Khodorkovsky Appeal: Judges May Be Forced to Decide on Merits of Case

May 23, 2013
Mikhail Khodorkovsky [Photo: AP Photo/Teodor Kustov]

The Supreme Court of the Russian Federation will review a supervisory appeal of the December 2010 sentencing of Mikhail Khodorkovsky and Platon Lebedev by the Khamovniki Court.  

The Supreme Court took it’s time deciding what to do with that verdict: over the past three years the businessmen’s attorneys appealed to the highest court on a number of occasions, citing inconsistencies, discrepancies, and contradictions in the document, authored by judge Viktor Danilkin, that classifies as a crime something that a priori does not constitute a crime.

For example, the author of that verdict declared it an “established fact” that the proceeds received by the “affected parties”— that is, by the oil-producing subsidiaries of Yukos— were produced by them under the existing contracts, and not only covered their expenses, but also received about $3 billion in profits. On the other hand, an interesting conclusion emerged from that “established fact”: it turns out they were selling oil at a “reduced” price (for some reason the person, or persons, who drafted that document, are confident that Yukos was under some kind of obligation to sell oil domestically at world market prices), which resulted in “foregone profits”— apparently meaning that the oil was “embezzled.”

Up until now the Supreme Court redirected all appeals to the Moscow City Court, which would invariably uphold the verdict, with only a few modifications: in 2012 it reduced the sentence of Khodorkovsky and Lebedev from 13 to 11 years in light of the Criminal Code liberalization; omitted from the indictment a reference to “excessively imputed” 2 million rubles; and invoked the statute of limitations to dismiss one of the counts of tax evasion.

However, in February 2013 the attorneys for Khodorkovsky and Lebedev petitioned the Supreme Court again with the same motion – to overturn the verdict and dismiss the case for the reason of absence of the event of a crime in the defendants’ actions, and to release the defendants from custody with immediate effect. The Supreme Court found itself in a precarious situation: at this point it could not send the case back to the Moscow City Court – the defense exhausted all the possible options at the city level. The Chairman, Vyacheslav Lebedev, and his associates were left with only two options: to dismiss the appeal outright, or to initiate review proceedings. Now, almost three month after receiving the appeal, the Supreme Court opted for the latter, and has initiated a review on the merits of the verdict.

The attorneys for Khodorkovsky and Lebedev, like the defendants themselves, believe that the Supreme Court simply had no choice but to take this step, considering the array of irregularities, inconsistencies and absurdities in that verdict.

“The decision on review proceedings was predetermined, no matter how long it took the Supreme Court to make it,” said Vadim Kluvgant, an attorney for Mikhail Khodorkovsky.

“If that court dismissed our appeal outright, that would mean that they completely uphold the position of the Moscow City Court, whose responses to our motions contained totally preposterous assertions as well as lies in every other line. I don’t think the Supreme Court would feel comfortable associating itself with that lawlessness. So, what could be the final decision by the Supreme Court? You know, they have an extremely wide range of powers. They can overturn the verdict and all the judgments associated with it, and remit the case for further investigation; they can grant the appeal only in part by overturning some or the judgments by the Moscow City Court, or dismiss the appeal in its entirety. The Supreme Court is empowered to do any of these.”

By law the Supreme Court must set a date for the next hearing within one month (the starting point would be May 17); however, it could take more time, considering that it took the judges three months to decide on the review proceedings.