Yury Schmidt interviewed on Radio Liberty on why his client applied for parole application and what they learned from the official reaction

Radio Liberty, “Guest time”, 10 September 2008

Presenter: Today our guest is Yury Schmidt, chairman of the Russian committee of lawyers in defence of human rights and defence attorney to Mikhail Khodorkovsky.

From a political and legal point of view, how would you assess the decision of the court in Chita to refuse Mikhail Khodorkovsky release on parole? And did you have any illusions about his release?

From a legal point of view I would use one word to describe the decision: a disgrace. For the sake of accuracy, however, I would add “... and totally contrary to the law”. From a political viewpoint, the decision was entirely predictable and in giving that answer I respond to your other question about illusions.

Let me expand a little. We can divide this history into two parts. To begin with Mikhail Khodorkovsky’s defence lawyers announced that they had recommended their client to apply for parole and he was considering their suggestion. In reality the issue of whether to petition for parole had been taken: to be frank, we wanted to see what how the public would respond and, perhaps, get a reaction from certain political circles. The latter gave no such reaction. Today I can say with full authority that all the talk about Khodorkovsky holding discussions about the terms under which parole would be granted was pure speculation.

I don’t want to dwell on the subject but when the court issued its quite predictable decision the wave of criticism was also directed against Khodorkovsky’s defence team. We were even accused of being unprofessional and having misled our client by failing to inform him of the existence of Article 175 of the Criminal Executive Code which, supposedly, demands admission of guilt and repentance [see Klyuvgant, 2 September]. This is all nonsense, of course. Mr Khodorkovsky is not the kind of person to depend on other people’s word. If he discusses some important issue then he is extremely thorough. Moreover, he likes to hear each of his lawyers give his point of view independently so that they do not reach agreement beforehand and every one gives his or her answer to the questions Mikhail Khodorkovsky poses. Therefore, we did not offer him any hope. Neither did we nourish such hopes ourselves, for the most part. In dealing with the media defence attorneys, naturally, should not be pessimistic and so we said we had a certain hope.

Though that hope was based ... well, I don’t know how to put it: There are instruments that pick up very faint impulses. The only signals we were picking up were the vague statements made by Putin in France and Medvedev in Germany that led some journalists to conclude that the regime was ready either to pardon Khodorkovsky or in some other way find a positive solution to his predicament. And that’s it. There were no other indications. However, we quite deliberately took this step and it was for us a definite test. We lost nothing by petitioning the court since Mr Khodorkovsky was kept in prison, just as during the first verdict. We could see how the authorities responded to the idea. In October last year, a week before our client became eligible for parole, he was punished quite unlawfully because, supposedly, he did not keep his hands behind his back [during exercise at Chita jail]. This time three days before the hearing the administration of the detention centre in Chita announced that there were now two more black marks against his name, thereby creating additional obstacles to his possible release. As a consequence, by the time the hearing opened it was clear to us how it would end.

What do you make of the statements by spokesmen for the Federal Penitentiary Service (FPS) and the prosecutor’s office that Khodorkovsky had not repented of his crimes and, if freed, might influence the course of the investigation, go into hiding or legalise funds he had earlier embezzled?

I would like them to clarify what he could legalise. They took everything away from Khodorkovsky. He was someone whose business, at least over the last period, was absolutely legal and transparent. His entire business was confiscated; and they searched for his accounts and property abroad, and his property in Russia. They found nothing apart from a small house owned through a Moscow housing association and several motorcycles (he likes that form of transport).

According to the law in Russia, the court cannot issue a ruling without stating the grounds on which it is based. It must have some justification in law and when there are no real arguments then they throw in any old rubbish. What you have quoted were the generalised phrases that are always used. The court ruling says: “if freed Khodorkovsky might go into hiding abroad”. As everyone knows, Khodorkovsky came back to this country, aware that a criminal case had been opened against him. They took away his foreign travel passport. He has elderly parents and three under-age children. Where would he go? If he had such plans he would have carried them out when he was clearly given to understand that he should leave Russia.

Even if the court’s decision about parole had been positive Mikhail Khodorkovsky would not be able to leave prison since another criminal case has been opened against him. Are there any legally-established routes whereby his lawyers could get him released from prison? What are you intending to do and what are you already doing?

For a start, of course, we are appealing against the court ruling. We also have the right to contest those reprimands issued against our client [by the prison administration] on 18 August, three days before the hearing. The law permits us to petition for parole every six months. The mood could change at any moment. We are fighting through the courts, in any case, for his rehabilitation and, naturally, are not leaving untested the possible ways of securing his release on parole.

As concerns the second case, the task we face is obvious. We continue to familiarise ourselves with the case materials and the term of Khodorkovsky’s detention in custody has been extended, at the moment, until 2 November 2008. Then we shall petition for the case to be closed and if it is not, we shall defend it wherever it is to be heard. With means that are suitable for that particular judicial instance.

Anticipating your question, perhaps, let me develop this thought. All the time we have been attempting to reach our own conclusions. What does it mean when Mikhail Khodorkovsky is not released on parole? What do the new prison reprimands signify? Are they the result of new orders from the very top? We concluded, in spite of these events, that there has been no new order. I well remember how the new president, Dmitry Medvedev, said on some occasion that the judicial system could only do its duty in defending human rights, fighting corruption and so on, when the courts were independent; and that earlier, and in particular during the Yukos case, the State had been too much involved. He was referring, as I understand it, to pressure from officialdom, which was then exerted to the full extent. Now the State had simply to step back. All that was necessary was the prosecution, the defence and the court which reaches its own decision. We were ready to applaud these words and, one may say, we did applaud them. Perhaps there lay our single, timid hope that some day the law would be respected in relation to Khodorkovsky as well.

Speaking realistically, we concluded that no new order to torment Khodorkovsky had been issued. The old order, however, had also not been revoked. The system runs to a great degree on inertia and if the law enforcement agencies, the Investigative Committee, the Prosecutor General's office, the FPS and the courts have been given an order that has not been revoked, then they will continue as before. Whatever Dmitry Medvedev may say about the State stepping back, unless he himself or the highest authorities do not say, Stop, that’s enough — Khodorkovsky’s case must be judged according to the law, and the law alone, and forget everything else you’ve been told about this case — until then there is no hope that anything will change, unfortunately. At some moment, perhaps, the State (by which I mean our highest officials) will realise that if keeping Khodorkovsky in prison was not in Russia’s interests before, now it is directly harming our country.

You know the interesting story about the Interfax report on 22 August that the court had ruled in Khodorkovsky’s favour? Whether it was an accident or some strange bet, the markets responded instantaneously. In five minutes transactions worth 2.5 billion roubles were concluded. Within 10 minutes there had been positive responses from all over the world; after which the news agency issued a correction and everything reverted to its former position, the boom collapsed and the markets began to fall again.

To be honest, when we were calculating the slim chances for a favourable outcome, we thought that a politically symbolic act such as the release of Khodorkovsky (from further imprisonment for the first sentence and, better still, if they abandoned the wholly fabricated new charges) would send a powerful message that respect for the law and the principles Dmitry Medvedev proclaimed in speeches during his inauguration and thereafter were beginning to be put into practice. Russia faces a difficult economic situation and it will undoubtedly only get worse. Unfortunately, for the time being the president’s words remain words. The deeds are as repressive as before, with officials using their powers to intervene, and their acts display no concern about the true welfare of the country and its economy.

Recently Tatyana Stanova, who heads the analytical department at the Centre for Political Technology, stated that a decision about the fate of Mikhail Khodorkovsky now depends to a great extent on how relations between Russia and the West evolve. If they worsen, Khodorkovsky’s chances of release will diminish. If they improve his release will become advantageous to the authorities. Do you agree with such an interpretation, especially now in the conditions of the present crisis?

I agree but in my interpretation the sequence is reversed. I am sure that relations with the West will get better if a lawful and positive decision is taken with regard to Mikhail Khodorkovsky. Many Western leaders have said so openly. Angela Merkel said so and the German foreign minister Steinmeier told me so directly when we talked a few months ago. They said openly that freeing Khodorkovsky would have a major and positive effect and, undoubtedly, help to improve relations between Russia and the West.
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A question from Oleg (Tver Region): Why, in your view, didn’t President Medvedev simply pardon Khodorkovsky? How hard do the defence attorneys find their work on such cases? Are they harassed by the authorities and the law enforcement agencies?

An interesting question. I consider that the President can make use of his constitutional right to pardon someone without any obligation for that person or his relations to petition him. This was recently confirmed, incidentally, by President Lukashenko of Belorussia who decided to pardon several political prisoners without any petitions. Why didn’t President Medvedev want to do the same? Well, the first time I meet him I shall ask him just that.

As concerns our work, it is complicated. Of course, we find it difficult to do our job. Mikhail Khodorkovsky once summed it up: “The Yukos affair takes place on territory where the laws of the Russian Federation do not operate.” Yet a defence lawyer is someone who is a servant of the law and when he or she encounters constant arbitrary and lawless behaviour it does your health and your nervous system no good. You have to summon all your strength to keep going.”

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