Communicated on 19 March 2015
FIRST SECTION
Application no. 38958/07
Aleksey Vladimirovich PICHUGIN against Russia
lodged on 21 August 2007
STATEMENT OF FACTS
The applicant, Mr Aleksey Vladimirovich Pichugin, is a Russian national, who was born in 1962. He is serving a prison sentence in the Orenburg region. He is represented before the Court by Mr P. Gardner and Mr J. McBride, lawyers practising in London, and Ms K. Kostromina, a lawyer practising in Moscow.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was head of the security service of the Yukos oil company.
On 24 March 2005 the Moscow City Court sitting with a jury pronounced the applicant guilty of the attempted murder of Mr Kl. and Ms Ks. and the murder of Mr and Mrs G. On 30 March 2005 the Moscow City Court sentenced the applicant to twenty years’ imprisonment. On 14 July 2005 the Supreme Court upheld the conviction on appeal.
On 14 April 2005 the applicant was charged with the murder of Ms Kr. and Mr Fd. and the attempted murder of Mr R., Mr I. and Mr Fl. On 4 July 2005 the applicant was charged with the murder of Mr P. and the attempted murder of Mr Kk. The charge sheet stated, in particular, that the applicant had entered into a criminal conspiracy with Mr Nevzlin and other unidentified managers of the Menatep bank to murder Ms Kr., Mr R. and Mr P. with whom the Yukos oil company had been in conflict for various reasons. The applicant had asked Mr G. to find and hire killers to commit those murders. Mr G. had hired Mr Sh., Mr Ts., Mr Re., Mr Go. and Mr O. who had killed Ms Kr. and Mr P. and had committed several unsuccessful attempts to kill Mr R. Mr Fd., Mr I., Mr Fl. and Mr Kk. had been collateral victims of their actions.
1. Press coverage of the case
(a) First interview
On 5 July 2005 a deputy Prosecutor General, Mr Kolesnikov, gave an interview to two major Russian channels, the NTV and the First Channel. The interview was broadcasted in their news programs of the same date. Mr Kolesnikov said, in particular:
“Mr Nevzlin, a member of the Committee of Directors of the Yukos oil company and the first deputy president of that oil company; Mr Pichugin, the head of the 4th division of the internal and financial security service of that oil company; and other still unidentified persons among the employees of that oil company founded a criminal gang for committing criminal offences in their personal and other interests. In 1998 Mr Pichugin, upon instructions from Mr Nevzlin and other employees of the Yukos oil company ..., organised the murder of the head of the Nefteyugansk Town Council Mr P[.] ... To attain that aim Mr Pichugin involved Mr G[.], Mr Go[.], Mr Sh[.], Mr Re[.] and Mr Ts[.] ...”
“Mr Pichugin, upon instructions from Mr Nevzlin and other unidentified persons from among the managers of the Menatep bank, organised the murder of the director of the Fenix company Ms Kr[.] who had acted contrary to their interests ...”
The applicant lodged a complaint with the Tverskoy District Court of Moscow under Chapter 25 of the Code of Civil Procedure. He complained that Mr Kolesnikov’s statements had encouraged the public to believe him guilty and prejudged the assessment of the facts by the competent court. They therefore had breached his presumption of innocence. The applicant also stated that he had wished to ask for a trial by jury but had had to renounce his wish for fear that the jurors might be influenced by Mr Kolesnikov’s statements to the press.
On 10 July 2007 the Tverskoy District Court rejected the applicant’s complaint, finding that the applicant had been charged with many counts of murder and attempted murder. In his statements to the press Mr Kolesnikov had related the facts as established by the investigation and confirmed by the materials in the criminal case file. He had acted lawfully and had not breached the applicant’s rights.
On 16 October 2007 the Moscow City Court upheld the judgment on appeal.
(b) Second interview
On 11 September 2005 the TVC Channel broadcasted an interview with Mr Burtovoy, an investigator of the Persecutor General’s office. Mr Burtovoy said, in particular:
“Mr Burtovoy: At present we have already completed the investigation into several more episodes of the criminal activities of the Yukos oil company. Mr Pichugin, the former head of the internal financial security service, has been charged with six episodes... The crimes were organised by, among others, Mr Nevzlin... In fact, Mr Nevzlin organised and financed all these crimes.
The presenter: Does it mean that Mr P. was killed by the same gang that had committed other murders?
Mr Burtovoy: This gang was founded by Mr Pichugin on the instructions from Mr Nevzlin. Yes, this was proved. It was financed by Mr Nevzlin.”
The applicant lodged a complaint with the Basmannyy District Court of Moscow under Article 125 of the Code of Criminal Procedure. He complained that Mr Burtovoy’s statements had breached his presumption of innocence.
On 11 January 2006 the Basmannyy District Court rejected the applicant’s complaint. It found that Mr Burtovoy had orally expressed his personal opinion about the applicant’s guilt in his interview to the press. Mr Burtovoy’s statements that the applicant’s guilt had been proved were not contained in an official document issued in the framework of the criminal proceedings. There was no reason to believe that Mr Burtovoy’s opinion had breached the applicant’s constitutional rights or had undermined the fairness of his trial.
On 6 March 2006 the Moscow City Court upheld the judgment on appeal.
2. First trial
On 17 August 2006 the Moscow City Court convicted the applicant and his co-defendants Mr Sh., Mr Ts., Mr Re. and Mr O. of the murder of Ms Kr., Mr P. and Mr Fd. and the attempted murder of Mr R., Mr I. and Mr Fl. It acquitted the applicant of the attempted murder of Mr Kk. The applicant was sentenced to twenty-one years’ imprisonment.
On 21 February 2007 the Supreme Court of the Russian Federation upheld the conviction in respect of the applicant’s co-defendants Mr Sh., Mr Ts., Mr Re. and Mr O. It quashed the applicant’s conviction and remitted the case in respect of the applicant for a retrial before another judge of the Moscow City Court. The Supreme Court found that the City Court had incorrectly assessed the evidence. In particular, the City Court had not explained why it had preferred the witness statements collected during the investigation to the witness statements given during the trial. The City Court had moreover distorted some of the witness statements collected during the investigation. The City Court had not given any assessment of the statements by the defence witnesses. The Supreme Court also pointed to some contradictions in the judgment of 17 August 2006. Lastly, the Supreme Court held that during the retrial the City Court was to examine thoroughly all the circumstances of the case and, if the applicant was again convicted, to discuss a possibility of imposing a more sever sentence.
3. Second trial
The second trial started on 17 April 2007 before the Moscow City Court.
During the hearing the court examined a handwritten note containing Mr R.’s address in Vienna. That note had been found among the personal belongings of the late Mr G. who, according to witness statements, had been an intermediary between the applicant, on the one hand, and, on the other hand, Mr Ts. and Mr Re. who had committed the two attempts on Mr R.’s life.
The Court also examined the expert opinions of 24 December 2003 and 7 October 2004, ordered by the investigator. In the opinion of 24 December 2003 the experts found that it could not be excluded that the note had been written by the applicant. It was however not possible to make any firm conclusions about the author of the note for the lack of comparative material. In the opinion of 7 October 2004 the experts found, after having examined additional samples of the applicant’s handwriting, that the note in question had been written by the applicant.
The applicant submitted to the court a “specialist” opinion of 4 July 2004 by Ms V. The conclusion of Ms V. was that the examples of the applicant’s handwriting submitted for comparative analysis were insufficient to make any firm conclusions as to whether he was the author of the note. Ms V. confirmed her findings when questioned in court.
Referring to the “specialist” opinion of 4 July 2004, the applicant asked for a new handwriting expert opinion and submitted a list of questions to be put to the experts. The court refused the request, finding that the case file already contained two expert opinions and a “specialist” opinion, there was no need for an additional expert opinion.
On 6 August 2007 the Moscow City Court convicted the applicant of the murder of Ms Kr., Mr P. and Mr Fd. and the attempted murder of Mr R., Mr I. and Mr Fl.
As regards the attempted murder of Mr R., the court relied, in particular, on the expert opinion of 7 October 2004, finding that the applicant had been the author of the handwritten note containing Mr R.’s address. It declared the specialist opinion of 4 July 2004 inadmissible as evidence because Ms V. had not been appointed as expert and did not therefore have any procedural status.
The applicant was sentenced to life imprisonment.
On 31 January 2008 the Supreme Court of the Russian Federation upheld the conviction on appeal.
COMPLAINTS
1. The applicant complains under Article 6 § 2 of the Convention about a violation of his presumption of innocence. In particular, the statements to several TV channels by Mr Kolesnikov, a deputy Prosecutor General, and Mr Burtovoy, an investigator of the Persecutor General’s office, encouraged the public to believe him guilty, prejudged the assessment of the facts by the competent court and forced him to renounce a trial by jury for fear that the jurors might be influenced by the above statements.
2. The applicant complains under Article 6 §§ 1 and 3 of the Convention that his trial was unfair. In particular, he complains about the non-admission as evidence of Ms V.’s “specialist” opinion submitted by the defence for examination at the trial, coupled with the trial court’s refusal to appoint an additional expert examination with a possibility for the applicant to put questions to the experts.
QUESTIONS TO THE PARTIES
1. As regards the statements to TV channels by Mr Kolesnikov, a deputy Prosecutor General, and Mr Burtovoy, an investigator of the Persecutor General’s office, was the applicant’s presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case (see Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, § 41, and Khuzhin and Others v. Russia, no. 13470/02, §§ 93-97, 23 October 2008)?
2. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 of the Convention? In particular, as regards the non-admission of Ms V.’s “specialist” opinion as evidence at the trial, coupled with the admission as evidence of the expert reports obtained by the prosecution without the applicant being able to formulate questions to the experts, challenge the experts or propose their own experts for inclusion in the team; and the trial court’s refusal to appoint an additional expert examination of the handwritten note containing Mr R.’s address, was there a disbalance between the defence and the prosecution in the area of collecting and adducing expert evidence (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, §§ 717-735, 25 July 2013)?
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