« Sovest » group appeal
to the organisation
On recognition of MIKHAIL KHODORKOVSKY
as political prisoner
To Mrs Irene Khan, General Secretary
To the members of the International Executive Comitee
To the representatives of Amnesty International in the United Kingdom
1 Easton Street London
WC1X 0DW, UK
Ladies and Gentlemen
This letter is being written as Amnesty International celebrates its forty-fifth birthday. For almost fifty years it has been able very effectively to fulfil its mission i.e. to defend freedom of speech and opinion as well as political prisoners and prisoners of conscience. Fighting for basic human rights is now the prime purpose of your powerful and influential organisation. Nevertheless the defence of political prisoners shouldn’t be moved from its position high up on your agenda. There are lot of other humanitarian, charitable and human-rights organisations in the world, but Amnesty International remains the chief hope for political prisoners.
Amnesty International’s campaign, which started in Russia in 2002 under the rubric “Justice for Everyone”, was highly appreciated. The history of the past three years, however, has shown that justice in Russia is not at all for everyone. There is a particular category of Russian citizens which receives an ‘exceptional’ and specially-tailored form of justice - among them the employees, executives and erstwhile shareholders of the disfavoured oil company Yukos. The reasons behind the legal pursuit of these people is political and nothing else - virtually all of those who are familiar with the so-called Yukos case are at one on this: western observers, PACE representatives and former Soviet political prisoners, who know very well from their own experience how political dissidents can be treated as criminals guilty of economic crimes. And the only organisation in all this which still has doubts about the true nature of the case and refuses to give Michael Khodorkovsky the status of political prisoner is Amnesty International - in defiance of its own standards and definitions (cf. supplement 1).
In our previous letter we laid out for you the political underpinnings of the Yukos case. Recent events have only served to underline the political and tailor-made character of the campaign against the ex-head of Yukos and his colleagues.
The trial of Michael Khodorkovsky and Platon Lebedev has now come to an end. Both have received sentences of eight years behind bars. Though defence lawyers were given free play in court, the verdict was a virtual replica of the prosecutor’s speech, all the way down to misprints (cf. supplement 2). This means that in practice the defendants were deprived of their right to a defence, since its function was merely decorative.
Also standing behind the verdict was the fact that the criminal laws under which the defendants were charged simply didn’t exist at the time of the activities in question. This flies in the face of both international and Russian law. Michael Khodorkovsky and Platon Lebedev, that’s to say, were not only deprived of a defence, but were also sentenced for crimes which weren’t crimes at all (cf. supplement 3). It is extremely important to understand that the judges themselves were forced to violate the law in order to obey their political masters and condemn the heads of the company and, by extension and elsewhere, its employees.
The hearing of the appeal, furthermore, was conducted at unprecedented speed - 450 volumes of the Khodorkovsky case, 6500 protocols from the Meshansky court hearings and 700 pages of the defence’s appeal were read and considered by the Moscow City court within a single day - with the sole purpose of depriving Khodorkovsy of his right to stand for election to the Duma. If he had been elected. he would not have been granted immunity, but would have had a political platform - the authorities’ main fear.
The choice of camps a very great distance from Moscow for Khodorkovsky and Lebedev further flies in the face of Russian law, which specifies that prisoners should serve their sentence in whatever area of the Russian Federation they were either sentenced or domiciled in (cf. supplement 4). The two men in fact both lived and were sentenced in Moscow, but for reasons unknown were sent to serve their sentences, one (Lebedev) near the Arctic Circle, the other (Khodorkovsky) 6000 kilometres from home. It should be borne in mind that by this means other parties were penalized: i.e. the families of the convicted men, including aged parents and innocent children
The sole motive behind the choice of such distant sites was the creation of a news vacuum around the two men, a vacuum which could be used to pressure them without any restraint from outside. And that’s what is actually happening. Michael Khodorkovsky has been placed in solitary a number of times without any grounds, for breaking specially invented rules. Provocations have been stages against him, including physical attacks (cf. supplement 5).
As a final straw, the authorities have closed Mikhail Khodorkovsky’s Open Russia Foundation, which dealt with education, defence of press freedom and human rights.
Ladies and Gentlemen, doesn’t your considerable experience show that what has happened in this case is something quite other than a campaign against economic crimes? Enforcing the law is one thing; making selective use of it and breaking many other laws in the process, quite another. Doesn’t the unprecedentedly cruel pressure placed on Michael Khodorkovsky even after the verdict, in the camp, prove that the aim all along was not to give just punishment to a criminal, but rather to break the spirit of an individual whom the authorities continue to see as a powerful opponent.
Given the authorities’ almost total control over the mass media and their decimation of social organisations, responsibility for the upholding of the rights of Russian political prisoners must fall to the international community. To forget about them means to sentence them to further torture and even death.
We are absolutely convinced that most of such prisoners’ undeserved suffering could be avoided, were the international community, instead of closing its eyes to such events, to focus on calling them by their proper name i.e. political persecution.
We are also absolutely convinced that all such cruelties and such injustice will continue unless the international community, headed by Amnesty International, takes a clear principled position on this case - as is its duty.
That’s why we insist upon asking you
• to accept without any doubts that Michael Khodorkovsky is a political prisoner
• to take prompt action to help have Mikhail Khodorkovsky and Platon Lebedev moved back to the Moscow area, as is their right under Russian law, since their lives in these distant areas may be in danger
• to demand a new and fair trial and their release on bail during the trial period, and
• to demand new, objective and fair procedures in all legal cases connected to Yukos
In the firm hope of your understanding and support
Yours sincerely,The Sovest Group
Supplement 1 – Definition of ‘political prisoner’. Criteria.
1. ‘Political prisoner’: how the term is defined by Amnesty International“According to the terminology of Amnesty International, any prisoner in whose case a strong political element is present - such as the motives behind the prisoner’s actions, the actions themselves or the reasons for his or her arrest by the authorities - can be identified as a political prisoner. . .”1
Amnesty International has identified the presence of “a strong political element” in the Mikhail Khodorkovsky case . The very first sentence of the ‘Open statement on the Mikhail Khorkovsky case and the cases of other people connected with Yukos’ says: “Amnesty International is of the opinion that the arrest and trial of Mikhail Khodorkovsky, the former head of Yukos, as well as of all others connected with the Yukos case, have a strong political element and background.”2
We believe that after saying “a”, it would be logical to say “b”, and to recognise Mikhail Khodorkovsky as a political prisoner.
2. ‘Prisoner of conscience’: the definition of Amnesty International
“A prisoner of conscience is a person whose physical freedom is compromised by imprisonment or by any other means because of his or her political, religious or any other convictions, as well as because of his or her ethnic, sexual, racial, linguistic, national or social backgrounds, his or her personality, kin relations, sexual orientation or other traits. At the same time people who promote violence and hostility may not be identified as prisoners of conscience.“People may become prisoners of conscience for various reasons: for example. . . as a result of being convicted of a crime used as a pretext for the punishment of critics of a government”.3
In Mikhail Khodorkovsky’s case, the pretexts were fraud and tax evasion. The nub of some of the accusations against him will be thoroughly examined in supplement 3. At this stage, however, we would like simply to emphasize their patent absurdity: According to the Russian tax services, taxes levied on the company in 2002 were higher then its income (not its profit but its income).4
3. Objective criteria for ‘political prisoner’ elaborated by independent experts of the Council of Europe
“An imprisoned person may be identified as a ‘political prisoner’ if:
- his or her imprisonment violated one of the core freedoms guaranteed by the European Convention on Human Rights and its attached protocols: i.e. freedom of speech, conscience, religion, information, meeting and association.
- his or her imprisonment was politically motivated and unconnected to any violation of the law;
- the length of his or her imprisonment and/or its conditions are not commensurate with the offence he or she was found guilty or is suspected of;
- he or she was imprisoned for political reasons on a discriminatory basis compared to others
- his or her imprisonment stemmed from an unfair trial with procedural violations serving the political ends of the authorities.5
These last two points describe with absolute precision what happened to Mikhail Khodorkovsky1. In spite of the fact that exactly identical schemes for tax optimisation were used by the majority of Russian big and medium-sized companies - including state-controlled ones - only one entrepreneur who was seen as ‘disloyal’ to the authorities, i.e. Mikhail Khodorkovsky, was arrested and convicted for making use of them.
2. Only retroactive application of the law allowed the usage of these schemes to be interpreted as criminal (see details in supplement 3)
Supplement2 – How the most undisputable arguments of the defence were ignored
There are numerous exemples of the court ignoring arguments of the defence, we provide a very obvious one.
Page 478 of the official indictment in the Lebedev case includes the following words (complete with a mistake in grammar):The fact that the financial flows of this organisations was controlled and regulated by P.Lebedev is confirmed by letter 514-552-34 of 11.08.2000, signed by him and addressed to the directors-general of the oil-products providers. “Pls. arrange the money transfer as soon as possible Member 2 hasn’t received the payment. Pls. send as soon as possible to the Moscow Trustee and Investment Bank payment authorisation for a share in profit according to the attachment”.6
This is the story of a key document which supposedly proved Platon Lebedev’s involvement in criminal activities, as well as the existence of an ‘organised criminal group’ led by Mikhail Khodorkovsky.
However, during the course of the trial, on November 15, 2004, this particular document was shown to the judges and all those present in the courtroom. There was no signature of Mr. Lebedev, plus his name was not mentioned at all.This is disgraceful proof of the fact that the prosecutors used for their guilty verdict fake descriptions of their own evidence. That’s why Lebedev’s defence lawyer Konstantin Rykvin awoke in an official statement of “the falsification of criminal case materials”.7
This, though, is not the end of the story. For despite the fact that the judges examined the document and were forced to agree with the plain facts of the matter, and despite the fact that that the lawyer made a public statement and all of this was attached to the court case, the letter ‘signed by Lebedev’ reappeared on page 505 of the verdict as a central proof (complete with the same mistake in grammar).
“ …the financial flows of this organisations was controlled and regulated by P.Lebedev, what is confirmed by:- a letter 514-552-34 of 11.08.2000, signed by him and addressed to the directors-general of the oil-products providers. “Pls. arrange the money transfer as soon as possible Member 2 hasn’t received the payment. Pls. send as soon as possible to the Moscow Trustee and Investment Bank payment authorisation for a share in profit according to the attachment.( Vol. 79, 124 criminal case no. 1-33/05; vol. 79, 124 criminal case no. 1-39/05).”8
In exactly the same way the court totally ignored many other key and indisputable pieces of material evidence, such as the documents proving that the promissory notes used by Yukos to pay local taxes were in fact honoured. In the verdict, these monies continued to be presented as tax-arrears, and for reasons unknown Khodorkovsky and Lebedev were personally held responsible.It is quite clear that no civilised court would ever have treated material evidence in such a cavalier fashion. An opportunity to correct these amnesic oversights of theirs was presented during the hearing of the appeal - but needless to say it wasn’t taken.
Supplement 3 – The court’s violations of the law
1. Retroactive application of law
There are instances in practically every phase of the Khodorkovsky-Lebedev trial in which the court applied the law retroactively.
The Russian Federation’s tax-regulation code was issued in 1992 and has been altered more or less continuously ever since, in a process of gradual tightening. But the right of the tax-payer to choose the most personally advantageous tax-schedule has never been questioned. Khodorkovsky and Lebedev only made use of such opportunities as were offered by the tax-code at any particular time. The prosecution, followed by the court, identified what they did as illegal by retroactively applying later emendations to legislation.
Here is just one instance:
Khodorkovsky was accused under part 2, article 198 of the Penal Code. This article was later modified on December 8, 2003. A clarification of this article by a Plenum of the Supreme Court issued on 04.07.1997 and held in abeyance until 08.12.2003 “about some questions concerning the responsibility for avoidance of taxes” directly emphasises that “under the inclusion in a declaration of wittingly false information regarding income and expenses” should be read, as “deliberately false information regarding the amount of income and expenses introduced into a declaration”.
The amout of income and expenses which Khodorkovsky and Lebedev put into their declarations were absolutely accurate and even the prosecution agreed this to be so. The issue was on what basis the accused were receiving their profit. But this could become an issue for the court only after the new version of the law had come into effect, with its amplification that legal responsibility be introduced not only for any false information about the amount of income and expenses presented in a tax declaration, but also for any and all false information presented there or in any other documents. This only applied, however, after December 4, 2003 - four years after the events in question took place.
Exactly the same thing can be found in the case of the tax privileges extended to YUKOS under rules governing ZATOs (special geographic zones with low tax charges). In this case the prosecution and the court applied to contracts signed by Yukos before such alterations had been introduced, the 5th of April 1999 version of article 5 of Russian law number 3297-1 ‘On closed administrative territorial units’, originally promulgated on the 14th of July, 1992.
2. Violations of the statute of limitation.
Though many of the charges in the Khodorkovsky case exceeded the statute of limitations, this didn’t prevent the court, not only from considering them, but also from passing a guilty verdict on them.
The General Prosecutor accused Khodorkovsky and Lebedev of underpaying taxes and insurance fees into state off-budget funds in especially huge amounts, through the inclusion in their tax declarations of false information about their incomes (Part 2, article 198 of the Criminal Code of the Russian Federation).The statute of limitations in tax cases, according to article 198, is six years. Nevertheless in May 2005 a verdict was announced on events that took place in 1998. In other words, whether or not Khodorkovsky and Lebedev in fact did what it was said they had done, the court was obliged to dismiss all evidence on such matters in accordance with article 78 of the Criminal Code of the Russian Federation.9
Supplement 4 – Disposition of the prisoners
The transportation of Khodorkovsky and Lebedev beyond Lake Baikal and towards the Arctic Circle is an outrageous violation of the criminal code of the Russian Federation
The criminal code of the Russian Federation, part IV (On the execution of punishment as imprisonment), article 11, paragraph 73 states:
1. All convicts, except those singled out in part four of the present article, are to serve their sentence in correctional institutions within the territory of the Russian Federation where they were registered or sentenced. In exceptional cases in which there is a risk to health or personal security, then convicts, with their consent, may be sent to serve their sentence in penal establishments located in another territory of the Russian Federation.2. Should no vacancy exist for convicts to serve their sentence in a place near where they were registered or sentenced, they are to be sent to the nearest place available on the relevant territory of the Russian Federation, or by agreement with the relevant superior departments of the penal service, in another nearby territory where proper conditions for their detention can be met.10
Official representatives of the Federal Penal Service (FSIN) maintained that their decision was made necessary by the absence of vacancies in Moscow-area prison-colonies. This, however, is quite untrue. A report on ‘The number of prisoners in Russia’s penal institutions on January 1, 2005’, published by the human-rights journal Index/Dossier on Censorship, gives it the lie: On January 1, 2005, the Moscow area’s penal institutions were in fact some of the least heavily populated of all - the occupancy-rate stood at 59.1%. Over 40% of places, in other words, in colonies in the Moscow region were unoccupied.11
Despite the fact, however, that FSIN arguments don’t stand up to scrutiny, to say the least, lawyers for Khodorkovsky and Lebedev have been unable to obtain the transfer of their clients to a place specified under the law.
Supplement 5 - The victimization of Mikhail Khodorkovsky in the colony
The colony where Mikhail Khodorkovsky is serving his sentence is located not far from Russia’s largest uranium mines, with a consequently high level of radiation. It is populated for the most part by short-term convicts, i.e. unlike Khodorkovsky; and he is forced to carry out a meaningless and humiliating job. He has been refused work which might make use of his intellectual capabilities, as a teacher of other prisoners, for example. He is under constant surveillance and is increasingly punished for imaginary infractions.
- On December 21st, 2005, he was punished for leaving his place of work to look for his foreman after his machine broke down;
- On January 24th 2006, he received 5 days in solitary for being in possession in the course of a search of two directives from the Russian Ministry of Justice and their corresponding instructions regarding the rights of colony prisoners. The most cynical aspect of the ‘finding’ and confiscation of these documents is the fact that they were officially posted to him by name and handed to him under his signature by the prison censor immediately before the search.
- On March 17th, 2006, he was again place in solitary for 7 days for d4rinking tea in an undesignated area, despite the fact that other convicts routinely drank tea there and went unpunished.
- On the night of April 13-14, 2006, Khodorkovsky was attacked while asleep and received a stab wound in the face. Later, when his attacker’s belongings were searched, a knife and a razor blade were found- both things banned in the colony. Khodorkovsky received stitches and was then placed against his will but allegedly for security reasons in a one-man cell (he not the attacker). He spent an entire month until May 15th in complete isolation, despite going on hunger strike.
- On June 5, 2006, Khodorkovsky received 10 days in solitary after a colony-administration decision that the food in his bag didn’t conform to colony regulations. When he asked exactly what products broke the rules, he received no answer. According to Michael Borisovitch, he had exactly the same items as the rest of the inmates.
1. Amnesty International Handbook, p. 81 (in Russian) :
2. Russian Federation: The case of Mikhail Khodorkovsky and other individuals associated with YUKOS, Amnesty International public statement, 11 april 2005 (in Russian): (http://www.amnesty.org.ru/pages/ruseur460122005)
3. Amnesty International Handbook, (in Russian) p. 107-108 :
4. Yukos tax slides, p. 3 :
5. Amnesty International Review ("Vestnik") № 28 (in Russian) :
6. Text of the official indictment (in Russian) : http://www.khodorkovsky.ru/docs/1174__Obvinitel_noe_zaklyuchenie_Lebedeva.doc ; ст. 478
7.Official statement of Lebedev’s defence lawyer Konstantin Rykvin (text in Russian): http://www.khodorkovsky.ru/trial/advocacy/petitions/1100.html
8.Text of the verdict (in Russian):
9. Q.v. comments on article 78 of the Criminal Code of the Russian Federation:
a) “The statute of limitations on criminal charges is to be calculated independently of the preliminary investigation and/or trial, and is an obligatory factor in the release of a person from his or her legal liability”. (Norma publishing house, Moscow 2002, page 178)
b) “It necessitates obligatory and unconditional release from criminal liability. After the period established by law has expired, the state loses its right to charge an individual”. (Comments on the Criminal Code of the Russian Federationedited by the chairman of the Russian Supreme Court. V.M.Lebedev. (Supreme Court of the Russian Federation, Norma publishing house, Moscow 2004, page 183)
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