Lawyer Vadim Klyuvgant wrote a letter to Alexander Privalov of the Expert weekly, responding to his article about Khodorkovsky’s failed parole application. Privalov did not reply or publish Klyuvgant’s letter: he wrote yet another article on the subject himself ...

26 August 2008
Dear Alexander,

Mikhail Khodorkovsky and we, his defence team, have been attentively following your publications about various aspects of the case. We genuinely appreciate your constant interest in the subject.

It is both normal and natural that our opinions will sometimes diverge but when your assessment is based on an insufficient understanding of the subject, then it is disappointing. Since your conclusions are being drawn in public they also mislead your numerous readers. We would like to help you fill the quite understandable gaps in your knowledge: for, as you yourself have quite rightly remarked, journalists do not know the law. We shall be happy if you respond to our initiative and begin an open dialogue which, in suitable cases, can also be conducted in public.

A vivid illustration of how a lack of information leads to erroneous conclusions is provided by your latest article [Expert, No 33, 25 August 2008, “The crisis of professionalism”].

As always, there have been quite a number of articles in the media on the parole issue that are critical of us. However, for the most part they have not discussed that aspect to which you refer. The reason is very simple. You are fundamentally wrong, both as to the facts and to the legal aspects. Factually, you are wrong because the court did not turn down Mikhail Khodorkovsky’s parole application for a lack of repentance and admission of guilt on his part. Furthermore, there was not a word about such matters in the conclusions of the court, as stated in its ruling. That is quite natural and logical or, to be more precise, quite lawful. The parole application was rejected for reasons given elsewhere (p. 7) in the same issue of Expert where you discuss the “Crisis of Professionalism” among the defence attorneys of Mikhail Khodorkovsky — and [in your past articles in the same series] among all other defence lawyers, electricians, students, teachers and ideologists (anyone, in fact, except for media editors and commentators).

The reasons the court gave were: a reprimand in prison for failing to obey the order to keep his hands behind his back; lack of enthusiasm in training to become a garment worker; lack of positive remarks and credits from the prison and penal colony administration. And that was all.

In other words, and quite contrary to your erroneous assertion, the court turned down Mikhail Khodorkovsky’s application for parole on the grounds of his behaviour during imprisonment and not on the grounds of his attitude to his prison sentence. And that is what the law requires: in deciding whether to grant parole, the court must assess the personality of the convicted prisoner and his behaviour during his period of imprisonment. The appeal court, likewise, must examine these reasons for refusal and our arguments against them.

If you, nevertheless, by some miracle already know what decision the appeal court and other higher judicial instances will reach in response to an appeal we have not yet submitted (“they will not be able to contest the decision”, you write) and are sending us such a signal then let’s not confuse the subject with legal matter but use the language of such hints and menaces. Giving “legal nihilism” a veneer of academic respectability only makes it the more dangerous.

Repentance and admission of guilt are not definitive in assessing parole applications but are of universal importance. This has been stated in several rulings issued by the Constitutional Court — yes indeed, many others have applied for its judgment long before our case, so there is no need for us to follow the same course which, furthermore, would be to surrender Mr Khodorkovsky as a hostage to fate. (He is not, in fact, any kind of pawn who is easily manipulated. He may not have a legal training but until he has mastered every detail he will not rest easy. In this Khodorkovsky sets an example to certain other non-professionals who talk about the law.)

The Constitutional Court made such a distinction because that is what the Constitution itself demands. It entitles every convicted and imprisoned person the right to have their sentence re-examined by a higher court and the right to a mitigation of their punishment. These two rights co-exist peacefully and in harmony (see Article 50.3: “Everyone convicted for a crime shall have the right to appeal against the judgement of a superior court according to the rules envisaged by the federal law, as well as to ask for pardon or a mitigation of punishment”).

The grounds for parole are contained in Article 79 of the Criminal Code. This provides the sole, necessary and sufficient grounds (excluding the serving of the required part of the sentence) and not the Criminal Executive Code. In Article 79 (Conditional Early Release from Punishment) the reference, again, is not to repentance but to the absence of any need, for the purposes of correction, for the sentence to be served in full. The court bases its ruling on the circumstances that it considers important in each particular instance.

There are no dogmas here. This was also confirmed by the Constitutional Court. It’s clear why. If a person admits that he or she has committed a crime then repentance is truly important. If he disputes the verdict of the State and asserts that a judicial error took place or the court and verdict were deliberately unjust (to which position the individual is fully entitled under the Constitution) it is unlawful and inhumane to punish him, either by imposing an even longer term of imprisonment or by inciting him to false penitence in exchange for freedom.

What then should we make of Article 175 of the Criminal Executive Code [Procedure for applying for parole or mitigation of punishment] which you quote in your article? The answer is simple. One, we should know and understand its place in the normative system of the law: in this case it is wholly subordinate and of tertiary significance when compared to the Constitution and the Criminal Code. Two, we should bear in mind that all it contains is a list of factors. There is no universal ranking of their significance in each case.

The Constitutional Court is unambiguous on the subject. And everything that the Constitutional Court says is universally obligatory and of direct application; it requires no confirmation of any kind by any individual, and allows of no other interpretation (Articles 6 and 79 of the Law concerning the Constitutional Court).

That, in brief, is it. At any moment that you express an interest, we can supply further details, including the texts of our speeches before the court with a detailed analysis and justification, with references to specific legal norms and rulings of the Constitutional Court. They are also always available at www.khodorkovsky.info

One more point. We appealed to the European Court of Human Rights in Strasbourg not so much for compensation as for recognition that rights to a fair trial had been infringed. When such recognition is granted (and we say when, not if ... !) this will constitute another circumstance obliging the Russian courts to annul the sentence and reconsider the case. The annulment is obligatory, as is a re-examination (Article 413.4.2 of the Criminal Procedural Code).

In the hopes of a constructive dialogue

I remain, sincerely yours,

Vadim Klyuvgant,
attorney to Mikhail Khodorkovsky

(during the court hearing about my client’s parole application it was I who spoke specifically about the role of repentance)

PS I hope that you will pass on to your readers a view different to your own. They will then be able to judge the essentials of the case for themselves and draw their own conclusions.