“You Can’t Change the Meeting Place” – Khodorkovsky, Bad Faith, and the European Court of Human Rights

Julian Lehmann is a research associate at the Global Public Policy Institute in Berlin, Germany and a SJD candidate at Dresden University of Technology.

“Ten Years a Prisoner”

Mikhail Khodorkovsky (pictured right, credit), the former Russian business magnate and opposition sponsor was released from prison under a presidential pardon in late December – just two months after he had  commemorated the ten year anniversary of his imprisonment. The images of the tycoon fallen from favor into the dock for many had became symbols for political interference with courts.  Regardless of whether one clings to such symbolism, judicial independence in Russia still leaves much to be desired, not least according to the UN Special Rapporteur on the independence of judges and lawyers.

Khodorkovsky and his associate Platon Lebedev are the most prominent alleged victims of political imprisonment. As many will recall, Khodorkovsky was arrested in 2003 and convicted in 2005 for tax evasion in the turbulent 1990s. Then, he sold produce of his oil and resource company Yukos to alleged sham Russian firms registered in low tax zones. He was put on trial again in 2010. Vladimir Putin, pending Khodorkovsky’s appeal, bragged in a TV interview that ‘a thief must sit in jail’. He alluded to a phrase from the popular Soviet TV mini-series ‘You Can’t Change the Meeting Place’ – a detective story featuring the dissident artistic icon Vladimir Vysotsky. The title takes up the series’ final, in which Vysotsky suggests that he and his fellow policemen have no choice but to go for a plan that puts their abducted colleague at risk.

Putin omitted the second half of the film’s citation. Vysotsky, the old-school hot rock, repeatedly clashes with his fastidious partner over the choice of means for policing. Not shying away from breaking the law, Vysotsky states that ‘A thief must be in jail – and people are not interested in how I get them there.’

Putin’s candidness about his view on Khodorkovsky hasn’t gone unnoticed. Khodorkovsky’s lawyers based their fourth application to the European Court of Human Rights (ECtHR) to a fair extent on that statement by Putin. They are unlikely to withdraw the application after Khodorkovsy’s release, since the pardon did not require Khodorkovsky to admit guilt. A Soviet cult film will be the latest piece of evidence in a seemingly endless legal battle on whether or not Khodorkovsky’s case is politically motivated. Amnesty International believes that it is. The Russian Presidential Human Rights Council concluded that the accusations in Khodorkovsky’s second case of 2010-2011 were ‘fictitious’ and recommended the annulment of the verdict.

So is Khodorkovsky a political prisoner? Accusations of political imprisonment tend to preach to the converted only and to otherwise fall on deaf ears. It is one thing for campaigners and politicians can use the label, but what if a Court is to decide?

Tracing Bad Faith

Lawyers and judges may be more wary of attaching a stigma of political motivation to what on first blush appears a lawful court decision. The ECtHR is no different, tending to assume that States do not normally act in bad faith to undermine the Convention. However, all Convention provisions that include limitation clauses restricting the scope of the right guaranteed (e.g. freedom from arbitrary detention or freedom of speech) come with a standard test of legality, legitimate aim and proportionality. A general requirement that detention must not be ‘arbitrary’ is build into Article 5(1) of the Convention. As the Court said in Saadi v. UK, arbitrariness means bad faith.

But what is bad faith? We usually understand it as the antonym of good faith, itself hard to define. In a 1991 monograph, O’Connor suggested that it is a first order principle ‘from which the rule pacta sunt servanda, and all other legal rules distinctively and directly related to honesty, fairness, and reasonableness are derived.’ Good faith, it seems, is the social kit of international norms, reflecting the consensus to engage with law, rather than to undermine it. Bad faith, then, refers to the inconsistency between what you say and what you mean, between what you say you do and what you do. Sartre used the notion of ‘bad faith’ to illustrate that humans deceive themselves into thinking that they have no choices when in fact they do. Just as in philosophy, bad faith in law is a choice. It implies intent.

Since violation of most of the rights guaranteed by the Convention does not require individual intent, the ECtHR establishes arbitrariness differently. Article 5 of the ECHR encompasses an exclusive list of permissive grounds for detention which the ECtHR will test.

An Additional Stigma

But the Convention goes further in admitting that bad faith occurs. Article 18 of the Convention provides, ‘The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed’. Violations of Article 18 of the ECHR cannot be free-standing. In comparison to a mere violation of a sole ECHR provision, such as Article 5, Article 18 is an additional stigma. It is the prototype of ‘bad faith’.

Given this special function in the Convention system, it is not surprising that Article 18 is seldom applied. Although the ECtHR was often confronted with allegations of violations of Article 18, it rarely found a violation. In Gusinskiy v. Russia, the Court was prepared to accept that Russia prosecuted the businessman Gusinsky with politico-economic motives, because a written document provided direct proof. In Lutsenko v. Ukraine, the Court reiterated that

the whole structure of the Convention rests on the general assumption that public authorities in the member States act in good faith. Indeed, […] the presumption of good faith is rebuttable. However, an applicant alleging that his rights and freedoms were limited for an improper reason must convincingly show that the real aim of the authorities was not the same as that proclaimed (or as can be reasonably inferred from the context).

Therefore, a very ‘exacting’ standard of proof was required in Article 18 cases. In the case of Lutsenko—a former Minister of the Interior and the leader of an opposition party accused of abuse of office—the prosecuting authorities had explicitly stated that one of the reasons for Lutsenko’s arrest was his communication with the media.

Stating the Obvious

When the Court decided Khodorkovsky’s second application concerning his first trial, it did not stop at its old case law on the high evidentiary burden.

In Khodorkovskiy and Lebedev v. Russia, the judges accepted that it may appear from the circumstances as if the authorities acted on improper motives – because they sought to reduce the influence of oligarchs, because the business projects of Yukos contradicted state policy and because the state took profit from the company’s dismantling. Yet, they expected from Khodorkovsky direct proof of the authorities’ political motivation. Otherwise, the Court noted, it ‘would have to find violations in every high-profile case where the applicant’s status, wealth, reputation, etc. gives rise to a suspicion that the driving force behind his or her persecution was improper.’ This would, the Court implies, make the Convention system unworkable. Furthermore, the Court recalled another judgment in which it found that the political element in a criminal case had not been ‘decisive’. By analogy, it stated

The Court is prepared to admit that some political groups or government officials had their own reasons to push for the applicants’ prosecution. However, it is insufficient to conclude that the applicants would not have been convicted otherwise. Elements of “improper motivation” which may exist in the present case do not make the applicants’ prosecution illegitimate “from the beginning to the end”: the fact remains that the accusations against the applicants were serious, that the case against them had a “healthy core”, and that even if there was a mixed intent behind their prosecution, this did not grant them immunity from answering the accusations.

Thus, not only is there a high evidentiary burden. The Court also will not find that the State acted on improper motives if there is a ‘healthy core’ to a criminal case. Likewise, a blend of proper and improper motives in the prosecution does not ‘rot’ a criminal case completely. Obviously, this raises further questions. What makes the political element decisive? How can you quantify bad faith? The ECtHR will not bend over backwards to tackle these questions. Its reasoning in Khodorkovsky and Lebedev v. Russia already gives us a flavor of things to come:

906.  The Court does not exclude that in limiting some of the applicants’ rights throughout the proceedings some of the authorities or State officials might have had a “hidden agenda”. On the other hand, the Court cannot agree with the applicants’ sweeping claim that their whole case was a travesty of justice. In the final reckoning, none of the accusations against them concerned their political activities stricto sensu, even remotely. The applicants were not opposition leaders or public officials. The acts imputed to them were not related to their participation in the political life, real or imaginary – they were prosecuted for common criminal offences, such as tax evasion, fraud, etc.

Thus, to establish political motivation for the purposes of Article 18, there should be direct evidence, the political element must be decisive, the person concerned must be a sort of political figure, and the prosecution has to be ‘linked’ to his or her political activities.

“Unfair, but not political”

How then, will the Court decide Khodorkovsky’s fourth application? All things being equal, the Court will find a violation of fair trail rights and the right to freedom from arbitrary detention (presumption of innocence, double jeopardy). It will again express some sympathy, obiter dictum, with the allegation of political motivation, but will not find a violation of Article 18.

On first blush, such a judgment by the ECtHR may not appear reasonable, but it is perfectly understandable. For the truth of the matter is that the Court is placed no better than any other institution to make a finding on whether a case is politically motivated. Absolutely nothing in the Convention shields it against bad faith.