Strasbourg Sessions: Case Won: What Next?

29 March 2013 


Vera Vasileva

Source: HRO.org

On 28 March 2013 at the Independent Press Centre in Moscow a roundtable was held, one of the regular monthly "Strasbourg sessions" organised by the Centre for International Protection. The focus this time round was on issues connected to Russia implementing the decisions of the European Court of Human Rights (ECtHR).

Taking part in the discussion were Karinna Moskalenko, Project Director at the Centre for International Protection and Commissioner and member of the Executive Committee of the International Commission of Jurists, and lawyers Anna Stavitskaya and Ksenia Kostromina. The discussion centred on four cases they had submitted to the ECtHR. These were the case of Russian scientist Igor Sutyagin, convicted on charges of spying brought by the security services; the case of technical specialist Igor Fedorenko, who found himself in the dock as a result of his passport details being used by housing fraudsters without his consent; and the cases of victims of torture Timur Idalov, who was denied the right to take part in his own trial by the Khamovnichevsky District Court, and Aleksei Pichugin, former head of security at the YUKOS oil company.

The HRO.org website has already reported on the substance of these criminal cases and the appeals of the defendants to the ECHR.

Karinna Moskalenko has also spoken of the intention of the Russian authorities to introduce a system of measures designed to implement the ECHR decisions, also known as the "roadmap." In her opinion "this will become the number one issue in the near future."

The case of Igor Sutyagin

Anna Stavitskaya:

Both in the national courts and at the ECtHR we have highlighted several ways in which the right of our client to a fair trial, enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, has been violated.

In particular, there is the fact that Igor Sutyagin was convicted for acts which are not illegal. He had the right to collect evidence from open sources and hand them over to a foreign state. Treason, by contrast, entails the handing over of classified information to a foreign state.

We also pointed out the fact that the list of prospective jury members, which was supposedly drawn up on the basis of random selection, was for some reason made up entirely of young men, who for some reason were all businessmen. Russian law stipulates that this initial list must be drawn up without any involvement on the part of either of the defence or the prosecution. The defence later discovered that many of the jurors had connections to the FSB.

The European Court of Human Rights ruled that Igor Sutyagin's right to a fair trial had been violated from the very first stage of the judicial process when the presiding judge was unaccountably replaced. Judges should not be replaced simply on a whim.

From the very start a fundamental right was violated in the case of Sutyagin. Pointing to the existence of such a serious doubt, in the form of there being a question about the independence and impartiality of the court, the ECtHR saw no need to even consider the other violations.

Karinna Moskalenko: 

At a session of the Presidium of the Supreme Court the public prosecutor said that "whatever doubts anyone may have cannot be grounds for overturning the lawful and reasonable verdict of the court."

As a result, the Presidium did not consider the violation of Igor Sutyagin's right to a fair trial identified by the ECtHR as grounds "for reviewing any judicial decisions." In the opinion of the Presidium, neither the excessive length of the proceedings, nor the sudden replacement of the judge, "for which there is no provision by any procedural guarantees," clearly demonstrated that the verdict was unlawful or unfounded.

The Presidium cited the fact that the ECtHR had not uncovered any evidence of personal bias on the part of the judge who was presiding over the court at the time the verdict was passed.

Sharing the strange opinion of the public prosecutor, the Presidium of the Supreme Court included in its decision an even more bizarre statement:

"Hence, the statement by the European Court of Human Rights that the claimant's doubts about the independence and impartiality of the court of first instance can be objectively regarded as justified, do not negate the legality and reasonableness of the verdict against Sutyagin."

The case of Igor Fedorenko

Karinna Moskalenko:

We received the exact same refusal to overturn the verdict in the case of Igor Fedorenko, a Russian citizen no one has ever heard of. The vast majority of our claimants are people no one has heard of, whose cases subsequently go on to serve as precedents.

Igor Fedorenko was charged with housing fraud, what's more involving the use of terrifying methods. In the early 2000s there had been a whole series of such cases, where single elderly owners of flats had died in mysterious circumstances.

The first time I visited Igor in the pretrial detention centre he was in a state of shock. He had never thought that he could get caught up in anything like this.

The reason Igor Fedorenko had been implicated was a passport he had lost at one point. Or to be more precise, not his passport but his passport details.

Naturally Igor immediately reported the loss to the police and applied for new papers. And then suddenly some time later his passport turned up in a criminal episode.

You have to give credit to the investigators, for a long time they were unable to bring charges against. him, as a result of which Igor Fedorenko was detained in custody before being charged.

So Igor and I went together to the Golovinsky District Court of Moscow to say that he should not be held in custody without any charges having been brought against him.

And the court rules: alternative pre-trial restriction measures are not available since Igor Fedorenko committed a serious offence.

I want to stress that at that time even the investigator had not had the nerve to bring charges against our client.

My colleague Valentina Bokareva and I filed an appeal with the European Court of Human Rights, which gave priority to this case.

Meanwhile Igor Fedorenko was convicted and in a very strange way. Apparently, in order not to create a scandal, he was given a very light sentence.

In 2011, when our client had already been released, the European Court of Human Rights ruled that his right to the presumption of innocence, Paragraph 2 of Article 6 of the Convention, had been violated. The original violation of Article 5 ("the right to liberty and security of person") in connection with his illegal detention was also confirmed.

The Presidium of the Supreme Court, however, decided that if his right to the presumption of innocence had been violated this was no grounds for overturning "a lawful and reasonable verdict."

The case of Timur Idalov

Karinna Moskalenko:

Having already had bad experiences at the Presidium with the cases of Igor Sutyagin and Igor Fedorenko, lawyer Maria Samorodkina and I went for broke on this one.

These were my exact words. Representatives of the Russian Prosecutor General's Office, esteemed members of the Presidium, you are directly confronted by the European Court of Human Rights, which has pointed to the fact that in the case of Idalov there was an unfair trial from beginning to end. The man was ejected from the courtroom because he challenged the court, and he was not allowed to return even right up to the judicial pleadings, including the final speech of the accused, which he was not allowed to make.

The European Court of Human Rights stated that even if the behaviour of Timur Idalov had been forceful, that was no reason not to allow him to make his final speech. It is possible that already by the second day of the trial he might have behaved differently. The entire trial was conducted without the accused being present. It could not possibly be fair, nor the verdict lawful and reasonable.

The European Court of Human Rights also said that the only possible remedial measure (i.e. means of restoration) in this instance would be for the Supreme Court of the Russian Federation to overturn the verdict of the court of cassation. This the Supreme Court did not do.

The decision of the Presidium, both unexpected and hoped for at the same time, hit us like a bolt out of the blue: to overturn all the decisions of the court in the case of Idalov and in addition to overturn even the decisions to impose pretrial restrictions on him.

Thus, in the case of Timur Idalov, the Presidium cited Article 415 of the Criminal Procedure Code of the Russian Federation. In accordance with this legal provision, the decision by the ECtHR was a new fact in the case, which left no other alternative than to overturn the verdict and resume proceedings in the case.

The case of Aleksei Pichugin

Karinna Moskalenko:

So now the decision in the case of Aleksei Pichugin. Ksenia Kostromina and I want to understand how lawyers should act in order to make it impossible for the Presidium to refuse to enforce the law.

I want to recall firstly that all the misfortunes of the Yukos oil company started with the arrest of Aleksei Pichugin.

Secondly, we heard from leading public officials that supposedly that there were only five proven bodies in this case.

Ksenia, how many bodies were there in the first Pichugin case?

Ksenia Kostromina:

None. In the course of his first criminal case, which took place in the Moscow City Court, Aleksei Pichugin was convicted of organising the murder of the Gorin couple. However, their bodies were never found.

We had a similar situation with the jury that we had in the Igor Sutyagin case. One jury was put together, then the presiding judge fell ill, after which several of the jurors failed to turn up at the trial. As a result the jury was disbanded. Previous jury members told journalists that they were leaning towards a not guilty verdict for our client.

The new jury, the procedure for putting together was again not transparent, found Aleksei guilty. Admittedly it was not a unanimous verdict, the breakdown of the votes was 8:4.

However, the European Court of Human Rights pointed out that the defendant had exercised his right to ask the jury questions, raise objections, etc. Consequently, the ECtHR believes that the right of the claimant to a court created on the basis of the law resulting in the selection and formation of a jury was not violated.

Our process was considered in a closed court session. The judge took this decision on the basis that the case included secret files. However, not a single classified document was examined during the court proceedings.

We petitioned the Moscow City Court to make the entire process open and to only close those sessions at which classified documents were to be examined, but our appeal was denied.

As a result, the ECtHR found that the right of our client to a public trial had been violated, fully agreeing with all our arguments.

Regarding the right to a fair trial, the European Court of Human Rights also considered only one aspect, even though many of the points of our appeal were about this violation.

The judges of the ECtHR came to the conclusion that the main prosecution witness, Mr Korovnikov, was questioned in violation of the law. When this witness was being questioned, Moscow City Court judge Olikhver did not warn him of his criminal liability for refusing to give evidence.

This witness did not answer a number of questions put to him by the defence. He simply said: "I won't answer." And the judge decided he did not have to.

The European Court of Human Rights wrote that they found the position of the national court on this issue puzzling. The ECtHR considers the reaction of the presiding judge to such a completely unjustified refusal on the part of the witness to answer questions very odd.

The judge should have taken all necessary measures to ensure the law was complied with. However, when the defence asked the judge to remind Korovnikov of his legal responsibility to answer questions and that he was risking criminal liability for refusing to give evidence, the presiding judge replied that Korovnikov had the right not to answer. She did not explain why Korovnikov had been absolved of his responsibility to answer questions. Nor did she indicate under which legal provision a witness could be absolved from this responsibility.

As a result the ECtHR concluded that in this way the claimant's right to a fair trial had been violated, because his right to question Korovnikov, a main witness, a key witness, had been violated. And if the defence had been given the opportunity to call the reliability of the evidence of this witness into question (with the jurors sitting in the courtroom to evaluate the evidence of the witness, including its reliability) then the verdict may have been different.

In the light of the above, the ECtHR wrote that there was no need to consider individually the remaining points of the claimant's appeal for a fair trial.

Karinna Moskalenko:

The decision of the European Court of Human Rights stated that the only remedial course of action in this situation would be to overturn the verdict. Something similar happened in the decision on the case of Pichugin. Is that not so?

Ksenia Kostromina:

Yes, the Court said that "the most appropriate way of making amends would in principle be to order a new trial or to resume judicial proceedings."

I am now writing a petition to the Presidium of the Supreme Court to instigate proceedings on the new circumstances in accordance with Articles 413-415 of the Criminal Procedure Code. Under the law a decision should be taken to overturn the existing court decisions.

Karinna Moskalenko:

I would say the same thing, even if the European Court of Human Rights had not said this. That is the only possible remedial measure. You would not allow me to question Mr Korovnikov. My questions were not simple for him, there was a reason he declined to answer them. I believe that he is giving false evidence against my client. And the tough questions I had for him were specifically designed to establish the unreliability, or alternatively, the reliability, of his testimony. But the court did not give me this opportunity.

And the European Court of Human Rights considers that this is such a serious issue, that the witness is so important, that of course the only restorative measure possible is to review the case.

So, we discussed two cases in which the Presidium of the Supreme Court refused to overturn the verdicts, the case of Sutyagin and the case of Fedorenko. They are trying to master the practice of such refusals, but in the Idalov case this approach hit a snag.

Now the Russian authorities are working on a system of measures designed to implement the decisions of the ECtHR, the so-called "roadmap."

We are currently verifying this information, but amendments to Articles 413-415 are supposedly being prepared. We of course have no knowledge about what sorts of amendments these are. Perhaps they will improve these provisions. But we very much doubt that. There have been initiatives by a number of deputies claiming that these articles infringe upon national sovereignty.

We believe that the authorities will use the State Duma - a body, which some people call the "rabid printer" - to call into question the need for Articles 413-415 of the Criminal Procedure Code. In order to lift this burden from the Presidium of the Supreme Court, they could always comply with the decision of the European Court of Human Rights.

But in my opinion, if such global violations of the right to a fair trial come to light such as the unjustified lack of publicity of court proceedings or the refusal of the judge to question a witness about the reliability of their claims, then there is no alternative means of redress for the violation of rights at the national level than to quash the verdict. At the very least I should be allowed to question this witness under conditions of a fair trial.

We assume that freedom of discretion will be expanded. We assume that Articles 413-415 will be removed from the Criminal Procedure Code. The legislations of many countries do not have such provisions. But there is an obligation to carry out the decisions of the European Court of Human Rights.
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