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Lebedev ― EXECUTIVE SUMMARY
Lawyers representing Mikhail B. Khodorkovsky and Platon L. Lebedev have catalogued a series of severe abuses of the Russian criminal justice system in a new case being prepared against Khodorkovsky and Lebedev, underlined the prosecution’s duty to recognize these abuses as irremediable, and called upon the prosecutors to fulfill their legal obligation to terminate the proceedings immediately. According to the lawyers, the new case against Khodorkovsky and Lebedev was ordered and is directed by high-level Russian government officials acting through prosecutors. The lawyers assert that the case is incurably flawed under Russian law and would be thrown out of court in any country with an independent judiciary. In their haste and zeal to push forward with a new indictment against Khodorkovsky and Lebedev, prosecutors have: • used their power of criminal prosecution on behalf of others seeking to punish Khodorkovsky, because he openly challenged the Kremlin to address corruption, he supported opposition parties and he sought to develop the Russian energy industry along lines not welcomed by certain state officials; invented bases of criminal liability that simply do not exist in Russian law, thereby criminalizing and selectively attacking ordinary, widespread business practices; unlawfully seized the multi-billion-dollar assets of Yukos, the most efficient, transparent and successful Russian energy conglomerate, which paid more taxes than any other private entity in Russia; tortured, blackmailed, threatened and jailed potential witnesses, including denying medical care to an HIV-positive detainee who refused to perjure himself by submitting to pressure to incriminate Khodorkovsky and Lebedev untruthfully, and who therefore developed terminal cancer; violated the lawful procedural deadlines and limitation periods for criminal investigations; kept Khodorkovsky, Lebedev and their counsel unapprised of critical procedural developments; held closed trials in order to be able to rely upon invariably damning alleged facts against Khodorkovsky and Lebedev as having been established by a court of law, and refused to allow Khodorkovsky or Lebedev to testify at those trials; impounded or refused to admit evidence of Khodorkovsky’s and Lebedev’s innocence, while concealing and manipulating key prosecution evidence and conducting searches and seizures without court approval; brushed aside requests for explanations of the allegations; harassed and disdainfully treated defense counsel, in some cases going as far as to impute criminal liability against them, making it difficult or impossible for them to perform their duties; ignored the presumption of innocence and slandered reputations;
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isolated Khodorkovsky and Lebedev six time zones away in the far reaches of Siberia while running the investigation against them in Moscow, undermining their participation in the investigation and complicating consultations with defense counsel, and distancing them from the media and political centre of the country and from their families.
Exploiting and abusing the Russian criminal justice system for political and mercantile ends, those behind the ongoing persecution of Khodorkovsky and Lebedev have not respected the force and validity of numerous Russian laws, including the Russian Constitution. They have also failed to adhere to international legal norms binding upon Russia, which are constitutionally enshrined in domestic law. With a procedural record contaminated by severe abuses and violations by investigators, in the absence of the elements of any crime, and given that this case is motivated by reasons alien to justice and fair trial principles, the defense calls for the termination of the proceedings against Khodorkovsky and Lebedev. ―
As the investigation of new charges against Khodorkovsky and Lebedev unfolded following their eight-year conviction in 2005, the defense team has repeatedly: • • • petitioned prosecutorial and judicial authorities concerning recurrent failures by investigators to admit exculpatory evidence; requested clarification of the completely irrational and implausible allegations; and called for measures to remedy the most egregious violations of the rights of the parties under investigation.
While Khodorkovsky and Lebedev have made every effort to engage in this case through established procedural rules, in contrast, the prosecutors have consistently acted outside of the boundaries of the law. On January 26, 2009, the defendants and their lawyers signed a protocol acknowledging that they had been notified of the completion of the investigation of the new case. In signing the protocol, they stated that they had not yet reviewed all of the tremendously voluminous case materials, which include thousands of documents and extracts of documents slapped together from disparate and unidentified sources. They further reminded investigators that to complete an indictment in conformity with the law, the case file would have to include the list of over 470 proposed witnesses and evidence consisting of more than 270 documents previously submitted by the defense but refused by the investigators. In a motion submitted on January 27, 2009 to Valery N. Alyshev, Senior Investigator of the Russian Procuracy, the defense made their last pre-trial attempt to outline their arguments and to demand termination of the proceedings. All previous attempts to do so through defense petitions to court or to the prosecutor had been rejected. The motion reminded the prosecutor that where fundamental rights of an accused are seriously and repeatedly violated, or criminal proceedings are initiated exclusively or mainly on political or discriminatory grounds, notwithstanding the creation of an appearance of observance of procedural rules, courts not only have the choice, but indeed are obligated by law to terminate the proceedings. Despite meeting the legal criteria for termination of the proceedings, based on the record of systemic abuses and the prosecution’s obvious lack of factual and legal grounds to assert criminal liability, all efforts by the defense to make known the severe violations committed by the prosecutors, and to encourage the prosecutors to follow legal procedures, have failed.
― Politically-Driven Prosecution The arrest, trial, conviction, and ongoing proceedings against Khodorkovsky and Lebedev have occurred not for reasons driven by the administration of justice, but rather for reasons completely alien to justice, including: • • to confiscate their property and to rule out any possibility of that property ever being restituted; to silence Khodorkovsky’s criticisms regarding the causes and scale of corruption in Russia and to halt his engagement in the political life of the country; to force an end to disagreements over strategies for the development of the country’s energy industry; to eliminate them as perceived threats to certain officials in the Russian presidential administration and government.
In attacking Yukos and the company’s top managers and core shareholders, prosecutors paved the way for a group of officials at the top of the country’s political establishment to achieve the objectives above. The reckless and heavy-handed behavior of the Russian authorities in their dismantling of Yukos and the seizure of the company’s assets through dubious and unlawful means are matters of historical record. Throughout the process, the implosion of the company’s value was wholly unnecessary, unless the objective was to destroy Yukos as an entity and to integrate its assets into state-controlled enterprises. ― Obvious Groundlessness of New Allegations The prosecutor’s new embezzlement and “money laundering” allegations against Khodorkovsky and Lebedev are unprecedented in monetary scale and in the high level of distortion of both facts and laws. Khodorkovsky and Lebedev are accused of embezzling 350 million metric tons of oil worth over $25.4 billion and “laundering” over $21.4 billion. These figures imply that they somehow embezzled the entire oil production of Yukos subsidiaries over a six-year period and “laundered” the majority of the proceeds – without being caught by independent auditors or anyone else until today. The allegations are not grounded in law, not supported by evidence and are internally contradictory. Indeed, the allegations are absurd, and completely refuted not only by defense evidence which investigators refuse to admit into the case file, but also by commonknowledge facts that are obvious and undisputed. Prosecutors are criminalizing and selectively attacking ordinary, widespread business practices. Criminal law is being invoked in circumstances where it is inapplicable, while relevant commercial laws are being ignored altogether. In so doing, the authorities are abusing their power of criminal prosecution. The allegations of theft concern the activities of a great number of Yukos employees performing routine, independently audited transactions. The elements of theft – illegality and a lack of exchange for value – are simply not present. The prosecutors have taken it upon themselves to invent concepts that do not exist in Russian law, but that have a legalistic ring. For example, assertions made about transactions between subsidiaries do not consider the context and are instead labeled with invented terms such as “non-equivalent exchange” or “sale at an understated price” – terms that are simply not found anywhere in Russian law.
Likewise, the allegations of “money laundering” lack any grounding. To launder money, one transforms illegally-obtained funds into legally-held assets, or conceals the criminal source of funds or other property to create the appearance that ownership is lawful. The prosecutors neglect the fact that the funds and oil production they assert were “laundered” were in fact lawfully on the books of Yukos, lawfully dealt with in open transactions, and duly reported upon to the Russian authorities, including tax authorities. To assert that these assets were “laundered” is a nonsensical misapplication of the term. The prosecutors’ disregard towards acting within the bounds of the law also includes ignoring legally established procedural time limits. Prosecutors stubbornly pushed ahead with allegations surrounding supposedly improper share transactions, despite the expiry of the statutory time limit for bringing charges. ― Closed Trials Prosecutors have held closed trials in order to be able to rely upon invariably damning alleged facts against Khodorkovsky and Lebedev as having been established by a court of law. Cases involving several Yukos managers have been pursued for precisely this purpose. On March 5, 2007, a news release was posted to the official website of the Russian Procuracy, announcing that a guilty verdict had been issued that day in a case against two Yukos managers. The cases involved allegations over Yukos transactions that have also been imputed to Khodorkovsky and Lebedev. Yet rather than examining the transactions and all alleged participants in one investigation, prosecutors proceeded against lower-level Yukos managers first. Having achieved guilty verdicts against the lower-level Yukos managers enables prosecutors to refer to court-validated findings in their new allegations against Khodorkovsky and Lebedev. Despite their central roles in the alleged facts and obvious interest in the outcome of these cases, Khodorkovsky and Lebedev were not permitted to testify in court. Even written testimony by Khodorkovsky and petitions by Lebedev stating a desire to testify were not considered. Another Yukos manager, Antonio Valdes Garcia, who is a Spanish citizen, left Russia after being subjected to severe abuses by investigators. Russian prosecutors have however chosen not to request his extradition back to Russia, as they are fearful of the light that would be shone on their abuses if a foreign court is asked to consider such a request. To avoid embarrassment and loss of credibility, the prosecutors have instead deemed it in their interest to pretend that the whereabouts of Valdes Garcia are unknown, and have absurdly pushed ahead with his trial in absentia. A guilty verdict against yet another Yukos manager, announced on April 4, 2008, indicated the extent of the bias against Khodorkovsky and Lebedev. The verdict refers to Khodorkovsky and Lebedev as guilty of criminal allegations for which they have not yet been convicted in court. Their constitutional right to be presumed innocent has been completely ignored.
― Concealment and Distortion of Evidence through Procedural Manipulations, Blackmail and Torture Rather than pursue a comprehensive investigation of the facts pertinent to the allegations against Khodorkovsky and Lebedev, prosecutors created a series of separate and parallel cases, including secret investigations conducted without notice to those under investigation. In so doing, prosecutors have been able to impound, conceal and manipulate evidence in artificially isolated cases that would exonerate Khodorkovsky and Lebedev of the charges they currently face. Prosecutors have thereby sabotaged the rights of Khodorkovsky and Lebedev to have access to critical information for the development of their defense. Prosecutors have also ignored time limits established by law, and benefitted time and again from deadline extensions whenever desired. Investigations concerning Khodorkovsky and Lebedev were launched in 2004, yet neither was given any opportunity to testify. Their first interrogations as suspects did not occur until two years later in 2006. The law holds that preliminary investigations are not to last longer than two months. Investigations of various matters were indiscriminately launched, paused, restarted or dropped by prosecutors, allowing them to corral witnesses and confiscate evidence. Meanwhile, petitions from Khodorkovsky and Lebedev asking for explanations of the charges against them were unsuccessful, regardless of the fact that they are entitled under law to request and receive such explanations. Prosecutors have failed to meet the legal requirements for initiating their case on allegations of embezzled oil proceeds. Under Russian law investigators must open such cases based upon a complaint from a harmed party or a suspicion of criminal activity. Yet no case was ever formally initiated for the alleged embezzlement of oil proceeds. Nor has a proper investigation of the relevant facts occurred. Investigators have collected materials from cases they are pursuing separately, including copies of interrogation transcripts and other documents, and simply copied them into the new case file of Khodorkovsky and Lebedev. Virtually no real investigative work has occurred over the past two years, with the overwhelming majority of documentation on record simply pulled in from other cases. Reams of documents including raw financial data are dumped into the case file; their origin is unknown, their relevance is unintelligible, and the result is a mess of slapped-together data that is a nightmare to navigate. Many items are incomplete, being for example just one or several pages extracted from an unattributed document, the rest of which does not appear in the case file. In contrast, the investigators have refused to accept and consider over 270 documents and Yukos financial data provided by the defense. Whereas prosecutors officially designated Chita, Siberia as the venue for the investigation of new charges against Khodorkovsky and Lebedev, in reality the case has been administered from Moscow. All key procedural decisions are taken in Moscow and case-related documents have been signed there and then transmitted to Chita. This is contrary to the legal requirement that the investigation actually be administered in Chita, the officially designated venue. Clearly, Khodorkovsky and Lebedev were simply being isolated thousands of kilometers away, in a place that had no connection with the activities under investigation. This significantly restricted their participation in the investigatory process and complicated communications with their defense counsel. Furthermore, by holding Khodorkovsky and Lebedev for two years in a pretrial detention unit, the prosecutor changed their regime of incarceration from the more flexible conditions of a prison colony to the harsher conditions of pretrial detention in small jail cells. Holding them for so long as criminal suspects under arrest allowed the prosecutor to isolate Khodorkovsky and
Lebedev far more than if they were serving their sentences in a prison colony. In pretrial detention, they have been kept under round-the-clock surveillance, deprived of exercise and fresh air and had family visits restricted to a minimum. Under Russian law, even if prisoners are under investigation for new allegations, they are to continue to serve their existing sentence as stipulated by the court’s verdict. Khodorkovsky and Lebedev should have been serving their sentences in appropriate prison colonies and not in a pretrial detention unit where the conditions are far more severe and inhumane. An investigation was run in parallel against Vasily G. Alexanyan, former Yukos general counsel arrested in April 2006 and held in pre-trial detention until January 2009. Alexanyan refused to provide false testimony against Khodorkovsky and Lebedev in exchange for desperatelyrequired medical treatment. Despite his release from pre-trial detention in January 2009, due only to an intervention by the European Court of Human Rights, Alexanyan is now near death due to a severe deterioration of his health while incarcerated in pretrial detention. His ordeal vividly demonstrates the methods and morals of the prosecutors, engaging in torture in order to pressure people to slander Khodorkovsky and Lebedev with lies. ― Interference with Defense Counsel Prosecutors have committed gross violations of procedural rules concerning defense counsel. Searches and seizures without court approval have become routine. Privileged and confidential documents have been confiscated. Authorities have temporarily detained defense counsel and harassed them and members of their families. Complaints over any such actions have been consistently ignored. Disbarment proceedings have been threatened against defense counsel by authorities without valid cause, as a form of intimidation and vengeance for defending Khodorkovsky and Lebedev. Prosecutors have gone as far as to implicate defense counsel themselves with criminal liability due to their professional association with Khodorkovsky and Lebedev. This has made it difficult or impossible for defense counsel to perform their duties. ― Defense Counsel Call for Respect of Legal Procedures and Cessation of Abuses The groundless and contrived nature of the new allegations against Khodorkovsky and Lebedev has been substantiated in detail by the defense lawyers. They have furthermore asserted the politically motivated nature of the prosecution and the impossibility of a fair trial in view of the flagrant and systemic violations of fundamental requirements of Russian and international law. The defendants have sought a termination of the proceedings against them on all of the above grounds. To date prosecutors have rejected defense requests for fair treatment and an investigation in compliance with the law. In breach of the law, prosecutors have refused to admit into the case file even a single page of the numerous documents provided by the defense, or to allow a single defense witness to appear at trial. The law requires that such decisions by prosecutors be both substantiated and reasoned. Despite this, the prosecutors have provided no valid substantiation or reasoning in their responses to the defense. Moreover, prosecutors continue to reassert the presumed guilt of parties involved, despite the absence of a court verdict to that effect. As the investigation of new charges against Khodorkovsky and Lebedev has unfolded, abuses of prosecutorial power have continued unabated, with new violations piling up on the record. Not a single prosecutorial violation of the law has been remedied. The complete disregard of
defense arguments and evidence has demonstrated an obvious unwillingness of the prosecutors to conduct an investigation in accordance with law. With a procedural history contaminated by severe abuses and violations by investigators, in the absence of the elements of any crime, and given that this case is motivated by reasons alien to justice and fair trial principles, the defense continues to insist upon termination of the proceedings against Khodorkovsky and Lebedev. ― The defense motion of January 27, 2009 was rejected on January 29, 2009. Three weeks later, on February 19, 2009, the date of March 3, 2009 was announced for preliminary hearings in court, and the case was unavoidably destined for trial.
February 27, 2009
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