Особенности судебного перевода, посредством выявления особенностей перевода решений Европейского суда по правам человека

G.B. v. Switzerland, no. 27426/95, §§ 34-39, 30 November 2000).

1. Speediness of review of the detention orders of 25 October and 23 December 2003.

247. Turning to the present case the Court notes that the applicant calculated the delays in the examination of his appeals starting from the dates of the respective detention order by the Basmanny District Court. However, it is more appropriate to calculate the time elapsed from the moment when the defence lodged the appeal, because the preceding period cannot be attributed to the State. It follows that, insofar as the first two detention orders are concerned, the Government is responsible for delays of five and sixteen days respectively. The Court notes that it is called to consider the speediness of the appeal proceedings, where the original detention order was imposed by a judicial authority. In such circumstancesit concludes that delays of five and sixteen days do not amount to a breach of the “speediness” requirement of Article 5 § 4.

2. Speediness of review of the detention order of 19 March 2004.

248. As regards the third delay, which amounted to one month and nine days (i.e. between 2 April 2004, the date when the last brief of appeal was lodged, until 12 May 2004, the date when the appeal hearing was held), the Government explained it by the need to obtain written submissions from the prosecution. The Government did not invoke any other objective cause which might have delayed the examination of the appeal. The Court considers in the circumstances that the delay involved in the examination of the appeal against the third detention order was excessive (see the case of Lebedev, cited above, § 102, where the period of 27 days was found excessive in similar circumstances). The Court thus concludes that there was a violation of Article 5 § 4 on this account.

VIII. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION

249. The applicant complained under Article 18 that the State had used the criminal prosecution for a political end and in order to appropriate the company's assets. Article 18 of the Convention provides:

“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

A. The parties' observations

250. The Government submitted that the applicant's allegations that his criminal prosecution had been politically motivated were not supported by the materials of the case. The Government referred to the judgment delivered in the applicant's case as proof that the charges against him were serious and genuine. They also described the events which had preceded the start of the investigation into the activities of the Yukos management, especially with regard to the Apatit case.

251. The applicant maintained his allegation that his criminal prosecution had been politically motivated. The applicant submitted that the above materials were powerful evidence of ulterior purposes contrary to Article 18. He had at the very least adduced “prima facie evidence pointing towards the violation of that provision” (Oates v. Poland (dec.), no. 35036/97, 11 May 2000), which the Government had entirely failed to address. The fact that he had been convicted in no way precluded improper motives in bringing the charges. Further, as a matter of Convention law, it was immaterial whether there was evidence justifying the bringing of theprosecution, if, as a matter of fact, it was brought for “other purposes” (see Gusinskiy v Russia, no. 70726/01, 19 May 2004). Indeed, the fact that he had received a long sentence supported the inference of political motivation. The travaux prйparatoires for Article 18 indicated that the drafters of this provision were concerned to ensure that an individual was thereby protected from the imposition of restrictions arising from a desire of the State to protect itself according “to the political tendency which it represents” and the desire of the State to act “against an opposition which it considers dangerous”. The applicant maintained his argument that his arrest and consequent detention on 25 October, just a few weeks before the Duma elections on 7 December 2003 and shortly before the completion of the Sibneft/Yukos merger, had been orchestrated by the State to take action against an opposition which it considered “dangerous”, contrary to Article 18.

252. The applicant asserted that those activities had been perceived by the leadership of the country as a breach of loyalty and a threat to national economic security. As a counter-measure the authorities had undertaken a massive attack on the applicant and his company, colleagues and friends.

253. In support of his allegations the applicant submitted reports from international and Russian media, various governmental and non- governmental organisations, the PACE report “On the circumstances surrounding the arrest and prosecution of leading Yukos executives” (published on 29 November 2004 by Mrs Leutheusser-Schnarrenberger, the Special Rapporteur for the Parliamentary Assembly of the Council of Europe), the US Senate resolutions on this subject, European Parliament reports, documents of the UK House of Commons, decisions by the UK courts in cases of extradition of several former Yukos managers to Russia, and decisions by the Cypriot, Dutch, and Swiss courts to the effect that the prosecution of the applicant was politically motivated. In particular, the applicant referred to the words of the Swiss Federal Tribunal, which in August 2007 found that the facts, if analysed together, “clearly corroborate the suspicion that criminal proceedings have indeed been used as an instrument by the power in place, with the goal of bringing to heel the class of rich `oligarchs' and sidelining potential or declared political adversaries”. The applicant also quoted public statements by several high-ranking Russian officials who had acknowledged that “the Yukos case” had political overtones (Mr Gref, Mr Illarionov, Mr Shuvalov, Mr Mironov, Mr Kasyanov and some others). The applicant produced witness statements by several former Yukos managers. He further referred to his submissions within the case Khodorkovskiy v. Russia (no. 2), no. 11082/06, which contain a more detailed analysis of his political activities and business projects.

B. The Court's assessment

254. The Court reiterates that it has already found that, at least in one respect, the authorities were driven by improper reasons. Thus, the Court found that the applicant had been arrested in Novosibirsk not as a witness but rather as a suspect. However, the applicant's claim under Article 18 is different from his grievances under Article 5. The applicant maintained that the entire criminal prosecution of Yukos managers, including himself, had been politically and economically motivated. The Court reiterates in this respect that “Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention” (Gusinskiy v. Russia, no. 70276/01, § 75, ECHR 2004-IV). In the light of the above the Court will consider the applicant's allegations under Article 18 of the Convention in conjunction with his complaints under Article 5 of the Convention, cited above.

255. The Court reiterates that the whole structure of the Convention rests on the general assumption that public authorities in the member States act in good faith. Indeed, any public policy or an individual measure may have a “hidden agenda”, and 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). A mere suspicion that the authorities used their powers for some other purpose than those defined in the Convention is not sufficient to prove that Article 18 was breached.

256. When an allegation under Article 18 is made the Court applies a very exacting standard of proof; as a consequence, there are only few cases where the breach of that Convention provision has been found. Thus, in Gusinskiy v. Russia (no. 70276/01, § 73-78, ECHR 2004-... (extracts), the Court accepted that the applicant's liberty was restricted, inter alia, for a purpose other than those mentioned in Article 5. The Court in that case based its findings on an agreement signed between the detainee and a federal minister of the press. It was clear from that agreement that the applicant's detention was applied in order to make him sell his media company to the State. In Cebotari v Moldova (no. 35615/06, §§ 46 et seq., 13 November 2007) the Court found a violation of Article 18 of the Convention in a context where the applicant's arrest was visibly linked to an application pending before the Court. However, such cases remain rare (see, as an opposite example, Sisojeva and Others v. Latvia [GC], no. 60654/00, § 129, ECHR 2007-II). Particularly, the Court notes that there is nothing in the Court's case-law to support the applicant's suggestion that, where a prima facie case of improper motive is established, the burden of proof shifts to the respondent Government. The Court considers that the burden of proof in such a context should rest with the applicant.

257. In the case at hand the applicant referred to various sources which confirm his allegations of “improper motive”. First, he invited the Court to consider the facts surrounding his business and political activities, as well as the major policy lines adopted by the President's administration at the relevant time. Indeed, those facts cannot be ignored. In particular, the Court acknowledges that the applicant had political ambitions which admittedly went counter to the mainstream line of the administration, that the applicant, as a rich and influential man, could become a serious political player and was already supporting opposition parties, and that it was a State-owned company which benefited most from the dismantlement of the applicant's industrial empire.

258. On the other hand, any person in the applicant's position would be able to make similar allegations. In reality, it would have been impossible to prosecute a suspect with the applicant's profile without far-reaching political consequences. The fact that the suspect's political opponents or business competitors might directly or indirectly benefit from him being put in jail should not prevent the authorities from prosecuting such a person if there are serious charges against him. In other words, high political status does not grant immunity. The Court is persuaded that the charges against the applicant amounted to a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention.

259. Nevertheless, the combination of the factors mentioned above have caused many people to believe that the applicant's prosecution was driven by the desire to remove him from the political scene and, at the same time, to appropriate his wealth. The applicant strongly relies on those opinions; in particular, he relies on resolutions of political institutions, NGOs, statements of various public figures, etc. The Court took note of those opinions. However, it must recall that political process and adjudicative process are fundamentally different. It is often much easier for a politician to take a stand than for a judge, since the judge must base his decision only on evidence in the legal sense.

260. Finally, the Court turns to the findings of several European courts in the proceedings involving former Yukos managers and Yukos assets. Those findings are probably the strongest argument in favour of the applicant's complaint under Article 18 of the Convention. However, the evidence and legal arguments before those courts might have been different from those in the case under examination. More importantly, assuming, that all courts had the same evidence and arguments before them, the Court reiterates that its own standard of proof applied in Article 18 cases is very high and may be different from those applied domestically. The Court admits that the applicant's case may raise a certain suspicion as to the real intent of the authorities, and that this state of suspicion might be sufficient for the domestic courts to refuse extradition, deny legal assistance, issue injunctions against the Russian Government, make pecuniary awards, etc.

However, it is not sufficient for this Court to conclude that the whole legal machinery of the respondent State in the present case was ab intio misused, that from the beginning to the end the authorities were acting with bad faith and in blatant disregard of the Convention. This is a very serious claim which requires an incontrovertible and direct proof. Such proof, in contrast to the Gusinskiy case, cited above, is absent from the case under examination.

261. In such circumstances the Court cannot find that Article 18 was breached in this case.

IX. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION

262. 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.”

Article 46 of the Convention, insofar as relevant, 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.”

A. Damage

263. The applicant did not claim any pecuniary damage, although, in his words, his pecuniary losses due to his arrest and subsequent criminal prosecution were very considerable. As to non-pecuniary damage, the applicant claimed EUR 10,000, which he characterised as a “deliberately modest” claim. The Government insisted that even such a claim was excessive and that, if the Court found any violation of the Convention, a simple finding of a violation would suffice.

264. The Court observes that it has found several violations of Articles 3 and 5 of the Convention in this case. Those violations caused the applicant certain stress and frustration, which cannot be compensated solely by the findings of violations. Making its assessment on an equitable basis, it awards the applicant the amount claimed, i.e. EUR 10,000 under this head, plus any tax that may be chargeable.

B. Costs and Expenses

265. The applicant claimed EUR 14,543 under the head of costs and expenses incurred by the participation in the proceedings of one of his lawyers, Ms Moskalenko. The applicant submitted a copy of the agreement between the applicant's wife, Ms Khodorkovskaya, and Ms Moskalenko, concerning the representation of the applicant's interests before the European Court, as well as several receipts confirming payment to Ms Moskalenko of the sums due under the contract. The overall amount due from the applicant for the services of Ms Moskalenko was 500,000 Russian Roubles (which corresponded to EUR 14,543 at the time when the agreement was concluded).

266. The Government claimed that the costs claimed by the applicant were unsubstantiated.

267. Having regard to the documents submitted by the applicant, to the subject matter under the Convention, and to the procedure adopted before the Court in this case, the Court finds that the amount claimed by the applicant was both necessarily incurred and reasonable as to quantum. In such circumstances the Court considers it reasonable to award the applicant the whole amount claimed for the costs and expenses incurred by the applicant's legal representative, namely EUR 14,543, plus any tax that may be chargeable to the applicant.

C. Default interest

268. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

D. Specific individual measures

269. Referring to the Court's case-law under Article 46 of the Convention, the applicant finally asked the Court to indicate to the Russian Government certain specific individual measures, as the Court had done in several previous cases. In particular, he asked the Court to direct the Government to ensure that the applicant is not kept in a cage of any sort during subsequent proceedings and that international observers be allowed to visit him in prison, if needed, to investigate the conditions of his incarceration. The Government did not make any specific submissions in respect of this claim by the applicant.

270. The Court reiterates in this respect that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by 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. The Court will seek to indicate the type of measure that might be taken only exceptionally, for example to put an end to a systemic problem, as in Broniowski v. Poland [GC] (no. 31443/96, § 194, ECHR 2004-V), or to discontinue a continuous situation, as in Hasan and Eylem Zengin v. Turkey (no. 1448/04,

§ 84, ECHR 2007-XI; see also L. v. Lithuania, no. 27527/03, § 74, ECHR 2007-X). In other exceptional cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate only one such measure (see Assanidze, referred to above; see also Abbasov v. Azerbaijan, no. 24271/05, §§ 35 et seq., 17 January 2008, and Aleksanyan v Russia, no. 46468/06, § 240, 22 December 2008). Finally, in some situations the Court indicated to the respondent Government how to remedy a violation found in the applicant's case, for example, by way of reopening of the proceedings which had been fundamentally unfair (see Maksimov v. Azerbaijan, no. 38228/05, § 46, 8 October 2009), or by transferring the applicant's pension rights to a specific pension fund (see Karanoviж v. Bosnia and Herzegovina, no. 39462/03, §§ 28 et seq., 20 November 2007).

271. Turning to the present case the Court considers that the applicant's request for specific measures does not belong to any of these categories. The applicant did not request the Court to indicate to the Government how past violations should be remedied but rather asked the Court to prevent future possible violations of the same kind. However, the Court's primary role is to examine facts, and not to make assumptions for the future, especially where those assumptions would depend on a multitude of factors and be, therefore, speculative. The Court considers that the circumstances of the present case are different from those of Broniowski, Hasan and Eylem Zengin or Aleksanyan, referred to above. The Court considers that in casu there is no need to indicate any specific measure under Article 46 of the Convention to the respondent Government other than the payment of the just satisfaction award. The determination of other measures, in pursuance to the substantive findings of the Court in this case, is therefore left to the discretion of the Committee of Ministers.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been no violation of Article 3 of the Convention in respect of conditions of the applicant's detention in remand prison IZ- 77/1 between 25 and 27 October 2003;

2. Holds that there has been no violation of Article 3 of the Convention in respect of the conditions of the applicant's detention in remand prison IZ-99/1 between 27 October 2003 and 8 August 2005;

3. Holds that there has been a violation of Article 3 of the Convention in respect of the conditions of the applicant's detention in remand prison IZ-77/1 between 8 August 2005 and 9 October 2005;

4. Holds that there has been a violation of Article 3 of the Convention in respect of the conditions in the courtroom before and during the trial;

5. Holds that there has been a violation of Article 5 § 1 (b) of the Convention in respect of the applicant's apprehension in Novosibirsk on 25 October 2003;

6. Holds that there has been no violation of Article 5 § 1 (c) of the Convention;

7. Holds that there has been a violation of Article 5 § 3 of the Convention in that the applicant's continuous detention was not justified by compelling reasons outweighing the presumption of liberty;

8. Holds that there has been no violation of Article 5 § 4 of the Convention on account of the procedure in which the detention was imposed on the applicant on 25 October 2003;

9. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the procedure in which the applicant's detention was extended at the hearings of 22-23 December 2003;

10. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the procedure in which the applicant's detention was extended on 20 May 2004;

11. Holds that there has been no violation of Article 5 § 4 of the Convention on account of the procedure in which the extension of the applicant's detention was confirmed on 8 June 2004;

12. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the Meschanskiy District Court's refusal to consider the applicant's application for his release on 16 June 2004;

13. Holds that there has been no violation of Article 5 § 4 of the Convention on account of the speediness of review of the detention orders of 25 October and 23 December 2003;

14. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the speediness of review of the detention order of 19 March 2004;

15. Holds that there has been no violation of Article 18 of the Convention;

16. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian Roubles at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 14,543 (fourteen thousand five hundred and forty-three euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

17. Dismisses the applicant's request for indication of specific measures under Article 46 of the Convention;

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