Moscow City Court rejects appeal on a point of law by the defence team

Today the bench of the Moscow City Court declined to make any amendment to the 30 January 2008 ruling of Basmanny Court Judge Mushnikova.  The Moscow City Court rejected an appeal on a point of law by the defence team of Khodorkovsky and Lebedev, and also by Lebedev individually, which argued that the ruling appealed against was unlawful, had no basis in law, and had not been explained.

The primary cause of today’s hearing was a finding by the Basmanny Court of 20 March 2007 when Judge Yarlykova declared unlawful and without any legal basis the ruling of Deputy Public Prosecutor Grin that the preliminary investigation should be conducted in Chita. The Public Prosecutor’s Office, its plans in disarray after this unanticipated ruling, unleashed a veritable campaign against it.  As Attorney Konstantin Rivkin remarked today, “Probably no other case has been subjected to such a furious attack from the Public Prosecutor’s Office.” Having suffered a succession of notable defeats in the courtrooms of the Moscow City Court, on 25 December 2007 the Public Prosecutor’s Office finally obtained a ruling in its favour after a submission for review to the Supreme Court, where Judge Yarlykova’s finding was overturned and the case sent back for reconsideration by the Basmanny Court.

This time the case came before Judge Mushnikova who rejected the defence team’s appeal on technicalities. On 30 January Judge Mushnikova wrote in her ruling, “... the court finds no grounds for the contention that the ruling complained of detracts from the constitutional rights of the accused Lebedev and Khodorkovsky or restricts their access to justice”. The judge chose not to respond on the issue of the legality or otherwise of Deputy Public Prosecutor Grin’s ruling, but merely stated that the defence could not appeal against it since it did not violate the constitutional rights of the accused.

The matter at issue on today’s listing of the Moscow City Court was, however, precisely the legality and basis in law of Mushnikova’s ruling. Deputy Public Prosecutor Grin’s ruling was not itself under threat today. The worst that could have happened for the Public Prosecutor’s Office was for the case to have been referred back to the court of first instance.

Platon Lebedev’s attorney Elena Liptser emphasised that none of the judicial instances which had considered the matter prior to Judge Mushnikova had had any qualms about the legal basis of the attorneys’ appeal itself, and even the Supreme Court, when overturning Judge Yarlykova’s finding, made no reference to whether or not the constitutional rights of Khodorkovsky and Lebedev to legal defence had been violated.

In the opinion of Attorney Konstantin Rivkin, “Mme Mushnikova has by her finding declined to fulfil her direct professional obligations” since, and here Attorney Rivkin quoted a directive of the Constitutional Court, “failure to take measures to detect and remove violations of rights and freedoms, especially in cases where it is impossible for them to be restored subsequently, is to be seen as a failure on the part of the state and its institutions to fulfil their constitutional obligations”.

The defence was particularly incensed by the startling failure of Judge Mushnikova to provide any argumentation in support of her ruling. There was supposedly no detraction from the constitutional rights of the accused, and that’s it! (The attorneys believe this lack of argumentation has been rivalled only by the analogous omission in the ruling of Deputy Public Prosecutor Grin.) “This sort of unargued response is not only a violation of rights, it is downright offensive,” Attorney Yury Schmidt expostulated.

The attorney then yet again informed these judges of the Russian Federation that not a single witness had been questioned in Chita, not a single document called for, that there was not a single piece of evidence there, and that it was impossible in Chita to deliver a full, objective investigation within the statutory time limits. Attorney Schmidt then went on to inform the bench what they could expect from Prosecutor Valerii Lakhtin, who was present in court: “We invariably hear the same thing from him.  You are about to be told that the decision to shift the location of the investigation was taken purely in the interests of Khodorkovsky and Lebedev (...), to ensure that their access to justice was as speedy as possible.”

Unsurprisingly, Valerii Lakhtin saw no problem in the lack of argumentation in Judge Mushnikova’s ruling. Even more predictably, it was asserted that Deputy Public Prosecutor Grin’s ruling, which for some reason the prosecutor called “guiding, auxiliary, but not definitive”, was “fully in accord with the requirements of the legislation on Criminal Procedure”. Lakhtin then did his utmost to ensure that Yury Schmidt’s prophecies came to pass.

In the fifth minute of his speech the prosecutor said, “It is precisely because the accused Khodorkovsky and Lebedev are in Chita that the preliminary investigation can be full and objective”.  In the fifteenth minute he said, “The fact that Khodorkovsky and Lebedev are both in the same place, in Chita, made it possible to move the investigation of the present criminal case in order to complete it”. In his last minute Lakhtin added that, “The ruling of Deputy Public Prosecutor of the Russian Federation Grin does not restrict the access of the accused and their defence team to justice;  on the contrary, it facilitates the speediest possible bringing of the present criminal case to court”.

After conferring among themselves for 15 minutes or so, the bench of the Moscow City Court resolved that the rulings of the Basmanny Court of 30 January should be left unaltered and Judge Mushnikova’s ruling came into legal effect.

Whether it is worth lodging an appeal for review of today’s decision of the Moscow City Court will be decided by the attorneys after consultation with their clients.