vadim klyuvgant speech

7/31/2019 Vadim Klyuvgant Speech

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EXPLANATIONS

of lawyer V.V. Klyuvgant concerning M.B. Khodorkovskys parole application

(the Ingodinsky District Court of the City of Chita, 21 August 2008)

I am in complete solidarity with everything my colleague has said.

First of all, with her words that there is only one conclusion that follows

from the materials submitted to the court both by us and the facility executing

the punishment: there are no lawful obstacles to apply parole to MBK, and there

is a lawful ground to do so. When I am saying this, by obstacles I mean facts

refuting possibility of correction outside prison and by grounds I mean facts

corroborating possibility for such correction.

1. Grounds for Parole.

This statement is based on the imperative wording of Art. 79 CC RF [the

Criminal Code of the Russian Federation] saying that a person that has served the

necessary part of his/her sentence is subject to release on parole (I emphasize:

not could be released but is subject to release!) on only one condition: if for

his/her correction he/she does not require to continue serving his/her sentence

any further. There is only one conclusion that is possible on the basis of this

requirement of the law: if the indicated condition is present (there are no

obstacles and there is the ground), the court is obligated to apply parole and isnot entitled to deny it.

Here is what the Kemerovo Oblast Court said in this regard in Review of

Judicial Practice of Consideration by Courts of Materials Concerning Release from

Serving Ones Sentence on Parole and Replacement of the Non-Served Part of the

Sentence with a Milder Type of Punishment N 01-19/188 of 14 April 2008

prepared at the instruction of Deputy Chairman of the RF Supreme Court

(published in the Garant reference system and on the Courts web-site):


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Release on parole is one of the most often applied types of release from

punishment because it can be applied to persons who have committed crimes of

any category and is not limited to categories of convicts This type of release

from punishment is obligatory rather than discretionary,i.e.

its application does

not depend on the discretion of the court. The CC RF links the release on parole to

only two circumstances:

1) for his/her correction, the convict does not need to serve the prescribed

sentence in full (Art. 79 para 1 CC RF);

2) the convict has actually served a certain part of the sentence, the size of

which depends on the category of the crime for which he/she is serving his/her

sentence (Art. 79 para 3 CC RF).

Given that there are no other limitations for application of release on

parole save for the ones stipulated by Art. 79 CC RF, denial of such release for any

reasons not connected with the assessment of correction of the convict and his

serving of the part of the sentence established by law is groundless. Thus,if these

two grounds exist, the court is obligated to release the convict from further

serving of his/her sentence on parole. And decision to deny release from

further serving of the sentence on parole cannot be based on reasons not

indicated in the law.

This approach is the only possible one since it is it that implements theconstitutional and generally recognized international legal principle of equality of

everyone before the law and the requirement for legal certainty of any law-

applying act as its constituent part. This requirement directly follows from Arts. 5

and 6 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms.

According to this principle, it is not allowed to interpret and apply legal

norms arbitrarily. Namely, any person can expect, when his/her rights and

obligations are determined, that law provisions will be applied to him/her on anon-discriminatory basis, as well as to all the other persons, and that this

application will be


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certain, predictable, fair and will meet the requirements of lawfulness,

reasonness and equality of rights. This means that if the law provides for the right

to release on parole but in the course of a hearing it is not applied to an applicant

without sufficient lawful reasoning and without [citing] clear reasons explicitly

articulated in the law, then not only the denial of parole but even the further

detention of the person will not be lawful. Yes, there is discretion of the court, but

only on the basis of clear criteria distinctly established by the law. And this is what

distinguishes court discretion from arbitrariness.

2. Conditions of Serving a Sentence and Achievement of Its Purposes.

So, what is important for parole is not even the fact that the convict has

been corrected but a mere possibility for such correction outside prison ; this

directly follows from Art. 79 CC [RF]. And a conclusion about such possibility shallbe made solely on the basis of analysis of the persons behaviour after the

conviction, during serving his/her sentence. I shall return later to how the law

understands correction, and therefore how the court is obligated to understand

it, too. But first [let me say] several words about conditions for correction.

To assess ones behaviour, it is first necessary to assess whether conditions

for correction have been created for the person. Creation of such condition is an

obligation of the state represented by specifically authorized agencies of the

system of the FSIN [the Federal Service for the Execution of Punishments]. And

only having duly fulfilled this obligation is the state entitled to demand and expect

anything positive from the convict. Saying this, I base my words on the principles

of correctional law enshrined in Art. 8 of the Correctional Code: lawfulness,

humanism, democratism, equality of convicts before the law, differentiation and

individualization of execution of punishments, rational application of measures of

coercion, means of correction of convicts and incentives for their law-abiding

behaviour, and combination of punishment with correcting influence. I also base

my words on the purposes of a punishment provided for by Art. 43 CC [RF] which,

as they apply to a convict, are to correct him and by no means to oppress andhumiliate him.

Comparing this requirements of the law with the picture of almost five

years of MBKs life based on facts that has just been presented to the court by my

colleague, one can state with certainty that:


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not only have conditions for his correction failed to be created for him

but, furthermore, his task was in fact not to get corrected but rather not to get

worse (not to get hardened in heart, not to be disappointed in everything and

everyone, not to give up, not to descend into vengeance, in other words to

remain a Human Being). And despite everything, he has managed to do so.

But I shall talk about this later, and now Id like to add, without repetition,

several important points to the words of my colleague.

A) the dispatch to the colony in Chita Oblast unlawfully, by an order

allotment (it is documented that only the Moscow isolator where MBK and PLL

were held, and specifically and only at that time, received an allotment for Chita

and Yamal. Before, the farthest place for Moscow convicts to be sent to serve

their sentences was the Volga Federal District). This not only violates the law

concerning the place to serve ones sentence as has already been said. This is adirect violation of those same principles of the correctional law. This is far from

any kind of humanism, let alone lawfulness and equality before the law! The

principle of the maximum proximity of the colony to the place of residence is

important, inter alia, for maintenance of social ties of the convict. This principle is

aimed at securing convicts right to communication with his family. M.B.

Khodorkovsky has the right to receive visits provided for by Art. 121 of the RF

Correctional Code: six short and four long visits per year. But this right should be

exercisable! His dispatch to the colony located so far from his place of residence

and his family substantially and unlawfully hindered exercising of this right.

M.B. Khodorkovskys family his wife, four children, three of whom are

minors, and elderly ill-health parents reside in Moscow region. It is obvious that

his serving his sentence in such a remote colony makes it substantially more

difficult, and for some of the family members even impossible, to go visit him. In

particular, for his father and two young sons a trip to Chita Oblast is not just

difficult but poses a risk for their health.

It should be taken into account that according to Article 8 of the Conventionfor the Protection of Human Rights and Fundamental Freedoms (hereinafter

ECHR), which pursuant to Art. 15 para 4 of the RF Constitution is a constituent

part of its legal system, everyone has the right to respect for his private and

family life. In its decisions, the European Court of Human Rights said: The

detention of a person in a prison at a distance from his family which renders any


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visit very difficult, if not impossible, may in exceptional circumstances constitute

an interference with his family life, the possibility for members of the family to

visit a prisoner being an essential fact for the maintenance of family life.

(decision on the admissibility of application No. 23241/94, DR 79-A, p. 121,

paragraph 125);

It is an essential part of a prisoner's right to respect for family life that the

prison authorities assist him in maintaining contact with his close family

(judgment in Messina v. Italy, paras 2 and 61).

Paragraph 11 of Decree of the Plenum of the RF Supreme Court No. 5 of

10.10.2003 On Application of Generally Recognised Principles and Norms of

International Law and International Treaties of the Russian Federation by Courts

of General Jurisdiction says that courts should act within their competence in such

a way as to ensure fulfilment of commitments of the state ensuing fromparticipation of the Russian Federation in the ECHR.

Under such circumstances, confinement in the specified colony far from his

family, let alone in the Chita investigative isolator, where the possibility to receive

visits per se substantially limited by the regime (long visits are completely

impossible), in fact became an additional punishment not provided for by the

verdict and running counter to the law. And the punishment not only for M.B.

Khodorkovsky but also for his family. And the court cannot disregard this while

considering this application.

B) M.B. Khodorkovsky, who was sentenced to a general-regime colony,

spent in such a colony only one year and 2 months out of four years and 10

months spent in custody. For the entire remaining time, i.e. for more than three

and a half years, he has been held in the conditions of the investigative isolator,

which according to Art. 16 of the RF Correctional Code does not even belong to

correctional facilities executing punishments (with one exception not applicable

to our case). The regime conditions of the investigative isolator, even without the

specificity characterizing holding MBK in it, are much harder and harsher. They

are analogous to the prison rather than general regime. As we know, there was

even a draft law tabled in the State Duma according to which one day spent in an

investigative isolator should be counted as two days in a general-regime colony.

Thus, contrary to the law and the court verdict, during most part of the term

served MBK was knowingly held not in conditions that the court believed would

facilitate his correction but in incomparably harder conditions, to which nobody


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sentenced him. It is clear that this does not facilitate any of the purposes and is

not in conformance with any of the principles about which I spoke above but on

the contrary, runs counter to them. And therefore the conclusion of the

reference letter from which it follows that holding MBK in the SIZO [investigative

isolator] conditions does not facilitate his correction is not accidental.

C) The conditions created specifically for MBK, i.e. definitely selectively, in

the Krasnokamensk correctional colony, as my colleague has convincingly

demonstrated, also, to put it mildly, did not facilitate the purposes for which he

had been allegedly sent there by the court by its verdict.

Humiliation and discrimination during employment, refusal to take into

account his level of education and experience.

Endless fault-finding, falsifications: invented violations and selective,intentionally cruel and unjust penalty for them. Seven days in ShIZO [punishment

block] for a glass of tea drunk where everybody drinks it; 10 days [in ShIZO] for a

lemon and two apples given as a present by neighbours after almost a month of

solitary confinement this, probably, is the summit of humanism, lawfulness,

equality before the law and correctional influence as understood by the

administration of the Krasnokamensk colony.

Especially harsh conditions, provocations, including artificial stirring up of

conflicts, artificial and absolutely unjustified isolation. The most sophisticated

abuse was, of course, when for almost a month he was placed into a solitaryconfinement mockingly called a safe place with reference to a newspaper

article and a lawyers comment, plus an attempt to punish there nobody knows

for what, just to punish.

On three occasions during those three years MBK had to go on hunger

strikes as a protestation. And I ask you to note: only on one occasion it was

because of himself when that exact placement into a safe place was

committed and again, contrary to all the laws, there was demonstrative silence in

response to his application asking to be returned into the ordinary detentionconditions. On the two other occasions, the hunger strikes were because of

abuses and life-threats concerning other persons Platon Lebedev and Vasily

Aleksanyan who were also being corrected, or more precisely had not yet

even been found guilty but were held in detention. Zealous executives tried to

regard even the hunger strike in defence of Aleksanyan as a violation there was


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a public statement of the head of the UFSIN to this effect. Later they, to tell you

the truth, came to their senses. But they did not fail to make use of that hunger

strike as a pretext to humiliate him one more time: arranged for him to be

examined by as psychiatrist.

The following outrageous event became the apotheosis of this exclusive

especially attentive and sensitive attitude of the prison administration to MBK

(vol. 14, case file sheets 42-45): simultaneously by three reports and a statement

about violation of the rules of internal order officers of the Chita SIZO demanded

that MBK be punished because you see he was not only sleeping after 9pm

but also did not react to criticism. Just imagine this unimaginable impudence: he

was asleep and did not react to criticism in his sleep! I am not even mentioning

that this unequalled outrage of failure to react in his sleep lasted a whole 10

minutes, and that it in fact does not constitute a violation of the rules of internal

order in SIZOs.

Now all these occasions for which MBK was and was not unfairly punished

are shamefacedly called numerous violations of the regime requirements. Of

course, without any references to the facts.

3. Correction.

Let me remind you once again: possibility of correction of the convict

outside prison is the necessary and sufficient condition for parole. In other words,

there is no need to find the person corrected. What is needed is to ascertain thathe can be corrected without being held behind bars.

What in particular do we speak of when we talk about correction of a

convict? Law answers this question. It follows from the provisions enshrined in

Art. 9 para 1 of the RF Correctional Code that correction of convicts means

developing in them of respect for human beings, society, labour, standards, rules,

and tradition of human community life and encouragement of law-abiding

behaviour. As it has already been said, the criterion with the aid of which it is

determined whether it is possible to have the convict corrected withoutcompletion of his sentence is convicts behaviour during serving his sentence.

It is, of course, clear that there is no formal scale which can be used to

measure and decide whether the convict will or will not be corrected. This is

measured by facts, figuratively speaking, by such lines and dashes that form


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letters, the letters form syllables and from those syllables a word appears, and

this word is correction. Let us go through them.

A) Letter of reference.

I am citing verbatim the letter of reference concerning MBK submitted tothe court by a group of authors from the Chita SIZO and approved by its chief:

[he] is not registered for prophylactic monitoring. [He] has not been noticed

consuming alcoholic drinks or narcotic or psychotropic substances His character

is calm, tactful and equable. In communication with representatives of the

administration [he] is restrained, polite and affable. [He] chooses his line of

behaviour on the basis of his intellect, education, knowledge and ability to apply

the law in force in pursuance of goals set. Self-esteem is proper; [he] listens to

opinions of other people. In communication with officers of the facility [he]

observes the line of authority and is regardful. [He] asks questions of interest forhim thoughtfully and competently, can listen and make appropriate conclusions.

[He] reacts positively to educative measures. [He] builds his relationships with

cellmates on mutual respect and trust. [He] maintains relationships with group of

positively-oriented persons. [His] appearance is tidy and trim; [he] is physically

healthy. His personal belongings and sleeping place is kept in order; [he] is neat.

Social ties with the family and parents are maintained.

Your Honour, let me ask you a rhetorical question: what is this if not a

description of a person who is not even forming but has absolutely formedrespect for human beings, society, labour, standards, rules, tradition of human

community life and law-abiding behaviour?! And I want you to note that this was

written on the basis of MBK's behaviour during serving his sentence. Thus, this

letter of reference confirms not even possibility for correction but the

correction itself exactly in the meaning attributed to this term by the law. And

this means that the only necessary condition for parole provided for by the law

is here.

Let me clarify something: I have not cited the entire text of the letter of

reference but it is main content. I shall comment on the remaining arguments of

the letter later one by one and prove that they either do not square with the facts

and the law or do not affect the general estimation which I have just made.

Moreover, the material contains two earlier letters of reference in relation

to MBK prepared in this colony (vol. 12 case file sheets 124 and 210). And despite


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the fact that they were prepared in view of penalties, their descriptive parts do

not have a single bad word except for the fact of the penalty itself on the sole

basis of which it was concluded that he did not settle down to a correction

course. But we have already talked about the penalties and shall talk more about

them later. We shall also talk about the absence of remorse and non-admission ofguilt that were referred to in the most recent letter of reference as the only sign

that MBK did not settle down to a correction course.

Thus, we can see that the conclusion of the letter of reference that MBK

needs to continue serving his sentence not only is based on nothing but is even

in full contradiction with its own content. And one more thing: it explicitly

demonstrates that holding him in the current conditions does not facilitate his

correction since such correction, in the opinion of the administration, could only

e achieved in the conditions of a general-regime colony, and not in those of an

investigative isolator.

B) Respect for Human Beings, Society, Labour, Standards, Rules and

Tradition of Human Community Life.

From the first days in the colony to the day he left it, MBK worked, and did

the unskilled job he was given which was not in conformity with his education,

qualification and experience in good faith. Aspiring to be maximally useful even

in the conditions of custody and discrimination there, he, as it has already been

said, showed the initiative to be involved in scientific and teaching activity. Therewere no obstacles for such activity, while it would have been much more useful

for people and society. Although he was not allowed to do that, it is important for

us today that such position is an unconditional criterion of positive motivation

and socially useful behaviour, i.e. correction.

MBK actively participated in the public life of the collective and in the fates

of the people among whom he found himself. The job of a correspondent, which

he was not allowed to do either under a far-fetched pretext, has already been

mentioned, but this is far from it, and this is not even the most important point.

He personally was setting an example to encourage rightful behaviour of persons

who were serving their sentences alongside him. In colony, he taught convicts

reading and writing and basics of various sciences, ordered text-books for them

and left there an excellent library with books that he had received, and this

knowledge can be now used by every convict. Another living and vivid example is

Igor Gnezdilov, who spent a year with MBK in a cell in the Chita SIZO. He is a


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person with not an easy background (19 years in detention facilities) but he

started thinking about his family, took his child and is raising him, got a job and is

studying. And he openly says that all this is only thank to MBK. This, of course, is

not the only example of MBK's positive influence on peoples fates over the last

five years. Things of this kind are usually not spoken of aloud, and we are gratefulto Igor Gnezdilov for having expressed such readiness.

In their letter of reference, the administration mentioned that MBK had

not written an application to be given a job in the SIZO. It is given as a fact,

without comments: it is neither bad, nor good, but at the same time it is

somehow hinting:

he could work but did not want to. However, the SIZO administration know MBK's

daily routine better than anybody else: he has been held in the SIZO as an accused

since 21.12.2006, and throughout this entire period from 10 am to 6 pm on dailybasis he has been busy with investigators, courts and lawyers. This is absolutely

not a secret, it is confirmed by take-out requests available in his personal files.

Hardly anyone can dispute that this is hard labour. It is another thing that this is

not the kind of labour that MBK himself would like to do. But it was not him who

chose this labour; it was other people who have made this choice for him. One

thing is clear: no other kind of labour, and no existence of proper conditions for

any other kind of labour mentioned in Art. 27 of the Federal Law On Detention of

Persons Suspected or Accused of Having Committed Crimes can be even spoken

of. Thus, there could not have been an application for it either.C) Law-Abiding Behaviour.

In his speech at this court hearing, MBK has said that he is a law-abiding

person and abides by the law even when he does not agree with it, and tries to

seek to repeal or amend it if there is a lawful opportunity to do so. This is nothing

but law-abiding behaviour. The MBK's letter of reference says the same: [he has]

knowledge and skill to apply the law in force. Here are just two out of a host of

examples demonstrating how M.B. Khodorkovsky's law-abiding behaviour duringserving his sentence facilitated development of the current law and law-

enforcement practice.

- In IK-10 there was limitation of lawyers access to MBK (access was only allowed

outside the working hours). A decision of the RF Supreme Court of 02.03.06

issued at the initiative and with participation of MBK found words outside


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working hours from article 83 of the Rules of Internal Order null and void (vol. 12

case file sheets 92-97).

- After MBK had been punished for receipt of food allegedly in violation of the

order, a decision of the RF Supreme Court of 30.10.06 gave an interpretation of

article 15 paragraph 5 of the Rules of Internal Order as to what should be

regarded insignificant when it is given or accepted as a present or alienated.

(vol. 13 case file sheets 95-98).

This, as well as appeal of penalties to court about which we shall talk later

are unconditional evidences of law-abiding behaviour: even in such difficult

conditions the person seeks to exercise his rights and lawful interests exclusively

by a lawful way, by legal means. This is a sign of correction provided for by the

law.

D) Violations and Penalties

As follows from the documents submitted to the court and as was

mentioned in the explanations by my colleague, while serving his sentence MBK

was brought to disciplinary liability on six occasions.

First of all, it is necessary to clarify that the notice submitted by the

administration of the facility misstates the date of the penalty applied in 2006: in

reality, it happened in June, not in July, and the correct date of MBK's placement

into the ShIZO for 10 days was 03.06.06, three weeks after he had returned from

the solitary confinementthe safe place. In addition, the notice concerning the

penalties failed to reflect the fact that this penalty had been found unlawful and

repealed by a decision of the Krasnokamensk Town Court of 31 January 2007 (a

copy of the decision is attached to the parole application).

We all have already heard the story about the factual circumstances of

these so-called violations, and there is nothing to add to it. Their far-fetched and

unjust nature is obvious. But I should briefly talk about the legal assessment of

those events.

The penalties of 12.12.2005 (a reprimand for having searched for amechanic without leaving the workplace vol. 11 case file sheet 203), of

24.01.2006 (5 days in ShIZO for possession of orders of the Ministry for Justice

that were public domain, had been officially received from the censor and were

directly relevant to MBK as a convict vol. 12 case file sheet 31) and of

03.06.2006 (10 days in ShIZO for two lemons and an apple given to him as a


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present by his neighbours after his return from the solitary confinement and a

hunger strike vol. 12 case file sheet 207): these three penalties were found

unlawful and repealed by decisions of the Krasnokamensk Town Court of 04 May

2006 (vol. 12 case file sheets 156 and 161-162), of 18 April 2006 (vol. 12 case file

sheet 143) and of 31 January 2007 (attached to the parole application),respectively. All those decisions have become final. Legally it means that those

violations and penalties simply did not happen, and the administration had no

right to mention them in the documents submitted to the court and refer to

them anywhere as violations.

In addition, on 29 August 2005 MBK was put in karzer [punishment

dungeon] for 5 days for possession and use of prohibited items (a nail file instead

of a knife not issued by the administration; for a long time, it had been openly

stored in a desk, had never been seized during daily searches, and had been

openly used by the entire cell vol. 10 case file sheet 207); on 17 March 2006, he

was placed into ShIZO for 7 days for consumption of food in a non-designated

place (he drank tea where it was easily done by everybody and which specifically

for that reason had a tea-pot vol. 12 case file sheet 110). It is clear that these

are in fact not violations but fault-finding, selectivity and discrimination. It is clear

that they in no way characterize the behaviour of the convict. That is why none of

the documents speak and they cannot of any kind of maliciousness of the

violations and the violator himself. These facts are more characteristic of the

maliciousness of the behaviour of the administration, and we have already talked

about this. But in addition to this, it is important for us that pursuant to Art. 117

para 8 of the RF Correctional Code if within a year from the day of serving a

disciplinary penalty a convict has not been subjected to a new penalty, he is

regarded as having no penalties on his record. The seven days in the ShIZO upon

the order of 17 March 2006 were served by MBK on 24 March 2006, and he did

not have penalties through 24 March 2007. It follows from this that both of these

penalties have been removed from his record. Therefore, the court has no right

not only to refer to them as penalties but even to take them into account when

assessing the convicts behaviour in order to make a decision concerning release

on parole.

Thus, nothing remains of the numerous violations of the regime

mentioned in the letter of reference and of five out of six penalties listed in the

notice both from the factual and legal points of view.


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Let us now deal with the sixth, so-called unremoved one. It is a reprimand

announced by the chief of FBU IZ-75/1 on 15 October 2007 (vol. 18 case file sheet

138).

First of all, I would like to say the following. We MBK lawyers are

sometimes asked why we filed for parole having an unremoved penalty, even

more so because it will soon be removed from his record on 15 October 2008

anyway. The answer is very simple: there are no guarantees that closer to

15.10.08 the administration or other persons, lets call them influential and

interested, will not wish to find a new violation and impose a new penalty, as

it has been done so far. The most recent penalty was imposed on 15.10.07 10

days before he would have been eligible for parole. So we decided: let this one

obviously invented stay rather than they will invent another one. And we will

assess it in court at the parole hearing. Out of the same considerations we did not

appeal to court an earlier penalty (which by now has been removed from the

record) in 2006.

In terms of the disciplinary penalty imposed on 15 October 2007, we have

every reason not only to dispute its lawfulness and reasonableness but also to

state that the fact of this violationper se did not take place. We submit that while

considering this MBK parole application, the court is entitled to and should give

assessment to this circumstance.

Let us turn to documents first. From the order to impose the penalty (vol. 18case file sheet 138) it follows that on 11.10.07 at 09.18 during lead-out from the

little yards for outside walks [he] refused to carry out the lawful demands of

employees of the administration, namely to take the hands behind the back

during motion, thereby violated para. 1.2; para. 1.13 of the Annex No. 1 to the

SIZO Rules of Internal Order approved by Order No. 189-05 of MJ RF.

Non-compliance with (refusal to carry out) such a demand of the

administration and it is this in which a violation has been discerned had it had

place would be indeed a violation of para 1.2 of the mentioned Annex since an

accused during accompanied motion should hold his hands behind his back. Nowwe need to figure out whether such refusal took place.

We state that there was no refusal, no failure to carry out the demand, no

anything that is tried to be portrayed as the violation.

We further state that the material submitted by the administration does not

contain reliable proofs of the violation and none of its substantial circumstances

the time and place where the command (demand) was uttered, the person who


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uttered it and the time and place where MBK refused to carry it out are either

established or proved. The data contained in the administration documents are

not just contradictory they are mutually exclusive. And we have evidence in our

possession that refute the allegations about the violation.

For instance, from the report by Kozulin (vol. 18 case file sheet 139) it followsthat the command to the accused to the effect that they must hold their hands

in the rear position (behind their backs) was issued by him personally at 9.18

while leading [them] out of the premises of little yard for outside walks No. 1. One

immediately doubts the truthfulness of those words. And then it is impossible to

understand anything in this report since here is what it says verbatim:

Khodorkovsky failed to carry out this demand and continued (!) his motion along

the corridor of the 1st

floor of regime building No. 1 holding his hands as he

wished until he reached the premises of his cell. It seems that having somehow

found himself in the corridor of the first floor of the building instead of the yard,MBK was simply walking along it, strolling, until he reached the premises of his

cell. But the cell is located on the 3rd

floor! Nothing is clear: when and where did

he start his motion to then continue it? when exactly should he have carried

out the demand and when did he refuse to carry it out and stopped holding his

hands behind his back?

The next piece of evidence is a report of another officer, Belomestnov

(vol. 18 case file sheet 139). I am reading from it: at 8.26 during lead-out from

cell 125 Kholmogorova gave the command Hold your hand behind your backs

during motion, and it was carried out. Then it becomes a total mess. It reads: at

9-21, returning from an outside walk, accused Khodorkovsky, going along the 3rd

floor of regime building No. 1 accompanied by officers, was walking as he wished

from the entrance door premises [sic] to the premises of his cell without holding

his hands behind his back. So, according to this theory the command was given

at 8-26 rather than at 9-18, by Kholmogorova rather than by Kozulin, and during

lead-out from the cell on the 3rd

floor rather than in the yard for outside walks.

The command was not carried out on the 3rd

rather than on the 1st

floor. It is

unclear and unknown where the author of the report was at that time, what he

saw himself and what, when and from whom he learnt.

The third piece of evidence is a report of Kholmogorova (vol. 18 case file

sheet 142), the same Kholmogorova to whom Belomestnov refers as the person

who gave the command. This is truly miraculous: not a word about the event of

11 October, everything is in general: usually every day the command is given


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And thats it. The Kholmogorova report does not bear witness to any violation of

the regime requirements by MBK, it has no facts at all.

There is one more piece of evidence: a statement (vol. 18 case file sheet

141) signed by Kozulin, Cherin and Baksheyev. Its content repeats that of the

report of Kozulin and therefore runs counter to the report of Belomestnov which

in its turn runs counter to the report of Kholmogorova to whom it itself refers. In

addition, it is unclear from the content of the statement how its signatories,

Cherin and Baksheyev, learnt about the events described in it, whether they saw

anything themselves, and what is the meaning of their signatures under this

statement.

After all these it still remains unclear how could it have happened that the

accused, having received a command hands behind your back but obstinately

and demonstratively holding them as he wished, was marching through all thefloors of the special facility while those who were accompanying him, and the

chief of the special facility himself among them, were looking at it calmly and

silently and did not stop this until he reached his cell? And one more unclear

thing: why none of the CCTV cameras, with which building No. 1 is literally

bedecked like with Christmas lights, recorded this march? As a matter of fact,

MBK, who denied the fact of the violation itself and called it invented since with

the approaching parole, *he was+ scrupulously carrying out all commands,

requested in writing that the CCTV data be checked (MBK's explanation vol. 18

case file sheets 143-144). But the case file does not contain those data, nor does itcontain references thereto although they would have constituted objective

evidence. Had it existed

In addition, according to the order, MBK was punished only for failure to

carry out the command during lead-out from the yard for outside walks. Thus, all

those reports and the statement concerning actions on the 3rd

floor should not be

taken into consideration at all.

And one more rhetorical question. Your Honour, can one believe or even

simply imagine or suppose that a serious grown-up person, who understands

everything about the law and order and behaves in a regardful and proper

manner (all this information is from the SIZO letter of reference), 10 days prior to

becoming entitled to parole would show such boyish bravado, knowingly

provoking a penalty? Why? For the sake of what?


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All those questions are answered by an explanation of Igor Gnezdilov,

MBK's cellmate who on that day had a walk together with him. However, not the

one [available] in the personal file it, by the way, contains nothing either pro or

contra. The written explanation that he voluntarily gave to the defence which we

ask to be added to the case file. And also in an oral one, which he is ready andwilling to give to the court in this court-room. And to explain, among other things,

how and why the explanation available on case file sheet 144 of volume 18 of the

personal file and the MBK penalty itself appeared. The explanation is simple

and clear: it was an intended falsification pursuing the only goal to prevent a

parole application. And this means that the authors of the falsification realized

that it would be impossible to deny parole without it.

These are all pieces of evidence of the violation, if they can be called so.

In this kind of cases people usually say: It has been sewn together with white

thread. In this case I would say: it has not been sewn together at all, just patched

together haphazardly. Because they realized that what did not happen at all

cannot be sewn together with any thread.

CONCLUSIONS:

- the fact of the violation of the Rules of Internal Order on 11.10.2007 has

not been established and did not take place;

- there were no factual or legal grounds to impose the penalty on 15 October

2007;- imposition of that penalty pursued the goal to prevent MBK from applying

for parole, for denial of which there were and are no lawful grounds;

- the penalty in the form of the reprimand of 15 October 2007 cannot be

taken into consideration by the court because of the aforementioned grounds.

GENERAL CONCLUSION CONCERNING VIOLATIONS AND PENALTIES:

- despite the unreliable allegation of the letter of reference, MBK has no

violations of the regime requirements or penalties that could be taken into

consideration by the court while considering the parole application.

4. Other Circumstances

The letter of reference alleges that MBK did not settle down to a

correction course. This conclusion is made following a comma after the words

he is not remorseful for the crime committed, and it means it is based

specifically on this allegation. And Id like to emphasize: exclusively on it, since the


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letter not only contains no other arguments in corroboration of this conclusion

but, as I have already said, the entire content of the letter (save for the

groundless references to the violations and penalties that have just been dealt

with) directly refutes this conclusion.

In addition, the letter of reference points out at the existence of a non-

repaid debt in the amount of RUR 62 thousand under the writ of execution and

says that MBK does not take measures to repay the claim [sic].

The defence submits that:

- both those allegations are untenable from both the factual and legal

points of view;

- irrespective of whether or not they are true, neither of them can be taken

into consideration by the court while deciding on parole.

However, since those allegations have been made, I cannot confine myself

to what I have just said and have to adduce arguments to support it.

First of all, despite the fact that those circumstances are also referred to in

Art. 175 of the RF Correctional Code as circumstance which, inter alia, can be

reflected in a parole application, it is obvious that neither of them characterizes

the behaviour of the person while serving his sentence.

The Constitutional Court, for instance, on numerous occasionsunambiguously expressed its legal position in this respect; those words are cited

in our application and were partially mentioned by my colleague.

Let me briefly remind you that:

- the court should proceed from the fact that by virtue of the principle of

lawfulness recognized by rule-of-law states, punishability and other criminal legal

consequences of a criminal deed shall be determined by the criminal law,

pursuant to which sufficient grounds for release of a person serving his/her

sentence on parole are constituted by a courts finding that for his/her correctionthe person does not need to serve the sentence prescribed by the court in full and

the actual serving of the part of his/her sentence indicated in the law (Article 79

paragraphs one-five of the CC of the Russian Federation);

- the legislator does not establish what importance during resolution of the

issue of the release on parole can be attributed to various circumstances and


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thereby entitles courts of general jurisdiction to decide in each specific case

whether the information contained in the appeal and other materials are

sufficient to find that the convict does not need to serve the sentence prescribed

to him/her by the court in full and is subject to parole;

- it does not follow from the provisions of Article 175 para 1 of the

Correctional Code of the Russian Federation that if the convicts application does

not point out at some information, including remorse for the deed committed,

this prevents consideration of such an application or granting parole. Nor are

there grounds to consider those provisions as regarding non-admittance by a

person of his/her guilt in commission of the crime as a circumstance ruling out

parole; moreover, in the meaning of the law, grounds predetermining possibility

or impossibility of application of parole are circumstances characterizing the

personality of the convict and his behaviour after issuance of the verdict, during

serving his sentence (Decree of the Constitutional Court of the Russian Federation

N 1-P of 27 February 2003 in the case of reviewing constitutionality of the

provision of Art. 130 para 1 of the Correctional Code of the Russian Federation;

Rulings of the RF Constitutional Court: N 453-O of 16 November 2006 On Refusal

to Admit for Consideration of an Appeal of Citizen Oleg Alexandrovich Tsipelshtein

against Violation of His Constitutional Rights by Art. 175 para 1 of the Correctional

Code of the Russian Federation; N 110-O-P of 20 February 2007 On Appeal of

Citizen Vladimir Nikolayevich Savenkov against Violation of His Constitutional

Rights by Art. 79 para 1 of the Criminal Code of the Russian Federation; N 173-O-P

of 20 February 2007 On Appeal of Citizen Timur Said-Magomedovich Idalov

against Violation of His Constitutional Rights by Art. 175 para 1 of the Correctional

Code of the Russian Federation).

I would like to emphasize that appeals of the aforementioned citizens to

the Constitutional Court, as directly follows from the content of its rulings, were

made specifically in connection with the need to establish the role of such

circumstances as compensation of damage (Tsipelshteins appeal) and admission

of guilt and remorse (appeals by Savinkov and Idalov) while deciding on the issue

of parole.

By virtue of Arts. 6 and 79 of the Federal Constitutional Law On the

Constitutional Court of the Russian Federation, the aforementioned decisions of


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the Constitutional Court have direct force and do not require any confirmation on

the part of any bodies or persons, and the constitutional legal meaning of the

indicated provisions of the CC RF and the RF Correctional Code as revealed in

them is generally binding and rules out any other interpretation of theirs in the

law-enforcement practice.

In addition, with regard to the compensation of the damage I would like to

refer also to the legal position of the RF Supreme Court articulated by it on

numerous occasions. For instance, the Review of the Supervisory Practice of the

Judicial Collegium for Criminal Cases of the RF Supreme Court for 2006 says: As

to the arguments of the court of the first instance to the effect that Yefremova

failed to compensate the pecuniary damage caused by her deeds, this

circumstance is not an obstacle for application of parole to her. Supervisory

ruling of the same Collegium of the RF Supreme Court of 21 February 2007 in caseNo. 2-DO704 says: Refusal to grant Ss parole application for the reasons that he

has not repaid a large sum of debt under writs of execution is not based on the

law.

And, finally, the factual side of the case concerning the issue of

compensating the damage: we are submitting to the court documentary proofs of

payment of RUR 62,230.09 to the federal budget under writs of execution 1-33, 1-

39/05 of 15 December 2005. This fact means that all the demands under all the

writs of execution referred to in the notice and letter of reference concerning

M.B. Khodorkovsky have been paid in full.

As concerns the allegation of the letter of reference that MBK is not taking

measures to repay his debt under the writ of execution, to put it mildly and

diplomatically Id call it light-minded. In reality:

firstly, MBK, as he himself has explained to the court, because of the arrest

and conviction lost everything that he owned, and Yukos had been worth 40

billion US dollars. Today he owns nothing, and the company itself ceased to exist,

while its assets were distributed among creditors, the biggest of which was the

Russian Federation represented by the tax service. The entire debt to creditors of

the first, second and third priority, including the RF, has been repaid. So if

somebody believes that some additional damages have been inflicted, after

completion of the story with Yukos they have been repaid with a vengeance;

secondly, as far back as during the trial in 2005 an attempt was made to re-

pay fully the MBK personal tax arrears with which he was charged. The


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Meshchansky Court of the City of Moscow, however, did not accept that money

without offering any reasons and did not even issue any documentary proof of its

arrival although mentioned this on p. 659 of its verdict. The money did not come

back either...;

and, finally, thirdly, as I have already said it is light-mindedly, to put it

mildly, to speak of failure to take measures to repay the debt by a person who

was first deprived of all his sources of income and then for five years has not been

allowed to work (and thus to have a source of income) not only as efficiently as he

could but for most of this period at all. And if we call things by their proper

names, it is simply cynical.

Now about admission of guilt and remorse. The Russian Constitution

(Article 50 paragraph 3) provides for two rights for each and every convict listedone after the other and separated by a comma: the right to review of the verdict

by a higher court in the procedure prescribed by the law and the right to ask for a

pardon and mitigation of the punishment. Attempts to condition exercising of one

of those two rights the right to mitigation of the punishment by way of parole

by deprivation or waiver of the other right to review of the verdict cannot

have anything to do with either law or justice. It is absolutely unacceptable to

apply provisions of the Constitution and law in such a way that if a person has a

different point of view, in particular, to lawfulness of a trial and verdict, he/she,

with all other conditions being the same, will spend in prison twice the time thana person who obediently accepted the unfair conviction or a person that

intentionally demonstrated such obedience. In other words, it is unacceptable to

discriminate persons who consistently defend their rights, in particular the right

to have a point of view to a court verdict in relation to him/her different from that

of the official authorities. Such discrimination would also lead to impairment of

the right to free expression of ones opinion without unjustified persecution and

repressions by the state, the right enshrined in Art. 10 ECHR and Arts. 19 and 29

of the RF Constitution. This would be a form of reprisal of the state against the

convict who consistently exercises his rights to judicial protection appealing theverdict in his case. Let me emphasize: he appeals it lawfully, i.e. acts law-

abidingly.


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previously on numerous occasions got released on parole. He said literally the

following: I knew how to demonstrate correction and intentionally got

corrected: I showed remorse, joined the Section of Internal Order, was an

activist because I needed to get released as soon as possible since my friends

were waiting for me outside to get to business. And who of these two types of

convicts is more law-abiding, has more respectful attitude towards society and

people: the one who honestly and lawfully fights for justice while serving his

sentence or the other one who gets intentionally corrected? Who of them

poses a real danger for society and should remain in custody and who is subject to

release? Of course, the question is rhetorical. MBK himself has already expressed

to the court his attitude towards remorse, and I shall hardly say anything better

about this attitude of his.Who and what is waiting for MBK in free life? Can the court have any

justified fears that he will behave non-law-abidingly and disrespectfully towards

people and society? It is obvious that it cannot. And nobody can say this better

than he himself and his mother, who is now present in this court-room. This

family (let me reiterate: not only MBK himself, whose further fate we are

discussing now, but the entire family that is waiting for him at home: his children,

two of which are very young and one is a minor, his wife, his elderly parents) has

suffered and has lost so much during the past five years owing to the involuntary

separation that if they reunite, this alone will make them happy, and they will use

all of their efforts and energy to repair their tiny world destroyed against their

will. The court has no reasons to doubt this, even more so because even the SIZO

administration do not doubt that M.B. Khodorkovsky is socially adapted. And all

the formal signs of this social adaptation possibility to have a home and get a

job, permanent place of residence, higher education, large, various and successful

work experience, which will allow him to be useful for people and society in

future as well are present, too.

And the last circumstance, to which I cannot fail to draw the attention of

the court. Of course, MBK himself and we, his lawyers, realize that the decision toapply parole which we, your Honour, are reasonably expecting from you will

not set him free as long as he is under arrest due to the second set of charges.

Nevertheless, we proceed from the following:


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- the new arrest is not an obstacle to the release on parole under the

previous verdict because the charges are not connected with deeds committed

while serving the sentence. They are connected with much earlier events and in

no way characterize the behaviour of the person that should be the only thing

assessed while making decision about parole. In addition, MBK is legally not guilty

with regard to those charges since they have not yet been confirmed by a final

court verdict;

- it is impossible and unlawful to continue this vicious circle endlessly,

when, having put a person behind double bars, they then refer to this denying

him freedom. And I would like to emphasize that the party of the prosecution

itself explicitly admits the existence of grounds for parole for MBK. To ascertain

this it is enough to take a look at any of the orders submitted to the court on the

basis of which MBK is being held in detention: as one of the grounds for arrest asa measure of restraint adduced by the investigators and prosecutors each and

every of them says that starting from 25 October 2007 MBK has the right to

parole, and this right can be exercised. Thus, the investigators and prosecutors

themselves, despite accusing MBK, admit that there are ground to release him on

parole, and have been regularly confirming this for already about a year and a

half. I believe that the court will take this circumstance into consideration as well.

Your Honour,

The information about circumstances in possession of the court

characterizing MBK's personality and his behaviour upon issuance of the verdict,

during serving his sentence, are sufficient to find that he does not need to serve

the sentence prescribed to him by the court in full and is subject to parole. While

serving his sentence, M.B. Khodorkovsky by his rightful behaviour, absence of

violations, good faith fulfilment of the obligations assigned to him and respectful

attitude towards other convicts proved that he does not need to further serve the

punishment prescribed to him by the court. This information also leaves no

doubts that the purposes of punishment provided for by Art. 43 para 2 CC RF have

been fully achieved. There are also no grounds to assume that M.B. Khodorkovsky

can commit any crimes in future. There are no legal obstacles for his release on

parole. Under such circumstances, M.B. Khodorkovsky can be much more useful

for society if he is released on parole from serving the remaining custodial

sentence.


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On the basis of the above and taking into consideration that M.B.

Khodorkovsky has actually served the part of the sentence indicated in the law,

we in full compliance with the law are petitioning for release of Mikhail Borisovich

Khodorkovsky on parole from serving the unserved part of the sentence

prescribed by the verdict of the Meshchansky District Court of the City of Moscowof 16 May 2005.

Your Honour,

A hundred years ago in 1908 introducing a draft law for creating of the

institution of parole in the country to the State Council and the State Duma for

the first time in Russian history, the Russian Minister of Justice, Ivan Grigoriyevich

Shcheglovitov, called this institution a beam of light in our prison order beneficial

influence of which will not take long to be felt. During the hundred years, the

validity of this opinion has been fully confirmed, and five years ago THE COMMITTEEOF MINISTERS OF THE COUNCIL OF EUROPE in its recommendation N 22 TO MEMBER STATES OF

THE COUNCIL OF EUROPE of 24 September 2003 on conditional release (parole) saidthe following:

it is desirable to reduce the length of prison sentences as much as possible

and conditional release before the full sentence has been served is an important

means to that end; conditional release is one of the most effective and

constructive means of preventing reoffending and promoting reintegration of the

prisoner into the community;

conditional release measures require the support of political leaders,

administrative officials, judges, public prosecutors, advocates and the public.

It only remains to us to hope and believe that in this complex case, realizing

all its complexity but on the other hand also realizing the lawfulness and

substantiation of the petition filed, the court represented by you will hear these

appeals as well and will make the only lawful and substantiated decision to grant

our petition.

And we, on our part, will endeavour to practically implement it.

vadim klyuvgant speech

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