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Summary on the Swiss Judgment on Khodorkovsky

We are expecting to post the full English translation of the landmark ruling from the Swiss prosecutors on the Khodorkovsky case very soon. Until then, please see the summary below. (The original French text can be read here – enter case number 1A.29/2007 and click “Rechercher”). SUMMARY OF FACTS LEADING TO KHODORKOVSKY’S APPEAL Recitation of facts from pages numbered 2 to 10. Includes information about accusations involving Apatit and Yukos, and provides chronology of related Russian-Swiss judicial cooperation that started with a Russian request for judicial assistance dated 15 August 2003. The facts also include information on legal actions concurrently undertaken by the accused individuals within Switzerland or at the European Court of Human Rights [ECHR]. Provides details of 11 questions the Swiss asked of the Russian authorities on 12 March 2006, to which the Swiss received feedback on 4 July 2006. The Swiss complained of insufficient detail in the feedback, and the Russians provided more information on 12 September 2006. The Russians clearly distinguished the Apatit and Yukos affairs as separate matters. On 21 December 2006, the Swiss Federal Public Prosecutor ordered winding up procedures for a Khodorkovsky account held at UBS Zurich. On 26 January 2007, Khodorkovsky presented an administrative law appeal against this order, requesting that the order be cancelled and procedures suspended pending ECHR judgments. He further called on the Swiss to bar the Russians from judicial cooperation with Switzerland in connection with the Russian request of 15 August 2003 and subsequent related requests. The Swiss Federal Public Prosecutor’s Office and Swiss Federal Office of Justice rejected Khodorkovsky’s action. LEGAL REASONING OF SWISS FEDERAL TRIBUNAL Legal reasoning provided on pages numbered 10 to 17. Key extracts: Page 11: [Khodorkovsky] maintains that the legal proceedings taken against him are in reality motivated by political and economic reasons. He claims he has been pursued due to his “oligarch” status, considered to be a threat to the power in place in Russia, and due to a policy of the state to retake control of the country’s energy resources. Such he claims would have already been the case with Gusinsky. [Khodorkovsky asserts that] the Russian prosecutor acted against him under order of the Russian president himself, after having already closed the file. [Khodorkovsky states that] the discriminatory character of the case has already led authorities in Britain and Liechtenstein to reject Russian requests for judicial assistance and extradition. [Khodorkovsky asserts that] the absence of independence of the judges was most obvious in the trial led against Khodorkovsky and Lebedev, during with the rights of the defense were systematically ridiculed. Pages 11-12: The court cites the Parliamentary Assembly of the Council of Europe [PACE] as authority “strongly suggesting” that the arrest and allegations leveled against Yukos officials, notably Khodorkovsky and Lebedev, were not in conformity with principles the rule of law, and that these people had been selected as targets by the authorities in violation of principles of equality. The court further notes that PACE referred to the ECHR decision of 19 May 2004 in the Gusinsky case, which described “an instrumentalization of criminal proceedings for purposes of intimidation.” The court further notes that a PACE resolution called for guarantees of judicial independence and procedural fairness, based upon the observation of numerous violations of the rights of the defense, the accumulation of such irregularities, massive dispossession of members of Yukos leadership through back taxes, and the fact that Khodorkovsky had been providing financial support to opposition groups. Page 12: The court recognizes an obvious problem under article 2 of the Swiss federal law on international judicial assistance in criminal matters. This law states that a request to Switzerland is barred if there are reasons to conclude that the proceedings in the requesting state, while appearing to be motivated by criminal wrongdoing, are in reality motivated by the pursuit of a person for their political opinions, their belonging to a particular social group, their race, their religion or their nationality. Page 12: The court states that article 2 of the Swiss federal law on international judicial assistance in criminal matters is intended to avoid Switzerland lending support, through judicial assistance or extradition, to foreign proceedings in which the accused does not benefit from guarantees of minimal standards of protection corresponding to those granted by law in democratic states, as defined by the ECHR or the UN International Covenant on Civil and Political Rights, or foreign proceedings that go against recognized norms of public international order. Page 13: Switzerland would be in breach of its international obligations if it cooperated with a foreign criminal proceeding presenting a risk of treatment of an accused, particularly discriminatory treatment, which is inconsistent with minimal guarantees recognized under international law. Page 13: [Russia’s] request for assistance must therefore be set aside in the face of the probable existence of a serious and objective risk of a prohibited discriminatory treatment [of Khodorkovsky]. In this context, it is not enough to claim that the foreign criminal proceeding is a matter of settling scores through which the appellant has been eliminated from the political scene. It is necessary to assess concrete facts that lead to the inference that the appellant is under pursuit for hidden motives, notably in relation to his political opinions. Page 13: Such motives exist in this particular case, and the various positions taken by the requesting state [Russia] after the decisions of January 2006 provide no credible arguments to the contrary. Page 16: In Resolution 1523 of 6 October 2006, PACE recalled its prior resolutions and recommendations, with regret that subsequent developments so clearly demonstrated both the strong basis for the prior criticisms and the absence of response by the relevant Russian authorities. Page 16: It is certainly not up to the Swiss [foreign] judicial assistance authority to state its views on the legitimacy of reforms undertaken by the requesting state [Russia]. However, cooperation must be refused when it appears that the criminal proceeding for which it is required has such a political background. Page 16: The political and discriminatory nature of the proceedings in Russia [against Khodorkovsky] was reinforced by the violations of guarantees respecting human rights and the right to a defense, apparently committed during the full length of the case. In addition, even despite final judgments, the facts surrounding the allegations remain obscure. Page 14: The court cites 2006 report by Amnesty International, 2006 report by Human Rights Watch and 2006 report by International Helsinki Federation for Human Rights, for support of assertion that Khodorkovsky and Lebedev trial was political and marked by serious procedural irregularities and systemic deficiencies. Page 15-16: The court cites the incarcerations in Siberia, against Russian law, as a concrete example supporting its reasoning. The court states that the choice of where to incarcerate Khodorkovsky and Lebedev lacks objective justification, and can only be understood as a means of purposefully sending them far away. In this regard the court refers to the European Parliament resolution of 15 June 2006 regarding the EU-Russia summit of 25 May 2006. Page 16: Regarding the request for judicial assistance, even after the verdict and its confirmation, and even after having benefited from several opportunities to clarify its request, the requesting authority [Office of the Russian Prosecutor-General] has been unable to provide the clarifications demanded in the decision of the Swiss Federal Tribunal of 6 January 2006. Page 16: The position taken [by the Russian authorities] on 4 July 2006 constituted only scattered and evasive responses to the questions asked by the Swiss Federal Public Prosecutor’s Office. The requesting authority [Office of the Russian Prosecutor-General] essentially recycled its previous statements. The Swiss Federal Public Prosecutor’s Office then provided the requesting authority [Office of the Russian Prosecutor-General] with a catalogue of precise questions, underlining the need for exhaustive responses. Yet the information provided in return by the requesting authority [Office of the Russian Prosecutor-General] has still to date not been satisfactory. Page 16: The court cites UK and Italian refusals to extradite Yukos officials. Page 17: All of these facts, taken together, clearly corroborate the notion that criminal proceedings have indeed been instrumentalized by the power in place, with the goal of bringing to heel the class of rich “oligarchs” and pushing away potential or declared political adversaries. It follows that judicial assistance cannot be granted, in compliance with article 2 of the Swiss federal law on international judicial assistance in criminal matters. There is no need to consider the other conditions for granting assistance (double jeopardy, proportionality, tax infractions) and the various other grievances raised. Page 17: The administrative law appeal [of Khodorkovsky] is therefore allowed, and the decision of 21 December 2006 is cancelled. Judicial assistance under the [Russian] request of 15 August 2003 and subsequent related requests is refused insofar as it concerns the appellant [Khodorkovsky]. The appellant is granted costs to be paid by the Swiss Federal Public Prosecutor’s Office. Page 18: Summary of decision. Lausanne, 13 August 2007. Signatures and stamp of Swiss Federal Tribunal.