The lawyer is interviewed by Deutsche Welle

In an interview with the German radio station, Mikhail Khodorkovsky’s lawyer, the well-known defence attorney and chairman of the Russian committee for Human Rights Yury Schmidt, says that no matter what the obstacles the case against his client will be examined according to the letter of the law.

Deutsche Welle: What stage has the case against Mikhail Khodorkovsky now reached?

Yury Schmidt: Since February 2007 we have been reading through the case materials in Chita. This is a normal stage in any criminal case. When the investigators consider that they have completed their work they must present all the materials to the defendant and his attorneys and confirm in writing that this has been done before the case is passed to the court.

During this process of familiarisation the defendant and his attorneys are not just reading through volume after volume of documentation. We have submitted certain petitions and, when necessary, have formally complained about the actions of the investigator, even taking the matter to court if need be. Since the selection and extension of the measure of restraint imposed on the defendant is today the competence of the court, the investigating team must periodically apply, once every three months, for a prolongation of our client’s detention in custody.

Naturally, we take part in the judicial examination of the case that follows and then submit official complaints and appeals. The process of familiarisation, therefore, is accompanied by many other forms of activity. In short, it is a major analytical and procedural task.

DW: The complaints and appeals that you recently submitted were rejected. What was the reason?

Almost all the appeals and complaints we put forward are turned down because the judges working on the Yukos case are under direct orders from the Kremlin. I would say that they merely give a juridical form to the decisions that have been passed on to them.

So when our appeals are yet again turned down but are not surprised and can only joke with sadness about the motivation behind such refusals. At times you cannot but be amazed by the inventiveness of those who formulate these “rejections”. In most cases, however, it is a member of the investigating team who, on behalf of the court, draws up the decision they need since the judges not only have no wish to get to grips with the issues, but are incapable of doing so.

For example, when we submitted our last complaint about the unlawful actions of the investigation in Chita it was clear that neither the judge nor the local prosecutor had any understanding of what lay behind the matters we raised. They even adjourned for two days during which more competent individuals aided the prosecutor to prepare his concluding statement and the court, its ruling.

The surprise comes not when our appeals are rejected but when we unexpectedly find support. The most extraordinary such instance was in February 2007 when the Basmanny district court in Moscow issued a ruling that the deputy prosecutor general had taken an unlawful decision when he decreed that the preliminary investigation of the new case could be conducted in Chita. We were not taken by surprise: it’s fair to say we were astonished. Even today we still do not understand why it happened. Was it linked to some uncertainty in the Kremlin elite, which is always in a state of muted struggle? Or did instructions arrive too late, leaving the court to act, for once (and as an exception), in accordance with the law?

It was only a month later when this ruling acquired legal force that we began to believe that Mikhail Khodorkovsky and Platon Lebedev would be transferred to Moscow. Especially since the investigation was, in practice, being conducted there. We had under-estimated the resources of our opponents, however. For eight months, with flagrant disregard for the law, the prosecutor general’s office refused to implement the Basmanny court ruling and, finally, had it revoked by the Supreme Court. At the end of January 2008 the same district court in Moscow issued a quite opposite ruling.

Who in the Kremlin is taking the decisions about the Khodorkovsky case?

We know exactly who our main opponent in the Kremlin is, the man who also keeps the Yukos affair on the go. It is Igor Sechin, who combines being deputy head of the presidential administration and board chairman of Rosneft. It was, incidentally, Rosneft that acquired the greater part of the assets of Yukos in a swindle. According to our information it is also Sechin who is giving Putin inaccurate information, both about the Khodorkovsky case and about our client, attributing actions to Mikhail Khodorkovsky that he has never committed, and intentions that he never nourished – even plans to replace Putin in the Kremlin, which is utter nonsense.

Have you managed to secure rulings in your favour in response to any other complaints?

We have had localised triumphs when, for instance, we managed to get a reversal of a number of unjust punishments imposed on Khodorkovsky when he was in the penal colony at Krasnokamensk, which resulted in the abolition of certain internal rules of that and other such institutions. Those were also individual instances, however, for which the judges had clearly received no special instructions and could therefore be guided by the law. As concerns the rulings that influenced the fate and direction of the case itself, these were all negative.

For example, our last complaint contained a request that the investigation include in the case documentation an entire series of material and written evidence that was essential for the defence but had been confiscated during searches and now lies somewhere in the bowels of the Investigative Committee. I’m referring to financial documentation preserved on both paper and in electronic form. Anyone can see that full documentation must be available in cases concerning alleged financial machinations, if an objective picture is to be created. The investigators have no need of such a clear picture. The entire process of investigation has been a one-sided affair. The prosecution has feared that the court might recognise even the most petty infringements that have been committed since the investigators in charge know very well that if their case begins to unravel, everything else will fall apart.

What’s the mood in the Russian judicial system now? Do you have the feeling that everything is working towards an extension of Mikhail Khodorkovsky’s term of imprisonment?

The mood of the Russian judiciary is today defined by its true position within the current power structure. Over the last eight years, especially since 2002, the first shoots of independence that our courts began to acquire during the now much-accursed Yeltsin years were thoroughly crushed. Today the courts are once again dependent on the executive but not quite in the way that was true of the Soviet period: then it was a matter of total control by the State, structurally, organisationally, and in accordance with the “Party line”. Judges who rashly strayed away from that line lost not only their jobs but also their membership of the Communist Party, the equivalent of civil execution. Today that total dependence no longer exists and the authorities have no need for it. For special cases, such as that of Yukos, special judges can always be found.

When I describe the situation in Russia’s courts to my foreign colleagues they often ask: But does the law function in Russian courts today? It does, I answer, with the exception of cases affecting the political authorities. Then corruption takes over. If you want a diagram to illustrate what I’m saying, then picture a circle divided into three sectors. The largest, probably, are those cases where corruption decides the outcome. However, a second sector of cases where political interests decide the outcome is already clearly distinctive and has been growing markedly in every recent year. Even here, though, the Yukos affair has no analogy in the history of Russia’s judicial system since the 1930s.

What has the defence team done to involve the European Court of Human Rights?

The answer to that is documented on the internet. Mikhail Khodorkovsky requested that his defence attorneys refrain from commenting on this subject since, as he has repeatedly said, he wants to secure justice in his own country. For that reason he preferred to be a political prisoner rather than a political refugee. He is convinced that, sooner or later, he will attain this goal. If it does not happen sooner then, regrettably, it must be later. The only question is the price he must pay in personal suffering.

This year he will be 45. His health is pretty good. He has a strength of will and spirit that anyone might envy. So I have no doubt that he will live to see his case re-examined according to legal norms. However, his parents are elderly and unwell and they also would like to see that day. On one occasion his father Boris and I made a pact that he would definitely live long enough to see his son a free man. That would be a good thing … It’s clear that, given the political system which has today taken shape in Russia, it is impossible to speak of a judicial system. Perhaps the present regime would like to rule the country forever. That’s not possible.

Did Khodorkovsky have the chance to leave the country? And if so, why didn’t he take it?

The Yukos case was initiated, officially, in June 2003 although the preliminary skirmishes started before that. Premises were searched, documents confiscated, and then Platon Lebedev was arrested. After that a decree was placed on the website of the Prosecutor General’s office stating the accusations being made against Lebedev, and from the text it followed that all his “crimes” were committed as part of a conspiracy involving Mikhail Khodorkovsky and other Yukos employees.

This was done with the clear aim of frightening those running the company and forcing them to emigrate. One of the main aims being pursued by the authorities, it was clear, was to take over Yukos — which would be much easier to do in the absence of its shareholders and managers. They did not then risk imprisoning Khodorkovsky, however much many in the Kremlin may have wanted to do so.

Making a sober assessment of the situation that had developed around Yukos, a sizable proportion of its employees took refuge abroad. Khodorkovsky did not go. To be more exact, he did make one trip abroad but he came back, knowing quite well that arrest, investigation and a trial would await him in Russia. That’s how someone who might have lived a comfortable life in any country, who might have bought his own island in a warm sea somewhere (so to speak), found himself first in the Matrosskaya Tishina prison on Moscow and then in a penal colony on the borders with Mongolia and China.

Having made such a strange choice, for the majority of “normal” people, Khodorkovsky today says that he does not regret it and if he could now return to 2003 he would again behave in the same way. Regrettably, many people in Russia who have been brainwashed and turned into zombies by the blanket Kremlin propaganda do not know that he made such a choice.

But you cannot deny that it is not possible to make such a fortune as Khodorkovsky’s by working legally?

Our people have been persuaded that men like Mikhail Khodorkovsky robbed them, took State property and paid nothing for it, after which the money just flowed of its own accord into their pockets. Few understand the condition of the Russian economy at that time, including the oil industry which is a source of major government revenues.

The infrastructure was destroyed, the level of production had declined catastrophically, and, on top of that, the price of oil was ten times (10 times!) lower than at present. The costs of extraction were barely returned by sales of oil. The Russian State, meanwhile, was up to its ears in foreign debt and owed the population vast amounts in unpaid wages and salaries, pensions and benefits. We can discuss the injustice of the privatisation process, that the real value of the privatised enterprises (even in their then derelict condition) was greater [than their selling price]: it cannot be denied, however, that it was the new and effective owners who managed to revive the Russian economy. While people who already had the necessary basic capital and could have offered a better price somehow did not then show their faces.

Few know how much energy and efforts Mikhail Khodorkovsky invested in the revival of Yukos. For several years he only made brief appearances in Moscow, spending almost all his time in Siberia, the North and other remote areas. Over a period of five years the company renewed its infrastructure, located new oil fields, and doubled (!) the level of extraction which, previously, had been in steady decline. Then oil prices shot up, although they were then still far their present levels: when Khodorkovsky was arrested the price was a little more than $20 a barrel. Naturally, the capitalisation of the company and the value of its shares increased many times over. The value of the shares held personally by Khodorkovsky explain the billions that Forbes attributed to him shortly before his arrest.

A year ago in conversation with Elena Bonner, the widow of Andrei Sakharov, I cautiously drew a parallel with between Mikhail Khodorkovsky and her late husband. They had both sacrificed their personal well-being and condemned themselves to the fate of outcasts in the name of high principles. In reply Bonner said that I could freely make such a comparison and that the sacrifice Khodorkovsky was making had proved, in the end, to be more onerous.

What kind of person is he? What goals has Khodorkovsky pursued in his life?

He is one of the most striking and outstanding people I have met in my life. During the first trial he several times said that he was not interested in money. That may sound paradoxical but it’s true. We know how scornfully people in Russia regard Abramovich with his mansions, yachts and football clubs. Khodorkovsky had nothing of the kind since his motivation and outlook on life were quite different. He lived very modestly. The investigators made great efforts but could find no items of luxury, no properties abroad because they simply did not exist. For him work itself was his source of self-fulfilment and it gave him the chance to do what he considered important, and do so better than others. Khodorkovsky donated a vast amount of money to projects that were of use to society as a whole, and to charities. This is unusual in Russia although it’s the norm in the West — one only has to recall Bill Gates or Warren Buffett. Mikhail Khodorkovsky spent large sums on financing opposition parties and this is one of the main complaints the authorities held against him. He gave such money to political parties, moreover, openly and publicly.

Why should a businessman with a vast fortune finance the political opposition? Is that not the kind of link between business and power that is termed political corruption?

If Khodorkovsky had been pursuing selfish goals then he would have financed the party in power, not the opposition. None of the parties, not the Union of Right Forces, Yabloko or the Communist Party — even if they were taken together — had real prospects of winning a majority of seats. Not to mention that they could not have united under any circumstances. Khodorkovsky merely understand better than many the importance of an effective opposition and the danger of a one-party Duma which is “no place for discussion” as Boris Gryzlov [Duma speaker] said with astonishing accuracy (though obviously not appreciating the true significance of his words).

Why has corruption attained such levels in Russia? Because we do not have mass media that offer a countervailing pressure. Because we do not have a full-blooded political opposition that, by definition, should constantly criticise the authorities, an opposition to which people may turn if officials and special services do not take the necessary measures. It was when the opposition was “closed down” in Russia that these negative processes became rampant. Criminality and corruption moved into another league. I would say that Khodorkovsky’s influence on Russian political life was an expression of his concern for the way the country is run.

In your opinion, is there a threat to the life and health of Mikhail Khodorkovsky?

I hope not. When he was in the penal colony at Krasnokamensk he managed to establish normal relations with the other prisoners. The only conflict was when one of the inmates struck him in the face with a knife during the night. I would hesitate to call that the result of evil intentions by the authorities: more likely it was the act of a psychologically unbalanced individual. Though there is one odd feature to the event. How could he have concealed three knives in the barracks where they both lived? Why were they not found during the regular searches? I would like to think that Mikhail Khodorkovsky’s security is also guaranteed by the attention focussed on his situation by Western statesmen and public opinion.

Vladimir Sergeyev was the interviewer, 18 March 2008