|
www.sovest.org |
SOVEST |
an independent public group
in support of Mikhail Khodorkovsky
and other defendants in the “YuKOS case”
February
18, 2004
Monsieur
le Secrétaire Général,
We,
members of an independent public group named Sovest (the Russian word for
“Conscience”), present you our compliments and would like to address the
Council of Europe in connection with the case of Mikhail Khodorkovsky, the
former CEO of the oil company YuKOS, who currently occupies the position of the
Chairman of the Board of the regional public organization Otkrytaya Rossiya
(Open Russia).
Our
group comprising about two dozens of people who live in various cities both in
Russia and abroad was created specially in order to provide public support to
Mr. Khodorkovsky and other defendants in the so-called “YuKOS case.”
We
value very high the efforts that the Council of Europe, a staunch advocate of
human rights, has been making for the last decade to promote the priorities of
democracy and human rights in Russia.
However,
we are obliged to say that in the “YuKOS case” and in the case of Mikhail
Khodorkovsky, in particular, human rights and the fundamental principles of
democracy are being severely trampled upon by the Russian authorities, i.e. the
executive power which exercises full control over the legislative and judicial
branches.
We are not going to dwell upon the political
motivation behind the above-mentioned cases (and that such motives exist is
beyond any possible doubt), nor are we going to enter into the substance of the
criminal charges filed against Mikhail Khodorkovsky and other defendants in the
“YuKOS case” – those charges are absolutely ridiculous and would not stand a
fair trial by an unbiased and independent court in an open session, of which,
as we strongly suspect, Mikhail Khodorkovsky will be deprived.
We would like to cite just a few most striking
examples of the violation of human rights committed against Mikhail
Khodorkovsky. This will give you an idea of the scale of such violations in
Russia, because if infringements like these can be committed against a very
powerful, influential and wealthy person who can afford the best lawyers, it is
perfectly clear that so-called “ordinary” citizens have no protection at all
against the cruelty and injustice of the “state machine.”
Mikhail Khodorkovsky is strongly determined to defend
his rights by all legal means available to him, both in the Russian courts and
in the European Court of Human Rights. He wants that his case would demonstrate
to the whole world that democracy and human rights have not yet taken root in
Russia and there is still a long way to go. According to his lawyers, Mr.
Khodorkovsky sees his own future as a public figure and advocate of human
rights. We all wish that he would leave the pre-trial incarceration preserving
his health, physical and moral strength, and also his property.
We strongly hope that the Council of Europe will not
leave without support the man who has all possible talents, powers, resources,
and experience to make himself an efficient and prominent figure of the human
rights movement.
We trust that our appeal to you will not be left
unanswered.
And here are some striking facts, which clearly illustrate
the biased and arbitrary nature of the Russian courts and outrageous behavior
of the prosecution.
[I.] The violations of Mikhail Khodorkovsky’s rights
started at the very moment of his arrest and have been accumulating ever since
so that his case has assumed more and more odious character.
1. “No one shall be deprived of his
liberty” save in specially determined cases and “in accordance with a procedure
prescribed by law.” (European Convention for the Protection of Human Rights and
Fundamental Freedoms, Art. 5, Par. 1). This provision of the Convention was violated
more than once in Mr. Khodorkovsky’s case.
When Mr.
Khodorkovsky was arrested, he was a witness in a criminal case filed against
one of his business partners, and never avoided interrogations when he was duly
notified about them. The Convention has an exhaustive list of cases when a
person can be detained, and making a witness appear before investigative bodies
(which was the main reason for his arrest, according to the prosecution) is not
included in that list.
2. At the moment of his arrest, Mr. Khodorkovsky
was not “informed promptly <…> of the reasons for his
arrest and of any charge against him” (as the Convention prescribes in Art. 5, Par. 2), but the
court failed to register and properly evaluate this and other violations of the
Convention from the legal point of view.
3. When the court
ordered that Mikhail Khodorkovsky must be incarcerated pending the trial of his
case, it failed to prove that no other, more lenient measure of restraint was
applicable in the situation, whereas in all civilized countries incarceration is considered to be ultimate
and resorted to only as an extremity, which was obviously not the case.
[II.]
As far as the Dec. 22, 2003 hearing at the Basmanny District Court is concerned
(where a purely procedural issue was considered, whether Mr. Khodorkovsky must
still remain in incarceration until March 25, 2004, pending the trial and while
reading his case or could be released on bail), the following violations were
committed by the investigators (prosecution) and the judge, which strongly
impeded with Mr. Khodorkovsky’s right to a proper defense. We know about these
violations from Mr. Khodorkovsky’s lawyers, who filed their objections to every
one of them:
1. Mr. Khodorkovsky’s lawyers were warned
of the hearing scheduled for Monday only on the previous Friday evening, when
both the Prosecutor General’s Office, which filed a petition for the hearing to
be scheduled, and the court were already closed. Therefore, the lawyers could
neither file a motion to postpone the hearing nor speak to their client, as the
pre-trial detention center was also closed at the time they learned about the
forthcoming Monday hearing.
2. When the lawyers appeared in court at
10:00 am, their client was not there, and the judge told them that the hearing
would take place at the detention center where Mr. Khodorkovsky was (and still
is) incarcerated. This was an unprecedented decision that the lawyers had never
encountered in their long professional practice, and they experienced a no
smaller surprise when after a two-hour delay for no apparent reason, the judge
suddenly changed his mind and said he had ordered the defendant to be taken to
court.
3. When after three more hours of delay
Mr. Khodorkovsky was finally brought to court (surrounded by no fewer than
eight guards as an ostentatious demonstration of him being allegedly
“dangerous”), he had no chance of speaking to his lawyers in private, and had
to discuss the strategy of defense in the court room, from behind the bars.
4. The lawyers received from the
prosecution a 6-inch thick file with the documents they had never seen before.
But the judge gave them less than two hours for reading and reviewing them,
disregarding the fact that there were four defense lawyers in the court room at
the time, and one of them had stepped into the case only on the previous day.
5. The judge ordered that the hearing
should be closed, notwithstanding the fact that the law has an exhaustive list
of cases when a court hearing can be closed, and not a single one of them could
be applicable in the matter.
6. As we also know from Mr.
Khodorkovsky’s lawyers, the court record was more than once distorted by the
secretary, so that the lawyers had to keep their own records and file motions
every time they noticed such a distortion.
7. The prosecution submitted invalid
documents as a proof of its position. After the defense revealed the fact, the
hearing was postponed until the following day. And when the hearing was
resumed, the invalid documents were replaced with proper ones.
8. The court granted all motions filed by
the prosecution and denied all those filed by the defense.
9. Finally, the court refused to release
Mr. Khodorkovsky on bail, although the justice was fully aware of the fact that
the prosecution failed to submit any convincing proofs that Mr. Khodorkovsky
presented any danger to society, as it alleged. In fact, he could neither run
away, because his traveling passports were impounded and his bank account
frozen, nor could he influence the investigation or witnesses because the
investigation was declared over by the prosecution. Notwithstanding all that,
the judge ordered that he should remain in incarceration pending the trial of
his case, although, as we said above, there was no need whatsoever to resort to
such ultimate measures in Mr. Khodorkovsky’s case.
These are just a few facts out of a great
number. In our opinion, if the prosecution commits such gross violations
regarding a purely procedural issue, it is absolutely obvious that it has
nothing incriminating as far as the substance of the case is concerned.
[III.]
Apart from these extraordinary violations committed by the prosecution and the
justice at what should have been an ordinary court hearing, there are more that
are being committed in Mr. Khodorkovsky’s case almost on an everyday basis:
1. The lawyers who visit him at the
pre-trial detention center undergo searches, of both their persons, their
personal possessions and their professional documents. A note allegedly written
in Mr. Khodorkovsky’s hand was found on the person of one of his lawyers, and,
notwithstanding the fact that the prosecution failed to prove that the note had
ever belonged to Mr. Khodorkovsky, the lawyer is now threatened with
disbarment.
2. Vladimir Kolesnikov, a Deputy
Prosecutor General, said more than once in public that Mr. Khodorkovsky would
receive a ten-year imprisonment and expressed his regret that “we cannot give
him more.” These remarkable statements made well before the trial of the case
and even before the completion of the investigation prove that prosecution
tramples upon the presumption of innocence and is unduly prejudiced against the
accused.
3. The same can be said about the chief
investigator in Mr. Khodorkovsky’s case, Salavat Karimov, whose reply to an
official petition of our group we enclose together with a translation into
English (see Annex I hereto).
4. In late January, the prosecution said
that Mr. Khodorkovsky was intentionally delaying the start of a trial of his
case.
We must stress that this statement is
utterly false. Mr. Khodorkovsky’s file consists of 227 volumes (by the way, it
took the Prosecutor General’s Office only a month to prepare such a voluminous
dossier, which fact speaks eloquently about the quality of the investigation).
According to his lawyers, he reads (in fact, thoroughly examines) about 100
pages a day. In the abominable conditions of the pre-trial detention center
where he is being incarcerated, it is an absolutely striking performance.
Besides, it is perfectly clear that it is
the prosecution who intentionally delays the trial. It became clear in another
case, closely connected with Mr. Khodorkovsky’s one, the case of his business
partner Mr. Platon Lebedev, who is also facing trial on almost similar criminal
charges. Last week and early this week, the prosecution, who had declared long
ago that the investigation into Mr. Lebedev’s case was over, said that it had
found additional charges that should be added to the indictment.
There is no doubt that the prosecution
has no intention of submitting the matter to court, that it has only one
purpose in mind, i.e. to discourage and demoralize both Mr. Khodorkovsky and
Mr. Lebedev, to make them start negotiations with the executive power, which
has a strong influence over the prosecution and the courts in Russia, and, we
may say, directly controls them. And these negotiations could be aimed only at
the seizure of the businessmen’ property by the groups close to the current
parties in power.
[IV.]
Our conviction that all these violations have no other purpose than the
demoralization of Mr. Khodorkovsky is further substantiated by the poor
conditions in which he is being detained.
According to his lawyers,
·
the
dimensions of his cell are not compatible with the universally accepted
standards, and the sanitary conditions are far from normal;
·
he
is allowed only two hours of outdoor exercises, which is clearly not
sufficient, taking into consideration the fact that he spends a lot of time
examining his case and is generally confined to sedentary work;
·
the
food in the pre-trial detention center is awful. Mr. Khodorkovsky has
permission to receive a certain amount of foodstuffs from home, but we have
heard from people quite close to him that there were some hindrances to that as
well;
·
in
addition to physical suffering that Mr. Khodorkovsky is subject to, the
investigators (the prosecution) expose him to moral pressure as well. For
instance, he is not allowed to receive all letters of support and other
missives, books and parcels that ordinary people have been sending to him since
October 25, 2004, when he was incarcerated. Besides, he is not permitted to
subscribe to any newspapers or magazines other than two editions allowed by the
prison authorities.
All the above-mentioned violations and
many others will be dealt with in due course by the European Court of Human
Rights where Mr. Khodorkovsky’s lawyers are about to file their petition,
because he has exhausted all the required means of defending himself in Russian
courts.
[V.]
As far as we know from Mr. Khodorkovsky’s lawyers, he is fully convinced (and
this opinion is shared by us) that only international pressure – from the
Council of Europe, European Parliament, European Court of Justice, from the
public and from human rights groups, from politicians and prominent public
figures – can exert any influence on the Russian authorities and make them stop
the odious violations that are being committed against him at the pre-trial
stage.
We are sure that the Council of Europe, a
respectable human rights defender with a long-standing global renown, could
contribute to an enormous extent to the protection of Mr. Khodorkovsky’s human
rights.
[VI.] Mikhail
Khodorkovsky had no illusions whatsoever of what nature a case against him
would be with which the authorities had been threatening him for some time
before he was arrested. And at some moment before his detention he told the
media that he would not be forced to become a “political exile,” but, as he was
adamantly determined to stick to the moral principles of integrity and honour
he had been adhering to all his life, he said he would rather prefer to become
a “political prisoner.”
And after the Dec. 22, 2003 hearing at
the Basmanny District Court was over and he was not released on bail pending
trial, however convincing the arguments of the defense were, he made a
noteworthy statement on the court verdict, which is attached hereto (see Annex
II). According to his lawyer, he also said that he had not expected any charity
or compassion from the court, he had expected only that the letter of the Law
would be respected in his case – but his expectations did not come true.
Dear
Sir,
We
hope very much that the Council of Europe shares our concern about the
situation around Mr. Khodorkovsky and agrees that many circumstances of his
case testify to the fact that the violations of his rights are being committed
on an unprecedented scale.
Therefore,
we ask you, dear Sir, to take a closer look at the situation and exercise all
your influence in order to help Mikhail Khodorkovsky. Any reaction to those
violations on your part as the head of a powerful European body and on the part
of the Council of Europe as an institution will add significantly to the
pressure on the Russian government already exercised in Mr. Khodorkovsky’s case
by prominent human rights activists within the country and some international
and foreign bodies, which alongside the Council of Europe are genuinely
interested in Russia’s becoming a truly democratic country that follows the principles
of justice and equity and applies them to all its citizens without political
prejudice or any distinction whatsoever.
We
will look forward to your reply and, with even more impatience to some steps on
your part that should help Mikhail Khodorkovsky immensely and, most probably,
relieve his fate.
Please,
dear Sir, accept the assurances of our highest consideration.
Group
Sovest (Conscience), an independent public group in support of Mikhail
Khodorkovsky and other defendants in the “YuKOS case.”
=================
Sovest (Conscience), an
independent public group (www.sovest.org), was created Dec. 3, 2003, to provide
public support to the YuKOS shareholders and employees. Our principal purpose
is to make the authorities respect civil rights of Mikhail Khodorkovsky and
other defendants in the YuKOS case.
The main goal of the
group today is to use all legal means insisting that Mikhail Khodorkovsky be
released from incarceration pending the trial while he is studying the case,
and to claim an impartial, open and fair trial afterwards.
The group is
non-commercial and totally independent from any political affiliations. All
activities are conducted on a voluntary and gratuitous basis.
email:
[email protected]
URL:
www.sovest.org
=================
Conseil
de l’Europe
M. le
Secrétaire Général
Walter Schwimmer
Conseil de l’Europe
Avenue
de l’Europe
F-67075
Strasbourg Cedex
France