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.
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.
Conseil de l’Europe
M. le Secrétaire Général
Conseil de l’Europe
Avenue de l’Europe
F-67075 Strasbourg Cedex