2007-2011 Trial
New charges were brought against Khodorkovsky and Lebedev in February 2007.
In 2007, Mikhail Khodorkovsky and Platon Lebedev became eligible for release on parole under Russian law, having served half of their 8-year sentences since being arrested in 2003 and convicted in the politically-driven first trial that ended in 2005 - while Yukos was destroyed through bogus tax reassessments, forced bankruptcy proceedings and rigged auctions. Given their eligibility for release on parole in 2007, or at the latest upon completion of their 8-year sentences in 2011, new charges were sloppily put together and proceedings were instigated against Khodorkovsky and Lebedev to prolong their incarceration.
The new charges, announced in February 2007 and brought to Moscow's Khamovnichesky Court in a second trial that started in March 2009, were intended to keep Khodorkovsky and Lebedev isolated from Russian political and economic spheres, to stain their reputations and to whitewash and distract attention from corrupt and criminal actions committed by high-ranking Russian officials, many of whom are believed to have personally benefitted from the destruction of Yukos. Like the first trial, the second trial was marred by human rights abuses and due process violations. In December 2010, Khodorkovsky and Lebedev were found guilty and sentenced to an overall total of 14 years in prison, reduced to thirteen years upon appeal in May 2011. Counting time already served they are now expected to remain in jail at least until 2016.
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On February 5, 2007, Russian prosecutors leveled new allegations against Khodorkovsky and Lebedev. Those allegations ensured that Khodorkovsky and Lebedev would not be released from prison when they became eligible for parole in 2007, having served half of their original eight-year sentence.
Prosecutors alleged that Khodorkovsky and Lebedev embezzled the entire crude oil production of Yukos over the six-year period from 1998 to 2003. In a statement made by Khodorkovsky on October 22, 2008, referring to the investigation that was open for nearly two years, he suggested the "investigative group not humiliate itself and the country by making knowingly absurd assertions."
The investigation into these allegations was extraordinarily drawn out and both Khodorkovsky and Lebedev endured numerous procedural violations and erratic behavior by investigators.
In November 2008, investigators rejected a request by the defense to introduce evidence which would have ensured the dismissal of the absurd allegations. Over defense protests, the court refused to hear a complaint against the investigators' rejection. The court also refused to grant a defense complaint against the investigators' failure to explain to Khodorkovsky and Lebedev the essence of the charges brought against them. In response to the court's decision, the defense stated:
"The investigators have committed serious procedural violations in pursuing this case. They will not even answer legitimate questions from the defense concerning the allegations under investigation. The defense considers this investigation to be incomplete and replete with violations of Russian law. The fairness of any trial to follow will be compromised by these and other legal defects."
On January 26, 2009, the defendants and defense team were asked to sign a protocol acknowledging the completion of their review of the case. In response, both the defense team and Khodorkovsky signed a motion stating that they were not able to complete their review of the case because they were illegally prevented from so doing by the prosecution.
As a result, the defense regarded the investigation as incomplete and having been conducted with numerous violations of Russian law. To support their position, the defense requested the prosecution include over 470 individuals in the list of witnesses and experts to testify at trial as well as over 270 documents that the prosecutors had previously refused to attach to the case materials.
On January 27, 2009, defense lawyers for Khodorkovsky and Lebedev filed a motion to dismiss the charges. Citing the numerous violations of their clients' constitutional rights and lawful interests that had been allowed by the court, the defense asserted that it would be impossible for Khodorkovsky and Lebedev to receive a fair trial.
On February 16, 2009, the Russian Prosecutor General's Office finalized the indictment against Khodorkovsky and Lebedev.
The preliminary hearing in the second Khodorkovsky-Lebedev trial began in Moscow on March 3, 2009, with Judge Victor Danilkin presiding. The prosecution, led by Prosecutor Valery Lakhtin, began presenting its case later that month. The trial started with the prosecution reading the indictment in full, a process that lasted several weeks. Upon the conclusion of the reading on April 21, 2009, Khodorkovsky and Lebedev both pleaded not guilty to all charges.
During the presentation of written evidence, the defense regularly raised objections to glaring omissions, incorrect dates and figures, misstatements of key facts and generally misleading evidence presented by the prosecution. In response to the continuing irregularities, the defense team several times attempted to have the prosecutors removed from the case. All of these defense efforts were rebuffed by Judge Danilkin.
On September 28, 2009, the prosecution began calling its witnesses. Many had never met either defendant and could not comment on anything directly related to the charges in the indictment.
Testimony and cross examination of the prosecution's witnesses confirmed the baseless nature of the indictment. Prosecution witnesses, from Yukos's tax auditing firms to members of Yukos's own legal team and executives of Yukos subsidiaries, substantiated the defense's case and undermined the prosecution.
In March 2010, the prosecution called the last of their 51 witnesses - Eduard Rebgun, the former bankruptcy receiver of Yukos. Mr Rebgun, like other prosecution witnesses before him, praised Yukos for its organizational structure. Crucially, Mr Rebgun admitted during cross examination that no information to support the allegations of embezzlement was ever uncovered. He recalled almost nothing about the forced bankruptcy proceedings over which he presided.
On March 29, 2010, almost exactly one year after its commencement, the prosecution announced they had finished presenting their case. The court scheduled the start of the defense's case for April 5, 2010.
Throughout the proceedings, motions from the defense team were overwhelmingly rejected by Judge Danilkin and several decisions were appealed to the higher Moscow City Court - including appeals on the multiple extensions of Khodorkovsky's and Lebedev's harsh conditions of incarceration in a pretrial detention facility.
Commenting on the first year of the trial, Khodorkovsky lawyer Vadim Klyuvgant said:
"The last 12 months have provided continuous proof of the artificial, political and corrupt nature of the persecution of my client. In the course of the year, neither by presenting irrelevant evidence nor by questioning frightened witnesses has the prosecution been able to prove the absurd charges."
Once the prosecution finished presenting its case, Mikhail Khodorkovsky took the stand to begin his testimony. He laid out 12 theses to counter the allegations. Khodorkovsky provided an in-depth description of the Russian oil industry and the formulation and organization of Yukos during his tenure as CEO.
Defense witnesses, including former and current government ministers German Gref and Victor Khristenko and former Russian Prime Minister Mikhail Kasyanov, were called to the stand. In their testimony, each reinforced the defense's arguments that Khodorkovsky and Lebedev did not and could not have embezzled the totality of six years' oil production, as alleged.
Several witnesses and experts from outside Russia were barred from giving evidence at the trial.
On December 27, 2010, Judge Danilkin found Mikhail Khodorkovsky and Platon Lebedev guilty under Article 160 para. 3 (a) and (b) (embezzlement) and Article 174.1 para. 3 (money laundering) of the Russian Federation Criminal Code. The defendants were found to have embezzled and laundered the proceeds of all oil produced by Yukos subsidiaries over a six-year period.
The court found the defendants guilty of having embezzled even more oil than prosecutors had alleged, ignoring the prosecution's reduction during closing arguments of the volume of oil allegedly embezzled. In the trial's closing arguments the prosecution, citing arithmetic errors and lack of evidence, had suddenly reduced the volume of oil allegedly embezzled by approximately one third, to 219 million metric tons valued at approximately $13.4 billion. The judge nevertheless disregarded the prosecution's belated bid for a modicum of credibility, and convicted the defendants of embezzling the volume of oil originally alleged in the indictment: 350 million metric tons worth over $25.4 billion - irrespective of the arithmetic errors and lack of evidence that even the prosecution conceded.
The conviction in the 22-month mock judicial process confirmed the subservience of the judicial system in Russia to corrupt officials who continue to view Khodorkovsky and Lebedev as threats and who sought to prevent their scheduled release in 2011.
On December 30, 2010, Judge Victor Danilkin sentenced Mikhail Khodorkovsky and Platon Lebedev to an overall total of 14 years in prison, exactly as the prosecution had requested. The sentence was reduced to an overall total of thirteen years upon appeal in May 2011. Counting time already served since their arrests in 2003, Khodorkovsky and Lebedev are now expected to remain in jail at least until 2016.
Responding to the sentence, Khodorkovsky said:
"Lebedev and I have shown by example that you cannot count on the courts to protect you from government officials in Russia. The ‘Churov Rule' is alive and well. But we have not lost hope, nor should our friends."
In citing the "Churov Rule", Khodorkovsky was referring to a statement made in 2007 by Vladimir Churov, chair of Russia's Central Election Commission, who said that his first rule was that Vladimir Putin is always right, and if he is not, "it means I have misunderstood something".
On May 24, 2011, the Moscow City Court convened to hear the Khodorkovsky-Lebedev appeal against the December 2010 verdict. In a written statement submitted to the court, Khodorkovsky commented that he was "not seeking justice here" but wanted "to bring attention to the lawlessness" of the proceedings. He stated that the charges that were brought against him were politically-motivated and he cited public revelations by a whistle-blowing court employee that the verdict had not been written by Judge Danilkin, but rather by a collection of authors external to the trial.
In a moving oral statement to the packed courtroom, Khodorkovsky asked his audience:
"...In what dusty cellar did they dig up that poisonous Stalinist spider who wrote this drivel? What kind of long-term investments can one talk about with such justice? No modernization will succeed without a purging of these cellars."
"There is no way to correct this verdict. That means, - either overturn and terminate this shamefulness, or join ranks with the criminals, who spit on the law. I have nothing to talk about with criminals, even those in a judge's robe. And indeed there is no reason for me to. I do not need mercy from criminals."
The same day, a panel of three judges rejected the appeal, extending Khodorkovsky's and Lebedev's expected release from 2011 to 2016. The decision was greeted with shouts of "Shame!"
The rejection of the appeal received global media coverage and provoked condemnation from international leaders. Mark Toner, US State Department Spokesman, said:
"The denial of Khodorkovsky and Lebedev's appeals, upholding long prison terms, affirms our concerns about serious due process violations and the use of the legal system for improper ends."
In June 2011, Khodorkovsky was transferred to the Segezha FBU IR-7 penal colony in the Karelia Region, bordering Finland. The colony is located on the west coast of Lake Vygozero, on the route of the White Sea-Baltic Canal. The canal was constructed in the Soviet era by forced labor of gulag inmates, during which over 10,000 prisoners died according to official figures. Meanwhile, Lebedev was sent to Penal Colony 14 in Velsk, in the adjacent Arkhangelsk Region.