The Moscow City Court has upheld a ruling by the Basmanny Court that Deputy Chief Prosecutor Grin’s order to hold preliminary investigations in Chita was illegal and ungrounded. In doing so, the Moscow City Court dismissed the Prosecutor-General’s office’s appeal for the Basmanny court’s decision to be set aside.

The ruling on the illegality of the Chita investigations into the new case against Mikhail Khodorkovsky and Platon Lebedev takes immediate effect, since the Basmanny Court has obliged the Prosecutor-General’s office to remove any and all legal violations. Khodorkovsky and Lebedev should therefore now be returned to Moscow.

Report from the courtroom

The Moscow City Court hearing started with the submission by Khodorkovsky and Lebedev’s defence of several motions. Lawyers Yuri Schmidt and Elena Liptser provided the Court with documents showing that preliminary investigations had continued in Moscow, even after their formal removal to Chita. Elena Liptser also requested that her client’s objections also be entered into the record. Platon Lebedev had specifically deposed that ‘the Prosecutor’s order was a clear example of the way in which the law is manipulated to cover up and justify lawlessness’.

The prosecution then took the floor. Mr. Lakhtin asked for the Basmanny Court’s decision to be overruled, on the grounds that, in favouring Khodorkovsky and Lebedev, the Basmanny Court had violated both the adversarial system and norms laid down in the Russian Code of Penal Procedure. The prosecutor’s speech suggested that Khodorkovsky and Lebedev had been moved to Chita, first to protect their rights and, second, to protect the rights of all those involved in the trial: the victims, civil plaintiffs, the defendants and the lawyers. Transferring the preliminary investigation to Chita ‘didn’t limit, but on the contrary facilitated access to justice’ for all those involved, he contended.

Elena Liptser responded later by saying that the preliminary investigation’s transfer to Chita had violated the rights of the lawyers and defendants - and had had nothing at all to do with the rights of civil plaintiffs and victims.

Prosecutor Lakhtin further explained why Khodorkovsky and Lebedev had been moved to Chita three-and-a-half years after the preliminary investigation had begun and seven days before it was due to end. ‘We planned a number of face-to-face confrontations with witnesses who lived there’, he said. ‘There is not a single witness or victim in any of the case materials who lives in Chita or in the Chita region, and with whom it would have been possible to conduct a face-to-face confrontation. That’s an outright lie!’, Yuri Schmidt responded.

‘In Chita, they [the defence-team and the defendants] were provided with ideal conditions for familiarizing themselves with materials in the case’, said prosecutor Lakhtin. ‘You provided us with a table and a chair on which we could put them. Couldn’t you have done that in Moscow?’, Yuri Schmidt retorted.

‘The only possible reason for moving the defendants for the investigation to such a distant region’, Yuri Schmidt said of the Prosecutor-General’s office’s true motive, ‘was an unwillingness to allow the case to be scrutinized by the public and the media’. He said that no serious investigations had ever been conducted in Chita: Khodorkovsky and Lebedev had simply been handed three procedural documents, two expert reports and an order to commission further ones.

Mr. Schmidt said that the investigators in Chita were really no more than go-betweens between the lawyers and their prosecutorial superiors in Moscow. ‘Responses to our motions and appeals came - and still come - via fax from Moscow, where all the decisions in the case are still being made’, he said.

He described Deputy Chief Prosecutor Grin’s decree as a piece of fiction. In the defence’s view, Mr. Grin simply ‘repeated by rote’ the provisions of article 152, part 4 of the Russian Code of Penal Procedure, without citing any legal grounds for it. The defence said it was impossible to challenge something that hadn’t been backed up by argument, so Khodorkovsky and Lebedev’s rights to a defence (article 46, part 4 of the Russian Constitution) had been violated. ‘Lebedev was deprived of any means to defend his rights, since there was no way in which he could fully challenge the said order’, Elena Liptser was quick to stress.

Article 152, part 4 of the Russian Code of Penal Procedure provides (as an exception to the general rule) that a preliminary investigation may be held somewhere other than a defendant’s place of residence, if his security, the objectivity of the investigation or the necessary observation of procedural norms is thereby assured.

The defence, however, said that none of these provisions was relevant to the case - no witness in Chita had ever been interrogated, nor had there been any evidence in the case to be found there. ‘Yukos worked in sixty Russian regions, but there was never any subsidiary in Chita’, Yuri Schmidt said, quoting Mikhail Khodorkovsky.

The defense also questioned the matter of the prosecution’s objectivity: If Chita was regarded as the proper venue for an objective investigation lasting seven days, did that mean that the three-and-a-half years of the Moscow investigation should be seen as having been un-objective?

‘Procedural norms are not observed in Chita. Disruptions are routine,’ Yuri Schmidt said of the the last provision of article 152, part 4 of the Russian Code of Penal Procedure. They were undermined by virtually everything: unfavorable flight conditions, Chita’s so-called ‘ideal conditions’, and the fact that lawyers had to work on an on-off, alternate basis.

The Moscow City Court panel spent about seven minutes in the jury room before announcing its ruling in favour of Khodorkovsky and Lebedev.

The Prosecutor-General’s office can by law challenge today’s decision via a supervisory order. Yuri Schmidt, however, believes that it should now obey the ruling arrived at by the Basmanny Court and upheld by the Moscow City Court, and transfer Khodorkovsky and Lebedev to Moscow, ‘without hanging around for another unfavourable court decision’.

Press Centre