Justice Under Pressure - The Prosecutions Case

7/31/2019 Justice Under Pressure - The Prosecutions Case

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J U S T I C E U N D E R P R E S S U R E

E X E C U T I V E S U M M A R Y : T H E P R O S E C U T I O N S C A S E

Prepared by Defense Counsel of

Mikhail B. Khodorkovsky & Platon L. Lebedev


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CONTENTS

BACKGROUND................................................................................................................................ 3

DUE PROCESS VIOLATIONS AND OFFICIAL MISCONDUCT DURING THE

PROSECUTIONS CASE................................................................................................................. 4

Failure to Explain Charges.................................................................................................. 4

Obstruction by Prosecutors and Investigators ofAccess to Evidence............................. 5

Refusal to Admit Exculpatory Evidence Presented by the Defense................................ 5

Refusal to Obtain Exculpatory Evidence from Available Sources.................................. 6

Refusal to Admit or to Seek Defense Evidence from Abroad.......................................... 6

Admission of Illegally-Obtained Evidence......................................................................... 6 Misrepresentation of Evidence............................................................................................ 6

Vanishing Evidence.............................................................................................................. 7

Incomplete Evidence............................................................................................................. 7

Erroneous Mathematical Calculations............................................................................... 7

Inaccurate Translations....................................................................................................... 8

Prosecutors Incomprehension of Case Materials............................................................. 8

Attempts to Control Testimony of Prosecution Witnesses............................................... 8

Circumventing of Lawful Procedures Applicable to Witnesses....................................... 9

Interference in Defendants Access to Counsel and to Case File..................................... 9

Denial of Defenses Access to Official Trial Transcripts.................................................. 10

Disrespect for Defendants.................................................................................................... 10

Direct and Indirect Threats to Defense Counsel................................................................ 10

Suspected Eavesdropping of Defense Communications Not Investigated....................... 11

Control and Harassment of News Media............................................................................ 11

PROSECUTION WITNESSES FAIL TO CORROBORATE CHARGES................................. 12

DEFENSE MOTIONS SYSTEMATICALLY DENIED................................................................ 13

Court Without Jurisdiction................................................................................................................. 13

Flawed Indictment............................................................................................................................... 14

Khodorkovsky and Lebedev Continue to be Held Unlawfully

in Harsh Pre-Trial Isolation Cells......................................................................................... 14

CONCLUSION................................................................................................................................... 16


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BACKGROUND

This document has been prepared by defense counsel of Mikhail B. Khodorkovsky, former chief

executive of the Yukos Oil Company, and of his business partner Platon L. Lebedev, who have been on

trial since March 2009 in Moscows Khamovnichesky Court. The purpose of this document is to

provide a summary of the prosecutions presentation of its case against the defendants, which ran

from April 21, 2009 to March 29, 2010. This document is part of a series of legal summaries issued

by defense counsel as the case has unfolded.1

Certain elements of the analysis herein may be

impacted by developments in court as the trial continues to unfold. This document does not purport to

list all the violations of due process and examples of prosecutorial misconduct which occurred during

the presentation of the prosecutions case. A more detailed and definitive summary report, to be

issued following the trial, will supersede this document. For further information and to receive copies

of defense motions and court documents, please contact the legal defense team via the Khodorkovsky

& Lebedev Communications Center.2

Khodorkovsky and Lebedev were convicted and sentenced to eight years imprisonment in 2005 andbanished to Siberia. They were victims of severe abuses of institutions of Russian state power frominvestigatory, prosecutorial and regulatory authorities to the judiciary committed by a group offigures in the political establishment who viewed them as challengers or competitors. The interests ofpolitical and commercial adversaries had coalesced to orchestrate the states incarceration of the twomen and raiding of their companys assets. When Khodorkovsky and Lebedev became eligible forparole in 2007, those in power who still perceive them as a threat stepped up efforts to find newgrounds to keep them incarcerated for a long time to come. In addition to keeping Khodorkovsky andLebedev isolated from society, their adversaries seek to conceal the corrupt and criminal actionscommitted against them and other victims of the Yukos affair with the participation and under theprotection of high-ranking officials.

Starting in 2003, an enormous repository of data was seized from Yukos, and also accumulated in thecourse of numerous investigations of individuals or companies connected to Russias most successfulprivate energy company. Reams of documentation were sloppily compiled in a 188-volume case file.Lacking organization, analysis or any hallmark of investigatory diligence or competence, the case filewas presented to Khodorkovsky and Lebedev in February 2007 as the evidentiary basis for a new trialagainst them, on charges of alleged embezzlement and money laundering.

Khodorkovsky and Lebedev are accused of embezzling 350 million metric tons of oil worth over$25.4 billion and laundering over $21.4 billion, and embezzling $102 million in shares held byEastern Oil Company and laundering the proceeds of their sale. The allegations have no crediblegrounding either in the facts described or in the legal terms invoked by prosecutors. Ordinary,

widespread business practices are blithely and ignorantly labeled by prosecutors as criminal. Since thetime the allegations were formally presented in 2007, Khodorkovsky and Lebedev have madeconsistent efforts to engage with investigators and prosecutors in good faith, seeking to understand andrespond to them as required by law. While Khodorkovsky and Lebedev made every effort to engagethrough established procedural rules, in contrast, the investigators and prosecutors consistently actedoutside of the boundaries of the law. The basic duties of the investigators and prosecutors toinvestigate relevant facts and to build a case grounded in law or to terminate a case where noactionable crimes exist remain unfulfilled.

1 A summary of the due process violations that occurred in the investigation of the current case is available athttp://www.khodorkovskycenter.com/content/defense-stay-motion-summary. A summary of the first month ofthe current trial is available at http://www.khodorkovskycenter.com/current-trials-legal-status.2 Contact information is available under Media Center at www.khodorkovskycenter.com.


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On April 21, 2009, in the Khamovnichesky Court in Moscow before Judge Viktor N. Danilkin,Khodorkovsky and Lebedev pleaded not guilty, while emphasizing that the charges remainincomprehensible and unexplained. Over the eleven months that followed, through March 29, 2010,the prosecution presented the evidence that is supposed to support its case.3 Yet rather than provetheir case, prosecutors spent this time engaged in rote reading of reams of random pieces of the casefile, and in presenting witnesses who proffered either no testimony germane to the accusations, ortestimony that actually contradicted the accusations. The prosecution has been unable to explain anylogical connection between the data they have compiled or the witnesses they called, and the chargesagainst the defendants. After having nearly a year to present their case, the prosecution has shown noproof of embezzlement and no proof of money laundering despite their persistent assertions thatboth occurred on a grand scale.4

For its part, the Khamovnichesky Court has repeatedly shirked its responsibility to compel theprosecution to act within the confines of procedural rules. The judge has repeatedly ignored orunjustifiably rejected defense arguments about procedural violations, electing to be willfully blind tothe many violations that have contaminated the process from the investigatory stage to the ongoingtrial. Wrongly asserting that it is not within his purview to do so, the judge has failed to exercise his

authority to cure even the most egregious flaws pointed out by the defense.

DUE PROCESS VIOLATIONS AND OFFICIAL MISCONDUCT

DURING THE PROSECUTIONS CASE

The prosecutors presentation of their case against the defendants has been fraught with due processviolations and incidents of official misconduct, committed either by the prosecution or the court, or byboth in tandem. The pattern of due process violations and incidents of official misconduct thatemerged during the presentation of the prosecutions case has been wholly incompatible with

fundamental norms of fairness and justice. The following overview is representative of theprosecutions handling of its case, and the courts inability or unwillingness to remedy so many of thebreaches of law that have been occurring:

Failure to Explain Charges: When Khodorkovsky and Lebedev pleaded not guilty onApril 21, 2009, they emphasized that the charges remained incomprehensible andunexplained. Nowhere does the indictment set forth the elements of any alleged crimeor succeed in connecting any specific evidence to the allegations. On the contrary, thecharges are an artifice of criminalization of lawful and widespread business practices.5

3 Detailed reports of the court proceedings are available at http://www.khodorkovskycenter.com/news-

resources/from-the-courtroom.4 For further information, please refer to the transcript of the defense teams press conference, held upon completion ofthe prosecutions presentation of documentary evidence, available at http://www.khodorkovskycenter.com/news-resources/stories/joint-defense-team-statement-end-prosecution-s-presentation-written-evidence, and thetranscript of the defense teams press conference held upon conclusion of the prosecutions presentation of itscase, available at http://www.khodorkovskycenter.com/news-resources/stories/press-conference-transcript-april-1-2010.5 See in this regard the Report of the Parliamentary Assembly of the Council of Europe issued August 7, 2009,entitled, Allegations of politically motivated abuses of the criminal justice system in Council of Europe memberstates, available at http://assembly.coe.int/Documents/WorkingDocs/doc09/edoc11993.pdf. Of particular note,the Report states the following at paragraph 132: The new charges against Mr Khodorkovsky and Mr Lebedevare also poorly specified: despite the constant exhortations of the defence, the prosecution has so far failed to setout which facts it intends to prove by which evidence, and what their significance shall be in terms of criminal

responsibility. Stating that Mr Khodorkovsky and Mr Lebedev embezzled all the oil produced by Yukos over agiven period and randomly designating huge volumes of company documentation as evidence does not seem tobe sufficient. The new charges, concerning essentially the same business transactions as those covered by thefirst judgment, also seem to reflect a considerable change in the legal assessment by the prosecution from


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After months of reading evidence and after bringing 51 witnesses to be heard in thecourtroom, and despite several requests by the defense for explanations andclarifications, prosecutors have failed to elucidate how it was possible that Yukoscovered its operating expenses and invested heavily in capital improvements andacquisitions and paid dividends all financial operations recorded on the books ofYukos and several other companies and banks when all oil as the primary source ofthe funds necessary for these operations was allegedly stolen. Prosecutors have alsofailed to explain how there could be money laundering without any underlying crime.Instead, they have simply stubbornly stuck to a script their indictment which denieslegal and factual realities ranging from the fundamental definition of crime to thehighly regulated structure and operation of vertically-integrated energy companies.Prosecutors have refused to clarify key questions, such as whether they are alleging itwas oil products that were stolen or proceeds of the sale of such products, and where thestolen goods or funds were taken; and they have remained silent on the method, timeand place the alleged crimes were committed. While prosecutors were permitted tospeak for hours and days on end, simply reciting parts of an indictment that everyone inthe courtroom has already read, the defendants or their counsel have attempted to

address the substance of the charges. Yet they have been continually interrupted byprosecutors or their statements cut short or dismissed by the judge. Over the past threeyears, all pleas by the defendants and motions by their counsel to have the chargesexplained have been rebuffed by investigators, prosecutors and judicial authorities.These pleas and motions are routinely deemed premature yet even one year into thetrial the prosecution has still not explained the legal and factual basis for the charges.Meanwhile, prosecutors have asserted that it is sufficient to read documents, extracts ofdocuments, or document titles, without connecting the information therein to thecharges alleged. Even reading tables of contents was deemed sufficient by theprosecutors to adduce proof.

Obstruction by Prosecutors and Investigators of Access to Evidence: The

defendants and even the court itself were denied access to wiretap recordings beingdescribed by the prosecution at the proceedings. Defense attempts in July 2009 andagain in November 2009 to have the recordings submitted to the court were rebuffed byinvestigators and the Federal Security Service (FSB), and the judge was unable tocompel the production of the recordings in question. Defense counsel asserted not onlythat a UK wiretap by the FSB was unlawful, but also that transcripts provided byprosecutors should be checked against the recordings, given the prosecutionsestablished pattern of distorting evidence in the case.6 The concealment of therecordings raises serious questions not only about the real probative value of theprosecutions transcripts, but also more broadly about the motives and methods of workof the investigators and prosecutors, and the incapacity of the judge to compel theproduction of evidence held by the authorities.

Refusal to Admit Exculpatory Evidence Presented by the Defense: The court hasrepeatedly denied allowing evidence presented by the defense to be added to the casefile. The defense has fruitlessly asked that exculpatory evidence in its possession beconsidered. Meanwhile, investigators and prosecutors have consistently and repeatedlybeen allowed to add materials to the case file as they have wished.

evasion of taxes on otherwise legal sales of oil to the embezzlement of the same oil. In addition, the prosecutionseems to be intent on accumulating the two apparently contradictory and mutually exclusive assessments, in anattempt to keep the accused in prison beyond the term to which they were already convicted on the basis of thetax evasion charges.6 In a similar effort by the defense to confirm the accuracy of a prosecution transcript, on February 26, 2010,after the defense successfully pleaded to have the court play back an audio recording of the interrogation ofwitness Gitas Anilionis, major discrepancies were revealed between the audio recording and the officialprosecution transcript.


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Refusal to Obtain Exculpatory Evidence from Available Sources: The judge hasunjustifiably declined to exercise his power to compel the production of evidence thatwould be available from state agencies and businesses. A case in point is Transneft, thestate-owned monopoly that tightly controls the movement of oil through Russiaspipeline network. To date, the court has refused to subpoena Transneft records soughtby the defense. The defense asserts these records would indicate that the allegedlyembezzled Yukos oil was in fact legitimately sold and transported through the statepipeline network. It will remain to be seen whether the court obtains and examines suchobviously probative evidence before the end of the trial. Likewise, publicly availableRussian government documents from the 1990s, demonstrating government policygeared towards the development and functioning of Yukos as a vertically-integratedenergy company, have to date not been sought out by the court from official sources forinclusion in the case materials. With the defendants unable to enter such germaneexculpatory evidence into the official case record, the evidence cannot be used in theinterrogation of witnesses and will presumably be excluded from the judgesdeliberations, unless the court suddenly becomes interested in putting these materials onthe record. The courts blocking or delaying of the admission of such evidence

frustrates the defendants fundamental due process rights.

Refusal to Admit or to Seek Defense Evidence from Abroad: The court has refusedto avail itself of procedures available to obtain relevant evidence from people, located inthe United States and Europe, who were expected to provide evidence corroboratingdefense positions. While these people have stated that they are willing to cooperatewith Russian authorities, the court has shown no interest in facilitating theirinvolvement. In contrast, investigators and prosecutors have been able to exploitprocedures to obtain and submit evidence from people outside of Russia.

Admission of Illegally-Obtained Evidence: In addition to disallowing defenseattempts to admit exculpatory evidence, the court has also denied defense requests to

exclude over 400 documents that were illegally seized. The court has typically statedthat the defenses objections over evidence are premature to be dealt with later. Asa result, the process is at risk of being contaminated by fruit of the poisonous tree with a verdict based in part on evidence of unlawful origin, including documentsobtained by investigators through multiple illegal searches and seizures at the lawyersoffices. The defense will be watching closely to see how the judge treats this illegally-obtained evidence.

Misrepresentation of Evidence: In verbally presenting Yukos audit documents, theprosecution changed the words income and taxes paid to debt and taxes owed.In several instances the prosecutors falsely stated that documents bore authenticationmarks such as stamps and signatures, where in reality no such marks existed. In other

instances signatures of the same people were different from one document to another.Multiple versions of documents were presented, with no indication of which, if any, wasthe final version. The prosecutors described a letter allegedly from Lebedev, yet failedto mention that as the court saw when Lebedev insisted the item be examined theoriginal letter was crossed out by hand with a large X, several phrases were alsocrossed out, there were several handwritten additions of unknown origin, the letterlacked a date and signature, and the prosecutions True Copy stamp was missing therequired signature. Numerous documents of unknown origin were presented, havingbeen printed from computer drives for which the chain of custody was unclear. Inseveral instances the prosecutors gave partially or completely inaccurate descriptions ofdocument contents. As an example, in summarizing a document of South PetroleumLtd., a prosecutor simply asserted that the document showed that defendants weretaking funds from that company, even though the document showed nothing of thesort. The prosecutors failed to explain what relevance the document had to theproceedings at all. A further example, also unexplained by the prosecution, was the


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assertion that the defendants embezzled a volume of oil in 2003 that in fact exceededthe actual sum produced by almost two million metric tons. In yet another example, onedocument presented by the prosecutors contradicted the indictment by revealing that thefounding capital of the Russian company Fregat was worth over 154 million rubles not the 14 rubles stated in the indictment. Furthermore, in arguing that Khodorkovskyand Lebedev should be kept in strict pre-trial isolation, the prosecution asserted that aSiberian court had determined that Khodorkovsky should be held in such conditions toprevent him from destroying evidence or intimidating witnesses; there was in fact neverany such ruling in a Siberian court.

Vanishing Evidence: A regional federal court decision relevant to the substance of thecurrent proceedings and helpful to the defendants was transmitted by the regionalfederal court to the prosecutors in Moscow. The Privolzhskiy Region Federal ArbitrazhCourt has confirmed that it sent the entire case file to the prosecutors. However, whenasked to produce the case materials in court, the prosecutors simply stated that they hadnever received them, and refused to confirm whether they had requested the materials atall. There has been no further indication that the prosecutors will attempt to find or

obtain the lost appellate court materials. The judge has been unable to compel theprosecution to produce the sought-after decision, and has dropped the matter despiteprotestations of the defense.

Incomplete Evidence: In many cases the prosecutors announced they were presentinga document in full, but in fact only read the title of the document or a few selectedsentences. Sometimes the first and last pages of a document would be read, but nothingin between, thus leaving it up to the defense to come back to these documents severalmonths later in order to provide the court the proper context of the materials.Documents such as sales contracts were ostensibly read in full but in reality onlycursory or irrelevant details of the document were provided, with no mention of whowere the parties or what was being sold. Shareholder meeting agendas were

summarized, with no information on actual decisions taken at the meetings and noindication of whether Khodorkovsky or Lebedev even participated. Companyprocedures were described in part omitting information about the rigorous controls inplace that would have prevented the alleged embezzlement. Sections of an independentlegal analysis of the acquisition and consolidation of Yukos shares were read thoughthe full approval of those share transactions by the Russian competition authority wasnot mentioned. The prosecution likewise skipped over parts of a PwC memorandumthey presented, which stated that the Russian government approved of the privatizationand consolidation of Yukos. Some documents abruptly ended mid-sentence, with anunknown number of missing pages. Some documents running several hundred pageswere handed to the judge for his perusal for a several seconds then, without a word ofanalysis, the prosecution announced the document henceforth was part of the court

record, and moved on to the next document. The prosecutors acted erratically andrandomly, with no discernable method or purpose other than perhaps an attempt toflood the court with raw data. When prompted by the defense to engage on therelevance of any given document, the prosecutors refused, and stated that the judge wasfree to assess the materials in his chamber, rather than in open court with the benefitof the adversarial process.

Erroneous Mathematical Calculations: The prosecutors stubbornly refused to correcterroneous mathematical calculations in the indictment, or to explain the miscalculatednumbers. In August 2009 the court rejected as premature a defense motion thatsought to confirm that the numbers do not add up and ever since then the court hasallowed the erroneous calculations in the indictment to remain. It remains to be seenwhether the court will seek to correct these obvious errors.


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Inaccurate Translations: Translations of non-Russian materials in the case file werewholly inadequate for courtroom purposes, or blatantly falsified. Beyond obviouserrors such as translating December 28 as December 34, or a 2001 financialstatement as a 2000 financial statement standard financial terms were routinelyimproperly translated. Thousands were confused with millions, and hundredswere confused with thousands. The word products was translated as countries ofEurope, Asia, Africa and the Americas. Some translations merged multiple documentsinto one translation. Corporate entities were mixed up: Yukos Supply and TradingLimited was translated as Yukos Brokerage Limited which was not only aninaccurate translation, but also a reference to a different entity incorporated in adifferent jurisdiction. At one point prosecutors presented an allegedly incriminatingdocument signed by a Victoria Road, when in fact the name was that of the streetaddress of a Yukos unit in London. Some translations failed to indicate the presence ofauthentication marks such as stamps and signatures in the originals, while othertranslations indicated that such authentication marks existed whereas they did not.Some translations contained struck out lines from the original documents, or containedquestion marks or handwritten comments not found in the originals. Some translations

were improperly edited; for example, in one case a paragraph that strongly supportedthe defense position was simply non-existent in the official Russian translation of thedocument that was submitted by prosecutors to the court. On most occasions theprosecution and court ignored defense protests about such translation inaccuracies; inone instance a prosecutor stated that nothing in the Russian Code of Criminal Procedureset standards for translators, and that in any case the prosecution found the translationsin the case file to be suitable. For its part the court has done nothing to exclude theflawed translations or to order corrections.

Prosecutors Incomprehension of Case Materials: The prosecutors sometimes readdocuments apparently without understanding that in fact the documents underminedtheir own position. Several documents showed that company income was earned,

dividends were paid, various large-scale purchases or loans were made, oil wastransported through government-controlled pipelines, and massive sums were paid intaxes rendering impossible the large-scale embezzlement allegations against thedefendants. In one instance, the prosecution apparently unwittingly read conclusions ofa government report commissioned in 2001 that chastised the government formismanagement of auctions, noncompliance with procedures and failure to exerciseeffective managerial control over government shares in the oil industry. For much oftheir presentation, rather than attempting to explain the meaning or relevance of thedocuments they were reading, the prosecutors simply read cheat sheets theindictment was cut into hundreds of strips of paper that bookmarked the case volumes,providing a script yet no analysis. At best the prosecutors demonstrated only asuperficial comprehension of the materials they read. They often had trouble

pronouncing relevant words, repeatedly misstated numbers, and always shirked awayfrom any discussion of the substance of the materials. Printed e-mail message chainswere read backwards, starting with the most recent message, confusing the chronologyand contents. Other documents were also read backwards starting with the last pagerather than correcting an erroneous reverse collation. A spreadsheet was read downcolumn-by-column rather than across row-by-row, rendering virtually unintelligible thecontents of the document and demonstrating that the prosecutor did not understand themeaning of the information.

Attempts to Control Testimony of Prosecution Witnesses: When the testimony ofthe prosecutions own witnesses began to veer away from the prosecutions line ofargument, prosecutors sought to replace live testimony with transcripts of prior out-of-court interrogations that they desired to be inserted into the court record. Over repeatedobjections by the defense, the court allowed the reading of interrogation transcripts intothe court record even when the prosecutors could not, as required by law, point to any


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material contradictions between in-court testimony and the statements made in the out-of-court interrogations as transcribed. The interrogation transcripts were onlyselectively provided to the court by prosecutors, and when provided the transcripts wereoften incomplete.

Circumventing of Lawful Procedures Applicable to Witnesses: As revealed duringthe process of interrogating witnesses under oath at the stand, investigators have usedpreviously-launched parallel cases as a means to influence individuals being called totestify at the current trial. By interrogating witnesses in what are technically separatecases although involving many of the same relevant facts the authorities arecircumventing rules that prohibit them from influencing the testimony that the witnessesgive in the current trial. The interrogators cannot be ignorant of the concerns peoplewill have about the possible consequences of not complying with the wishes of stateauthorities who are clearly bent on re-convicting the defendants. This is particularly thecase for certain witnesses who are or were themselves under criminal investigation, orfacing the threat of criminal investigation. The lessons of several high-profile casesinvolving the torture and detention of potential witnesses7 in Yukos-related cases are

undoubtedly present in the minds of those now being interrogated withoutKhodorkovskys or Lebedevs defense counsel present by investigators in the parallelcases. The investigatory fishing expeditions being run in parallel to the trial therebycreate opportunities to influence testimony, while unfairly circumventing rulesforbidding the coaching of witnesses. Meanwhile, the interrogation transcripts from theseparate investigations are being inserted into the evidentiary record of the current trialwithout any legal basis. Those transcripts have done nothing to advance theprosecutions case, and have only further contaminated the current process withunlawfully sourced materials. Efforts by the defense to ask questions shedding light onthe parallel investigations which are demonstrative of the authorities lack ofadherence to fundamental due process rules were cut off by the court. In numerouscases witnesses asserted that due to non-disclosure agreements signed with

investigators, they were not permitted to reveal information about the parallelinvestigations.

Interference in Defendants Access to Counsel and to Case File: In the courtroom,the defendants are locked into a heavily guarded aquarium-like glass booth, making itdifficult for them to consult with defense counsel and to view case materials. Thebooths thick bulletproof glass makes it difficult for the defendants to consult with theircounsel during the hearing. As the defense counsel are seated facing the prosecutorsand with their backs to the defendants, they often do not hear when their clients areattempting to catch their attention. Documents, notes and even media clippings passedby counsel into the aquarium are under constant surveillance by armed guards.8Meanwhile, in the defendants Moscow detention facility, their lawyers have been

repeatedly barred from visiting them in their isolation cells with a laptop computercontaining a digitized version of the case materials. In practical terms, by banning theuse of a laptop computer, the prison officials were thereby requiring defense counsel tobring thousands of documents into the isolation cell in order to consult withKhodorkovsky and Lebedev with access to the full case file. Prison officials ignored anunequivocal ruling by the Russian Supreme Court agreeing with Lebedevs lawyers thatthey should be permitted to bring electronic media into the isolation cell. Following thecourt rulings won by the defense on this issue, however, the State Duma recentlyconsidered new legislation which would ban the use of laptops and other electronicequipment by lawyers consulting with their clients in detention facilities. Given the

7 For the most prominent examples, see http://www.khodorkovskycenter.com/history-background/other-key-individuals.8 In applications by Khodorkovsky and Lebedev to the European Court of Human Rights, their confinement inthe courtroom during trial has been declared an admissible complaint.


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high profile of their lawyers battle on this issue, this new legislation appearsspecifically targeted at frustrating Khodorkovskys and Lebedevs due process rights yet in the process the State Duma may also disadvantage all other defendants being heldin detention facilities throughout Russia. The State Duma has not yet voted on thismatter, but this is one of the most recent examples of the willingness of the authoritiesto create law for this one case which has a negative impact on the whole country.

Denial of Defenses Access to Official Trial Transcripts: Citing the Russian CriminalProcedure Code, which stipulates that official trial transcripts are to be prepared withinthree days of court sessions, the defense has repeatedly motioned the court to providecopies of the current trials official transcripts. In April 2010, the defense argued thatdelays of several days or even several weeks could be understandable, but that there wasno credible justification for the court not having provided a single official trial transcriptto the defense since October 2009. In May 2010, some additional official trialtranscripts were provided to the defense, but only covering the proceedings up toNovember 2, 2009. Since May 2010, the defense has been provided no further officialtrial transcripts for the proceedings past November 2, 2009.9 Among the concerns that

the defense seeks to address is the courts habit of excluding the full text of motions andin-court statements, which have instead been summarized along the following lines:Khodorkovsky made a statement to the court, objecting to actions of the presiding

judge. The exclusion of the defenses legal reasoning from the official transcript is abrazen distortion of the trial record, and it is all the more unfair considering thatprosecutors have been permitted to insert documents into the official transcript as theydesire. More broadly, official trial transcripts are a key tool that defense lawyers referto in formulating their arguments and ensuring a robust defense strategy as a caseunfolds. Facing the intransigence of the court and the prosecutors on the issue, thedefense sought an official clarification of the courts position in writing, which wouldform the basis of an appeal to the Russian Constitutional Court.

Disrespect for Defendants: Prosecutors insulted the defendants on numerousoccasions, stating for example that Khodorkovskys opinion did not matter to anyoneexcept his defense lawyers and his cheering fans in the courtroom (April 21, 2009)10; orresponding to Lebedevs due process concerns by stating that his entreaties areuseless and adding, just as we have planned, so we will proceed (April 27, 2009); orcalling the defendants so-called political prisoners (June 9, 2009). In response toLebedevs reminder that in 2007 the Swiss Federal Tribunal ordered Switzerlandsprosecutors not to cooperate with their Russian counterparts on the Yukos case due tograve politically-driven human rights infringements, a prosecutor retorted: So what?(July 28, 2009). When the defendants asked to view case materials, a prosecutorobjected to passing a case volume into the locked and heavily guarded aquarium-likeglass booth where they were being kept in the courtroom, stating they could destroy

the evidence! (June 4, 2009) Prosecutors have repeatedly made contemptuous andsarcastic statements about the defendants in open court, displaying a troublesome lackof dignity and respect.

Direct and Indirect Threats to Defense Counsel: Shortly after the authorities beganto attack Yukos in 2003, lawyers acting for the company or for Khodorkovsky andLebedev routinely endured unlawful searches and the confiscation of privileged andconfidential documents. Lawyers were threatened with disbarment or prosecutionwithout valid cause, as a form of intimidation and vengeance for defendingKhodorkovsky and Lebedev. Prosecutors have gone as far as to implicate defense

9 As of August 31, 2010 meaning that to this date the defendants have been deprived of the official trialtranscripts throughout the entire phase of the trial during which they have been presenting their defense.10 For more detail on this incident and others cited in this paragraph, please refer to the courtroom reportsavailable at http://www.khodorkovskycenter.com/news-resources/from-the-courtroom.


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counsel themselves with criminal liability due to their professional association with thedefendants. The prominent cases of Svetlana Bakhmina and Vassily Alexanyan twolawyers who were incarcerated and, in the case of Alexanyan, subjected him totreatment that the European Court of Human Rights11 found to be inhuman anddegrading while he was terminally ill revealed the cruel depths to which theauthorities could act with impunity. These incidents created fearful precedents for thelawyers working on the current case. In the run-up to the current trial, prosecutorssuggested that the defense counsels due process-related interventions should beassessed against ethical and professional requirements essentially threateningdisbarment. Such was the response to the defenses reasoned and legally-groundedobjections to prosecutorial misconduct in trying to hold the prosecution to the standardsand requirements of the law. Prosecutors have regularly brandished such threats duringthe course of the trial as well, particularly when tensions have risen in the courtroomover defense protestations of injustice.12 These barely veiled threats of punitivetreatment weigh against all counsel representing Khodorkovsky and Lebedev.

Suspected Eavesdropping of Defense Communications Not Investigated: When,

during the current trial, the defendants had strong grounds to believe that theircommunications were the target of illegal eavesdropping by law enforcement agencies,efforts to examine the issue were rebuffed. On May 26, 2009, prosecutors denied thatthey had ordered wiretaps. The judge simply accepted this denial and has made nosubsequent moves to investigate the defendants well-grounded fears of illegaleavesdropping. As the trial progressed, prosecutors continued to make statements thathave confirmed the defenses belief that illegal eavesdropping has occurred and maystill be occurring.

Control and Harassment of News Media: With television news media in Russialargely controlled by the state, coverage of the current trial has been unsurprisinglysparse or non-existent. National television networks are the main source of news for

most Russians, meaning that many people are being kept in the dark about theprosecutions failing case against Khodorkovsky and Lebedev. At the trial, the livevideo feed that had been established to a press room in the courthouse at the start of thetrial was cut off, thereby limiting attendance by journalists to those who could fit intothe courtroom. Of the journalists consistently present in the courtroom, the prosecutionsingled out Novaya Gazetas Vera Chelischeva for harsh criticism, accusing her offomenting the publics negative opinion on the case. Although Chelischeva hasregularly been in attendance to monitor the trial first-hand, the prosecution dismissedher writings as not worthy of being taken seriously, since she did not have direct accessto the evidence in what is supposed to be an open trial.

For the vast majority of the prosecutorial abuses described above, the court has passively or activelycondoned the ongoing miscarriage of justice. In these circumstances, doubts inevitably arise as to the

judges capacity to render a judgment independent of pressure from the prosecutors or the politicalfigures behind the case.

11 The Court found this treatment to be contrary to Article 3 of the European Convention on Human Rights. SeeAleksanyan v. Russia (Application no. 46468/06), judgment of December 22, 2008.12 For example, during the prosecution phase of the trial, threats were made on April 29, 2009 and January 21,2010, stating that the Moscow Bar ought to review the good standing of the defendants lawyers.


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PROSECUTION WITNESSES FAIL TO CORROBORATE CHARGES

Over a six-month period beginning at the end of September 2009, the prosecution paraded a series ofwitnesses into the courtroom. Their testimony was marked by prosecutorial coercion, manipulation,and, notwithstanding the foregoing, irrelevance to the allegations against Khodorkovsky andLebedev.

In the course of the witness questioning, some of the witnesses refuted the arguments of theindictment, for example testifying that Yukos production companies were indeed paid for their crudeoil undermining a fundamental prerequisite of the embezzlement and therefore money launderingcharges against the defendants. Even the state-appointed Yukos bankruptcy receiver asserted thatYukos was well-organized and efficiently produced and sold large volumes of oil. Regarding thedisputed Eastern Oil Company share exchange, one witness testified that Khodorkovskys efforts toprotect Eastern Oil Companys assets were well-founded. The defense catalogued over three hundreddiscrepancies in the transcripts and audio tapes of this witnesss interrogations. The courtnevertheless allowed the prosecutors to submit this evidence into the trial record.

Indeed, the court allowed prosecutors to enter interrogation transcripts into the evidentiary recordeven when these transcripts were culled from investigations of separate cases in which the witnessesdid not have defense counsel present. Rather than properly cross-examine their own witnesses,prosecutors lazily asked a few brief stock questions of certain witnesses before asking the court tosubmit prior interrogation transcripts as evidence. Under procedural rules, such transcripts may onlybe submitted into the evidentiary record where discrepancies exist with the testimony given by awitness in the courtroom. The most flagrant example of the prosecutors flouting these rules occurredon March 11, 2009, during the cross-examination of former PricewaterhouseCoopers employeeStanislav Zaitsev. Prosecutors had prior interrogation transcripts entered into the evidentiary recorddespite objections of the defense, who pointed out that no discrepancies with the oral testimonyexisted. Perhaps afraid of what live witnesses might say on the stand, the prosecutors clearly

preferred scripted statements prepared under controlled conditions in some cases witnesses statedthat they had been asked to sign documents prepared by interrogators who had drafted supposedsummaries of their interrogations. Yet even using these transcripts as a crutch in their cross-examinations, the prosecutors seemed more concerned about appearing to bulk up the court file ratherthan actually proving their charges in any event, none of the transcripts contained proof of theallegations against the defendants.

Meanwhile, not a single of the alleged injured parties such as the production companies thatallegedly failed to receive proper payment in exchange for oil products testified in court.

In February 2010, Khodorkovsky unsuccessfully asked the judge to suspend the trial after aprosecutor apparently unwittingly confirmed in contradiction of the charges that Yukos had in fact

received revenue from sales of oil.

The prosecutions actions in manipulating its witnesses should also be considered in light of theindirect threats that the witnesses faced. Since 2004, investigations of various Yukos-related matterswere indiscriminately launched, paused, restarted or dropped by investigators. Potential witnesses ina new case against Khodorkovsky and Lebedev were directly or indirectly pressured by theauthorities in an attempt to corral a group of pliant witnesses and to accumulate whatever documentsthat could possibly be presented as evidence against Khodorkovsky and Lebedev. Against thisbackdrop, it is all the more remarkable that the prosecutions witnesses were unable to provide ascintilla of evidence to prove the absurd charges now being faced by Khodorkovsky and Lebedev.


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DEFENSE MOTIONS SYSTEMATICALLY DENIED

From the outset of the trial the defense has diligently filed motions addressing both the substance ofthe prosecutors allegations and procedural failings. These defense motions have been reasoned andgrounded in accordance with Russian law. The most important of these motions, and relatedstatements made in court by the defendants, have sought to force the prosecution to explain how therecould be embezzlement of oil when the same volumes of Yukos production were reported, accountedfor and heavily taxed; or how there could be money laundering without any underlying crime.

The gravity of the prosecutions violations of the defendants fundamental rights, and theprosecutions non-compliance with duties of fairness and objectivity, led the defense to petition onnumerous occasions for the recusal of individual prosecutors or the entire prosecutorial team.13

As the trial has unfolded the judge has persistently proven himself to be either unwilling or unable tocure the violations committed by investigators and prosecutors even where doing so is within hispowers as clearly prescribed by law. Although the judge allowed the defense lawyers and the

defendants themselves to decry foul play, he has nevertheless overwhelmingly failed to remedy theviolations in the investigation and prosecution of the case. With the judge continually allowingprosecutors to prevail in disputes over due process despite their patently untenable positions, thedefense has repeatedly entered written objections to the judges conduct into the trial record. 14 Thecourts lack of responsiveness in the face of an expanding catalogue of due process violations hasrobbed the defense of even minimum fair trial standards.

The vast majority of motions filed by the defense have been rejected by the court. Judge Danilkinoverwhelmingly sides with the prosecutors, making short rulings that do not address the relevant lawand legal reasoning presented by the defense. The defense was unable to obtain favorable rulings on90 out of 104 motions filed up to the end of March 2010, while almost all of the prosecutions motionshave been granted.

In addition to these motions, the defense has systematically made objections to protest the recurringprocedural violations of the prosecutors. Hundreds of objections have been entered into the trialrecord, though it is unclear what effect if any these objections will have upon the judge.

Three fundamental legal issues that have been the subject of defense motions are described below,concerning the courts lack of jurisdiction; the flawed indictment; and the unlawful ongoingincarceration of the defendants under harsh conditions of pre-trial detention.

Court Without Jurisdiction

The case currently being prosecuted at trial is in fact outside of the jurisdiction of MoscowsKhamovnichesky Court.

Pursuant to the Constitution of the Russian Federation, no one may be deprived of the right to havetheir case heard by that court and that judge under whose jurisdiction the case has been accorded bylaw. The issuance of a verdict by an unlawfully composed court is an unconditional ground for itsrepeal, directly prescribed by the Code of Criminal Procedure of the Russian Federation. Indeed, it isprescribed by the rules on territorial judicial jurisdiction that a case shall be subject to being heard by a

13 During the prosecutions phase of the trial, such petitions were presented by the defense on April 24 and April28, 2009, August 14, 2009, September 19, 2009 and November 11, 2009.14 During the prosecutions phase of the trial, such written objections were presented by the defense on April 28and 29, 2009, May 12, 2009, June 3, 2009, September 9 and 29, 2009 and October 19, 2009. As the trialprogressed without an improvement in adherence to fundamental norms of due process, the defense becamecompelled to motion for the recusal of the judge.


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court at the place of the commission of the alleged act, and if several acts are alleged, then at the placeof the commission of the most recent or the gravest of them. If the act was begun in one place andended in another, then the case shall be heard by a court at the place where it ended.

In the present case against Khodorkovsky and Lebedev, not a single one of the alleged acts, includingthe gravest involving alleged money laundering, was committed, or begun, or ended in the jurisdictionof Moscows Khamovnichesky Court. While the prosecution made references to actions of membersof the law firm ALM Feldmans, located in the jurisdiction of Moscows Khamovnichesky Court, whowere said to have participated in the alleged acts imputed to Khodorkovsky and Lebedev, no membersof that firm are defendants in the present case, and none of acts alleged in the indictment ended infirms premises.

The legally-prescribed procedure for changing territorial jurisdiction in certain situations was notinitiated or applied in the case now before the Khamovnichesky Court. Under these circumstances, forwant of jurisdiction, the Khamovnichesky Court lacks the competence prescribed by law foradjudicating the case against Khodorkovsky and Lebedev.

Flawed Indictment

The indictment is contaminated by a multitude of gross violations of the requirements of the law. Theactual formulation of the charge does not contain a description of specific actions imputed to thedefendants and in the majority of situations, likewise does not contain an indication of the place,time and other circumstances of alleged acts. Legal terminology is employed presumptively andamateurishly, stigmatizing the defendants but not making a cogent case against them. Meanwhile, notknowing just what specifically they are being charged with, the defendants are deprived of their rightto a defence.

The charges contain contradictory including mutually exclusive assertions about the alleged

criminal activity. Along with an assertion about the theft of all of the oil produced by Yukos in agiven period, the indictment contains assertions about the theft of the oil products manufactured fromthis same oil, and the proceeds from the companys sale of this same oil.

Contrary to the requirements of the law, the indictment lacks a list of the persons who may besummoned to the trial as witnesses and experts on the part of the defence. As a result, when the courtdecides upon the summoning of witnesses to court, it cannot in fact refer to the list that should be inthe indictment as required by law.

In addition to the above examples, defence lawyers petitioned repeatedly about the multitude offurther flaws in the indictment that impede the lawful adjudication of the case by the court. The legaland factual violations of the indictment deprive the current process of a clear-cut object and clear-cut

boundaries and frustrate the defendants right to a defence. Nevertheless, a defence motion that thecase be returned to the prosecution to remedy the defects in the indictment was rejected by the court,without explanation of its reasoning in reference to the grounds cited by the defence.

Khodorkovsky and Lebedev Continue to be Held Unlawfully in Harsh Pre-Trial Isolation Cells

The defense has also repeatedly petitioned the court to have Khodorkovsky and Lebedev removedfrom the confines of ongoing pre-trial isolation in favor of the less restrictive conditions ofincarceration to which they are entitled under law. The defendants have been subjected to therestrictions on access to legal counsel and the limitations on family visits imposed under pre-trialdetention rules. These restrictions, coupled with minimal exposure to fresh air and direct sunlight andinadequate opportunities for exercise, make the pre-trial detention regime extremely difficultphysically and psychologically, particularly over extended periods.


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In December 2006, Khodorkovsky and Lebedev were transferred from Siberian labor colonies, wherethey had been serving their sentences since October 2005, to a pre-trial detention facility in Chita, inRussias Far East. In February 2009 they were transferred from there to Moscows MatrosskayaTishina detention facility, meaning that the defendants have been continuously held under this strictregime of pre-trial isolation for over three years.15 Added to the two years spent in pre-trial detentionbefore the end of their first trial and appeal, the defendants have spent over five years detained underthese strict conditions of isolation, compared to just approximately one year in the less restrictiveconditions of incarceration of a general prison colony.

As pre-trial isolation is considered an exceptional form of incarceration, the court in Moscow mustdecide every three months whether to extend the duration of the detention measures. The defendantshave pointed out to the court that the detention measures to which they have been subjected areinconsistent with Russian criminal procedure law, the Russian Constitution and Russias internationalobligations under the European Convention on Human Rights, as confirmed by RussiasConstitutional Court, the Presidium of Russias Supreme Court, and the European Court of HumanRights. Yet in what has been described by Lebedev as a recurring ritual, the court has without failcomplied with every prosecution request to extend the defendants incarceration in the pre-trial

detention facility. The prosecutions arguments in favor of continued pre-trial detention have rangedfrom the paranoid to the absurd including an argument made twice both in November 2009 andFebruary 2010 that if released from pre-trial detention the defendants might be better able to co-conspire in the filing of claims at the European Court of Human Rights, and thereby, supposedlyimproperly, exert pressure on the Russian justice system.

Khodorkovsky and Lebedev are therefore enduring a situation described by their defense counsel asdouble bars their conditions of incarceration constitute ongoing compounded punishmentinconsistent with the sentence they received in 2005, and imposed vindictively and unlawfully byprosecutorial authorities with the backing of a compliant court.

15 The widely-reported deaths of 37-year-old lawyer Sergei Magnitsky in November 2009 and 53-year-oldentrepreneur Vera Trifonova in April 2010 both occurred at Matrosskaya Tishina; both detainees were denied

medical treatment after refusing to cooperate with corrupt officials. Matrosskaya Tishina is also where formerYukos lawyer Vassily Alexanyan was held in brutally inhumane conditions from April 2006 to February 2008,until he became terminally ill after being denied treatment for HIV and lymphatic cancer as punishment for notproviding false testimony against Khodorkovsky.


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According to defense lawyer Vadim Klyuvgant, speaking at the trials one-year mark, the last 12months have provided continuous proof of the artificial, political and corrupt nature of the persecutionof [Khodorkovsky]neither by presenting irrelevant evidence nor by questioning frightened witnesseshas the prosecution been able to prove the absurd charges. Speaking on the last day of theprosecutions case, Khodorkovsky stated:

[For] exactly one year [the prosecution] presented the indictment and offered evidence. Threequestions remain unanswered:

1. Who said, and where is it documented, that Yukoss crude oil disappeared?2. Who verified, and how did they verify, that crude oil disappeared from Yukos?3. From what income did Yukos have to pay taxes if all its crude oil disappeared?

[It is] possible to spend as much time [as one wants] on questioning people and bringing in papers, butif after a year there is no answer to the key factual question, then this is not a trial its a fiction.

On March 29, 2010, almost exactly one year after its commencement, the prosecution announced theyhad finished presenting their case. The court then scheduled the opening of the defenses case forApril 5, 2010.

The courts practice to date does not bode well for a fair hearing of the defenses arguments, for thesubmission of defense evidence at trial, or for relevant witnesses to speak freely to the allegations.Yet as ever, the defendants are fighting a principled battle within the constraints that have beenimposed upon them. As stated by Lebedev on April 23, 2009: If we are fighting for justice, I wantthis court to be a temple. I want those who represent the law, when they come here, to know the law.That is why, Your Honor, I am fighting for your honor. Whether the court will be able to preserve itsown honor and that of the Russian legal system which will be judged on the basis of this bellwethertrial is increasingly in doubt.

August 31, 2010