He denounces investigatory actions before accusing (Yu.Schmidt's statement)

APPLICATION

1) You have in your dossier criminal case No. 18/41-03, pursuant to which it has been declared to my client M.B. Khodorkovsky that he is suspected “of having committed in the period of the years 2002-2003 in the makeup of an organized group legalizations of monetary funds obtained as the result of the sale of stolen property – the crude oil of the production enterprises OAO «Tomskneft» VNK, OAO «Samaraneftegas», [and] OAO «Yuganskneftegas» by way of their transfer to the account of ROO «Open Russia» at the bank «Trust» on the basis of donation agreements”.

Having declared Khodorkovsky a suspect, the investigation has begun to present him documents for study: orders on the appointment of forensic expert examinations and the results thereof, carried out back in 2004-2006 in respect of other cases, the connection of which to the criminal case separated out in respect of Khodorkovsky and to the suspicion indicated above is absolutely unclear the majority of the time.

The most guarantee of the constitutional right to a defence, and one of the fundamental rights of an accused in the Russian criminal process, is the right to know the charges against him.

The European Convention for the Protection of Human Rights and Fundamental Freedoms requires that every person accused of having committed a criminal offence be informed promptly and in detail of the nature and cause of the accusation against him (Art. 6 para 3 (a)).

Art. 198 of the Code of Criminal Procedure of the RF grants an accused considerable rights during the appointment and conducting of forensic expert examinations. The absence of specific and comprehensible charges essentially deprives him of the opportunity to exercise these rights. In presenting the documents enumerated above, the investigation is formally carrying out the duties imposed on it by law, but for Khodorkovsky, to study them at the current stage is a thoroughly senseless exercise.

2) For more than a month, Khodorkovsky has been located in investigative isolator of the city of Chita, to which he had been transferred on the basis of your order of 14.12.2006, and where the investigative actions indicated above are taking place.
Pursuant to Art. 152 of the Code of Criminal Procedure of the RF, a preliminary investigation shall be performed at the place where the act containing elements of a crime was committed. As has been indicated above, Khodorkovsky is suspected of having committed operations for the legalisation of monetary funds. From all the documents presented to us it is perfectly clear that the city of Chita is not the place where the given crime was committed. Carrying out a preliminary investigation and holding Khodorkovsky in the investigative isolator of the city of Chita are devoid of a legal basis and are clearly and manifestly arbitrary behaviour. The investigation that the Procuracy-General of the RF is performing must be carried out in the city of Moscow. And if it considers it necessary and has a legal basis to hold Khodorkovsky in an investigative isolator (for now, such a basis has not been presented to us), this can be only an isolator of the city of Moscow.

3) I appealed your order on the transfer of Khodorkovsky to the investigative isolator of the city of Chita to the Basmanny Court of the city of Moscow on 09.01.2007. Pursuant to Art. 125 of the Code of Criminal Procedure of the RF, the court was supposed to review the legality of and grounds for the decision adopted by you during the course of 5 days; however, for inexplicable reasons, my appeal is not being examined for more than 2 weeks already and I have not received notification of the appointment of the case for a hearing.
Also not received by me is a reply to an appeal addressed to the Procurator-General of the RF, in which I insist that Khodorkovsky’s rights be observed and, in particular, that the preliminary investigation be carried out not in Chita but, as is laid down by the law, in Moscow.

4) I assert that the placement of Khodorkovsky at the given stage of the process in an investigative isolator is not called for by any procedural necessity, for evidence of which we need look no further than the very character of the investigative actions being conducted with him. At the same time, this transfer deprives him of those rights and relative – in comparison with being in a SIZO – degree of freedom that the Code of Criminal Procedure grants convicts. Holding him in the investigative isolator of the city of Chita, on the other hand, introduces additional limitations, infringing on even those rights that he could have had in his current status pursuant to the Federal Law “On Detention of Persons Suspected and Accused of Having Committed Crimes”. In particular, he essentially can not make use of the right to short-term visitations (Art. 3 para 18 of the indicated law), in light of the significant remoteness of Chita from the place of residence of his kindred.
The arbitrary behaviour once again being perpetrated in respect of Khodorkovsky by the hands of the Procuracy-General is yet another stage in the power’s lynching of a political opponent. Understanding this, he has instructed his defenders to declare that he refuses to participate in further investigative actions, at least until he is presented with specific and comprehensible charges, and he himself is transferred to an investigative isolator of the city of Moscow.

5) I think you know very well that regular journeys to Chita present no small difficulty for the defence lawyers, including problems with the acquisition of air tickets. Also no secret to you is that a distribution of duties has been carried out among Khodorkovsky’s lawyers. In connection with this, it is not enough for us to be [merely] notified of the next date for the conducting of investigative actions with our client. As long as the preliminary investigation is being conducted in the city of Chita, it is also necessary for us to know sufficient ahead of time about the character of the intended actions. This will help us to plan our journeys [and] acquire tickets in advance, thereby ensuring the timely appearance of precisely those lawyers who are required by Khodorkovsky for participation in a specific investigative action.

I attach copies of the appeals directed by me on 09.01.2007 to the Procurator-General of the RF and to the Basmanny Court of the city of Moscow to this application for attachment to the criminal case materials.

25 January 2007

lawyer Yu.M. Schmidt