Defence Attorney Yury Schmidt responds to our questions.

Today Mikhail Khodorkovsky has served half the sentence imposed by the court in 2005. Has his defence team already prepared an application for his release on parole?*

From a legal point of view it is not a complicated document and can be drafted in a couple of hours. You may consider the application is ready. There remain certain nuances, however. Parole has never been granted, as far as I can recall, after a new measure of restraint is imposed on a person facing fresh charges. Even if the court grants Mikhail Khodorkovsky parole this will not mean, therefore, his immediate release from custody. Though, personally speaking, I have no doubt that he is entitled to parole: whether he is in a prison camp or held at the pre-trial detention centre, whether or not he faces new charges.

In February when the Prosecutor General’s office made public the new charges of embezzlement (misappropriation), the claims implied that everything Yukos had earned as a company — or almost everything — had been stolen. Then the figures were even revised upward. Is anything happening to those sums now? Has a final figure been decided that accounts for every last kopeck?

Several times we attempted to determine the true figure. On each occasion we reached different results because the investigators had themselves got in a tangle with their sums. There was a disparity of several billion dollars though that makes no difference to the basic charge.

Without getting caught up in detail or troubling themselves with unnecessary calculations, the investigation alleges that Khodorkovsky and Lebedev stole everything. Let me emphasise: they are accused of stealing all the crude oil, extracted by companies that formed part of Yukos for a period of six years, as soon as it left the wells. Moreover, “a part of the funds” earned from the sale of this misappropriated oil was diverted to “support production with the aim of further embezzlement”. That is what the charge sheet says. In all my many years as a lawyer, it is the first time I’ve encountered such a brazen and extraordinary way of formulating a charge. When Mikhail Khodorkovsky finished reading this accusation he described it as insane. I wholly agree.

What about the charges of money-laundering? How do you assess those accusations?

The accusation of legalization (laundering) appears quite as crazy as that of misappropriation. By definition money-laundering means giving a legitimate and lawful appearance to something of value that has been acquired by criminal means. For instance, money obtained by drug-trafficking or gun-running is laundered through a legitimate enterprise and the end product is clean money, obtained from a legal source. In our situation there was no need to launder anything since all the money in the possession of Yukos and its shareholders quite obviously came from the sale of oil. In other words, the source of these funds was known, it could not have been concealed and there would have been no point in doing so.

During the last few years Russian law enforcement has been applying law in an arbitrary and selective fashion. At the same time, one has the impression, our legislators are deliberately creating laws that offer a wide opportunity for such loose interpretation. This is one of the cudgels with which the law-enforcement agencies threaten us. If the accused behaves himself we’ll only invoke one law; if not, he’ll face the full arsenal.

In this case the pointless charge of legalisation was added purely to increase the punishment. Article 174:1 (legalisation) envisages a sentence of 10 to 15 years imprisonment and the crime is ranked among especially severe offences for which parole is eligible only after two thirds of the sentence have been served. A second aim is to discredit the defendants as much as possible in the eyes of the world.

Why bring such deliberately fantastic charges? Why not come to court with more realistic figures?

The more fantastic the sum, the greater the impression on those who cannot make up their own minds. People listen and say, Well okay, there’s been a little exaggeration: maybe it wasn’t 30 billion but perhaps they stole half that sum? And that is what sticks in the minds of the great majority. Our present rulers have studied the methods of Goebbels and the Soviet school of propaganda (there was little to chose between them) and they apply those lessons with success.

How long would these charges stand up in an independent court?

In a country where the judicial system is independent, and that includes both the preliminary investigation and the judicial review, this case would simply not have come to court.

We are firmly convinced that if we gain access to all the accounts and audits that were presented to the monitoring and supervisory bodies throughout the entire active existence of Yukos, then income and expenditure would tally down to the very last kopeck. The confiscated paper records of the company’s finances weighed tons. There are 130 files of documentation for this case, which is the equivalent of less than one day’s financial records for Yukos, as kept on paper. The investigation has adopted a very selective approach in compiling the documentation for this criminal case. Since Russian courts do not operate on the presumption of guilt, the absence of documentation works in favour of the prosecution. Our work, therefore, at this stage is to a great extent exploratory: we have to make good the missing evidence by tracking down documents, with considerable difficulty, in media archives and the records of companies that had dealings with Yukos. We have prepared a petition, listing the most crucial documents we require, but are convinced that it will be declined.

On 5 March 2007 Vladimir Malakhovsky and Vladimir Pereverzin were given lengthy prison sentences by the Basmanny district court, as part of the Yukos case. Many episodes from their case correspond to episodes in the new charges against Khodorkovsky and Lebedev. The court that tries Khodorkovsky and Lebedev will be able, without going into detail or re-examining the evidence, to recycle those charges which coincide. Have you thought how you will confront this prejudice?

We have already tried to fight against it. We submitted a complaint about the unlawful division of criminal cases. We even attempted to lodge an appeal on behalf of Khodorkovsky and Lebedev, concerning the case against Malakhovsky and Pereverzin. The appeal was rejected, however: such objections are only accepted from the participants of a trial, and Khodorkovsky and Lebedev were not taking part. The lawyers defending Malakhovsky and Pereverzin petitioned the appeals tribunal of the Moscow City Court to include these appeals and to call Khodorkovsky and Lebedev as witnesses. But all this was rejected. Why should the investigation analyse their depositions and seek arguments to refute them when it’s possible to create such an illegal prejudice and, without listening to anyone or examining any details, use it as the basis for a new sentence?

How could Khodorkovsky and Lebedev be convicted for tax evasion and now find the same episodes forming the basis of the new charges of misappropriation?

In the previous case the use of trading companies, registered in tax havens, to sell oil was qualified as tax evasion. For our part, we asserted that this was a legal activity, recognised throughout the world, that aimed at minimising the tax burden and did not contradict a single Russian normative act then in force.

Today the same type of episodes have been given a quite different legal qualification. Now they are considered as theft of all the oil that passed through the books of those companies. We assert that a fundamental legal principle is being violated in the Khodorkovsky case: you cannot be punished twice for the same offence, non bis in idem. The investigators are not actually citing the same episodes they named as tax offences but today they qualify entirely analogous episodes as misappropriation.

The case has been handed over to the Investigative Committee at the Procurator General’s office. Karimov has been replaced as the head of the investigative team by Drymanov. Has something changed during the course of these upsets?

Nothing whatsoever. So far as I can understand, it is a consequence of intrigues within Putin’s entourage. When Putin pushed out Ustinov, the previous Prosecutor General, he struck a quite painful blow against his own aide, Igor Sechin. With the creation of the new Investigative Committee, which has weakened the present Prosecutor General Yury Chaika, Sechin struck back, it seems. Samson’s head was not shaved but it now has many bald patches. Neither Bastrykin, head of the Investigative Committee, nor Chaika will wield as much influence as the former Prosecutor General. Instead of one powerful man you have two weak figures. Both are dependent on the Kremlin administration, however, and on the president since he nominated them.

As for Drymanov, his first act on taking control was to turn down our petition for investigative activities to be held in Moscow. One could say that this refusal was a copy of those we received earlier at the hands of Karimov. Naturally, we requested that Drymanov be taken off the case, and shall demand that criminal proceedings be opened against him for the wilful failure to implement a court ruling that has acquired lawful force [Note: The investigators have ignored the 20 March 2007 ruling of the Basmanny district court, that procedural actions should not be conducted in Chita].

Tell us about the defendant’s familiarisation with the case documentation.**

As a rule, this takes place from 10 am to 6 pm in the Chita Region prosecutor’s office, in a room without windows. As previously, when Khodorkovsky and Lebedev are driven there, all traffic on the adjacent streets is halted. At least they don’t have snipers on the roof any more: that only happened during the first days.

In the room itself Mikhail Khodorkovsky sits behind a table. Opposite are a couple of chairs for his lawyers. Next to that, there is a table for the investigator. If we announce that we need to confer in private the investigator leaves the room but the two escort guards enter. They do not leave us alone together. Khodorkovsky jots down notes from the case files into a notepad. He is not allowed to use a calculator.

Where and when will the new trial begin?
Nobody knows. From all we can gather the authorities intend to hold the trial in Chita. However, they face a certain obstacle in Article 47 of the Constitution: “No one may be denied the right to have his or her case reviewed by the court and the judge under whose jurisdiction the given case falls by law.”
Today territorial jurisdiction is defined by Article 32 of the Criminal-Procedural Code, which requires that a case be examined where the crime was committed. Not so long ago, however, the Duma made changes to Article 73 of the Code, removing the provision that made it obligatory for people to serve their sentence where they were living or where the trial was held. This was to give a greater appearance of legality when they despatched Khodorkovsky and Lebedev, respectively, to prison camps in Krasnokamensk [East Siberia] and Kharp [Yamal peninsula]. Therefore, I do not exclude the possibility that they will also change Article 32 by adding some phrase that the norm is applicable with the exception of cases when, for the purposes of a certain mythical “fullness” or whatever the wording, the trial may be held “where the defendants are actually located”. And the place where they are to be located will be chosen, at his leisure, by the Prosecutor General. Formally this would not contradict the Constitution but, in reality, it will make a complete mockery of the law and human rights.

When the trial is to be held is also unknown. They are not rushing us today and do not want to begin before the elections are done. It’s already clear that the trial will not begin before elections to the Duma in December. It’s not clear whether it will have started before the presidential elections next spring.

In 2004-5 the authorities demonstrated a wish to convict Khodorkovsky at any cost. Is that wish weaker or stronger today?

It is probably just as strong but the authorities feel more confident. Formerly one could detect a certain trembling in the knees. As they have now seen, the Russian elite did not protest and the West has not reacted. Today they feel they can get away with anything. They will not hold back but punish this upstart who dared to challenge a criminal system as harshly as they can.

The defence is fighting for Khodorkovsky to be transferred to Moscow. If you win, however, he will face the type of justice dispensed by the Basmanny district court. Is the choice between two evils one of the defining traits of this case?

We nourish no illusions about the possibility of a just verdict if the case is transferred to Moscow. We are fighting for at least two reasons. One, that is what the law demands. Two, we are certain that if the case is examined in Chita it will be impossible, even formally speaking, to ensure that our clients’ rights are respected. At least, the right to defence. At present we are forced to work in shifts: some of the defence team are in Chita, while others are gathering evidence where it can actually be found, above all in Moscow. The main part of our work is here. With good reason the law requires that the investigation be conducted where the crime was committed: all the evidence is there. If the trial takes place in Chita not one witness for the defence will attend. It will be a one-sided event.

What next? How will the coming four years be for your client? What are your convictions?

Despite the absence of obvious “material” signs, I believe Khodorkovsky will soon be released. If the courts regain at least the degree of independence they had before Putin came to power, we can win this case in Russia.

What does Khodorkovsky believe?

I do not ask him what he believes. I know that he wants to secure a fair trial in Russia. He lives by that principle. That he will gain justice here, sooner or later, I have no doubt. I very much wish it could be as soon as possible.



* Here you can read about the new punishment which prevents Mikhail Khodorkovsky applying for parole


** Here you can find more information about Mikhail Khodorkovsky everyday existence in a Russian prison