Khodorkovsky’s mother Marina and the lawyers Yury Schmidt and Yelena Liptser answer questions posed by The New Times.

Olga Shorina and Valery Panyushkin, The New Times, 4.08.2008

Over the last few weeks speculation as to what may now happen to Mikhail Khodorkovsky and Platon Lebedev has occupied centre stage in media attention.

The imminent possibility that Khodorkovsky might be released; his own petition and the appeal for a pardon, addressed to President Medvedev by his mother Marina; the expectation of a “thaw” after Putin’s presidency — all these are taken together with statements such as that by the writer Alexander Prokhanov (he said Khodorkovsky would walk free in October) have created a wave of speculative commentary.

Here Khodorkovsky’s mother Marina, his lawyer Yury Schmidt and Platon Lebedev’s lawyer Yelena Liptser discuss the prospects for contemporary Russia’s most famous prisoners.

Marina Philippovna Khodorkovsky

Marina Khodorkovsky saw her son on 31 July this year. That day the Chita jail administration permitted them to meet for three hours and, as always, under observation. The next time Marina is going to Chita to see her son will be to attend the court hearing to discuss his petition for release on parole.

How was your visit?

Well, we met and everything passed off normally without any unpleasant moments. For three hours we talked, as usual, about things at home. Misha sent greetings to his father [on 3 August Boris Khodorkovsky turned 75]. He also asked me to pass on a message: “To all who support me — I shall not name you all — a big thank you and hello.”

Has Mikhail’s mood changed? Is he expecting to be paroled?

He’s always in a good mood. During our meeting he was also in a normal frame of mind. He’s totally calm, and fully informed about all that happens within Russia and abroad (better than I am). If you were to chat with him you’d never think he’s now been inside for five years.

Mikhail has a pretty realistic view of life. He knows many of those who are today members of the government better than we do. Therefore, he can truly imagine what might happen. I think he doesn’t put much faith in being released on parole. When we met it was awkward to discuss it. You can’t speak about everything there. For instance, I touch on a subject and if I feel that he is taking it up then I’ll say more.

There are masses of rumours circulating. Mikhail might be released in October; private talks are going on about the conditions for his release, and so on. What’s your assessment?

I also listen to every broadcast, watch each programme and take a look at the papers. I regard this talk as nothing more, just talk. I don’t think there’s anything behind it. The most optimistic reaction is that it shows, perhaps, that there are clashes between various groups.

What do you think: is someone trying to influence Mikhail’s fate?

I don’t know how they operate. I know one person. I wouldn’t name him but I know that he would not do such a thing.

Marina Philippovna, was there any reply to your appeal to the president?

Of course, not. I wasn’t counting on it. It was done on the spur of the moment. I was asked [by Novaya gazeta] what I wanted from Medvedev and I replied.

Yury Markovich Schmidt

How is Khodorkovsky’s petition for release on parole linked to changes at the top in Russia?

There’s no connection. We were planning to use our client’s lawful right to apply for parole long before 25 October 2007, when he completed the necessary first half of his prison sentence. And we made no attempt to hide our plans from anyone. Of course, Khodorkovsky’s enemies in high places learned of this and ten days before that date he was reprimanded for not obeying, supposedly, a command to put his hands behind his back when being led along the corridor. Applying to the courts when he was still subject to punishment for this offence was pointless.

So what has changed compared to last year?

Theoretically, the court can refuse to release a person on parole without there being any reprimand. And it can free a person despite the presence of a reprimand. What has changed is that we now have the opportunity to challenge the validity of the reprimand on the basis of evidence. This relates to the statements of Mr Khodorkovsky’s former cellmate. Taking advantage of the extremely difficult family circumstances of this person, the pre-trial detention facility’s administration in effect forced him to give a statement corroborating the violation. As soon as his circumstances had changed, he wrote on his own initiative a detailed account in which he very convincingly explained why he was forced to corroborate what had not in fact taken place.

What could the court decide?

There are two possible scenarios. The first is that the court decides to discharge Mr Khodorkovsky from the remaining portion of the sentence imposed by the Meshchansky district court in Moscow. The second is that the parole request is refused. If the court refuses parole, it will not change our defendant’s present situation. In six months’ time he will have the right to repeat his petition. If the court grants his petition, it will not mean that Mr Khodorkovsky will be released immediately, as he will remain in custody under pre-trial restrictions for the second charge.

And could this restriction be lifted or changed?

The pre-trial restriction could be lifted or replaced with something milder if they rule that there are no grounds for further detention. We are certain that such grounds are essentially absent. But time and again the investigation, and following them the court, have repeated the same old set of unsubstantiated assertions. I don’t want to go over all this nonsense here. But simply to illustrate my point: in the documents for the proceedings it says that in the event of release Khodorkovsky could abscond from the investigation and the court by crossing the border. However, we know that Mr Khodorkovsky, when he was aware of the criminal case opened against him in 2003, displayed no inclination to flee. Even after Platon Lebedev was arrested, he would travel abroad on business but each time he returned to Russia.

What are the prospects for the second charge?

Just recently, under an obviously cooked-up pretext, the deadline for the investigation was extended for another three months — to 2 November 2008. We view this as evidence of the investigators insecurity and lack of certainty as to whether the court will “rubber stamp” the guilty verdict in the same way as it did in the first case. Somewhere “higher up” things are not coming together, that is why they have decided to play for time. The investigation cannot extend the deadline indefinitely, however: sooner or later the moment will come when they will need to take a decision whether to bring the case to court or drop the charges. If the trial is free from crude pressure, if the right to defence is respected, then acquittal will be inevitable. So isn’t a small embarrassment preferable to a big one? Wouldn’t they be better off, simply dropping the charges now, at the stage of pre-trial investigation?

And if the trial does go ahead, where will it be held?

That’s a good question. At present familiarisation with the material of the case is taking place in Chita, although this is not legal. Article 152.4 of the Criminal Code allows the investigation in certain strictly defined cases to be carried out at the place where the accused is actually located. This is a technical loophole. The trial should only be held in Moscow — this is required not by the Code of Criminal Procedure but by Article 47 of the Russian Constitution. If the case goes to a Chita court it will be a flagrant violation of the constitutional law of the country. Plain for the whole world to see, it will be the first totally explicit act of legal nihilism of Dmitry Medvedev’s presidency.

Yelena Liptser

For over a year the former head of Group Menatep Platon Lebedev, who was convicted in the Yukos case in May 2005, has had the right to petition for release on parole. But he has not done so. His lawyers say he is taking a principled stand.

“He knows full well that he has a right to parole. He has made the decision not to ask for it,” Platon Lebedev’s lawyer Yelena Liptser told The New Times. On 2 August it was five years and one month since Platon Lebedev was arrested in the Vishnevsky military hospital. Two weeks ago Lebedev, like Khodorkovsky, had his term in the Chita pre-trial detention centre extended once more, until 2 November 2008. The Investigative Committee of the RF Prosecutor General’s office justified the necessity of extending the pre-trial detention term by referring to the large volume of //criminal cases and the fact that “Lebedev, through his good connections, could hide abroad, exert pressure on witnesses and obstruct the investigation of the case.”

Lebedev’s defence has made public, and delivered to the Kremlin, the former Group Menatep head’s address to President Medvedev: “I’m compelled to appeal to you for the first time, as yet again the Chita Region Court has denied me my constitutional right to defence against unlawful charges, viz. the right to demand documents from the federal agencies of the government of the Russian Federation which could refute the patently false and slanderous claims contained in the official documents of the Prosecutor General’s office and the Investigative Committee concerning Khodorkovsky and Lebedev being charged with theft by embezzlement of 38% of the shares in the Eastern Oil Company (VNK) plc, belonging to the Russian Federation, and the legalisation of these shares.”

Lebedev’s defence team note that every time a request is considered from the prosecutor’s office to extend the term of pre-trial detention, the prosecution declares that Lebedev is incriminated with theft of shares in VNK, although no such charge has formally been brought against him. “The theme of the theft of the VNK share package appeared unexpectedly in 2007 in one of the reports on the website of the General Prosecutor’s office. Since then this claim has been repeated in the petitions made by the General Prosecutor’s office to extend our client’s term of detention,” say the lawyers.

At present Platon Lebedev is continuing to familiarise himself with the case materials in Chita. The materials of the second criminal case against Lebedev for theft of oil and laundering of the income from its sale fill 168 volumes. Lawyer Yelena Liptser recalls: “At first in December 2007 they suddenly restricted the time offered to us for familiarisation with the materials of the case, telling us that we are holding things up. The impression was made that the case would soon be brought to court. In January, however, the investigation resumed work, and there appeared new materials which were added to the file.” Therefore, says Liptser, it is very hard to forecast what will happen next.

She explains that the lawyers and their clients proceed from the premise that the actions with which Khodorkovsky and Lebedev are incriminated contain no corpus delicti whatsoever: “In December, when our time for familiarisation was curtailed, we applied to have the criminal case closed because of the absence of any elements of a crime in the actions with which they are incriminated, theft of oil and laundering of the proceeds.” While the familiarisation with the case materials is taking place, the law does not allow a second petition. The investigation must be completed and then the case will be brought to court for examination on its merits.