Khodorkovsky’s Defence Team Files Appeal to the Supreme Court
Mikhail Khodorkovsky’s defence team today filed an appeal to Russia’s Supreme Court (the full text of the appeal can be found at the end of the page). Defence lawyer Vadim Klyuvgant issued the following statement:
Almost a year has passed since the previous appeal to the Supreme Court was filed by the defence. A year of judicial red tape, run-arounds, tricks and direct lies. A year lost for movement toward fairness and justice, toward preservation of what’s left of the trust in courts. The most terrible thing is that it was yet another, already the ninth, year of imprisonment of the people convicted without guilt under a phony verdict.
Today, we’re coming to the Supreme Court “for the second round”. Since it’s already the second one, the Supreme Court has absolutely nowhere to redirect us with our unpleasant question. And despite everything, we’d like to hope that at least in the tenth year of this lynching we will finally see a real hearing.
The appeal is a procedural document, and the case, although phony, is huge. That’s why the size of the appeal is pretty large, while its language is peculiar. For those for whom it will difficult to read but who are interested in the essence of the defence’s position, here it is in a nutshell.
The main point: the case is totally fake, because it’s lacking the very reason for criminal liability – there is no crime here under the criminal law. Let me emphasize: the issue is not that something is unproven. The issue is that what the verdict calls a crime is definitely not a crime. Here is why.
1. The court in its verdict found established that:
– “the injured parties” (the Yukos oil production “daughters”) sold the oil they produced under contracts and received proceeds from the sale that not only covered all of their costs but also brought them profit (about three billion US dollars). Selling the oil, “the injured parties” acted in compliance with decisions of their authorised management bodies formed by Yukos as their shareholder (first the main and then the sole one);
– the right of ownership to the oil was transferred from the sellers (“the injured parties”) to the buyers (Yukos or its trading companies). The court in its verdict found that fact to be established by numerous court decisions that have come into legal force;
– Yukos exported some of the oil purchased from “the injured parties” and incurred additional costs (export taxes and duties, transport, insurance, freight, etc.). Having exported some of the oil, Yukos made additional profit;
– all the profit received by Yukos was spent on increasing the volumes and efficiency of the production and on paying dividends to the shareholders.
2. Having found all these facts to be established, the court in its verdict made conclusions running downright counter to them. Here are those conclusions:
– the possession of the oil was taken wrongfully;
– “the injured parties” were “deprived of their independence” and forced to act “contrary to their interests” by selling the oil at an “understated” price, as a result of which they “received less profit than was due”;
– the selling of the oil by the “injured parties” at the price “below the market price” did not involve exchange for value for them, and therefore the oil was stolen from them.
Making such conclusions, the court knew and understood not only the above-mentioned facts but also that what it (the court) called “the correct” (not “understated”) price of the “stolen” oil was not its actual cost as required by law. Nor was it a result of a calculation by an expert of the market price of the oil at the time and place where it was sold (no such calculation was examined by the court because it has never been done). Instead, the court used as the “real market” price a totally inapplicable price of oil in a Western European port, which included compensation of the above costs for its transportation – the costs that “the injured parties” had not and could not have born because they did not export the oil.
3. Those conclusions of the court are knowingly false. They run counter not only to the facts established by it but also to requirements of the law, pursuant to which:
– the full coverage of the costs of “the injured parties”, and especially the fact that they have received a profit, unequivocally rule out even the possibility of the statement that its sale lacked the exchange for value and therefore that there has been theft;
– interests of a joint-stock company are determined by its shareholders and no one else. Management bodies of a company are also formed by its shareholders and no one else. A company does not, and cannot, have any other “own” interests different from those of its shareholders. This is what the Joint-Stock Companies Act explicitly says. Yukos was the shareholder; Yukos determined its interest: to develop the production and distribute all the profit received among all the participants of the holding: its production, refining and trading units. It is that interest of the shareholder that was implemented, including with the help of the oil realization arrangement built in full compliance with law. This completely rules out a possibility of a statement about the wrongfulness of taking possession of the oil.
This, in a nutshell, is the essence of the fake case.
And now let’s think about it: do we want the “understatement” or “overstatement” of prices for market transactions to be determined by investigators and prosecutors at their will and courts to turn those far-reaching conclusions into verdicts ruining lives and fates of people? This is exactly what’s going on now everywhere, after the technology has been “test-run” on the fake “Yukos case”.
And now finally a question for the authors and perpetrators of this lynching that used the concept of “understated” and “overstated” prices and for their support group: don’t you fear for yourself and your close ones? This weapon is universal and can be easily turned any way one wants; the only thing that’s needed is an order.
