Khodorkovsky v. Russia before the European Court of Human Rights: a lost opportunity to do justice or preserving the legitimacy
for Transnational Dispute Management

On 31 May 2011, the European Court of Human Rights (the ECtHR) in Strasbourg, France, made public its long-awaited ruling in the case of Khodorkovsky v. Russia (application No. 5829/04).1

This case is one of a number of claims arising out of the notorious “YUKOS affair”. This term, coined by the media, is used to describe the fate of YUKOS, a once major vertically integrated group of Russian oil and gas companies, following tax evasion charges and its subsequent forced liquidation in 2003-2007 by the Russian authorities,. The applicant, Mikhail Khodorkovsky, was the principal shareholder and executive officer of OJSC Neftyanaya Kompaniya YUKOS (“YUKOS”). In parallel to the “YUKOS affair’”, Mr Khodorkovsky (the Applicant), then one of the richest and most influential men in Russia, was imprisoned on numerous charges including those of tax evasion and embezzlement. The case at hand is a one of a number of applications that he has filed with the the ECtHR to declare that his arrest and imprisonment violated the European Convention on Human Rights (ECHR), and more specifically to find that the Russian authorities acted with political motive.

This article analyses the decision of the ECtHR against the background of other cases forming the "YUKOS affair", as well as in the wider context of ECtHR practice and general international law. Section 1 provides a brief summary of the ECtHR decision in the Khodorkovsky case. Section 2 focuses on the most important aspect of the decision, namely whether the application of Article 18 of the ECHR supports the allegation of political motivation on the part of Russia and Section 3 then goes on to analyse the decision in light of the ECtHR case law and the relevance of political motivation in the customary international law standard of “denial of justice”. It suggests that the vocal critique that seems to have been sparked by the ECtHR ruling under Article 18 may have lost sight of the complexities of the case and the challenges it posed to the coherence and integrity of the ECtHR adjudication. Finally, Section 4 briefly discusses the perceived implications of the ruling. Also, the detailed chronology and the background of the “YUKOS affair” is set out in the Annex to this article for those readers who would like to get a better understanding of the complex background of the “YUKOS affair”.

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