Transcript of the press conference with Mikhail Khodorkovsky’s lawyers

Press conference held on Thursday 16 July in the main office of Interfax with Mikhail Khodorkovsky’s lawyers Yury Schmidt and Vadim Klyuvgant: “Recent events in the ‘Khodorkovsky affair’: is the end of legal nihilism in sight?”

Yury Schmidt: Good afternoon. I would like, as someone more widely known than my respected colleague Vadim Vladimirovich Klyuvgant, to introduce him as a man who considerably strengthens the team of Mikhail Khodorkovsky’s lawyers and is presently carrying out the role in our team of defence coordinator for the criminal case. So questions which concern the substance of the criminal case, of the second charge, should be put to Mr Klyuvgant. I will take questions chiefly about the procedural strategy.

Yesterday information was released regarding Mikhail Khodorkovsky, that he had requested his lawyers to prepare an application to the courts for release on parole. Some part of this information does indeed correspond with reality, if you discount the fact that Mikhail Borisovich has demanded nothing from us, quite the reverse, his lawyers have been persuading him of the need to exercise his legal right to be released early after applying with the appropriate petition.

We are delighted to announce that we have succeeded in persuading him, and today at 14:20 Chita time in the Ingodinsky district court in Chita a petition was submitted on behalf of the defendant Mikhail Khodorkovsky — as allowed by the law — for the legal provision for early release from the punishment imposed by Moscow’s Meshchansky district court sentence to be applied to him.

Every prisoner has the right to parole with certain exceptions specifically stipulated in the law. This is not some sort of exclusive procedure, this is not an application to request a pardon, this is not an amnesty. It is a procedure which almost all prisoners serving sentences in our country have recourse to, and more than half of them (I don’t have the exact numbers) are freed early on parole.

For the court to deliver the relevant ruling there is no requirement for any admission of guilt, or remorse, it is simply required that the person – as written in the law – through his behaviour and conscientious attitude towards carrying out the duties which the law imposes upon the convict in penal centres, has demonstrated his reformation. That is, he has shown that there is no need for him to serve his sentence further. That is all. The rest remains at the discretion of the court.

Of course, if a persistent violator of the regulations, an idler who has shown himself to disadvantage, a person regarding whom the court could conclude that he has preserved a staunchly anti-social attitude, goes to court, then such a measure will not be applied to him. In all the remaining cases, when the court has no such negative information, it is deemed that the person qualifies for early release.

And to wind up my brief speech, I would like to say that people for whom I have deep respect, such as Valeria Novodvorskaya, such as Vladimir Bukovsky in the St Petersburg weekly Delo, if I am not mistaken, have spoken out negatively about the submission of a parole application, in the sense that this involves some element of humiliation and entreaty. I assure you that there is no element of humiliation, no element of entreaty. It is no different to submitting an appeal against a sentence, it is no different to submitting a petition for the dismissal of a charge, where the person does not admit guilt. It is a perfectly normal court procedure.

We are aware that our application won’t be plain sailing. We realise that the opposition of certain persons, persons who organised both the first and the second charges against Khodorkovsky, the opposition of these persons will certainly be present.

I won’t name these persons, fortunately it happens that Mr Gerashchenko in his long interview with Novaya gazeta named practically each one of these people. Among them I will single out first of all Mr Sechin, who was an evil doer throughout the entire period. His disinformation given to the then President Putin, his denouncements acted as the last straw which decided the fate of Yukos and Khodorkovsky.

Yet nevertheless President Medvedev’s words, his policy of securing genuine independence of the courts fill us with hope, and we are very happy that these words are underpinned by real action. Today you will be familiar with concrete examples of decisions and actions in the sphere of the judicial system which a few months ago we could not have dreamt of.

With the utmost sincerity we wish Dmitri Anatolevich success, as citizens of the country, because should he succeed in achieving genuine independence of the courts, it would not just be a reform – it would be a revolution. And of course, we wish him this as the lawyers of Mikhail Borisovich Khodorkovsky too. Thank you. Now my respected colleague will speak.

Vadim Klyuvgant: Thank you, Yury Markovich. Good afternoon, ladies and gentlemen. To start with, I would like to develop somewhat the topic of today’s press conference, the question implied by this topic: will the end of legal nihilism come? You know, the Messiah, most likely, will come, we all hope for this and believe in it. The end of legal nihilism won’t come all by itself, and to sit around waiting for the repentance of the nihilist-sinners is naïve, to put it mildly.

This nihilism can only be overcome at the price of the most immense efforts, the first of which should be the personal example of the top echelons of power, and the second – the independence of the courts, and best of all, both at once. Indeed the events in our case are a dramatic confirmation of this. Judge for yourselves: the president of the country says that everything should be done by the law, by the procedures set out by the law, nobody has the right to influence the courts, the decisions of the law enforcement agencies should be legal and sound.

This was last said yesterday, with confirmation that administrative pressurising of the courts still takes place. What are the nihilists from the Investigative Committee and those who are behind them doing literally as the president speaks? They are presenting an absurd, delusional charge which could not be true. Namely: the theft of all the oil produced over a six-year period with the aid of transfer prices, which, incidentally, are used recklessly by companies today, including major state ones.

They are pressing for this charge with unbelievable tenacity, stubbornly even, not wishing to see and hear the obvious: if all of Yukos’ oil was stolen over six years – and Yukos had nothing other than oil, no other sources of income – then where did the thirty billion dollars fetched by the sale of the assets of that same Yukos, where did the assets themselves come from, if all the oil and all the income from its sale were stolen, according to the charges brought?

They brazenly, openly trample fundamental constitutional rights, including the most sacred of the sacred – the right to defence. They continue a secret investigation, inserting evidence gathered in secret into the criminal file which according to their own statements has been closed, moreover selecting only evidence advantageous to them. Other evidence that is disadvantageous they hide from the defence, from the case, from the future trial, despite the persistent calls from the defence for their inclusion. They abuse the power of “might is right” as they like, wherever they like. They falsify the evidence of the charge and the evidence of the breach of custody regulations in order to prevent early release on parole.

What is more, they play for time, waiting for a moment that is auspicious for them, for some guarantee or orders from above. Facts which confirm this claim are cited in today’s Statement, in previous statements and in personal documents released by Mr Khodorkovsky. These facts are incontrovertible. How should we view such actions in the light of the president’s demands? What is this: sabotage? A provocation? A show of power? A desire to earn brownie points from all the bosses at once? Or the reverse – confusion, an attempt to evade responsibility for the lawlessness that they have cooked up, or all of these together? Judge for yourselves, but objectively, standing on one side are the president and we – the defence (if referring to our case), and on the other side are those nihilists, who still have the power of might is right, and who use and will continue to use this right not only in order to prevent Mikhail Borisovich Khodorkovsky at any cost from being released on parole, but also for undermining confidence in the country’s president, and in his words and actions, or for attempting to do so.

What is happening in judiciary itself, of which so much is being said? We are now for obvious reasons working chiefly with the Chita courts. And this is what we see: on the one hand there are good signs, when the higher court (Chita Region Court, in particular) demands that the lower courts treat the defence in the same way as they treat the prosecution: consider all its arguments, weigh them up, respect the equal rights and competition of the parties, overturn the ruling of the district court in serious matters through our petitions, force them to reopen the proceedings again and again, as required by the law. They rub their noses in every oversight and infringement Even interlocutory judgements to the district judges are already being delivered by the Chita Region Court.

On the other hand, before me I have the ruling of that same Chita Region Court which on 11 June yet again extended Mikhail Khodorkovsky’s term of custody. For three months more, now the term will reach an outrageous length – 21 months. This is an investigative, pre-trial arrest, let me emphasise. And in this ruling, the judge of the Chita Region Court, Chizhevsky, writes precisely all the things that the Supreme Court and the Constitutional Court have repeatedly found unacceptable in justifying the question of the extension of the custodial term.


Instead of citing specific factual arguments which the petitioning party has at its disposal – that Khodorkovsky could abscond, hinder the investigation, commit a new crime – there are platitudes, circumlocution, references to the seriousness of the charge, which I have already described as absurd, insane, delusional, and so on.

Instead of accepting plainly unmistakeable things, when the detainee in custody says: I want my lawyers to be notified and you must wait five days according to the law for their arrival. This is not done, rather the judge of the Chita Region Court writes: everything is all right, there are no infringements, without bothering to offer any justification for this ruling. Perhaps judge Chizhevsky wishes to attract the attention of the Supreme Court of Russia, where we will certainly take our appeal.

What are we to make of all this? Apparently it is merely confusion, uncertainty, sitting on the fence, weighing things up, an endeavour to guess the party line and swing in its direction. And of course it is a confirmation of the president’s words about how difficult and long is the road to judicial independence. And how nothing can come about by itself. Well, of course, it is confirmation too of the supreme personal responsibility of the president of the country for everything happening in this field, which he has declared a field under his personal attention, a field under his personal responsibility. This also means responsibility for what is happening and what will happen in our case because our case – not through our doing – has become a barometer of all the ills of the justice system.

This is why a dilemma has arisen, what are we to do – simply wait for years and years, thus multiplying the years of wrongful detention in prison, or follow the president’s advice and exercise our rights and legitimate interests through standard court procedures. The decision of which Yury Schmidt spoke has been taken. It has been taken, today it has been implemented, the process has been started. The court has the opportunity to prove itself as an independent power. Or not to prove itself as an independent power. It is the same with the court’s appraisal of the illegal actions, the decisions of the investigation, which we always appeal against. To date, the court, with rare exception, has neither seen nor heard our arguments, thus condoning the lawlessness which the investigation is perpetrating. Now it has a chance to prove itself as an independent power, and here its field of operation is great. Perhaps it will prove itself, perhaps not.

Yet in proving itself an independent power, the court will be supporting the president’s efforts to eradicate that legal nihilism. We too support these efforts and wish to believe that these were not mere empty words. Thank you very much.

ANSWERS TO JOURNALISTS’ QUESTIONS

QUESTION: Among those named by Victor Gerashchenko as obstructing the Khodorkovsky case was also Vladimir Putin. Could a conflict arise over this between today’s president and the man he replaced? If, as you say, Medvedev wants to root out legal nihilism but Putin, evidently, is opposed to that approach.

Vadim Klyuvgant: I would like it noted that you were the one to say Mr Putin is an opponent. Neither am I prepared to comment on Victor Gerashchenko’s words. You must go to him for a commentary on what he said. I shall merely remind you, since eight years have now passed, that Vladimir Putin came to power with the slogan dictatorship of the law. Therefore, we very much hope that these two slogans will be compatible and the two men will pull in the same direction. Whether that’s the case we shall soon see, I think.

QUESTION: Will the whole process of pardon be instigated?

Yury Schmidt: A pardon is beyond the scope of normal judicial procedure governed by codes, it is an application made directly to the president. In accordance with the Constitution, the head of state has the right to pardon anyone convicted by the Russian courts, but when, on a number of occasions recently, journalists addressed first the former president, then the current President Medvedev, for some reason they all asked about a pardon, although there exists a judicial procedure, one we recommended that Mikhail Borisovich use, and which he is using.

I know for a fact that Mr Khodorkovsky would never, under any circumstances, have applied to President Putin for a pardon. As concerns Mr Medvedev we have not discussed this with him, therefore our task was to prepare an application to the district court with a request for parole. However, during our conversation Mikhail Khodorkovsky gave me to understand that he has no claims against President Medvedev and supposes that the reverse is also true. It was not Medvedev who put him in prison or exerted unlawful pressure on the courts; it was not Medvedev who wrecked and pillaged Yukos. So if you if you want my personal opinion I wouldn’t consider that there is any aspect of humiliation or of changing his position even in applying for a pardon. But so far there is no talk of pardons.

I am absolutely certain – and this we have discussed many times – that there is no punishment that would scare Mikhail Borisovich into admitting guilt or showing remorse for crimes he has not committed. That’s quite clear. Speaking for myself I do not exclude any of the remaining alternatives. However, that is my view and the words are mine, not those of Mr Khodorkovsky.

Vadim Klyuvgant: I would like to add a few words here, if I may. When choosing the course of action to lighten the lot of Mikhail Khodorkovsky, without a doubt, we took into account the position of the acting president of the country, who on many occasions in these answers to journalists’ and politicians’ questions has emphasised that such questions should be decided within the framework of the judicial procedures stipulated by our national legislative.

QUESTION: When exactly is the case going to be brought to court and most important, which court will be hearing the case: one in Moscow? In Chita? In some other place?

Yury Schmidt: Our opponents have been extremely impulsive, especially of late. When Vadim Vladimirovich told you how the investigation refused to respect Khodorkovsky’s legal right to be presented with the materials of the case, in the presence of those lawyers needed by him for this, it implied that the investigation only decided at the last moment to prolong the status quo for another three months.

They are obliged to present us with the case documentation no later than 30 days before the period of detention ends. This means that if that had been in their plans in May or mid-June it would not have offered them any difficulty to observe at least that formality and formally state the new charges not on 27 June but on 17 June and to hear Khodorkovsky’s own petition, and to inform his attorneys who travel to Chita and work in shifts there. The five days established by law is the minimum deadline. If I receive a request from Mr Khodorkovsky to go and visit him I can only get there five days later, and that’s supposing there are no problems with air tickets.

The investigation acted impulsively, the whole time they are clearly counting on receiving signals from above, and then they’ll get the same support which they’ve had over a period of several years. However, by all appearances, signals as clear as they were for a period of several years have not been given, and they thought it advisable to delay the investigation further. Because if the case goes to court, and the court, God forbid (from their point of view), is independent, then it won’t be Basmanny-style justice, rather it will be a truly competitive process, such as we have all dreamed of, and which President Medvedev calls us to, and then the entire case will be ripped apart. It will be reduced to dust. And the falsifiers know this frightfully well.

Indeed, if the decision is taken to send it to court, then to which one? So far they have blatantly breached the law of criminal procedure. When even the Basmanny district court ruled on 20 March 2007, to our astonishment and that of the whole world, that it was unlawful to carry out the preliminary investigation in Chita, the prosecutor’s office strove to have this decision reversed, after failing to implement it for a year (also disregard for the law and total lack of respect for the courts). Then, however, they were in flagrant violation of the Criminal Procedural Code. If they send the case to be heard in Chita that will be in direct breach of Article 47 of the Constitution. And therefore the gentlemen falsifiers today indeed find themselves in an unenviable position. Because so far you have wiped your feet all over the courts, you have wiped your feet all over the law, and you have got away with it – that’s one thing, but when the situation changes, then that gives you something to ponder. For the meantime they have bought themselves, as I understand it, three months in which to consider.

Vadim Klyuvgant: That means from the official point of view the investigation and accordingly the term of custody are extended until 2 November 2008, which however does not necessarily imply potential attempts to extend them further, nor at some point speeding up the actions or events, including those relating to bringing the case to court. We are prepared for any possibility, nothing will surprise us.

QUESTION: How long will the parole hearing take?

Yury Schmidt: The law does not set out exact deadlines for such hearings. It only sets out that within ten days from the date of taking it to court and the court sending the relevant enquiry to the corrective institution, the administration of the institution holding the person who applied (or on whose behalf the application was submitted) must present the character evidence documents and its opinion regarding this application.

QUESTION: Who now will give the character reference – the Krasnokamensk penal colony or the pre-trial detention centre?

Yury Schmidt: They will request it from the pre-trial detention centre, but they could also (it’s within their right) apply to the administration of Krasnokamensk colony. A personal file follows a person in custody throughout his relocations, therefore all the court decisions concerning the lifting of sanctions which were illegally imposed on Khodorkovsky in Krasnokamensk are all held in his file.

Vadim Klyuvgant: Today the investigative detention unit for Chita town is the place for serving his sentence, and it is also the place of custody for his second case, so everything will go there. And that’s where they’ll put together the whole package.

QUESTION: What sanctions are in Khodorkovsky’s personal file which haven’t been closed which could stop the court from releasing him on parole? And secondly: have you worked out a strategy in the event that the court does refuse your petition?

Yury Schmidt: If the court refuses to grant our petition, we will submit an appeal to Chita Region Court against the court ruling. Nothing will stop us from appealing against the ruling against us by way of judicial supervision too.

As concerns the first question. Yes, there is a sanction imposed ten days before Khodorkovsky qualified to apply for release on parole. This sanction was for allegedly not obeying the command “hands behind your back” while walking back from the exercise yard to his cell. This sanction was declared completely unlawful, for a fairly long period we pondered the question of whether to appeal against this sanction separately, as we appealed against those which the administration of the Krasnokamensk penal colony imposed, but then we concluded that it would be pointless to appeal.

The first thing we did was ask the administration for the recording of the video camera which follows Khodorkovsky’s movements in all locations in the detention unit, but it turned out that they just don’t happen to have the very area where the violation was alleged to have taken place. But they did have the statement of Khodorkovsky’s cellmate, which they forced him to make. After Mr Gnezdilov’s release (and they promised him they wouldn’t prevent his release on parole so long as he gave the statement necessary to the administration), he came to Khodorkovsky’s local lawyers and simply gave in a statement in which he explained why he had needed to defame an entirely innocent person.

It should be said that in the penal colonies, prisoners are heavily dependent on the administration, and prisoners who are in a pickle (as was Mr Gnezdilov) are especially dependent. We hope in the course of the examination of the parole case to be able to prove that this sanction was declared unlawful and to convince the court of this.

QUESTION: Still, what role will a pardon play in your further strategy?

Yury Schmidt: So far there is no question of a pardon and whether it will arise we do not know. That is Mr Khodorkovsky’s right and his decision. In any case, we are now following the path that was indicated in President Medvedev’s frequent comments. Speaking at the press conference in Germany he said: Yes, appealing to the head of state for pardon is one way of approaching the issue but there are also judicial and legal mechanisms. We shall not run ahead of ourselves and speculate what may happen. We do not exclude the possibility, call us incorrigible optimists if you like, that there will be a positive response to our appeal. We even believe that it will be so.

Vadim Klyuvgant: Early release on parole, unlike pardoning, is just such a judicial procedure. An undoubted advantage of that procedure which has now been chosen is that it involves a public court hearing, in an open court session. It is the duty of the court, incumbent upon it by law, to justify any ruling it makes. If the ruling has no justification, then this automatically becomes grounds for overturning it. This offers an opportunity to appeal against such a ruling in a court of higher instance, and again it is the duty of the higher court to justify all of its rulings. That means it is a fairly transparent process notwithstanding all the imperfections of the court powers of which we spoke earlier.

QUESTION: Do you have any grounds for supposing that Khodorkovsky has changed his attitude to the idea of seeking a pardon?

Yury Schmidt: Let me repeat that we did not discuss the idea of requesting a pardon with Khodorkovsky and I simply cannot say what his attitude to this may be. I have stated my personal view, let me stress, but each person in this room can understand my viewpoint since I have been working on this case for 4.5 years. I consider Khodorkovsky almost a relation: I know his family, his parents and his children. I’ve seen how his two small boys have grown during those years and therefore, perhaps, at times I allow myself to speak on my own behalf. I think I have the right to a personal viewpoint.

QUESTION: Don’t you think that the parole application might be deliberately drawn out?

Vadim Klyuvgant: It might, and it might also be very rapidly dealt with. Anything might happen.

QUESTION: What is the point in submitting a parole petition right now if the court has already ruled in favour of extending the custody term for the second case, and it is clear that Khodorkovsky, until a verdict is given on the second case, will not be released anyway? Is it a question of principles, or something else?

Vadim Klyuvgant: On the one hand it is certainly a question of principles. On the other hand there is a concrete task which we have made our priority: to achieve by any means possible the alleviation of his present situation. If we walk round and round this vicious circle which you’ve just drawn, we will never break free of it, and we won’t change anything. We need to tackle the double detention by dealing with each one separately. We have submitted this petition to eliminate one of the causes of detention with the aid of a judicial ruling. If it works, there’ll be only the pre-trial detention, which we will fight separately, in parallel. So there is no contradiction here, one just has to understand clearly that there is one process here, another process there, and each has its own technical aspects.

Yury Schmidt: We have already submitted a petition to dismiss that case, and when it terminates again, we will most likely repeat this petition, and if no unspent period remains from the first sentence, then it will mean Mikhail Khodorkovsky’s release. Therefore, here we do indeed need to work in two directions.

QUESTION: Have you received any specific signal, perhaps they contacted you from the presidential administration, that it is time to begin this process?

Vadim Klyuvgant: We have a very wide range of contacts. Even abroad, I’d say. However, officials from the presidential administration do not form part of that circle, whether for better or worse, or whether they are adopting a neutral stance. Therefore, speaking seriously, we reach all our decisions as a result of analysing the large amount of information at our disposal from various sources and not from the kind of hints you were asking about. We have heard no such voices, neither at night in a dream, or when fully awake.

Yury Schmidt: A whole series of signals show that our opponents are nervous. They are jumpy and lack the confidence that distinguished over many years. If one can consider that a sign, then yes. Those kinds of signals we collect and analyse very attentively.

Vadim Klyuvgant: Then the president gave a signal. He said, go to court. That’s what we’re doing.