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Cracks in the Yukos Case

A very, very important article in the Moscow Times, wherein numerous third parties echo our views on the injustice being currently perpetrated by the Russian authorities in the case against Mikhail Khodorkovsky:

But an examination by The Moscow Times of the publicly available information and interviews with independent lawyers raise questions about the legal soundness of the case, including whether the state is violating double jeopardy rules by trying a defendant twice for the same crime.

“I don’t really understand how it is possible to charge one person for the same thing twice,” said lawyer Yury Gervis, who is not involved in the case. “But the Prosecutor General’s Office often fulfills orders from above with the ‘as you say’ principle.”

Khodorkovsky and his supporters say his legal troubles are punishment from the Kremlin for his political and commercial ambitions. The Kremlin denies this.

“Neither the president nor any one else has a right to interfere in that situation,” President Dmitry Medvedev said in an interview aired by the BBC on Sunday.

He said Khodorkovsky’s fate will hang completely on the court’s decision.

ProsecutorGeneral Yury Chaika has said the evidence collected by investigatorsfor the new trial leaves no doubt about the guilt of Khodorkovsky andhis business partner Platon Lebedev, who are being tried together. Hesaid Khodorkovsky managed to steal more money than anyone in Russianhistory.

Khodorkovsky and Lebedev are accused of embezzling 350million tons of oil valued at about 900 billion rubles ($25 billion)between 1998 and 2003 from three Yukos-controlled production units –Samaraneftegaz, Yuganskneftegaz and Tomskneft — and laundering 487.4billion rubles and $7.5 billion between 1998 and 2004.

Prosecutorssay Khodorkovsky and Lebedev committed embezzlement by bribing theshareholders and managers of the three units to allow Yukos to buy oilat production cost, 50 percent to 75 percent lower than market prices,and pocketing the profit.

The two are suspected of making fakedeals with front companies in Russia and abroad to launder the stolenoil and money, prosecutors say in publicly available documents on theinvestigation.

The schemes helped Khodorkovsky avoid paying taxes, and Yukos did not profit, according to the documents.

Khodorkovskyand Lebedev were arrested on tax evasion and fraud charges in 2003, andthe latest charges accuse them of laundering money through 2004, whilethey were in jail.

The two were convicted of the first set ofcharges in 2005 and sentenced to eight years in jail. Those chargescovered the years 2000 to 2003.

Several lawyers interviewed forthis article said prosecutors could not accuse Khodorkovsky ofembezzlement at the production units.

“It can’t be calledembezzlement if both sides agree to a deal in which one buys from theother company at its production cost,” said Pavel Smyslov, a lawyerspecializing in corporate policy, who is not involved in the Yukostrial.

Such a deal is illegal, but it involves tax evasion, not stealing, Smyslov said.

“Itcan be called embezzlement if, for example, the seller was physicallyforced to agree to the deal or a signature was forged,” he said.  (…)

Even Kremlin-loyal representativesof big business have questioned prosecutors’ approach, cautioning thatit looks like a possible violation of double jeopardy rights.

“I’mnot a lawyer, but in my opinion, no laws in Russia or elsewhere allow[a defendant] to be tried twice for the same crime,” said AlexanderShokhin, head of the Russian Union of Industrialists and Entrepreneurs.

“Idon’t understand why they are charging them [Khodorkovsky and Lebedev]twice for the same thing,” he said in comments aired on Rossia statetelevision on March 7.

Russia is barred from trying a persontwice for the same crime under its obligations to the Council ofEurope, Europe’s top human rights watchdog, of which it is a member.

Gervis, the lawyer, said legally the charges just did not make sense.

“Theyconsidered Yukos’ work legal and tried them for evading taxes in thefirst trial, but now prosecutors say that the work was illegal,” hesaid.

For the new case to stand, prosecutors have to decriminalize the earlier tax charges, he said.

Repeatedcalls to the Prosecutor General’s Office over the past two weeks forcomment for this article went unanswered. The two prosecutors handlingthe case, Dmitry Shokhin and Valery Lakhtin, refused to discuss thecharges when approached by a Moscow Times reporter as they left thecourt after preliminary hearings this month.

The court rejectedabout a dozen defense requests, including an appeal to change the stateprosecutors, the judge and court, during the preliminary hearings.

Anextraordinary amount of paperwork is involved in the second case.Prosecutors say they have prepared 182 volumes about theirinvestigation, complete with copies of contracts from Yukos and itsaffiliates. The investigation was boiled down into 4,000 pages ofcharges, which are bound in 14 volumes.

An ordinary case usually fills about 100 pages, said Maxim Dbar, a spokesman for Khodorkovsky and Lebedev’s defense team.

Khodorkovsky’slawyer Vadim Klyuvgant believes that prosecutors are trying to cover uptheir lack of evidence with the large number of pages.

“Theydon’t have any evidence,” Klyuvgant said. “There are only false chargesfilled with contradictions and masked with verbosity.”