JOINT PARTLY DISSENTING OPINION OF JUDGES LEMMENS AND DEDOV

1. To our regret we are unable to agree with the majority ’ s view that there has been a violation of Article 7 of the Convention.

In our opinion, the applicants were held guilty on account of acts which constituted criminal offences at the time when they were committed. We consider that the interpretation given by the domestic courts to the relevant provisions of the Criminal Code was not unforeseeable.

2. The applicants were convicted of acts which constituted “large-scale misappropriation or embezzlement with abuse of position committed by an organised group” (Article 160 § 4 of the Criminal Code) and “large-scale laundering of money or of other assets acquired as a result of commission of crime, with abuse of position and committed by a group acting in concert” (Article 174.1 § 3 of the Criminal Code) (see paragraph 334 of the judgment).

Before the domestic courts, the applicants argued that there had been no “misappropriation”, since that crime implied the “stealing” of other people ’ s property entrusted to the culprit, and “stealing” meant, according to footnote 1 to Article 158 of the Criminal Code, the “unlawful and uncompensated” taking and/or appropriation of another ’ s property to the benefit of the culprit or of other parties, thereby causing damage to the owner or to any other possessor of the property (for the content of Articles 158 and 160 § 4, see paragraphs 388-89 of the judgment). In particular, the applicants argued that the oil allegedly “stolen” from the Yukos production entities had never been physically appropriated by the applicants (see paragraph 181). Moreover, the oil had been sold by the Yukos production entities to the Yukos trading companies at prices that corresponded to the prices prevailing in Russia at the time (see paragraphs 183-85). Finally, the lawfulness of the agreements between Yukos and the production entities, as well as of the contracts for the sale of oil concluded on the basis thereof, had been ascertained in dozens of lawsuits before commercial courts (see paragraph 190).

The Khamovnicheskiy District Court of Moscow dismissed the applicants ’ arguments. It found that, while the applicants had not been charged with physical theft of the oil extracted and refined by the production entities, these entities had lost profits as a result of the misappropriation of oil profits in the applicants ’ interests (see paragraph 300 of the judgment). The agreements between Yukos and the production entities had been approved by the general meetings of shareholders, but those approvals had been “obtained through deceit and manipulation” (see paragraph 301).

The following paragraph of the present judgment deserves to be quoted in full, as it explains who, in the opinion of the domestic court, suffered losses, and why these losses amounted to a deprivation of property:

“The [Khamovnicheskiy District Court of Moscow] considered that the applicants did not employ the system of transfer pricing, but that they simply forced the production entities to sell their oil for artificially low prices, which resulted in a reduction of the profits for the production entities and, in turn , deprived the minority shareholders, including the State itself, of their dividends . The fact that the production entities received payments for the oil did not mean that there had been no misappropriation; this legal concept also covered situations where misappropriation of property is followed by inadequate compensation for that property” (see paragraph 303 of the judgment; emphasis added).

On appeal, the reasoning of the first-instance court was upheld by the Moscow City Court (see paragraphs 336-40).

3. Before the Court, the applicants argue that, since the transfer of oil from the Yukos production entities to Yukos Trading companies had taken place pursuant to lawful purchase-sale transactions, such transfer could not in principle amount to “unlawful uncompensated taking and/or appropriation of another ’ s property” (see paragraph 561 of the judgment). Nor, in their submission, did the production entities suffer any damage or losses, since they all had made a profit from the sale of oil (see paragraph 562). Lastly, they argued that the property had not been “entrusted to the culprit” (see paragraph 563).

4. The question raised by the applicants ’ complaint is that of the degree to which domestic courts can interpret a provision of criminal law in order to conclude that a given form of conduct falls under that provision.

The majority admit that “the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition” (see paragraph 569 of the judgment, referring to Del Río Prada v. Spain [GC], no. 42750/09, § 93, ECHR 2013). And further, “Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen” (ibid.; see Del Río Prada , cited above, § 93, and Vasiliauskas v. Lithuania [GC], no. 35343/05, § 155, ECHR 2015).

The question therefore is whether the domestic courts ’ interpretation of the terms “misappropriation or embezzlement”, used in Article 160 § 4 of the Criminal Code, was “consistent with the essence of the offence” and “could reasonably be foreseen”.

5. The majority accept the applicants ’ first argument. In substance, they consider it inconceivable that “a reciprocal transaction that is valid under civil law can amount to ‘ the unlawful and uncompensated taking ... of another ’ s property ’ ” (see paragraph 581 of the judgment). In this respect, they refer to the Constitutional Court ’ s ruling no. 1037-O-O of 2 July 2009, pronounced on the complaint brought by the first applicant, in which that Court excluded the possibility of bringing criminal charges in respect of “lawful” civil-law transactions (see paragraphs 403 and 581). For the majority, to hold that a contract which is lawful under civil law could be recognised as the criminal offence of “stealing” would “amount to an untenable position capable of leading to arbitrary consequences” (see paragraph 582).

6. With all due respect, we do not see the difficulty.

In our opinion, a contract can be valid under civil law and still be a means by which a criminal act is committed. It is the context of the transaction that matters. In the case of the applicants, as was found by the domestic courts, the contracts in question were used to drain oil at a low price (about half of the market price) from the Yukos production entities to the Yukos trade companies, the latter being located offshore and controlled by the applicants. The oil was subsequently sold at the real market price to end-customers. The minority shareholders in the Yukos companies were not aware of the overall structure of the activities. The full picture, including the “sham” character of the agreements held to be valid by the commercial courts, became clear only later.

There is nothing wrong with the domestic courts ’ assessment finding that the agreements, although approved by the general meetings of shareholders, constituted the means by which criminal offences were committed, having regard to the fact that “those approvals were obtained through deceit and manipulation” (see paragraph 301 of the judgment). “Deceit” may not feature as a qualifying element in either the offence of “misappropriation or embezzlement” or in the offence of “stealing” (see paragraph 583), but this does not mean, in our opinion, that the domestic courts were not entitled to refer to the existence of deceit as a feature that could transform an otherwise valid agreement into an element proving the existence of conduct that had to be characterised as “misappropriation or embezzlement” or “stealing”.

In short, we do not consider that the courts ’ interpretation of the notions of “misappropriation or embezzlement” or “stealing” was inconsistent with the essence of these offences or could not reasonably have been foreseen.

7. What seems to distinguish our approach from that of the majority is the angle from which the impugned agreements are considered.

The majority seem to limit their assessment to the particular transactions concluded through the various agreements involving the sale of oil from the Yukos production entities to the Yukos trading companies (see paragraph 578 of the judgment). They do not examine the applicants ’ “entire economic activity” (ibid.). Incidentally, this explains why they do not exclude the possibility that the acts imputed to the applicants are punishable “under a different provision of the Criminal Code” (see paragraph 583).

The majority ’ s approach is, in our opinion, too restricted. It seems to be based on an understanding of the notion of “stealing” as a rather instantaneous act.

The domestic courts adopted a broader approach, involving “reassessment of the applicants ’ entire economic activity” (compare paragraph 578 of the judgment). In this assessment the impugned agreements were seen as part of a scheme set up to deprive the minority shareholders of the dividends that would normally have been theirs. It is for the domestic courts to assess the facts and to interpret the provisions of domestic law. We see no reason to question their broader approach to the facts. Equally, we do not find that their interpretation of the relevant provisions of the Criminal Code amounted to an excessively extensive interpretation.

8. For the above reasons, we consider that there has been no violation of Article 7 of the Convention. The applicants could have foreseen that their operations amounted to misappropriation or embezzlement, and, in consequence, to money laundering.

In fact, they tried by all means to keep the true nature of these operations hidden (see paragraphs 126-28 of the judgment). This is for us quite telling.