Class of claim

Yukos strikes back at Russia. He wants to sue the Kremlin in European courts up to $100 billion

In 2000, the European Court of Human Rights decided that the Greek government illegally took away from the former king of this country, Constantine, his three family estates, where his ancestors were buried. Now, says one of the lawyers working in the Strasbourg court, the Yukos v. Russia case will be based on the most important precedent - the case of King Constantine v. Greece. The king demanded compensation in the amount of $ 1 billion, but the court refused him, suggesting that the Greek government itself set the amount of the payment. Yukos demands much more.

Hearings on the Yukos lawsuit against Russia begin in Strasbourg this week. Yukos spokeswoman Claire Davidson told Newsweek that the original complaint did not specify the exact amount of compensation sought and that the court itself instructed an independent appraiser to determine the amount of damages. The appraiser added up fines, tax claims and interest, money raised by the state from the sale of Yukos assets, and lost profits. It turned out $ 98 billion. The case "YUKOS against Russia" became the most "expensive" case in the history of the Strasbourg Court.

Claire Davidson refuses to predict. But YUKOS shareholders, of course, will not receive such a sum. The volume of claims specified in the complaint does not matter, says the former head of the Yukos legal department, Doctor of Law Dmitry Gololobov: you can write $1 billion, $5 billion, and $100 billion, but the court will award a much smaller fine - about €100,000–200 000 by applying the doctrine of indirect violation of the rights of a person or a legal person.

Something else is important. The recognition of the political nature of the Yukos case in the Strasbourg court opens up good prospects for the former shareholders of the oil company in another court - in international arbitration in The Hague. And here already Russia can suffer major financial damage. At the end of last year, the court in The Hague already recognized the claim of former Yukos shareholders against Russia as acceptable.

YUKOS VERSUS RUSSIA

The history of the current process began in April 2004. It was then that the company's managers, led by the Americans Stephen Theede and Bruce Misamore, hired London-based lawyer Piers Gardner. He submitted to the Strasbourg Court a detailed complaint about the unfair consideration of the Yukos case in Russian courts.

The Russian side demanded that the case be declared inadmissible on the grounds that Yukos had gone bankrupt - the company itself did not exist, which means that Gardner had no one to represent. The court was not convinced. “Human rights cases also have a moral side,” the judges said in response, noting that if they refused to consider the Yukos case just because Yukos no longer exists, this would become a bad example for many states: deliberate bankruptcies would begin in order to prevent appeals to the Strasbourg Court. Claire Davidson clarifies: not all countries of the world recognize the bankruptcy of Yukos. For example, the court of the Netherlands refused to recognize the legal liquidation of the company and still recognizes the legality of the former management of Yukos.

At different stages of the preparatory hearings, successive representatives of Russia in the European Court, Pavel Laptev and Veronika Milinchuk, tried to fight Yukos. Neither of them managed to get the case closed at an early stage, and both were fired for precisely this, a source in the Duma told Newsweek. Therefore, the press service of the court assured Newsweek, they will no longer be in court this week - Russia's representative to the ECtHR, Deputy Minister of Justice Georgy Matyushkin, will make his debut in the Yukos case. The applicant also prepared: the British PR company Gradant was hired and even a website dedicated to the process was created.

From the case file available to Newsweek, it appears that the court considers several aspects of the Yukos case meritorious. First, did the company use every possible means to defend its rights in Russian courts? The Russian government maintains that no, YUKOS, for example, did not challenge the auction sale of Yuganskneftegaz in court. Yukos objects: everything possible was done and there was no point in filing other lawsuits in Russian courts, since all the courts were deliberately opposed to the company. Usually, the Strasbourg Court does not consider cases that have not passed all the instances in the homeland. Now the court has decided as follows: to determine whether Yukos has exhausted all legal remedies in Russia. This is what it means to get to the bottom of the matter.

The second aspect: is the Yukos case an example of selective justice? In its complaint, YUKOS insists that yes, the scheme it used was used by all business entities in Russia. Newsweek has an official response from the Russian government.

It's not like that, it says. First, since 2000, the number of tax-related litigations in Russia has tripled. That is, the state began to collect taxes more carefully. And claims were made not only to Yukos, but also to TNK, Ufaneftekhim, VimpelCom, Ford Motors, JTI Marketing and sales . However, the answer does not mention that no one, except Yukos, went bankrupt after he was presented with tax claims. Secondly, Russia states, in 2002, for example, LUKOIL, Surgutneftegaz and Yukos earned $434 billion, $163 and $295 billion respectively. But LUKOIL paid $21.9 billion in taxes, Surgutneftegaz - $13.88 billion, and Yukos - only by $3.193 billion, that is, he shied away.

Another claim by Yukos is that the companies deliberately miscalculated taxes that were underpaid in 2000-2003 - they were deliberately exaggerated in order to bankrupt Yukos. The Russian side assures that all its actions were justified, and the money received from the sale of Yuganskneftegaz was not enough to pay all Yukosov's arrears.

The Moscow lawyers of Mikhail Khodorkovsky and Platon Lebedev continue to insist that Russia's position, as set out in the Strasbourg court, contradicts the accusations made by their clients: if the fact of underpayment of taxes is recognized, then it cannot be argued that they stole oil from Yukos, from which these taxes were claimed. “In this case, Yukos could not sell this oil and, accordingly, incur any tax obligations related to this,” says lawyer Vadim Klyuvgant.

RUSSIA v. STRASBURG COURT

Newsweek's sources in court believe that the decision on Yukos could be very unexpected. And they note that in recent years the judges have accumulated irritation towards Russia.

First, Moscow tried in every possible way to delay the consideration of the case. When Anatoly Kovler, Russia's permanent judge in Strasbourg, recoiled from participating in the Yukos case, St. Petersburg State University professor Valery Musin, a former teacher of Vladimir Putin at the law faculty of St. Petersburg State University, was sent to replace him. He, having said he was ill, did not come to the hearings several times, and then suddenly became a member of the board of directors of Gazprom and resigned due to a conflict of interest. Moscow dragged on as best it could with the next replacement, and only in October last year, Andrey Bushev, an assistant professor at the same law school at St. Petersburg State University, who was a year younger than President Dmitry Medvedev, was appointed temporary judge.

However, the Strasbourg judges were even more angry about the fact that Russia has been sabotaging the reform of the Strasbourg Court itself in recent years. (The purpose of the reform, conceived in 2004, is to speed up the consideration of cases.) All European countries, including Russia, agreed with her plan, formalized in the 14th Protocol to the European Convention on Human Rights. President Putin even submitted it to the Duma for ratification. But the Duma suddenly and unexpectedly opposed and did not ratify the protocol, thus blocking the entire reform. As a result, the very judges of the Strasbourg Court, overwhelmed with cases, suffered.

Sources in the Duma admitted that it was not by chance that she refused: there are staunch opponents of the European Court of Human Rights in the Kremlin, who consider it a biased anti-Russian organization. A source in the Foreign Ministry confirms that the dissatisfaction with the Strasbourg court in the Russian leadership is very great and is largely connected precisely with the upcoming Yukos vs. Russia case. According to a high-ranking Russian diplomat, the question was even raised in Moscow whether Russia should remain in the Council of Europe, if this is fraught with a loss to Yukos.

But at the end of last year, President Medvedev made a decision in principle not to aggravate relations with the Council of Europe, says a source in the Foreign Ministry. Moreover, he called on the Duma to return to the ratification of the 14th Protocol. At the end of last year, speaker Boris Gryzlov said that this issue of the 14th protocol would be raised at one of the first meetings, that is, this week. And Leonid Slutsky, deputy head of the Duma Committee on International Affairs, assured Newsweek that the protocol would be ratified by an overwhelming majority: "I have no opinion on this issue, because there is knowledge."

The vote in the Duma will most likely take place the next day after the start of the hearing of the YUKOS case in Strasbourg - January 15th. “[The ratification of the 14th Protocol] will help the Strasbourg Court to look at Russia objectively and impartially,” says Slutsky. The Russian side hopes that it will be able to influence the court, explains a source in the Foreign Ministry. "Putin's statements made abroad and in Russia about Khodorkovsky's involvement in several murders," lawyer Yuri Schmidt says, "are clearly calculated to put pressure on the Strasbourg court." Even the possibility of President Medvedev's personal presence at one of the next sessions of the Parliamentary Assembly of the Council of Europe in Strasbourg is being considered. His legally literate speech could have made a good impression on the judges.

QUESTION PRICE

In the meantime, lawyers working in the court believe that the defeat of Russia seems quite likely. According to the rules, the court itself appoints compensation. Usually this is not a very large amount. But with the decision of the Strasbourg court in the pocket of Group MENATEP, it will be easier for Yukos shareholders to try to sue Russia for $100 billion. $100 billion is unlikely, but $8 billion is quite real, says Dmitry Gololobov, relying on legal norms and established practice.

Refusing to comply with the requirement of the Strasbourg court is difficult - it would be a violation of the European Convention on Human Rights. But Russia will certainly try to ignore the decision not in its favor of the Hague Arbitration - after all, it will be based on the Energy Charter, an agreement to which Russia has never ratified and has officially refused to comply with it since last year.

Then the story of the Swiss company Noga may repeat itself, and YUKOS shareholders will be able to seize foreign property and accounts of the Russian Federation. But the story with Noga ended with the fact that the American banker Alexander Kogan, a native of Vinnitsa, bought out the rights to claim the debt to Russia under a complex scheme. He did not hide the fact that he received a loan from Russian state banks for this. It cannot be ruled out that some Russian businessman will buy back their claims to Russia from the shareholders of Yukos and that will be the end of the story.

But this will not make Russia less of a problem with its reputation. "If Yukos wins [in Strasbourg], there will be a qualitative change in the world's perception of the Khodorkovsky case," lawyer Schmidt said. If he loses, it will be worse than today, Khodorkovsky will no longer be. Schmidt, he says, has a strong feeling that the ongoing process in the second Yukos case is connected with the complaint filed in Strasbourg. There is even a conspiracy theory that after the defeat, for example, in The Hague, Khodorkovsky and Lebedev may be released into the wild in exchange for the refusal of the former Yukos shareholders from the financial claims awarded to them.

The Prosecutor General's Office is silent. "We've done our job, we've dug up 188 volumes, now it's the judge's turn," Newsweek's interlocutor in the Investigative Committee, who is close to the investigation, evades answering. Khodorkovsky's former partner, Leonid Nevzlin, also declined to discuss the issue with Newsweek. It is he who is considered the main beneficiary of the process in The Hague.