Courtroom Report: February 11, 2010
The defense responded to Mr. Lakhtin's motion to extend Messrs. Khodorkovsky and Lebedev's detention in pre-trial arrest custody through March 17, 2010.
Mr. Klyuvgant began reading the response.
"On February 9, 2010, representatives of the General Prosecutor of the Russian Federation filed motion to extend [Messrs. Khodorkovsky and Lebedev's] detention in pre-trial arrest custody by a term of three months through March 17, 2010.
To our deep regret, two previous analogous motions, based on disjointed and random copies irrelevant to the substance of the charges, newspaper clippings and demagogy, were granted by the court without a murmur, without any motivation or critical analysis, despite evident violations of the law.
Basically, the current motion is different from the previous ones in the amount and degree of cynicism contained in its false and illegal assertions, which will be analyzed below.
Having heard the prosecution's motion, having acquainted ourselves with the so-called evidence [found in the appendix], we are certain at this time, as before, that there aren't any legal grounds to continue to hold [Messrs. Khodorkovsky and Lebedev] in pre-trial arrest custody. With absolute certainty, we consider the filed motion to be illegal and groundless and ask for it not to be granted."
For the next two hours, Mr. Klyuvgant exposed prosecution's systemic violations of their vested authority, the illegality of keeping Messrs. Khodorkovsky and Lebedev in pre-trial arrest custody, the lack of credibility in the prosecution's arguments and the purposeful falsehoods about Messrs. Khodorkovsky and Lebedev's alleged actions.
Mr. Klyuvgant explained that prosecution lost all credibility in the face of the recent decision by the Russian Supreme Court, based on the ECHR decision, finding that Mr. Lebedev was illegally arrested in July 2003 and continued to be held in pre-trial arrest custody without a court order. Mr. Klyuvgant reminded the court that Mr. Lakhtin was not only the supervising prosecutor when Mr. Lebedev was arrested, but was also the one to spew lies to the appellate panel when Mr. Lebedev's arrest was appealed. Not forgetting Mr. Lakhtin's partner, Mr. Klyuvgant reminded the court that Mr. Shokhin neglected his duties to defend the law and purposefully failed to act on a decision by the Russian Supreme Court concerning several petitioners, Mr. Lebedev included, who were held under arrest without a court order. Mr. Klyuvgant reminded the court that prosecutorial conduct led to a loss of Russian Federation's credibility and to monetary judgments being paid by Russia's taxpayers.
Mr. Klyuvgant noted that prosecutors continue to flaunt all rules and procedures, even in the text of their motion. He highlighted to the court that one of the reasons cited by the prosecution for keeping Messrs. Khodorkovsky and Lebedev in pre-trial arrest custody was to help facilitate investigation of other criminal cases. Mr. Klyuvgant called this cynical admission another proof of secret investigations being conducted, with Messrs. Khodorkovsky and Lebedev, once again, slated to become the main victims.
Mr. Klyuvgant told the court that prosecution continued to put forth ludicrous arguments for keeping Messrs. Khodorkovsky and Lebedev under arrest, particularly since the defendants were serving 8 year sentences with any lack of possibility to disappear, to continue criminal activity or to threaten witnesses. Mr. Klyuvgant noted that prosecution was running out of even the least plausible arguments, highlighting to the court Mr. Lakhtin's argument during last appellate hearing that the defense's deposition of Mr. Douglas Miller was another reason to keep defendants under arrest. [For more details please read our daily reports from December 11 and December 14. -Eds.]
Mr. Klyuvgant derided the prosecution's assertions that failure to keep Messrs. Khodorkovsky and Lebedev under pre-trial arrest will result in their not showing up for the trial. Mr. Klyuvgant reminded the court, once again, that the defendants' sentences were set to expire in 2011 and no one could even posit that Russia's [Bureau of Prisons] and the Ministry of the Interior would all of a sudden fail to deliver Messrs. Khodorkovsky and Lebedev to the courthouse. Mr. Klyuvgant insisted that the prosecution's arguments were part of a cynical attempt to impose harshest conditions possible for Messrs. Khodorkovsky and Lebedev.
Mr. Klyuvgant asked the court to inquire of the prosecution where the so-called "report from Matrosskaya Tishina medical personnel" was, which they cite as one of the basis for keeping Messrs. Khodorkovsky and Lebedev under arrest. Mr. Klyuvgant reminded the court about the death of Sergey Magnitsky, with SIZO medical personnel writing satisfactory medical reports on his condition, allowing the authorities to keep him in pre-trial arrest custody. Mr. Klyuvgant asked the court not to trust Mr. Lakhtin's words.
Mr. Klyuvgant noted that the prosecution failed to present any new credible arguments for extending pre-trial arrest. Instead, they relied on previous motions, issuing blanket statements without identifying any specifics. Mr. Klyuvgant told the court that prosecution, once again failing to live up to their duties, relied on baseless slanderous statements and circumstances unconnected with the case.
Mr. Klyuvgant argued that the court continued to extend an illegal order for pre-trial arrest custody. Citing to October 29, 2009, decision by the Russian Supreme Court, Mr. Klyuvgant explained that the defendants continue to be held illegally, as the court never issued an order setting initial term of Messrs. Khodorkovsky and Lebedev's detention. [Procedurally Khamovnicheskiy Court continues to extend detention set by the Ingondinskiy Court in Chita. -Eds.] Furthermore, Mr. Klyuvgant pointed to a violation of the defendants' right to know individual circumstances that provide basis for their detention.
Citing a decision by the ECHR, Mr. Klyuvgant reminded the court that the prosecution's argument about severity of the charges cannot, by itself, serve as basis for keeping defendant in pre-trial arrest custody for an extended period of time. He went further, citing to an ECHR decision where the court faulted Russian judicial system for t relying solely on the charges leveled by prosecutors. Also, Mr. Klyuvgant pointed to a decision by the Russian Supreme Court telling lower courts to examine credibility of the allegations, including sufficiency of the evidence.
Concerning sufficiency of evidence, Mr. Klyuvgant reminded the court that, even if the court continued to disregard expiration of statute of limitation for VNK charges, the case file contained documentary evidence that the exchange took place to protect shares from being arrested under a claim from Birkenholz. Next, Mr. Klyuvgant pointed out to the court numerous documents showing the absurdity of prosecution's allegations that the entire YUKOS crude oil production was embezzled. [Defense response contained an appendix of 140 individual documents in support of their arguments. -Eds.] These included excerpts from YUKOS consolidated statements, statements by a member of YUKOS revision and control department, Standard & Poor's statements on YUKOS and others. Finally, addressing the "laundering charges," Mr. Klyuvgant told the court that prosecution convinced themselves into insisting that Messrs. Khodorkovsky and Lebedev, while being incarcerated and awaiting trial, were "laundering" crude oil. How else to square the fact that events allegedly taking place in 2004 were being attributed to direct actions by Messrs. Khodorkovsky and Lebedev, with Mr. Lebedev under arrest from July 2003 and Mr. Khodorkovsky from October 2003.
Continuing to expose illegality of the prosecution's actions, Mr. Klyuvgant argued that Messrs. Khodorkovsky and Lebedev were being tried on charges rising from the same underlying set of facts - sale of crude oil - that were tried during the first trial in Meschanskiy Court.
Mr. Klyuvgant argued that the prosecution's insistence on keeping Messrs. Khodorkovsky and Lebedev under pre-trial arrest was an attempt to put additional pressure on other alleged members of the organized group, who left Russia. According to Mr. Klyuvgant, the prosecution violated Messrs. Khodorkovsky and Lebedev's rights by using their detention to blackmail other persons. Furthermore, Mr. Klyuvgant reminded the court that every country where Russia sought extradition ruled against such requests.
Mr. Klyuvgant reminded the court that the prosecution continued to close their eyes on the fact that YUKOS was sold at a discount at bankruptcy auction, netting close to 860 billion Rubles. At the same time, the prosecutors continued to argue that the entire crude oil production was embezzled. Furthermore, Mr. Klyuvgant noted that one of the assets sold at the bankruptcy auction was the same 38% block of Tomskneft shares which prosecution argues was "embezzled" and "laundered." Currently, Rosneft and Gazpromneft are the proud owners of the embezzled and laundered Tomskneft.
Mr. Klyuvgant denounced prosecution's attempts to force the court to weigh testimony of Messrs. Rybin, Golubovich and Ms. Karaseva, presented selectively and with obvious misrepresentations. Mr. Klyuvgant noted that Mr. Golubovich testified that he remained in London because of the criminal investigation launched against him, while Ms. Karaseva never even mentioned Messrs. Khodorkovsky and Lebedev's names while being interrogated in Matrosskaya Tishina. [Mr. Klyuvgant pointed out that defense was not finished cross-examining Mr. Golubovich, which made the prosecution's reliance on his testimony even more suspect. -Eds.]
Mr. Klyuvgant reminded the court that instead of Messrs. Khodorkovsky and Lebedev pressuring witnesses prosecution was the one involved in such activities. As an example his cited Mr. Aleksanyan's testimony to the Russian Supreme Court about investigators offering medical treatment in return for testimony against YUKOS executives, including Mr. Khodorkovsky. Highlighting the treatment of Mr. Valdes-Garcia, Mr. Klyuvgant exposed investigative tactic of obtaining testimony by torture.
Mr. Klyuvgant highlighted absurd inconsistencies and falsehoods Mr. Lakhtin levied against Messrs. Khodorkovsky and Lebedev in connection with Yukos Capital S.a.r.l. victory against Rosneft and YUKOS International's ECHR claim. Mr. Klyuvgant contrasted the differences between Mr. Lakhtin's words and reality, including the fact that independent courts continue to recognize illegality of Russia's actions leading to YUKOS bankruptcy. He noted that instead of facing reality, the prosecution uses these decisions as basis for keeping Messrs. Khodorkovsky and Lebedev under pre-trial arrest.
Finally, pointing to the court Mr. Lakhtin's allegation that Messrs. Khodorkovsky and Lebedev initiated YUKOS International's ECHR claim to pressure the Russian judiciary, Mr. Klyuvgant asked the court to remember that the claim was field in 2004 and that Mr. Lakhtin's assertions was nothing but a falsehood couched in blackmail.
"You, Your Honor, are being asked to assist in a pirate operation with armed hostage-taking," Mr. Klyuvgant concluded and asked the court to deny prosecution's motion.
Next, Ms. Karina Moskalenko made a statement. She highlighted to the court recent developments concerning Russia's adoption of Protocol 14 of the ECHR and the incredible number of ECHR decisions overturning Russian judiciary's use of pre-trial arrest as a default measure of restraint. Then, Ms. Moskalenko told the court she understood that it was being asked to take a heroic step - to deny prosecution's motion. Ms. Moskalenko ended by focusing on the difficulty of Judge Danilkin's unenviable situation and wished him success in making his decision.
After a short break, Mr. Khodorkovsky filed his objection. First, he told the court that he would not repeat Mr. Lakhtin's arguments, based on a falsified indictment and events from 2003. These are not relevant to a 2010 motion to extend pre-trial arrest, which is exactly how this issue will be presented to the ECHR.
Next, Mr. Khodorkovsky asked the court to pose for itself four questions:
First, Mr. Khodorkovsky is accused of embezzling 350 million tons of crude oil. Did the court see any documents evidencing disappearance of that volume of crude oil production?
Second, Mr. Lakhtin stated, once again, that YUKOS property was stolen from YUKOS in 2005. Clearly that was not a mistake on his part, because he continues to repeat it. The allegedly stolen "2005 property" is property resulting from sales of the allegedly embezzled crude oil. Why hadn't the court issued a direct rebuke to Mr. Lakhtin who, by clearly abusing his privileges, argues two mutually exclusive positions: "stolen in 1998-2003" then "stolen in 2005?"
Third, Mr. Lakhtin continued to argue that RFFI and Rosneft are victims and need to be compensated. At the same time, the court knows that RFFI sold to Rosneft YUKOS assets which are alleged by prosecution to have been purchased using funds from sales of embezzled crude oil. The bankruptcy auction netted $25 billion USD. Mr. Lakhtin failed to explain this "legalized robbery." Why hasn't the court demanded an explanation?
Fourth, how long will the court allow [Mr. Lakhtin] to lie blatantly to the court?
Then, Mr. Khodorkovsky gave a list of examples of Mr. Lakhtin lying to the court. One was of Mr. Lakhtin saying that investigators were actively searching for Messrs. Nevzlin, Brudno, Ivlev and others, because those persons were allegedly in hiding. Mr. Khodorkovsky pointed out that none of these persons was concealing their whereabouts. Instead, Mr. Lakhtin was unwilling to tell the court that extradition requests were being denied.
Another one was Mr. Lakhtin's continued insistence that decisions of independent courts in Netherlands were a means of embezzlement.
Mr. Khodorkovsky told the judge that he was finding it more difficult to call Mr. Lakhtin "a prosecutor." Instead, Mr. Khodorkovsky saw Mr. Lakhtin as a member of an OPG, actively keeping in contact with other members, following their directions and pressuring witnesses. Mr. Khodorkovsky identified Mr. Karimov and highlighted to the court the latter's involvement in Russia and in United States, through workers at the Russian embassy. [Mr. Karimov was contacted by Russian embassy concerning the Miller deposition. -Eds.]
Mr. Khodorkovsky told the court that when and if it starts arresting those who are actively acting to disrupt the trial, regardless of their rank, then it would become clear that Russia has independent courts.
"Against my ritual arrest I ritually object," Mr. Khodorkovsky concluded.
The hearing was adjourned immediately after Mr. Khodorkovsky filed his objection.
The trial will resume on Friday, February 12, 13:00 Moscow Time.