8 juin 2011

Khodorkovsky v Russia: victory or failure?

After 7 years of litigation before the ECtHR, the 7 judges chamber issued its judgment (5829/04) last week. On one hand they found 8 technical violations of the right not to be subjected to torture or inhuman treatment (Article 3 of the Convention), and of the right to liberty (Article 5) - such as, for instance, placing him into a metal cage during the domestic Court hearings (§ 124).

On the other hand the ECtHR refused to conclude that the violation of these rights had a purpose other than the officially declared - political persecution (Article 18), and this was, as I understand, a very important objective of Mr Khodorkovsky. There are two main adjudicative points on this issue.

1) Khodorkovsky argued that the UK, Cypriot, Dutch Courts and the Swiss Federal Tribunal had already decided that the persecution of the YUKOS executives was political (§ 253). The ECtHR replied that its "standard of proof" is "very high", i.e. higher than in those States (§ 260).

2) Khodorkovsky showed the reports and conclusions of the Parliamentary Assembly of the Council of Europe, of the European Parliament, the UK House of Commons, and the USA Senate who concluded that this was a political persecution. However the ECtHR replied that those were political and not judicial declarations (§ 259). The judges write that any persecution of such a rich and influential person as Khodorkovsky would have a political stake, and therefore the Article 18 protection would not be reasonable.

It is also interesting that Khodorkovsky did not use the argument of partiality of Russian judges (Article 6).

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