement of the sentence while standing.
2.
If the sentence is rendered in a language, of which the defendant has no command, the interpreter shall read out the simultaneous translation of the sentence into the language, of which the defendant has a good command, as the sentence is pronounced, or after it is pronounced.
3.
If the defendant is sentenced to the capital punishment, the presiding justice shall explain to him his right to appeal for clemency.
4.
If only introductory and resolutive parts of the sentence are announced in conformity with the seventh part of Article 241 of the present Code, the court shall explain to the participants in the judicial proceedings the procedure for getting acquainted with its full text.” COMPLAINTS 171.
The applicant complains under Article 6 of the Convention, taken in conjunction with Article 14 and Article 18, that his trial as a whole was unfair.
In particular, he complains about the following violations of his rights under the Convention.
1.
Interference with the applicant’s choice of a lawyer 172.
According to the applicant, his right to be defended through legal assistance of his own choosing was impaired by the following circumstances: (a) the officially appointed lawyer during the pre-trial stage was unlawfully selected without contacting the applicant and his chosen lawyer, Mr D.Kh., in the absence of necessary and appropriate reasons and despite knowing that a recognized and competent lawyer had already been appointed to act on the applicant’s behalf (see paragraph 20 above); (b) the officially appointed lawyer did not contact the applicant or Mr D.Kh.
and had stated that he saw no reason for him to do so (see paragraph 35 above); (c) the applicant and Mr D. Kh.
remained unaware of the appointment and activities of the officially appointed lawyer until after the case was referred for trial (see paragraph 33 above); (d) the officially appointed lawyer did not perform any positive actions in favour of the applicant (see paragraph 24 above); (e) the trial court has refused to acknowledge the inefficacy of the officially appointed lawyer (see paragraph 42 above); (f) the rapid examination of the file by the officially designated lawyer was effectively useless, conducted within unreasonably short period of time and served only to undermine the rights of the defence (see paragraph 33 above).
2.
Lack of adequate access to the case file and time to prepare 173.
According to the applicant, his right to have adequate time and facilities for the preparation of his defence was impaired by the following circumstances: (a) the chosen lawyer, Mr D.Kh., did not receive the access to the case file until the case was sent for trial.
The defence had been deprived of the opportunity to review all criminal case file materials pursuant to Article 217 of the Code of Criminal Procedure and to exercise its procedural rights (see paragraph 39 above); (b) Mr D.Kh.
was not notified of the court hearing on 12 February 2008 (see paragraph 29 above); (c) Mr D.Kh.
was unable to study the case file at the pre-trial stage, to submit motions to determine the composition of the court, to exclude evidence as inadmissible and to call additional witnesses (see paragraph 39 above); (d) the copy of the indictment was served to him only the day after the pre-trial hearing, which violated the provisions of Article 237(2)(1) of the Code of Criminal Procedure (see paragraph 38 above); (e) because of belated serving of the indictment to Mr D.Kh., the applicant was deprived of the opportunity to challenge the admissibility of evidence in the case file, to seek the termination of the case, to request additional investigative action and to file necessary motions (see paragraph 39 above); (f) Mr D.Kh.
was given just 7.5 days before the trial to read 84 volumes of 18926 pages, having managed to review just 10 of them (see paragraph 41 above); (g) the possibility of reading the case file at the end of a day’s hearing until the closing of the court was of little practical use because of the random attendance of witnesses (see paragraph 87 above); (h) the judge granted the defence just 3 days to prepare its case after the prosecution finished to present its evidence (see paragraph 106 above); (i) the judge granted time only until the following day to prepare the closing submissions of the defence (see paragraph 114 above); (j) the defence had not been familiarised with the composition of the investigative team, as a result of which it was deprived of the opportunity to move for recusals (see paragraph 39 above); (k) the defence had not been familiarised with decisions to schedule forensic examinations and was not explained its rights ancillary to scheduling and conducting a forensic examination, as a result of which the defence did not have any opportunity to recuse an expert or move to have the examination conducted at another expert facility; to move to admit individuals named by defence as experts and conduct the expert examination at a specific forensic facility; to include additional questions to the expert in the decision to schedule an examination; to be present at the examination (see paragraph 39 above).
3.
Inability to adduce defence evidence 174.
According to the applicant, his right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him was impaired by the following circumstances: (a) the judge refused to call any of the defence witnesses and refused the application to compel victims to be present in court (see paragraph 108 above); (b) the judge refused to admit to the case file the statements of all but four defence witnesses (see paragraph 110 above); (c) the judge refused defence requests to adduce other evidence, for example, the statement of former KGB and FSB operative Mr Li., who stated that he had personal knowledge that Mr Pe was in fact killed in an FSB operation (see paragraph 110 above); (d) the applicant complained that the judge discounted the decisions by the Israeli Supreme Court and Swiss Federal Tribunal, which had determined that the prosecution of the applicant was unfounded and based on hearsay (see paragraph 110 above); (e) the court refused to summon witnesses Mr Xa.
and Mr Kh.
(see paragraph 108 above); (f) the applicant was unable to question witness S. after his pre-trial videotape evidence was presented (see paragraph 105 above); (g) as to the episode relating to the murder of Mr Pe., the judge refused to call witness Mr R. to verify his written statements read out by the prosecutor after the witness left the court (see paragraph 106 above); (h) the court also refused to summon witnesses Mr F., Mr Kl., Mr As., Mr Y.K., Mr S.B., Mr Mu.
and Mr And.
(see paragraph 108 above); (i) as to the episodes relating to the robbery of Mr Kol.
and the attempted murders of Mr Ry., the judge failed to summon victims Mr Kol.
and Mr Ry.
for further examination (see paragraph 107 above); (j) the judge refused to call witness Mr R. to verify his written statements read out by the prosecutor after the witness left the court (see paragraph 106 above); (k) as to the episode relating to the attempted murder of Ms O.K., the Court refused to summon witnesses Mr Lu., Mr V.S.
and Mr Tz.
(see paragraph 108 above).
4.
Inability to challenge evidence presented by the prosecution 175.
According to the applicant, his right to have examined witnesses against him was impaired by the following circumstances: (a) the prosecution read out the statements of 17 witnesses, who were not present in trial, and the judge relied on statements of 8 those witnesses in the judgment.
The judge refused to summon those witnesses in court; (b) the judge also relied in the verdict on out-of-court statements in interview records from the investigation stage of the case and witnesses which had not even been read out in the trial proceedings; (c) the court relied on pre-trial statements of witnesses Mr Zo.
and Mr Kal., also of witness Mr Go.
due to his death, witnesses Mr Pod.
and Ms Roz.
; (d) as to the episode relating to the murder of Ms Ko., the court failed to summon witness Mr S. for further examination (see paragraph 105 above); (e) as to the episode relating to the murder of Ms Ko., the court relied on pre-trial statement of witnesses Mr V.K., Mr Sm., Mr Si., and also Mr Sh., which were not read out in court (see paragraph 121 above); (f) as to the episode relating to the murder of Mr Pe., the court relied on pre-trial statements of witnesses Mr Pi., Ms N.Ko., Ms N. K., Ms T.Sh., Mr Pa., Mr Be.
and Mr Kal.
(see paragraph 112 above); (g) as to the episode relating to the murder of Mr Pe., the court failed to summon witness Mr R. for further examination (see paragraph 106 above); (h) as to the episode relating to the murder of Mr Pe., the court relied on pre-trial statement of witnesses Ms I., Mr Sim., Mr T. and Mr Ne., which were not read out in court (see paragraph 122 above); (i) as to the episode relating to the robbery of Mr Kol., the court failed to summon victim Mr Kol., witnesses Mr R. and Mr S. for further examination (see paragraphs 105-107 above); (j) as to the episode relating to the robbery of Mr Kol., the court relied on pre-trial statement of witnesses Mr A.P., Mr Po., Mr Kor., Mr Kab., Mr Sm., Mr T., victim Mr Kol., which were not read out in court (see paragraph 125 above); (k) as to the episode relating to the attempted murder of Ms O.K., the court relied on the pre-trial statement of witnesses Mr E., Mr Kab., Mr Kor., Mr Kos., Mr A.P., Mr Po., Mr Gol.
and Ms Gri., which were not read out in court (see paragraph 129 above); (l) as to the episodes relating to the attempted murders of Mr Ry., the court failed to summon victim Mr Ry., witnesses Mr R. and Mr S. for further examination (see paragraphs 105-107 above); (m) as to the episodes relating to the attempted murders of Mr Ry., the court relied on the pre-trial statements of witnesses Mr A.Sh.
and Mr Sa., Ms L.Ry., Ms N.Ry., Ms T.Ry., Ms V.Ry.
and Mr Baz.
(see paragraph 127 above); (n) as to the episodes relating to the attempted murders of Mr Ry., the court relied on pre-trial statement of witnesses Mr A., Mr D., Mr Gal., Mr G., Mr Fiv., Mr Sm., Mr A.P., Mr Ye., Mr T., Mr Shv., Mr Iva., victim Mr Ry., which were not read out in court (see paragraphs 127 above); (o) as to the episode relating to the murder of Mr Go.
and Ms O.G., the court relied on pre-trial statement of witnesses Ms Ded., Mr Kor., Mr A.P., Mr Sm.
and Mr Shv., which were not read out in court (see paragraphs 131 above).
5.
The use of untested evidence 176.
According to the applicant, the conviction relied upon evidence which could not be and was not tested by the parties in the trial court, due to the following: (a) the verdict relied on hearsay evidence and suppressed evidence; evidence which was never called or heard by the trial court; evidence which was read from the investigation file, without being tested; evidence which the witnesses concerned said had been obtained by improper pressure or inducements; (b) the defence had no time to prepare for the cross-examination of witnesses, whose dates of attendance were arbitrary and unforeseeable; (c) the judge granted the defence just five days to prepare for presenting its evidence; (d) key prosecution witnesses whose hearsay statements had first referred to the applicant in 2004 testified at the trial that they only made these statements after being told by Russian investigators to implicate the applicant, whose name they previously never heard of; (e) the judge allowed statements of witnesses made during the preliminary investigation to be read out by the prosecution subsequent to those witnesses’ examinations, so that the statements could not be tested; (f) the verdict relied on the written statements of witnesses who were examined at the trial, but which were not read out at any stage of the proceedings; (g) as to the episodes relating to the murder of Ms Ko., murder of Mr Pe., robbery of Mr Kol.
and the attempted murders of Mr Ry., the applicant did not have the opportunity to question witness Mr S. after his written statements were read out (see paragraph 105 above).
6.
The use of hearsay evidence and evidence obtained through pressure.
Lack of factual basis for the prosecution of the applicant 177.
According to the applicant, the verdict relied on the hearsay evidence and the evidence obtained through pressure, which confirmed the lack of factual basis for the prosecution of the applicant.
The applicant argues that: (a) the verdict relied entirely upon hearsay, double hearsay, speculative testimony and suppressed testimony, whereas the verdict which the trial judge read out in court differed materially from that which he subsequently issued in writing (see paragraph 132 below); (b) the statements allegedly heard from the perpetrators included one from Mr Go.
who had disappeared in 2002 and had been apparently murdered and Mr Gor.
who had also died (see paragraphs 83, 100, 120‐131); (c) the allegations against the applicant are based solely on his alleged motive to commit the charged crimes, hearsay evidence and a case brought against Mr P., a former Yukos manager working within its security division; (d) the evidence against the applicant reduces itself to the confessions and belated recollections of convicted prisoners who say in essence that someone told them that someone told that person that the applicant had given instructions for the assaults; (e) the witnesses did not mention the applicant during the original investigations against Mr P. or earlier, they only did so after the Yukos case had begun; (f) the link made between the applicant and Mr P. relied upon a false assertion that the former had had operational control or involvement with the Yukos’s security division so that if Mr P. ordered the charged crimes, the applicant must have ordered him to do this; (g) the case against Mr P. is deeply flawed, his trial was unfair and motivated by improper considerations; (h) the Israeli Ministry of Justice rejected the Russia’s request for the applicant’s extradition due to inadequate and insufficient evidential basis against the applicant (see paragraphs 84-85 above); (i) the Swiss Federal Tribunal also indicated the unreliable nature of the allegations against the applicant (see paragraphs 14 above); (j) the trial evidence against the applicant consisted entirely of indirect, hearsay evidence and unsupported supposition; (k) all the alleged perpetrators of the crimes uniformly testified that they had never met or spoken or corresponded with the applicant; (l) as to the episode, relating to the murder of Ms Ko., the judge did not examine the statement of witness Mr O. that the investigators coerced him to give evidence (see paragraphs 96, 120, 121 and 127 above); (m) as to the episodes, relating to the murder of Mr Pe., robbery of Mr Kol.
and the attempted murders of Mr Ry., Mr T. recanted his previous statements, testifying that the investigators promised him reduced sentence if he testified against the applicant (see paragraphs 78, 81, 98, 116, 122-127, 138 above); (n) Mr R. testified that he first heard the applicant’s name from the investigators (see paragraphs 78, 99, 122-127 above).
7.
Failure to take account of exculpatory evidence and to give reasons for not considering it 178.
According to the applicant, the evidence presented by the prosecution was no more than assumptions, expressions of a personal opinion or was based on unverified third-party information.
In particular, the verdict did not take account of exculpatory evidence on the following accounts: (a) the domestic court wrongly stated that witness Mr P. had not given evidence in court and that all the evidence had been collected in accordance with the domestic law; (b) the court unlawfully excluded as evidence the court decisions of Swiss and Israeli courts (see paragraphs 110 above); (c) the verdict repeated passages from the verdict by which Mr P. was convicted, thus incorporating the evidence of witnesses who appeared at the Mr P.’s trial, but not in the proceedings against the applicant (see paragraph 132 above); (d) as to the episode relating to the murder of Mr Pe., the court judgment wrongly presumed the existence of evidence that Yukos had failed to pay taxes to the local budget (see paragraphs 122-123 above); (e) the court groundlessly considered the statements of witness Ms Ol.
untruthful (see paragraph 123 above); (f) as to the episodes relating to the attempted murders of Ms O.K.
and Mr Ry., the court failed to address significant contradictions in the statements of the victims (see paragraphs 126 and 127).
8.
Bias of the judge 179.
According to the applicant, the trial judge showed bias against the defence by: (a) interfering with cross-examination; (b) assisting witnesses’ ‘recollections’; (c) failing to examine serious evidential contradictions and inconsistencies by adversarial submissions; (d) on numerous occasions interrupting testimony in order to ensure that witnesses maintained the story consistently with the prosecution’s theory of the case; (e) hectoring the applicant’s chosen defence lawyer during cross‐examination; (f) correcting witnesses when their evidence differed from that which supported the prosecution’s assertions; (g) refusing to provide the defence with the time needed to adequately prepare for trial; (h) allowing the trial to continue on the basis of the haphazard attendance of witnesses; (i) allowing statements of witnesses made during the preliminary investigation to be read out by the prosecution subsequent to those witnesses’ examinations, so that the statements could not be tested (see paragraph 115 above); (j) not providing the defence with enough time to prepare the case after the closure of the prosecution’s case and for the closing remarks (see paragraphs 115-118 above); (k) preventing counsel D.Kh.
from calling any defence witnesses (see paragraph 110 above); (l) supporting the verdict through extensive reliance on matters never introduced at the trial and incorporated excerpts from the verdict of case against Mr P., not presented at the applicant’s trial; (m) by implying regarding the episode of the murder of Mr Pe.
in the course of examination of Mr Kon.
on 30 May 2008 that the applicant was guilty because Mr P. had been found guilty in proceedings brought against him (see paragraphs 95 and 129 above); (n) by refusing to adduce evidence of former FSB Operative Mr Li., who had stated that he had personal knowledge that Mr Pe.
was killed in an FSB operation (see paragraph 110 above); (o) as to the each of the episodes, relating respectively to the murder of Mr Pe., the robbery of Mr Kol.
and the attempted murder of Mr Ry., by dismissing recantation of evidence by Mr T. and Mr R. (see paragraphs 78, 81, 98, 116, 122-127, 138 above).
9.
Political motivation: differential treatment and the abuse of power 180.
The applicant complains that the basis for the criminal proceedings against the applicant was not objective and that his prosecution was politically motivated.
The applicant was deliberately singled out for differential treatment and the proceedings as a whole involved his victimisation by an abuse of power.
He relied on the following alleged circumstances to confirm this complaint: (a) the applicant’s criminal proceedings, undertaken in his absence, were not conducted in order to solve crimes and punish those guilty of them, but were the result of a political goal, namely the Russian authorities’ politically motivated wider persecution of Yukos Oil Company and its key shareholders and management and the destruction of the company itself; (b) the criminal proceedings were part of the state’s large scale corporate conflict over the Yukos case and the expropriation of the company, which resulted in the conviction and imposition of a sentence of imprisonment on the applicant, Mr Kh.
and Mr Le., as well as the ultimate destruction of Yukos; in the 2004 Presidential election the applicant was a public and vocal supporter of opposition political parties and candidates, openly putting his financial support behind two liberal parties, ‘the Union of Right Forces’ and ‘Yabloko’; (c) the timing of allegations that the applicant had committed personal tax offences coincided with the applicant’s declaration of public support for the presidential campaign of opposition candidate, Ms I.Kh., and her ‘Free Russia’ party; (d) the decision to indict the applicant on two incidents did not occur until July 4, 2005, the day after the applicant arrived in the United States at the invitation of Congressman Mr T.L.
in order to testify about the ‘Yukos affair’ before the United States Commission for Security and Cooperation in Europe; the initiation of the ‘Yukos affair’ followed a warning by the President of Russia Mr Pu.
that Russian businessmen should stay away from political involvement or they would face the consequences; (e) the object of the attack on Yukos Oil Company and those associated with it, which commenced in 2003, has been to silence the key group of shareholders, including the applicant, and to expropriate the assets of Yukos Oil Company (see paragraphs 2 above); (f) the courts of the UK, Switzerland, Lithuania and Cyprus either refused requests to extradite former Yukos employees to Russia or refused mutual legal assistance on the ground that the criminal proceedings were politically motivated.
Political motivated were also echoed by the conclusions of the reports of PACE, other organisations and NGOs (see paragraph 15 above).