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You are here: BAILII >> Databases >> European Court of Human Rights >> NEVZLIN v. RUSSIA - 26679/08 (Judgment : Remainder inadmissible : Third Section) [2022] ECHR 57 (18 January 2022) URL: http://www.bailii.org/eu/cases/ECHR/2022/57.html Cite as: ECLI:CE:ECHR:2022:0113JUD007285813, CE:ECHR:2022:0118JUD002667908, CE:ECHR:2022:0113JUD007285813, ECLI:CE:ECHR:2022:0118JUD002667908, [2022] ECHR 57 |
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THIRD SECTION
CASE OF NEVZLIN v. RUSSIA
(Application no. 26679/08)
JUDGMENT
Art 6 § 1 (criminal) and Art 6 § 3 (d) -� Fair hearing -� Examination of witnesses -� Lack of an effective opportunity to challenge one of the prosecution witnesses whose testimony was of decisive weight -� No issues found with regard to the remaining prosecution witnesses and the defence witnesses
STRASBOURG
18 January 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Nevzlin v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Georges Ravarani,
President,
Georgios A. Serghides,
Dmitry Dedov,
María Elósegui,
Darian Pavli,
Peeter Roosma,
Frédéric Krenc,
judges,
and Milan Blaško,
Section Registrar,
Having regard to:
the application (no. 26679/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by an Israeli and Russian national, Mr Leonid Borisovich Nevzlin ("the applicant"), on 20 May 2008;
the decision to give notice to the Russian Government ("the Government") of the complaints concerning the applicant's trial and to declare the remainder of the application inadmissible;
the parties' observations;
Having deliberated in private on 7 December 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the applicant's complaints under Article 6 § 3 of the Convention that his trial in absentia was unfair. The main issues are whether his defence had adequate time and facilities for preparation for the trial and whether it had an effective opportunity to examine witnesses against the applicant and to obtain the attendance of witnesses on the applicant's behalf.
2. The applicant was born in 1959 and lives in the city of Herzliya, Israel. He was represented before the Court by Mr P. Gardner and Mr J. McBride, lawyers practising in London, and Mr D. Kharitonov, a lawyer practising in Moscow.
3. The Government were initially represented by Mr A. Fedorov, former Representative of the Russian Federation to the European Court of Human Rights, and lately by his successor in that office, Mr M. Vinogradov.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. Prior to 2003 the applicant occupied various high-ranking positions at investment holding company GML (Group Menatep Limited) and its subsidiary, oil company OAO Neftyanaya Kompaniya Yukos (hereinafter "Yukos" or "Yukos Oil Company").
6. Between 2003 and 2004 the Russian authorities brought a series of tax liability claims against Yukos. As a result of several sets of court proceedings, the company was ordered to pay the arrears and fines. Being unable to pay, it was declared bankrupt and eventually liquidated. At about the same time, several high-ranking Yukos officials, including its owners, managers and lawyers, were arrested and subsequently convicted of fraud, tax evasion and money laundering. A more detailed description of the court proceedings against Yukos and its owners and executives can be found in OAO Neftyanaya Kompaniya Yukos v. Russia (no. 14902/04, 20 September 2011); Khodorkovskiy and Lebedev v. Russia (nos. 11082/06and 13772/05, 25 July 2013); and Khodorkovskiy and Lebedev v. Russia (no. 2) (nos. 42757/07and 51111/07, 14 January 2020).
7 . The head of the Yukos security service, Mr Pichugin, was convicted of aggravated robbery, murders and attempted murders by separate judgments of 30 March 2005 and 6 August 2007. For more details concerning the criminal proceedings against Mr Pichugin, see Pichugin v. Russia (no. 38623/03, 23 October 2012), and Pichugin v. Russia ([Committee], no. 38958/07, 6 June 2017).
8. On 4 July 2003 a senior investigator for particularly important cases of the Russian Prosecutor General's Office ("the investigator") interviewed the applicant as a witness in the presence of his lawyer, Mr Kharitonov.
9 . On 30 July 2003 the applicant left Russia for Israel, where he acquired Israeli nationality.
10. On 21 July 2004 investigators indicted the applicant on charges of the murder of Mr Go. and Ms O.Go. and murder attempts on Mr Kol., Ms O.K., and Mr Ry. The authorities declared an international search for the applicant.
11. On 23 July 2004 the Basmannyy District Court of Moscow ordered the applicant's arrest.
12. On 10 August 2004 the applicant's lawyer, Mr Kharitonov, was notified of the decision of 21 July 2004 to indict the applicant.
13. On 7 July 2005 the Russian authorities made several requests to other states, including Israel, seeking the applicant's extradition, referring to the pending criminal case against him.
14. On 28 August 2006 the Ministry of Justice of Israel informed the Russian authorities that Israel could not grant the extradition request as the evidence provided by the Russian authorities was insufficient.
15. Other States, including Switzerland, Cyprus, Liechtenstein, Lithuania and the United Kingdom, also rejected the Russian authorities' requests for mutual legal assistance in connection with Yukos proceedings, on the grounds that the proceedings were politically motivated.
16. In 2006 and 2007 the Russian authorities furnished Israel with additional information relating to the applicant's criminal case. On 23 October 2007 the Israeli authorities reiterated their position that the evidence was insufficient to order the applicant's extradition.
17 . On 17 December 2007 the investigator invited the applicant's lawyer, Mr Kharitonov, in writing to appear on 20 December 2007 to study the investigation case file. On 20 December 2007 the investigator reiterated his invitation, requesting that Mr Kharitonov be present on 25 December 2007 to examine the investigation case file.
18 . In response, on 20 and 24 December 2007 Mr Kharitonov requested that the examination be postponed. He stated that on 23 December he would be occupied with a different criminal case, and on 25 December he would be on a previously scheduled holiday. He sought to postpone the examination of the case file to any date after 11 January 2008, confirming that the applicant's defence intended to examine the file.
19 . On 26 December 2007 the Moscow Bar Association, at the request of the investigator, appointed a lawyer, Mr A.L., to represent the applicant in his criminal case. On the same day A.L. signed a confidentiality clause concerning the preliminary investigation. According to the applicant, neither he nor his lawyer Mr Kharitonov were informed of this appointment.
20 . On 26 December 2007 the investigator informed the lawyer A.L. about the completion of the investigation. On the same date, A.L. started to examine the case file, comprising eighty-four volumes (18,926 pages in total, including interview records of more than 500 witnesses, forensic reports and physical evidence and video recordings).
21. On 31 January 2008 A.L. confirmed that he had completed his examination of the case file, and requested a preliminary hearing. He did not submit any other requests.
22. According to the applicant, A.L. had never contacted him.
23. On 21 and 22 January 2008 the lawyer Mr Kharitonov asked the Prosecutor General's Office for access to the case file, and complained about the investigator's failure to reply to his letters of 20 and 24 December 2007.
24 . On 14 February 2008 the lawyer received letters from the investigator dated 12 and 15 January 2008. According to those letters, the lawyer's letter of 24 December 2007 had been received by the investigator on 10 January 2008. His request to postpone the examination of the case file had been rejected, as it could not have been postponed for more than five days. The investigator considered that the lawyer had failed to fulfil his professional obligations in the case.
25 . The stamps on the envelopes indicated that the investigator's letters of 12 and 15 January 2008 had been dispatched on 4 and 5 February 2008 respectively.
26 . On 14 February 2008 the prosecution issued a final indictment. According to that indictment, the applicant had instructed Mr Pichugin to organise the murders of several people, in the interests of Yukos Oil Company. For that purpose, through Mr Pichugin the applicant had hired Go., Gor. , Sh. , Resh., Tsig., Ov., Pesh., Kor., Pop., Er., and Kab. , who had planned and carried out the murders, which the applicant had financed.
27. On an unspecified date a criminal case against Go. and Gor. was discontinued because of their deaths. The other members of the group had been convicted of murders and attempted murders in separate sets of criminal proceedings (see paragraphs 40, 43, 45, 50 and 52 below).
28 . According to the indictment, the applicant was accused of being the mastermind of the following six criminal episodes, committed in liaison with Mr Pichugin between 1998 and 2002:
(1) the murder of Ms V.Ko., planned and carried out by Go., Sh. and Ov.;
(2) the murder of Mr V.Pe., planned and carried out by Go., Gor., Sh., Tsig. and Resh.;
(3) the aggravated robbery of Mr Kol., planned and carried out by Go., Gor., Sh., Tsig. and Resh.;
(4) the attempted murder of Ms O.K., carried out by Go., Pesh., Kor., Pop., Er. and Kab.;
(5) two attempted murders of Mr Ry., the murder of Mr F. and the attempted murder of Mr I. and Mr Fi., planned and carried out by Go., Gor., Sh., Tsig. and Resh.;
(6) the murder of Go. and his wife, Ms O.Go., carried out by unidentified persons.
29 . On 14 February 2008 the applicant's criminal case was sent to the Moscow City Court for examination. The lawyer Mr Kharitonov was not informed.
30. On the same day a copy of the indictment was served on the lawyer A.L. A copy was not served on either the applicant or Mr Kharitonov.
31 . On 19 March 2008 the Moscow City Court started the examination of the applicant's criminal case. The court released the lawyer A.L. from representing the applicant, as the applicant was represented by Mr Kharitonov.
32 . Between 19 March and 10 June 2008, the court held thirty-six hearings and heard 104 witnesses, including victims. In particular, the court heard direct perpetrators of the crimes (see paragraphs 40-55 below) and witnesses who had worked in Yukos or its affiliated companies (see paragraphs 58-69 below). The hearings were held regularly in the mornings and afternoons.
33. On 1 August 2008 the Moscow City Court found the applicant guilty as charged (see paragraph 84 below) on the basis of evidence which is described in further detail below (see paragraphs 85-99 below). The conviction was upheld on appeal by the Supreme Court of Russia (see paragraphs 100-108 below).
34. On 4 March 2008 the Moscow City Court held a preliminary hearing. Judge Mr N. (hereinafter "the judge") was presiding. The applicant was represented by his lawyer, Mr Kharitonov.
35. The applicant's lawyer complained about the prosecution's failure to serve a copy of the final indictment on the applicant's defence. He asked the court to refer the case back to the prosecution, complaining, among other things, about the late notification of the charges, and that the defence had had insufficient time to examine the case file. He asked the court to grant him three months to examine the file.
36 . On 5 March 2008 the judge, having examined Mr Kharitonov's request, granted him fourteen days to examine the case file. He dismissed the remainder of the request, noting that Mr Kharitonov had protracted the proceedings, which had made it necessary to appoint the lawyer A.L., and that, despite the applicant's living in hiding, his rights were adequately secured by having two lawyers, A.L. and Mr Kharitonov, and, lastly, that a copy of the indictment had been properly served on the defence through notification to the lawyer A.L.
37 . On 6 March 2008 Mr Kharitonov received a copy of the applicant's final indictment. He reviewed ten out of eighty-four volumes of the criminal case file before the first hearing on 19 March 2008.
38 . On 19 March 2008 the applicant's lawyer asked the court to postpone the trial for two months in order to complete his examination of the case file. The judge dismissed his request, finding that the lawyer had been invited to examine the case file in December 2007, but had failed to do so. The judge found that the lawyer intended to delay the examination of the case, and decided that he could review the case file after each trial hearing.
39 . On the same day the court started the examination of witnesses and victims. It heard, among others, the victim Kol. testifying about being robbed. The victim submitted, in particular, that he had known the applicant, but he had not had any disagreements with him and he did not know who could have been behind the robbery. Kol. asked the court to release him from subsequent participation in the court proceedings. The parties did not object and the court granted his request.
(a) Examination of Pesh. on 10 April 2008
40 . Pesh. had been convicted of incitement to commit the attempted murder of O.K. (the fourth criminal episode) by a separate judgment of 30 March 2005.
41 . On 10 April 2008 during the applicant's trial the court heard Pesh. as a witness. He reiterated his pre-trial statements that, in 1999, Go. had told him on many occasions that the instigator of the attempted murder of Ry. and O.K., and the aggravated robbery of Kol., was not only Mr Pichugin, but also the applicant, a "more powerful figure".
42 . The witness also submitted that, in his opinion, the death of Go. and his wife had been 'advantageous' for the applicant. According to him, after committing the crimes ordered by the applicant and Mr Pichugin, Go. had been fearful for his own life and that of his family. There had been a disagreement between Go. and Mr Pichugin, especially after the first attempt on Ry.'s life. On 21 November 2002 Go. had planned to meet Mr Pichugin but by that time he had already disappeared.
(b) Examination of Sh. on 18 April 2008
43 . Sh. had been convicted of the murder of V.Ko. (the first episode), the murder of V.Pe. (the second episode), the aggravated robbery of Kol. (the third episode) and attempted murder of Ry. (the fifth episode) by the separate judgment of 17 August 2006.
44 . On 18 April 2008 during the applicant's trial, the court heard Sh. as a witness. He reiterated his pre-trial statements that he had learned from Go. that Mr Pichugin had acted on the applicant's instructions and that the applicant had financed the murders of V.Ko. and V.Pe. , the attempted murder of Ry. and the aggravated robbery of Kol., and had provided funds to Mr Pichugin.
(c) Examination of Tsig. on 21 April 2008
45 . Tsig. had been convicted of the murder of V.Pe. (the second episode), the aggravated robbery of Kol. (the third episode) and the attempted murder of Ry. (the fifth episode) by the separate judgment of 17 August 2006.
46 . On 11 May 2005, during the investigation in the applicant's criminal case, Tsig., when interviewed as a witness, stated that the crimes had been committed in the interests of Mr Pichugin and the applicant, who had organised and financed the crimes. He also stated that Go. had told him that the Yukos management was involved in these crimes.
47 . On 21 April 2008 during the applicant's trial, the court heard Tsig. as a witness. He retracted his pre-trial statements and stated that at the time of the events in question he had not known who had ordered the crimes. He stated that the investigators in charge had asked him to name the applicant and Mr Pichugin as the instigators of the crimes, in exchange for a reduction of his own prison sentence. He also submitted that before the hearing of 21 April 2008 an investigator had visited him in a remand prison and had asked him to reiterate his initial statement.
48. The prosecutor asked the court to enquire of the remand prison administration whether the witness had had any visits before the hearing.
49 . On 22 April 2008 the court received a reply from the prison administration that during Tsig.'s stay in the facility he had had no visitors.
(d) Examination of Resh. on 21 April 2008
50 . Resh. had been convicted of the murder of V.Pe. (the second episode), the aggravated robbery of Kol. (the third episode) and the attempted murder of Ry. (the fifth episode) by the separate judgment of 17 August 2006.
51 . On 21 April 2008 during the applicant's trial, the court heard Resh. as a witness. He reiterated his pre-trial statements that at the time of the first attempt on Ry.'s life he had not known the names of the instigators of that crime. On the day of the second attempt on Ry.'s life, witness Resh. had seen Gor. meeting the applicant and Mr Pichugin. The witness had then learned from Gor. that they were dissatisfied that the attempted murder had not been successful. Gor. and Sh. had later told him that the applicant and Mr Pichugin had been the instigators of the aggravated robbery of Kol., the murder of V.Pe. and the attempted murder of Ry.
52 . Kor., Pop., Kab. and Er. had been convicted of the attempt on O.K.'s life by the separate judgment of 28 June 2000.
53 . Between 18 and 22 April 2008 during the applicant's trial, Pop., Kab. and Er. testified as witnesses. They submitted that they had learned from Kor. that Mr Pichugin had been the instigator of the crime in question.
54 . On 24 April 2008 Kor., questioned as a witness, submitted that Go. had shown him the applicant's photograph and had told him that the applicant had been the person who had ordered the murder of O.K. Then Go. had asked him to remember the applicant's face and had told him that if something were to happen to him, such as murder or an accident, the only person to blame would be Mr Pichugin.
55 . When the applicant's lawyer questioned Kor. about the applicant's role in the crime, the witness refused to reply to his questions about the applicant, relying on the privilege against self-incrimination, and stated that if something bad were to happen to him or his relatives, the applicant would be to blame.
(a) Examination of victim Ry. on 20 March 2008
56 . On 20 March 2008 the court heard victim Ry. At the trial he reiterated his pre-trial statements that, in his opinion, his murder had been ordered directly by the applicant because of a dispute over a debt owed by Yukos to his company, and because Ry. had complained to the authorities about financial irregularities at Yukos.
57 . After the examination of Ry., the applicant's lawyer asked the court to grant him five days to examine the case file. The court refused on the ground that it had already examined his similar requests and dismissed them.
(b) Examination of Mr Gol. on 25 March 2008
58 . On 25 March 2008 the court heard Gol., one of the former shareholders of Yukos. The applicant's lawyer was granted an hour to study the record of Gol.'s interview as a witness during the investigation.
59 . The witness reiterated his pre-trial statements that the applicant had supervised all conflict situations in the company. He submitted that after the murder of V.Pe. in June 1998, the applicant had told him that the Yukos official account in relation to the murder was that V.Pe.'s wife had had a dispute with local criminals over control of a local market.
60 . As regards the attempted murder of Ry., the witness testified that the issue of debts owed by Yukos to Ry.'s company had been discussed at various meetings between Yukos managers, including the applicant. At one of the meetings, on 29 January 1999, the applicant had reported that he needed two months "to resolve the problem of Ry.". Gol. had realised that the applicant had been responsible for the crime after the first attempt on Ry.'s life. The applicant had held individual meetings with Yukos employees before they were questioned by the authorities regarding the attempted murder. The applicant had once told Gol. that there should be no concern about the investigation, as the investigative authority was "under his control". After the second murder attempt on Ry., Gol. had been assigned to negotiate with Ry. regarding the buyout of his company's shares. According to the witness, Ry. had been too frightened of the applicant and had been prepared to negotiate only with those people who had not exerted pressure on him.
61 . The witness also submitted that following the opening of criminal cases against the Yukos managers, the applicant had threatened him not to disclose information about Yukos's illegal activities.
(c) Examination of Mr Kov. and Mr Dob. on 27 March 2008
62 . On 27 March 2008 the court heard witnesses Kov. and Dob. The applicant's lawyer did not object to their examination. He requested additional time to study the records of their pre-trial statements. The lawyer was granted one hour in total to do so.
63 . Witness Kov., who had been a colleague of the late victim V.Ko., submitted that her death had been beneficial only to Menatep bank, because she had not agreed with their offer to buy out her shop premises, and she had feared for her life.
64 . Witness Dob. reiterated his pre-trial statements that he had represented Ry.'s company as a lawyer in court proceedings against Yukos. In September 2000 the applicant had called him, insulting and threatening Ry. and himself, demanding that they stop their actions against Yukos. In his opinion, it was the applicant who had ordered Ry.'s murder.
(d) Examination of Mr Pichugin on 23 April 2008
65 . On 23 April 2008 the court questioned Mr Pichugin. He insisted on his own innocence and refused to testify, relying on the privilege against self - incrimination.
(e) Other relevant information
66. On 27 May 2008 the court heard Ms Ol. , who at the time of the events in question had worked in Yukos's subsidiary company, Yuganskneftegaz, as a deputy manager. She submitted that at the time of V.Pe.'s murder there had been no debts or non-payment of taxes on the part of Yuganskneftegaz.
67 . At the request of the prosecutor, the court read out Ms Ol.'s pre-trial statement, in which she had submitted that the tax authorities had audited the subsidiary company and had found failures to comply with tax requirements, and that V.Pe. had demanded that the company pay its taxes.
68 . On 28 May 2008 the court granted the defence's request to summon victim Kol. for questioning on 5 June 2008.
69 . On 30 May 2008 the court heard witness Kon. The judge questioned him about the motives for Mr Pichugin's involvement in the murder of V.Pe.
71 . On 8 July 2008 the applicant's lawyer asked the court to summon Sh. again, arguing that although there were no contradictions in his statements, Sh. had given further details during the investigation and the defence would like to question him.
72. The court dismissed the lawyer's request as unfounded since the contents of the testimony given by Sh. at the trial were the same as those given during the investigation.
73 . On 9 July 2008 the applicant's lawyer sought to have Resh. summoned again, arguing that the defence had not questioned him after his pre-trial statements had been read out. The court dismissed his request.
75 . On 14 July 2008 the applicant's lawyer sought to have summoned, among others, the following witnesses: Fil., Kl., As., Kop., Bu., Mur., An., Lu., Sha. and Ts. He submitted, in particular, that Lu., Ts. and Sha. "may have information relevant to the case of [the attempted murder of] O.K.". The defence submitted that Fil., the governor of the Khanty-Mansiysk Autonomous Region at the time, had not been included in the prosecutor's list of witnesses to be called. As to other witnesses, the defence submitted that they had represented Yukos in meetings with V.Pe., just before his murder.
76 . The prosecutor objected to the lawyer's request and stated that witnesses Kl., As., Kop., Bu., Mur., An. and Ts. had been summoned, but the witnesses had either not lived at the addresses known to the prosecution, or had refused to accept the summons. As to Lu., Sha. and Fil., the prosecutor suggested that the defence could have sought their attendance on its own.
77 . Following the prosecutor's objections, the court refused to summon the above-mentioned witnesses.
78 . The defence also requested that the court admit as evidence, among other things, the written witness statement of Mr Lit., who had died in 2006, arguing that that witness had been a former officer of the Federal Security Service and that, according to his witness statement, the murder of V.Pe. had been a special operation carried out by State officials.
79. The court granted the request in part, admitting several documents, but refusing to admit the witness statement of Lit. , finding it to be irrelevant.
80 . On 14 July 2008 the applicant's lawyer sought to have victims Ry. and Kol. summoned for questioning, arguing that the defence had not had sufficient time at the beginning of the trial to prepare for examination of the victims. He pointed out that Kol. had failed to appear before the court on 5 June 2008 (see paragraph 68 above). The court dismissed his request, noting that the victims had been questioned at the trial and that the lawyer had had an opportunity to question them.
81 . On 15 July 2008 the prosecutor asked the court for permission to read out the witness statements of, among others, Shi., Zol., Pi., Ko., T.Sh., Par., Bel., Bazh., Kal., Sa. and An. , who had failed to appear before the court.
82 . The defence objected, arguing that it had not had an opportunity to examine those witnesses or to verify their statements at the trial. The prosecutor stated that summonses had been sent to those witnesses, but the individuals concerned had either not picked them up or the witnesses had not resided at their known addresses. The court allowed the above - mentioned statements to be read out.
83 . On 16 July 2008 the applicant's lawyer asked the court to order the compulsory summoning of Shi., Zol., Pi., Bazh., Kal. and Sa. for questioning. The defence did not ask for the compulsory summoning of any other witnesses. The court dismissed the request of the applicant's lawyer, noting that those witnesses had already been summoned but had not appeared.
84 . On 1 August 2008 the Moscow City Court convicted the applicant as charged (see paragraph 28 above) and sentenced him to life imprisonment, relying on the following evidence.
85 . According to the conviction judgment, V.Ko. had been the owner of a shop in Moscow. Following the applicant's instructions, Go. had negotiated with her about a buyout of her shop premises by the Menatep bank. When V.Ko. refused and the negotiations failed, the applicant had instructed Mr Pichugin to organise her murder. Mr Pichugin had asked Go. to hire hit men to carry it out. Go. had hired Ov. and Sh., who shot the victim on 21 January 1998.
86 . The applicant's conviction for the murder of V.Ko. was based, among other evidence, on the following:
- witness statements given by Sh. during the investigation, and reiterated at the trial (see paragraph 44 above);
- witness statements given by Ov. at the trial, stating that Go. had told him that the applicant had financed the murder;
- witness statements given by Mr Sm. , an acquaintance of Go. He submitted at the trial that he had learned from Go. that the murder had been ordered by Mr Pichugin, because V.Ko. had refused to sell her shop premises;
- witness statements given by Mr D.Ko., the victim's husband, at the trial, stating that Menatep bank representatives had insistently suggested that his wife sell the premises, and that she had feared for her safety;
- witness statements given by Kov. (see paragraph 63 above), Sid. , Shid., Chi., and Ba k., the victim's colleagues who testified in court about the disagreement between V.Ko. and the Menatep bank, and submitted that her murder could have been advantageous to the bank.
87 . According to the conviction judgment, V.Pe. had been a mayor of Nefteyugansk in the Khanty-Mansiysk Autonomous Region. He had demanded that Yukos's subsidiary company, Yuganskneftegaz, pay taxes into the local budget. V.Pe. had publicly exposed the subsidiary company for non-payment of taxes and had initiated financial enquiries into it, which ran counter to Yukos's interests. The applicant had instructed Mr Pichugin to organise the murder of V.Pe. Mr Pichugin had hired Go., who had instructed Sh. and Gor. to commit the murder. They had agreed to do so and, in their turn, had hired their acquaintances Resh. and Tsig. to kill V.Pe. The victim was killed on 26 June 1998.
88 . The applicant's conviction for the murder of V.Pe. was based, among other evidence, on the following:
- witness statements given by Sh. during the investigation, and reiterated in court (see paragraph 44 above);
- pre-trial witness statements given by Tsig. (see paragraph 46 above). As regards the trial testimony of Tsig., in which he had retracted his initial statements (see paragraph 47 above), the court referred to the remand prison's reply to the court's enquiry (see paragraph 49 above) and found his testimony to have been inconsistent and unreliable;
- witness statements given by Resh. during the investigation and reiterated at the trial (see paragraph 51 above);
- pre-trial witness statements given by Pi., who had worked in Yukos at the time of the events. He had testified that in June 1998, following the applicant's instructions, he had gone to Nefteyugansk in order to analyse the situation regarding the disagreement with V.Pe., which had concerned the tax payments. On the day of the murder, the applicant had asked Pi. to inform the public and the investigators that V.Pe.'s wife had been involved in the murder of V.Pe. Similar instructions had been given to other Yukos employees.
- witness statements given by Gol. during the investigation and at the trial (see paragraph 59 above);
- pre-trial witness statements given by Ol. (see paragraph 67 above). The court found that her trial testimony was unreliable and had been refuted by other evidence in the case;
- pre-trial witness statements given by An., an eyewitness to the murder who had called the police immediately after the crime had been committed;
- pre-trial witness statements of Ko., T.Sh., Par. and Bel. about Yukos activities.
89. According to the conviction judgment, Kol. was an executive officer of the company ZAO Rosprom at the relevant time, and the growth of his business had conflicted with some of the interests of the Yukos management. The applicant had ordered Mr Pichugin to organise the aggravated robbery of Kol. Mr Pichugin had instructed Go. to commit the crime. In order to do so, Go. had hired Sh. and Gor. They in turn had hired Resh. and Tsig., who had robbed Kol. on 5 October 1998.
90 . The applicant's conviction for the aggravated robbery of Kol. was based, among other evidence, on the following:
- witness statements given by Pesh. during the investigation, and reiterated at the trial (see paragraph 41 above);
- pre-trial witness statements given by Tsig. (see paragraph 46 above). As regards the trial testimony of Tsig., in which he had retracted his initial statements (see paragraph 47 above), the court referred to the remand prison's reply to the court's enquiry (see paragraph 49 above) and found his testimony to have been inconsistent and unreliable;
- witness statements given by Resh. during the investigation, and reiterated at the trial (see paragraph 51 above);
- witness statements given by Sh. during the investigation, and reiterated at the trial (see paragraph 44 above).
91. According to the conviction judgment, O.K. worked in the Moscow mayor's office, having previously worked for Yukos. The attempted murder was committed because O.K.'s actions at the mayor's office had conflicted with the interests of the Yukos management. The applicant had instructed Mr Pichugin to find hit men. Mr Pichugin had hired Go., who had suggested Pesh. to commit the murder. Pesh. had hired his acquaintances Kor., Pop., Kab. and Er., who had exploded a device in front of O.K.'s flat on 28 November 1998. No one was injured.
92 . The applicant's conviction for the attempted murder of O.K. was based, among other evidence, on the following:
- statements of victim O.K. given during the investigation and reiterated in court, stating that in 1992 the applicant had hired her to work in Group Menatep, where she had met her future husband. Their relationship had resulted in conflict between O.K.'s future husband and the applicant. O.K. had left Group Menatep for a new position in the Moscow mayor's office. The applicant had told her that regardless of where she worked, her work should benefit him. As she had refused to cooperate, relations between her husband, who was still working in Yukos, and the applicant, had worsened, and the applicant had started to put pressure on her. After the murder attempt, she had left her job. The applicant had then "offered his friendship" and made suggestions of who might have been behind the attempt. O.K. had assumed that the applicant could have been behind the murder attempt as his revenge for her refusal to cooperate.
- witness statements given by Pesh. during the investigation, and reiterated at the trial (see paragraph 41 above);
- witness statements given by Kor. at the trial (see paragraph 54 above).
93 . According to the conviction judgment, Ry. was a chief executive of East Petroleum Company, who had initiated several court proceedings against Yukos concerning the damage allegedly caused to his company by Yukos's activity in the development of oil fields. The applicant had ordered Mr Pichugin to organise the murder of Ry. Mr Pichugin had instructed Go. to find hit men, who had suggested Sh. and Gor. to commit the murder. They had hired their acquaintances Resh. and Tsig., who had attempted to kill Ry. on 24 November 1998, but had failed.
94. According to the conviction judgment, in order to carry out the applicant's order, on 5 March 1999 Resh. and Tsig. had set up an explosive device along the route to be taken by Ry.'s car. As the car had approached, Tsig. had initiated an explosion and Resh. had thrown a grenade at the car. After that they had both shot the car with assault rifles. As a result, Ry.'s bodyguard, F., had died owing to multiple injuries caused by the explosion, and his bodyguards I. and Fi. were injured. Ry. was not in the car and was unaffected by the assault.
95 . The applicant's conviction for the attempted murder of Ry. on two occasions, as well as for the murder of Mr F. and the attempted murder of Mr I. and Mr Fi. was based, among other evidence, on the following:
- statements of victim Ry. given at the trial (see paragraph 56 above);
- witness statements given by Dob. during the investigation, and reiterated in court (see paragraph 64 above);
- witness statements given by Pesh., Sh. and Resh. during the investigation, and reiterated at the trial (see paragraphs 41, 44 and 51 above);
- pre-trial witness statements given by Tsig. (see paragraph 46 above). As regards the trial testimony of Tsig.,in which he had retracted his initial statements (see paragraph 47 above), the court referred to the remand prison's reply to the court's enquiry (see paragraph 49 above) and found his testimony to have been inconsistent and unreliable;
- pre-trial witness statements given by Bazh. and Shi., who were business partners of the victim, stating that, in their opinion, Yukos managers were behind the attempted murder of Ry.;
- pre-trial witness statements given by Zol., who testified about the applicant's role in Yukos and his character.
96. According to the court's judgment, in 1999 the relationship between Mr Pichugin and Go., one of the perpetrators of the relevant criminal offences, had deteriorated and the applicant had known that Go. and his wife, O.Go., had possessed information about the applicant's involvement in the above - mentioned crimes, and that Go. had intended to disclose that information. The applicant and Mr Pichugin had organised the murder of Go. and his wife in order to conceal the crimes that had been committed. At the applicant's instruction, Mr Pichugin had hired unidentified individuals who had carried out the murder. On 20 November 2002 a group of unidentified persons had broken into Go.'s house, locked his children in a bathroom, and kidnapped him and his wife. Their bodies had not been found. The court presumed that they had been killed.
97 . The applicant's conviction for the murder of Go. and O.Go. was based, among other evidence, on the following:
- witness statements given by Pesh. during the investigation, and reiterated at the trial (see paragraph 42 above);
- witness statements given by Sm. during the investigation, and reiterated at the trial, stating that he had known Go., who had told him that he had been "solving [the applicant's] issues". On 21 November 2002 Sm. and Go. had planned to go to Moscow to meet Mr Pichugin, but by that time Go. had already disappeared;
- witness statements given by Kor. during the investigation, and reiterated at the trial (see paragraph 54 above).
98 . When convicting the applicant, the court relied, among other things, on witness statements given by the following witnesses: Sim., Net., Is., Kos., G., Gr., Av., Gal., Fili., Ye., She., Iv. and De. Those witnesses were examined by the court on various dates during the hearings and they reiterated their pre - trial statements given during the investigation.
99 . The court also relied on pre-trial witness statements given by Shi., Zol., Pi., Bazh., An., Ko., T.Sh., Par. and Bel., who had not been questioned in court owing to their failure to appear.
100. On 19 January 2009 the applicant's lawyer lodged an appeal against the judgment of 1 August 2008. His arguments can be summarised as follows.
101. The applicant's lawyer argued, among other things, that the applicant's defence had been deprived of sufficient time to prepare for the trial with the assistance of a lawyer of the applicant's choice, before and during the court proceedings, and that the defence had not properly examined the case file because the time allowed by the court had been insufficient.
102. He argued that the court had not ensured the attendance of victims Ry. and Kol., and had failed to provide him with an opportunity to cross - examine, among others, prosecution witnesses Sh. and Resh., to present evidence and to question witnesses on the applicant's behalf.
103. Lastly, he argued that the judgment had been based on evidence that had not been examined by the court and that it had failed to assess all the evidence, and that the pre-trial statements of several witnesses had been read out in court in breach of criminal procedure.
104. On 27 January 2009 the Supreme Court of Russia dismissed the applicant's appeal and upheld the Moscow City Court's judgment of 1 August 2008.
105. The Supreme Court found, among other things, that the applicant's conviction had been based on a wide range of evidence examined in court and set out in the judgment, and that the applicant's arguments had been examined by the court and refuted by incriminating evidence.
106. The Supreme Court considered that the circumstances of the applicant's criminal activities had been confirmed by the evidence of witnesses and victims at the pre-trial stage and before the court (see paragraphs 40-75, 98-99 above), on-site reconstruction records, forensic medical reports, and other material evidence.
107. According to the decision of the appeal court, the lawyer's arguments that the defence had not been properly familiarised with the case file at the pre-trial stage and during the trial had been unfounded. It pointed out that the applicant had been represented by A.L., who had examined the case file.
108 . The Supreme Court dismissed the applicant's arguments that the court had failed to ensure the presence of the victims at the hearing and that it had failed to give the defence an opportunity to present evidence and to question witnesses whose attendance had been requested by the defence.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
109. For a general overview of criminal proceedings in Russia at the time of the events, see Khodorkovskiy and Lebedev v. Russia (nos. 11082/06and 13772/05, §§ 377-85, 25 July 2013).
110. For a summary of criminal procedure provisions concerning the examination of evidence, see Murtazaliyeva v. Russia ([GC], no. 36658/05, § 71, 18 December 2018).
111. The applicant complained under Article 6 §§ 1 and 2 of the Convention in essence that the trial court had heavily relied on the evidence originating from the criminal proceedings against Mr Pichugin (see paragraph 7 above). He further complained that the trial judge had shown bias by, in particular, refusing to provide the defence with adequate time to prepare for the trial and to call defence witnesses. He complained that the judge had breached the principle of the presumption of innocence by implying, during the examination of witness Kon. on 30 May 2008, that the applicant had been guilty of the murder of V.Pe. (see paragraph 69 above).
112 . The applicant complained under Articles 6, 14 and 18 of the Convention that his criminal prosecution was discriminatory, and that it was a result of a wider persecution of leading shareholders and managers of the Yukos Oil Company. In support of his complaint, the applicant referred to, among other things, the Supreme Court of Israel's refusal of 14 May 2008 to extradite the applicant to Russia, as well as judgments from the highest courts of Switzerland, the United Kingdom, Lithuania and the Czech Republic; he argued that there was an international consensus that the proceedings against Yukos executives, including the applicant, had been politically motivated.
113. The applicant further complained under Article 6 § 3 (a), (b) and (d) of the Convention that the right to the guarantees of a fair trial had been breached, in particular, that he had not been properly notified of the charges against him, that his defence had not had adequate time and facilities to prepare for the trial, and that the trial court had refused the defence's requests to call witnesses (see paragraphs 127 and 157 below).
114. The Government submitted that the applicant's allegations were unsubstantiated and that the trial judge had not been biased. The applicant maintained his complaint.
115. In so far as the applicant complained that the judge had not been "impartial", the Court reiterates that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005 - XIII). It notes that in fact the applicant complained about the judge having refused several defence requests. The Court finds that the judge's refusal to grant additional time to prepare the defence and to call defence witnesses does not necessarily indicate the judge's alleged impartiality, but may raise issues under Article 6 § 3 (b) and (d) of the Convention, which the Court will examine further below (see paragraphs 141-156, 165-189 below). The Court was not provided with any other evidence in the case demonstrating that the judge had displayed bias (see Khodorkovskiy and Lebedev v. Russia (no. 2) , nos. 42757/07and 51111/07, § 430, 14 January 2020).
116. Accordingly, the Court finds that the applicant's above complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
118. The Court observes that the applicant firstly complained that the trial court had mainly relied on evidence from the criminal proceedings against Mr Pichugin. It notes that the criminal charges against the applicant were based on the same facts as those in the proceedings against Mr Pichugin (see paragraph 28 above), and the facts established in the proceedings against Mr Pichugin and any legal findings made therein were directly relevant to the applicant's case (see, mutatis mutandis , Navalnyy and Ofitserov v. Russia , nos. 46632/13and 28671/14, § 103, 23 February 2016). In this connection, the Court reiterates that the state of the evidence admitted in one case must remain purely relative and its effect strictly limited to that particular set of proceedings (ibid., § 105).
119. In the present case the Court observes that, contrary to the applicant's allegations, his conviction was based on a separate set of evidence, including witness statements given by perpetrators and victims who had testified about the applicant's role in the imputed crimes during the investigation and at the trial. The court did not admit the conviction judgments concerning Mr Pichugin as evidence in the applicant's case, and Mr Pichugin, when examined as a witness in the applicant's case, had refused to testify (see paragraph 65 above). The Court agrees with the Government that the facts of the applicant's criminal case were proven by a separate set of evidence.
120. The Court further notes the applicant's second complaint under this Article, that the judge's conduct during the examination of witness Kon. (see paragraph 69 above) implied that the applicant was guilty. The Court finds that this complaint is unsubstantiated, as nothing in the hearing records confirmed the applicant's allegation of pre-determined guilt. Overall, the applicant failed to provide any evidence in support of his allegation that the principle of the presumption of innocence had not been respected in his case.
121 . The Court thus finds the applicant's complaints under Article 6 § 2 of the Convention manifestly ill-founded and rejects them in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
122. The Government submitted that the applicant's allegations that the criminal proceedings had been politically motivated or that he had been discriminated against were unsubstantiated. They referred to the Court's judgments in Khodorkovskiy v. Russia (no. 5829/04, 31 May 2011); OAO Neftyanaya Kompaniya Yukos v. Russia (no. 14902/04, 20 September 2011); Khodorkovskiy and Lebedev, cited above; and Khodorkovskiy and Lebedev (no. 2), cited above, in which the Court had not found a violation of Article 18 of the Convention on account of alleged political prosecution in Yukos - related cases, and submitted that the applicant had been prosecuted on the basis of evidence collected against him. In sum, the applicant's allegations of political motivation behind the prosecution were baseless.
123. The Court notes that the question of whether Article 6 contains any express or implied restrictions which may form the subject of the Court's examination under Article 18 remains open in the Court's case-law (see Ilgar Mammadov v. Azerbaijan (no. 2) , no. 919/15, § 261, 16 November 2017, with further references). Even assuming that Article 18 is applicable in conjunction with Article 6, in the present case the Court observes that the applicant essentially argued that his criminal prosecution had been based on his affiliation with Yukos as one of its shareholders.
124. The Court notes that in the cases initiated by Yukos and its leading executives before this Court, it has already dismissed allegations of political motivation behind the criminal prosecution of Yukos managers and the alleged intentional destruction of the company (see Khodorkovskiy , cited above, § 261; OAO Neftyanaya Kompaniya Yukos , cited above, § 666; Khodorkovskiy and Lebedev , cited above, § 909; and Khodorkovskiy and Lebedev (no. 2) , cited above, § 626). The Court has no reason to find otherwise in the present case, as it was not provided with any evidence of an alleged ulterior purpose behind the applicant's criminal prosecution. Neither was the Court provided with evidence of alleged discrimination against the applicant during the proceedings contrary to Article 14 of the Convention.
125 . The Court therefore rejects the applicant's complaints under Articles 14 and 18 of the Convention in conjunction with Article 6 of the Convention as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
126. The Court finds that the remaining complaints under Article 6 §§ 1 and 3 (a), (b) and (d) of the Convention are not manifestly ill - founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
127 . The applicant complained that his trial had been unfair for the following reasons: (i) he had not been informed promptly and in detail of the charges; (ii) his defence had not had adequate time and facilities for preparation for the trial. The applicant relied on Article 6 of the Convention, which, in its relevant parts, provides as follows:
...
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
..."
(a) The applicant
128. The applicant complained that he had not been given adequate time and facilities for the preparation of his defence, in particular, that his defence had not had access to the case file, which contained about 19,000 pages, in order to prepare properly for the trial.
129. The applicant submitted that in the letters of 20 and 24 December 2007 addressed to the investigator, his lawyer had explained the reasons for his inability to appear and had asked for more time until after 11 January 2008. His request had remained unaddressed by the investigator until 14 February 2008, the day when the case file had been transferred to the trial court for examination. The State-appointed lawyer, A.L., had never contacted him. The defence had been thus deprived of the opportunity to review the criminal case file materials before the preliminary hearing of 4 March 2008.
130. The applicant further complained that the fourteen days granted by the judge to his lawyer on 5 March 2008 to study the case file had been insufficient to study 19,000 pages. Because of the holidays he had had only seven and a half working days out of fourteen to study the file.
131 . The applicant complained that his lawyer's subsequent requests, lodged throughout the trial, to grant him additional time to examine the case file, had been unreasonably dismissed. Lastly, he complained that the attendance of some witnesses could not have been anticipated, in particular, the defence had not been informed of the examination of witnesses Gol., Dob. and Kov. on 25 and 27 March 2008 and had not been prepared for their examination.
(b) The Government
132 . The Government submitted that the applicant's lawyer, Mr Kharitonov, had been invited to study the case file on 23 and 25 December 2007 but he had failed to do so. The reasons advanced by the lawyer had been invalid and the investigator had rejected them on 12 January 2008. As Mr Kharitonov had failed to fulfil his duties as the applicant's representative, the investigator had appointed the lawyer A.L., who had studied the entire case file, and had been served with a copy of the final indictment.
133. The Government further submitted that the defence had been given enough time to prepare for the case during the trial, when the hearings had been adjourned or after the hearings, including lunch breaks, and that the applicant's lawyer had failed to use that opportunity.
134. The Court reiterates that the key principle governing the application of Article 6 is fairness. The right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting the guarantees of Article 6 § 1 of the Convention restrictively (see Gregačević v. Croatia , no. 58331/09 , § 49, 10 July 2012, with further references).
135. Given that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1, the Court will examine the applicant's complaints under the two provisions taken together (see Colac v. Romania , no. 26504/06, § 39, 10 February 2015).
136. The Court reiterates that Article 6 § 3 (a) of the Convention affords the defendant the right to be informed, in detail, not only of the cause of the accusation, that is to say the acts he is alleged to have committed and on which the accusation is based, but also the legal characterisation given to those acts (see Pélissier and Sassi v. France [GC], no. 25444/94, § 51, ECHR 1999 - II, and Szabo and Others v. Romania , no. 8193/06, § 49, 18 March 2014).
137 . As regards the complaint raised in substance under Article 6 § 3 (b) of the Convention, the Court reiterates that sub-paragraphs (a) and (b) of Article 6 § 3 are connected and that the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused's right to prepare his defence (see Penev v. Bulgaria , no. 20494/04, § 35, 7 January 2010).
138. The "rights of defence", of which Article 6 § 3 (b) gives a non - exhaustive list, have been instituted, above all, to establish equality, as far as possible, between the prosecution and the defence. The facilities which must be granted to the accused are restricted to those which assist or may assist him or her in the preparation of the defence (see Mayzit v. Russia , no. 63378/00, § 79, 20 January 2005).
139. Article 6 § 3 (b) implies that the substantive defence activity on behalf of an accused may comprise everything which is "necessary" to prepare the main trial. The accused must have the opportunity to organise his or her defence in an appropriate way and without restriction as to the ability to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see Connolly v. the United Kingdom (dec.), no. 27245/95, 26 June 1996; Mayzit , cited above, § 78; and Moiseyev v. Russia , no. 62936/00, § 220, 9 October 2008). When assessing whether the accused had adequate time for the preparation of his or her defence, particular regard has to be had to the nature of the proceedings, as well as the complexity of the case and stage of the proceedings (see Albert and Le Compte v. Belgium , 10 February 1983, § 41, Series A no. 58, and Gregačević , cited above, § 51).
140. The issue of adequacy of time and facilities afforded to an accused must be assessed in the light of the circumstances of each particular case (see Iglin v. Ukraine , no. 39908/05, § 65, 12 January 2012).
(b) Application of the principles to the present case
141 . The Court observes that the applicant complained firstly, that he had not been informed of the charges before the trial had started, and secondly, that his chosen lawyer had been given only seven and a half days to examine the case file before the first hearing.
142. The Court considers that the two complaints are closely related to each other. Having regard to the principles that have been outlined (see paragraph 137 above), the Court will examine the complaint relating to the right to be informed about the charges promptly in the light of the applicant's right to have adequate time and facilities to prepare his defence (see, mutatis mutandis , Block v. Hungary , no. 56282/09, § 21, 25 January 2011).
143. First of all, the Court notes that the applicant's trial was conducted in his absence, because he had left Russia before the criminal proceedings had started (see paragraph 9 above). The applicant appointed a lawyer, Mr Kharitonov, to represent him throughout the investigation and at the trial. The Court observes that the applicant did not complain about his own inability to examine the criminal case file, but rather about his lawyer's difficulties in gaining access to the final indictment and the case file before the trial. The Court will therefore examine the applicant's right to adequate time and facilities to prepare for the trial from the standpoint of his lawyer's alleged inability to prepare the applicant's defence.
144. The Court observes that the applicant was charged with six episodes of murder and attempted murder. The final indictment was adopted and sent to the trial court on 14 February 2008, together with the criminal case file which consisted of eighty-four volumes with about 19,000 pages in total (see paragraphs 20, 26, 28 and 29 above).
145. At the preliminary hearing, on 6 March 2008, the applicant's chosen lawyer, Mr Kharitonov, received a copy of the indictment for the first time. From that day onwards he had fourteen days to examine the case file before the beginning of the trial on 19 March 2008, but he managed to review only ten out of the eighty-four volumes (see paragraphs 36 and 37 above).
146. Contrary to the Government's submission that the defence, namely the appointed lawyer, A.L., had properly examined the case file before the trial (see paragraph 132 above), the Court notes that at the very first hearing, the judge released A.L. from the applicant's representation in view of the fact that Mr Kharitonov was representing the applicant (see paragraph 31 above). A.L. did not represent the applicant during the trial, nor did he work in collaboration with the applicant's chosen lawyer. It is therefore irrelevant that A.L. had examined the case file, since he stopped representing the applicant from the start of the trial (see Huseyn and Others v. Azerbaijan , nos. 35485/05and 3 others, § 177, 26 July 2011).
147. The Court will further examine whether, in the circumstances of the case, the two weeks granted to Mr Kharitonov to examine the case file were sufficient. In so far as the Government argued that the applicant's chosen lawyer had been given an opportunity to examine the criminal case file, the Court observes that the investigator did indeed invite the applicant's lawyer to consult the case file twice in December 2007 (see paragraph 17 above). In response, on 20 and 24 December 2007, Mr Kharitonov dispatched letters to the investigator, asking for an appointment on other dates (see paragraph 18 above).
148. Assuming that the investigator received the lawyer's letters with a delay, on 10 January 2008, owing to factors beyond the control of either of them, the Court observes that the investigator's replies were dated 12 and 15 January 2008, and in those replies he again invited Mr Kharitonov to examine the case file (see paragraph 24 above). However, for an unexplained reason, the investigator's replies were dispatched with a delay of about three weeks, on 4 and 5 February 2008 (see paragraph 25 above), and the applicant's lawyer received them only on when the indictment and the case file had already been sent for trial (see paragraphs 24 and 26 above). Accordingly, the Court rejects the Government's argument that the applicant's lawyer had an opportunity to examine the criminal case file before the trial.
149. Lastly, the Court notes that at the preliminary hearing the trial court acknowledged this issue and tried to redress it by granting the lawyer two weeks to examine the case file. However, the Court considers that the time granted by the court was insufficient to examine a 19,000-page case file involving accusations concerning several episodes of murder and attempted murder (see Öcalan v. Turkey [GC], no. 46221/99, § 147, ECHR 2005 - IV, where the Court found that two weeks given to the defence to examine 17,000 pages of the criminal case file were insufficient). The Court agrees with the applicant that out of the fourteen days granted, his lawyer had even less time, only seven and a half days, because of weekends and holidays at that time, which was insufficient to enable the lawyer to adequately assess the charges and evidence against the applicant in order to develop a viable legal strategy for his defence (see, mutatis mutandis , Vyerentsov v. Ukraine , no. 20372/11, § 76, 11 April 2013).
150. In view of the above, the Court concludes that the applicant's lawyer was not afforded adequate time and facilities to prepare the applicant's defence before the trial.
(ii) At the trial
151. As to the "time and facilities" allocated to the defence during the trial, the Court observes that at the first hearing, which took place on 19 March 2008, the applicant's lawyer requested an adjournment to enable him to complete his examination of the case file. The court dismissed his request and noted that he could examine the file after each hearing in the case (see paragraph 38 above).
152. It is clear to the Court that in order to provide the applicant with an adversarial trial and "adequate time and facilities for the preparation of his defence", the applicant's lawyer should have been given an adequate opportunity to study the entirety of the case file and, more generally, to prepare for the hearings on the merits of the case on reasonable terms (see OAO Neftyanaya Kompaniya Yukos , cited above, § 539).
153. Having examined the case materials, the Court considers that the trial court failed to reach this objective. It notes, in particular, that at the second hearing, on 20 March 2008, the court heard one of the victims, Ry., and the applicant's lawyer requested additional time to examine the relevant materials. The court, however, yet again dismissed the defence's request (see paragraph 57 above).
154. The Court also takes note of the applicant's submission that his lawyer was not notified about the attendance of witnesses Gol., Dob. and Kov. at the hearings of 25 and 27 March 2008, and that the defence had no time to prepare for their examination because their attendance could not be anticipated (see paragraph 131 above). The Court notes that although the applicant's lawyer did not object to the questioning of the witnesses in a hearing, he nevertheless requested additional time to study their pre-trial statements. Twice, on 25 and 27 March 2008, during the examination of Gol., Dob. and Kov., the court gave the lawyer no more than two hours in total to study the relevant materials (see paragraphs 58 and 62 above).
155. The Court finds that the opportunity to examine the case file after each trial hearing, as the Government argued, was inadequate in order to prepare properly, given the volume of the case file, its complexity, the pace of the hearings, the number of attending witnesses and victims, whose pre - trial statements were to be examined by the defence as well, and the fact that the hearings were held regularly in the mornings and afternoons (see paragraph 32 above). The applicant's lawyer repeatedly complained during the trial that he had not been given enough time to examine the case file to a sufficient extent. Both the trial court and the appellate court, however, failed to address the lawyer's arguments in an appropriate manner and to ensure the defence's right to have adequate time and facilities for examination of the case file in preparation for the applicant's trial.
(iii) Conclusion
156 . In the light of these considerations, the Court concludes that the applicant was not informed in detail of the nature and the cause of the accusation against him, and that he was not afforded adequate time and facilities for the preparation of his defence. Consequently, there has been a violation of Article 6 §§ 1 and 3 (a) and (b) of the Convention.
157 . The applicant complained that his trial had been unfair as his defence had been unable to cross-examine prosecution witnesses or to obtain the attendance and examination of defence witnesses. The applicant relied on Article 6 of the Convention, which, in its relevant parts, provides as follows:
"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
..."
(a) The applicant
158. The applicant submitted that the court had unreasonably refused to summon victims Kol. and Ry., and witnesses Sh. and Resh. for further examination.
159. He also argued that the defence had not had an opportunity to question witnesses Shi., Zol., Pi., Bazh., An., Ko., T.Sh., Par. and Bel., whose pre-trial statements had been relied on for the conviction.
160. Lastly, he submitted that the trial court had consistently refused to summon any of the witnesses requested by the defence. In particular, it had refused to summon Fil., Kl., As., Kop., Bu., Mur., An., Lu., Sha. and Ts., who could have given statements relating to the murder of V.Pe. and the attempted murder of O.K.
(b) The Government
161. Referring to the findings of the domestic courts, the Government submitted that the applicant's arguments were unfounded and that there had been no violation of Article 6 § 3 (d) of the Convention.
(a) General principles
162. The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court's primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Schatschaschwili v. Germany [GC], no. 9154/10, § 101, 15 December 2015, and Taxquet v. Belgium [GC], no. 926/05, § 84, 16 November 2010, with further references therein). In making this assessment the Court will look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and the victim(s) that crime is properly prosecuted (see Schatschaschwili , cited above, § 101, and Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010) and, where necessary, to the rights of witnesses (see, among many authorities, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05and 22228/06, § 118, 15 December 2011). It is also notable in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court's only concern is to examine whether the proceedings have been conducted fairly (see Gäfgen , cited above, § 162, and the references therein).
163. In Al-Khawaja and Tahery (cited above, §§ 119-47) the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. Those principles have been further clarified in Schatschaschwili (cited above, §§ 111-31), in which the Grand Chamber confirmed that the absence of a good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d) of the Convention.
164. The Court has summarised principles concerning the right to obtain the attendance and examination of defence witnesses in Murtazaliyeva v. Russia ([GC], no. 36658/05, § 139, 18 December 2018).
(b) Application of the principles to the present case
165 . The Court observes that the applicant was convicted on the basis of, among other evidence, witness statements given by victim Ry. (see paragraph 95 above) and witnesses Sh. and Resh. (see paragraphs 86, 88, 90 and 95 above) during the investigation and at the trial, as well as pre-trial statements of other witnesses who were not questioned in court (see paragraph 99 above).
166. The Court further observes that the applicant's defence sought to have the following witnesses summoned: Fil., Kl., As., Kop., Bu., Mur., Lu., Sha. and Ts., and victims Ry. and Kol., explaining that their statements could have been relevant for the defence (see paragraphs 75 and 80 above).
167. The Court will examine in turn the alleged inability to challenge prosecution witnesses and the alleged inability to obtain the attendance of defence witnesses.
(i) Alleged inability to cross-examine prosecution witnesses
(α) Victim Ry.
168 . The Court notes that at its second hearing, which took place on 20 March 2008, the trial court heard victim Ry., who submitted that, in his view, the applicant had ordered his murder because of the dispute with Yukos (see paragraph 56 above). His testimony was corroborated by statements given by the perpetrators implicating the applicant in the commission of the crime (see paragraph 95 above). In the Court's view, the testimony of Ry. was of great weight as the trial court had relied on it in order to determine the motive behind the attempted murder. Given its decisive nature, it was therefore important for the defence to have an effective opportunity to challenge the victim.
169. The Court is not convinced that the trial court gave the applicant's defence such an opportunity. It observes that at the same hearing, in view of the lack of time to prepare for the trial, the defence requested that the trial court grant it several days in order to study Ry.'s pre-trial statements and to prepare for his examination, but the court refused (see paragraph 57 above). The defence's subsequent attempt to summon victim Ry. for further cross - examination, because it had been deprived of the opportunity to study the case file at the beginning of the trial, was also unsuccessful (see paragraph 80 above).
170 . In these circumstances, and having regard to the finding that the applicant's defence had not been able to properly examine the case file before the trial had started (see paragraph 156 above), the Court concludes that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the lack of an effective opportunity for the applicant's defence to challenge victim Ry.
(β) Witnesses Sh. and Resh.
171 . Turning to prosecution witnesses Sh. and Resh., the Court notes that they were questioned in court on 18 and 21 April 2008 respectively (see paragraphs 44 and 51 above). They were perpetrators of the crimes and they testified about four out of the six criminal episodes (see paragraphs 44 and 51 above), of which the applicant had been convicted as their instigator. Their statements were corroborated by similar statements given by other perpetrators about the applicant's involvement in the crimes (see paragraphs 41, 46 and 54 above).
172. It cannot be said that the applicant's defence did not have an opportunity to challenge the above-mentioned witnesses, who were questioned a month after the trial had started. Nothing in the case file indicated that the defence encountered any obstacles to putting questions to those witnesses or obtaining answers from them (contrast Pichugin v. Russia , no. 38623/03, § 202, 23 October 2012, where the prosecution witness refused to answer questions put by the defence).
173. The Court reiterates that the defendant must be given an adequate and proper opportunity to challenge and question a witness against him or her - either when the statements are made or at a later stage of the proceedings (see Schatschaschwili , cited above, § 105). However, Article 6 of the Convention does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a witness (see, among other authorities, Bricmont v. Belgium, 7 July 1989, § 89, Series A no. 158, and Dadayan v. Armenia , no. 14078/12, § 45, 6 September 2018).
174. The Court observes that at the end of the proceedings, the applicant's defence asked the trial court to summon Sh. and Resh. for further examination (see paragraphs 71 and 73 above), but the court refused, finding that the witnesses had already been questioned. The Court considers that the applicant's defence did not advance any reason justifying the summoning of the witnesses again, and did not put forward any convincing arguments that the trial court's refusal to call them again had been arbitrary. Unlike with the examination of Ry., witnesses Sh. and Resh. were summoned a month after the trial had started and the applicant did not argue that his defence had not been prepared for their examination.
175. In view of the foregoing, the Court concludes that the trial court's refusal to summon witnesses Sh. and Resh. again was not contrary to Article 6 §§ 1 and 3 (d) of the Convention.
(γ) Other prosecution witnesses
176. The Court observes that the applicant complained about the lack of opportunity to question witnesses Shi., Zol., Pi., Bazh., An., Ko., T.Sh., Par. and Bel., whose pre-trial witness statements had been relied on for his conviction. The witnesses in question were summoned by the prosecution but they failed to appear before the court, and for that reason their pre-trial statements were read out in a hearing on 15 July 2008 (see paragraph 81 above).
177. The Court notes that the pre-trial statements of witnesses Ko., T.Sh., Par. and Bel. were referred to, among other abundant evidence, by the trial court in the second episode regarding the murder of Mr V.Pe. (see paragraph 88 above). Given that their testimonies were of general nature about the activities of the Yukos company and its relations with its partners and largely overlap with those of other witnesses cross-examined at trial, the Court does not discern any elements demonstrating that they carried significant weight for the defence. No such explanation was provided by the applicant at trial or in his statement of appeal, in which he did not even mention these witnesses, or in his submissions before the Court.
178. As regards the remaining witnesses, Shi., Zol., Pi., Bazh. and An., the Court observes that after their failure to appear before the court, the defence insisted on their compulsory summoning, but the trial court refused to call them, and in its conviction judgment, it relied on their pre-trial witness statements (see paragraphs 75 and 83 above).
179. The Court is not convinced by the applicant's arguments that the presence of these witnesses for their examination was necessary. It notes that the witnesses in question testified during the investigation against the applicant concerning the episodes of the attempted murder of Ry. (witnesses Shi., Zol. and Bazh. - see paragraph 95 above) and the murder of V.Pe. (witnesses Pi. and An. - see paragraph 88 above). In both instances, the witnesses' statements were neither the sole nor the decisive basis for the conviction, as the applicant's conviction for these two criminal episodes was based to a decisive extent on the statements of direct perpetrators of the crimes (see paragraphs 88 and 95 above), as well as those of other witnesses who testified about the prevailing situation between Yukos and the victims at the time of events (see paragraphs 59, 60 and 64 above), whose testimony the applicant's defence had an opportunity to challenge during the trial. The Court thus considers that these witnesses' evidence did not carry significant weight which could have handicapped the defence. It notes that their statements contained general information about Yukos and the applicant. The witnesses rather expressed their own views than referred to any facts which could have been relevant for the determination of the applicant's role in the crimes or their circumstances (see, a contrario , Khodorkovskiy and Lebedev , cited above, § 713, where the court refused to call prosecution witnesses whose expert reports were important for establishing alleged damages to the shareholders, and Pichugin , cited above, § 200, where the only witness with first-hand testimony refused to answer questions).
180. In addition, in the Court's view, the trial court cannot be blamed for a lack of effort to ensure the presence of these witnesses at the trial. The summonses were sent to their known addresses, but apparently the witnesses did not live there (see paragraph 82 above). The Court considers that, given the low level of importance of their statements, the absence of the witnesses in question did not prejudice the interests of the defence.
181 . Accordingly, the Court finds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the trial court's failure to summon witnesses Shi., Zol., Pi., Bazh., An., Ko., T.Sh., Par. and Bel.
(ii) Alleged inability to obtain the attendance of defence witnesses
182 . The Court reiterates that, as a general rule, Article 6 § 3 (d) of the Convention leaves it to the national courts to assess whether it is appropriate to call witnesses (see Vidal v. Belgium , 22 April 1992, § 33, Series A no. 235 - B, and Murtazaliyeva , cited above, § 140). It is not sufficient for a defendant to complain that he has not been allowed to question certain witnesses; he must, in addition, support his request by explaining why it is important for the witnesses concerned to be heard, and their evidence must be necessary for the establishment of the truth. Article 6 § 3 (d) of the Convention applies not only to motions of the defence to call witnesses capable of influencing the outcome of a trial, but also other witnesses who can reasonably be expected to strengthen the position of the defence (see Murtazaliyeva , cited above, §§ 158-60).
183. The Court observes that the applicant's defence sought to have the following witnesses summoned: Fil., Kl., As., Kop., Bu., Mur., Lu., Sha. and Ts., and victim Kol., explaining that their statements could have been relevant for the defence (see paragraphs 75 and 80 above).
184. To start with, the Court notes that although some of these witnesses were initially called by the prosecution and they failed to appear (see paragraph 76 above), they did not give any statements that could have been used against the applicant at any stage of the proceedings. For this reason, the Court will regard the above-mentioned witnesses as "witnesses on behalf" of the applicant within the meaning of Article 6 § 3 (d) of the Convention (see, mutatis mutandis , Olga Kudrina v. Russia , no. 34313/06, § 35, 6 April 2021). It also notes that the same applies to victim Kol., who did not testify against the applicant and whose statements were not relied on for the applicant's conviction (see paragraph 39 above).
185. As regards witnesses Lu. and Sha., the Court observes that the defence wished to question them about the episode of the attempted murder of O.K., merely arguing that they "may have relevant information" (see paragraph 75 above). Considering the fact that the victim concerned in this episode was questioned at the trial and she testified about her conflict with the applicant (see paragraph 92 above), the Court finds that the defence's argument for calling Lu. and Sha. was not reasoned enough to explain why it was important to hear those witnesses. As to witness Fil., the defence merely submitted that that witness had not been included in the list of witnesses to be called (see paragraph 75 above), without substantiating its request.
186. As to witnesses Kl., As., Kop., Bu., Mur. and Ts., the Court observes that they were summoned but failed to appear (see paragraph 76 above). The applicant's defence did not sufficiently reason its request to summon them. There were also other witnesses who testified about the conflict between Yukos and victim V.Pe. (see paragraphs 59 and 67 above). The Court considers that the trial court remained within its discretion in its finding that it was not necessary to summon them again (see paragraph 77 above).
187. Lastly, the Court observes that victim Kol. was called by the prosecution and that he testified in court at the first hearing on 19 March 2008. Unlike Ry., victim Kol. did not testify against the applicant and his testimony was not used against him. The victim answered the questions put by the defence about his relationship with the applicant (see paragraph 39 above). The Court further notes that at the same hearing the victim was exempted from further participation in the proceedings and the defence did not object (ibid.). Later during the trial, the court granted the defence's request to summon Kol. for further examination, but the victim did not appear (see paragraph 80 above).
188. In the Court's view, the applicant's request to summon the victim was not sufficiently reasoned to find that his absence impaired the applicant's defence rights, particularly given that the defence had an opportunity to question him, and that this was early during the trial, and the defence did not object to his exemption from the proceedings.
189 . To sum up, the Court considers that the applicant failed not only to substantiate the necessity of examining the defence witnesses concerned but also to elaborate in concrete terms on how their testimonies could reasonably be expected to strengthen the case for the defence. In these circumstances the Court finds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the trial court's refusal to call witnesses Fil., Kl., As., Kop., Bu., Mur., Lu., Sha., Ts., and Kol.
190 . Lastly, the applicant argued that the trial court had mainly relied on hearsay witness statements and indirect evidence. The Court notes that in his submissions the applicant mainly reiterated his complaints that the court had relied on witnesses' pre-trial statements and had refused to summon defence witnesses.
191. Having regard to the facts of the case and in the light of all the material in its possession as well as its findings under Article 6 § 3 (d) of the Convention (see paragraphs 168-170 above), the Court considers that, since it has examined the main legal questions raised in the present application, there is no need to give a separate ruling on the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and Stoimenovikj and Miloshevikj v. North Macedonia , no. 59842/14, § 45, 25 March 2021).
192. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."
193 . Article 46 of the Convention provides:
"1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution."
194. The applicant did not make any claims under Article 41 of the Convention for pecuniary or non-pecuniary damage, or for costs and expenses. There is therefore no call for the Court to make any award in that regard.
195 . The applicant submitted instead that since his trial, in his view, had been politically motivated, the reopening of the criminal proceedings and another trial would not be fair. He argued that he should not have been subjected to any form of prosecution and that any retrial would lack independence and impartiality on the part of the domestic courts. The applicant referred to the Court's case-law ( Assanidze v. Georgia [GC], no. 71503/01, § 203, ECHR 2004 - II; Aleksanyan v. Russia , no. 46468/06, § 240, 22 December 2008; Fatullayev v. Azerbaijan , no. 40984/07, § 177, 22 April 2010; Del Río Prada v. Spain [GC], no. 42750/09, § 139, ECHR 2013; and Şahin Alpay v. Turkey , no. 16538/17, § 195, 20 March 2018), in which the Court indicated individual measures. Without referring directly to Article 46 of the Convention, the applicant asked the Court to declare that the Convention violations had been systematic, and that no retrial would be consistent with the Convention given the alleged political prosecution of the applicant.
196. The Government submitted that the applicant's allegations of political prosecution and the systematic nature of violations were unfounded. The applicant had been in hiding since the beginning of the proceedings against him. By arguing that a retrial in his case would be inappropriate and unfair, the applicant intended to avoid criminal responsibility by any means. The Government submitted that should the Court find a violation under the Convention, such a finding in itself would constitute sufficient just satisfaction.
197. Although the applicant did not expressly refer to Article 46 of the Convention, the Court will examine his request to indicate specific measures to remedy his situation under Article 46.
198 . The Court reiterates that its judgments are essentially declaratory in nature and that it is primarily for the State concerned to choose, under the supervision of the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 312, 1 December 2020).
199. The Court observes that the applicant expressly submitted that he considered the reopening of the proceedings futile as, according to him, any criminal prosecution against him had been politically motivated and baseless. In this regard, the Court notes that it has found his complaint under Article 18 of the Convention manifestly ill-founded (see paragraph 125 above). As regards the applicant's reference to the Court's cases in support of his request (see paragraph 195 above), the Court notes that, unlike the applicants in those cases, in the present case the applicant was never in detention as he has been in hiding since 2003. In this context the Court notes that the domestic law provides for the reopening of the proceedings if the Court finds a violation of the Convention (see Zadumov v. Russia , no. 2257/12, § 80, 12 December 2017), and does not find it necessary to make any further pronouncement on the necessity of individual measures in the present case .
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Done in English, and notified in writing on 18 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško
Georges Ravarani
Registrar
President
