June 16, 2011
A few weeks ago the European Court of Human Rights delivered its judgment in the high profile case of Khodorkovskiy v. Russia. Mr. Khodorkovskiy was, as I assume most readers are aware, until recently one of the richest persons in Russia and the major shareholder in one of Russia’s formerly largest oil companies (Yukos). He is of course most known for his criminal prosecution and detention by the Russian authorities in 2003 on suspicion of theft and money laundering, ultimately leading to his conviction in 2005. Mr. Khodorkovskiy has always maintained that the trial against him was politically motivated and orchestrated to silence his involvement in Russia’s political life, from 2002 onwards. In addition to financing opposition political parties, he openly criticised Russia’s internal policy at the time, calling it anti-democratic. Many find Mr. Khodorkovskiy’s allegations that his trial was politically motivate reliable and at the very least question the true motivation behind his repeated convictions. Earlier this year, following the extension of Mr. Khodorkovskiy’s conviction with a further 7 years in December of last year, the Guardian reported that an insider of the Russian judiciary, the assistant of the Judge who had ruled on the extension of Mr. Khodorkovskiy’s prison sentence, confirmed the claims that the verdict was “ordered from above”. She stated in particular that “all of legal society understands perfectly well that this is a made-to-order case, a made-to-order trial.”
Among other articles, Mr. Khodorkovskiy relied on the rarely invoked – and even more seldomly granted – article 18 of the European Convention on Human Rights before its Court, alleging that Russia had used criminal prosecutions for a political end and in order to appropriate the company’s assets. The ECtHR found no violation of article 18.
Article 18 ECHR reads: “The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” In the case of Gusinskiy v. Russia – one of only two cases in which the Court found a violation of article 18 – the Court clarified that, similar to article 14, “Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention. There may, however, be a violation of Article 18 in connection with another Article, although there is no violation of that Article taken alone.” Article 18 thus needs to be invoked in combination with a substantive article of the Convention, in Mr. Khodorkovskiy’s case article 5. Moreover, as the Court confirmed in Gusinskiy, an issue can only arise under article 18 “where the right or freedom concerned is subject to restrictions permitted under the Convention.” Of course otherwise abuse of such restrictions would not be possible.
In support of his allegations under article 18, Mr. Khodorkovskiy relied on a wide variety of sources in front of the ECtHR that – he felt – strengthened his position. These sources ranged from public statements of Russian officials, reports of international and Russian media, reports of governmental and non-governmental organisations, over a PACE report, European Parliament reports, US Senate resolutions, to decisions by the UK courts in cases of extradition of several former Yukos managers and decisions by the Cypriot, Dutch, and Swiss courts to the effect that the prosecution of Mr. Khodorkovskiy was politically motivated. In particular, Mr. Khodorkovskiy referred to the words of the Swiss Federal Tribunal, which in August 2007 found that the facts “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”. Despite this impressive list of sources to back his allegations up, the Court found no violation of article 18 in Mr. Khodorkovskiy’s case.
When reading the Court’s judgment, I could not escape the conclusion that the Court went out of its way to prevent a finding of a violation. I also got the impression that the Court was sympathetic to Mr. Khodorkovskiy’s case, but that it could not find a violation of such a highly sensitive nature in the current political climate in which States’ criticism of the Court’s overzealous judicial behaviour rings louder than ever. The Court had already stomped down heavily on Russia’s toes in the Chamber judgment of Konstantin Markin (which the Grand Chamber will hopefully not overturn). Arguably, and also since it had already found several violations of article 5 in Mr. Khodorkovskiy’s case, the Court considered it imprudent to do so again by condemning Russia for having orchestrated a political trial against Mr. Khodorkovskiy. Doing so would have meant the first judicial affirmation of the political nature of Mr. Khodorkovskiy’s trial in a judgment that binds the Russian State. A highly delicate matter indeed.
In my view, this explains the language used by the Court in Khodorkovskiy. The Court first reiterated that “the whole structure of the Convention rests on the general assumption that public authorities in the member States act in good faith.” Furthermore, it emphasised the “very exacting standard of proof” that applies when article 18 is invoked. Distinguishing Mr. Khodorkovskiy’s case from the two cases in which the Court had previously found a violation of article 18 (Gusinskiy v. Russia and Cebotari v Moldova; both concerning criminal detention and threat of criminal prosecution to pressure the applicant into accepting a commercial/financial deal), it stated that “there is nothing in the Court’s case-law to support the applicant’s suggestion that, where a prima facie case of improper motive is established, the burden of proof shifts to the respondent Government. The Court considers that the burden of proof in such a context should rest with the applicant.”
This renders the delivery of proof in cases of political trials extremely difficult, edging on the impossible. In that respect, what distinguishes Khodorkovskiy from Gusinskiy and Cebotari is the aim for which the domestic authorities used (threats of) criminal sanctions. In the latter cases they did so to force the applicants to cut a financial/commercial deal, something which is much easier to prove than the political silencing that allegedly motivated the prosecution of Mr. Khodorkovskiy. In Gusinskiy for instance, the pending criminal prosecution against the applicant was cancelled once he signed an agreement to sell his company to Gazprom, another major energy player on the Russian market. For Mr. Khodorkovskiy it was much more difficult to prove the true motivation which he alleged lay behind his prosecution and conviction. This explains why the Court, in reviewing the evidence brought forward by Mr. Khodorkovskiy, “took note of those opinions”, adding that it “must recall that political process and adjudicative process are fundamentally different. It is often much easier for a politician to take a stand than for a judge, since the judge must base his decision only on evidence in the legal sense.” The Court did accept that the findings of the domestic European courts relied on by Mr. Khodorkovskiy were “probably the strongest argument in favour of [his] complaint under Article 18 of the Convention. However”, the Court continued, “the evidence and legal arguments before those courts might have been different from those in the case under examination. More importantly, assuming, that all courts had the same evidence and arguments before them, the Court reiterates that its own standard of proof applied in Article 18 cases is very high and may be different from those applied domestically.” Ultimately, the Court held that the evidence adduced was “not sufficient for this Court to conclude that the whole legal machinery of the respondent State in the present case was ab intio (sic.) misused, that from the beginning to the end the authorities were acting with bad faith and in blatant disregard of the Convention. This is a very serious claim which requires an incontrovertible and direct proof. Such proof […] is absent from the case under examination.”
This may appear an unsatisfactory result and might frustrate Mr. Khodorkovskiy and his supporters. At the same time, however, it may appease those who have been speaking out against the Court for what they consider to constitute too deep engagement on the part of the Court in political matters and internal affairs of sovereign states. A conviction against Russia for having orchestrated a political trial was perhaps – in the eyes of the Court – not possible for legal reasons, nor feasible for political ones in the absence of definitive proof. While principally disappointing – one can certainly debate the necessity of applying such strict standards of proof, resting solely on the shoulders of individual applicants – that is certainly understandable from a pragmatic point of view.
Moreover, the last sentence of the Court’s reasoning under article 18 seems to hint that the matter does not sit well with the judges either, or at least indicates that they sympathise with Mr. Khodorkovskiy’s case:
“In such circumstances the Court cannot find that Article 18 was breached in this case.”
Generally, the Court holds that “there has been no violation of article such and such” or that “article such and such have not been breached”. This time, the Court cannot find that article 18 was breached. A subtle sign that there is some regret that it could not rule in favour of Mr. Khodorkovskiy?