Platon Lebedev’s lawyer Vladimir Krasnov commented today on the appeal being sent to the Supreme Court. He said: “Platon Lebedev does not leave even a single direction of the fight without attention, or a single violation of law and his rights without consequences. “Law enforcers” have made a huge mess throughout the nine and a half years of his and Mikhail Khodorkovsky’s punitive and politically motivated prosecution. The “Augean stables” of the “basmanny justice” must and shall be cleaned.”

The full transcript of the appeal can be found below.

To the Chairman of the RF Supreme Court

V.M. Lebedev

From lawyers:

V.N. Krasnov

A.Ye. Miroshnichenko

In defence of P.L. Lebedev

Supervisory Appeal

(under Arts. 402-404 CCrimP RF)

A judgment of the Velsky District Court of Arkhangelsk Oblast of 27 July 2011 denied an application for P.L. Lebedev’s conditional early release. A cassation appeal of the defence against that judgment was dismissed by a ruling of the Judicial Collegium for Criminal Cases of the Arkhangelsk Oblast Court of 16 September 2011. The above judicial acts were appealed in the supervisory procedure to the Presidium of the Arkhangelsk Oblast Court. Judge A.D. Atabiyev refused to open supervisory proceedings by his judgment of 8 August 2012, as did the Acting Chairman of the Oblast Court, V.G. Bunkov, by his decision of 26 September 2012 (copies of the court decisions are attached hereto).

The most important argument of the supervisory appeals was that upon P.L. Lebedev’s complaint in view of the denial of parole to him the RF Constitutional Court issued its Ruling No. 274-O-O of 01 March 2012, which confirmed that the application of the provisions of law in the specific case ran counter to their constitutional-law interpretation. Despite the binding nature of RF Constitutional Court decisions at every stage of criminal legal proceedings, the decision of the Acting Chairman of the Arkhangelsk Oblast Court of 26.09.2012 says, with a far-fetched reference to Art. 415 CCrimP RF, that the Presidium of an Oblast Court is not on the list of subjects that have the right to open supervisory proceedings in view of new or newly discovered circumstances (paragraph 6 on page 2 of the decision). Pursuant to Art. 415 para. 1, it is the prosecutor who is such a subject. The anti-constitutional position of the prosecutorial agencies in this case also manifested itself in the fact that they did everything they possibly could in order not to use that right of theirs, which is the flip-side of their supervisory obligation. Pursuant to Art. 415 para. 5 CCrimP RF, a review of judicial acts in the supervisory procedure when there are grounds provided for by Art. 413 CCrimP RF (the existence of the grounds will be substantiated below) shall be carried out by the Presidium of the RF Supreme Court upon a submission of the Chairman of the RF Supreme Court. That is why this appeal is sent to the Chairman of the RF Supreme Court.

We believe that the above judicial acts are unlawful, have been adopted despite the provisions of the law, their interpretation by the RF Constitutional Court, and the judicial practice of the RF Supreme Court, and should be repealed in the supervisory procedure.

The legal framework of consideration of an application for conditional early release from serving one’s sentence (hereinafter – parole) is created by the relevant provisions of the criminal, criminal procedural and correctional codes of the RF based on the RF Constitution. The exclusive right to interpret those law provisions, just like any others, with respect to their compliance with the RF Constitution belongs to the RF Constitutional Court (Art. 125 of the RF Constitution). And, by virtue of the provisions of Arts. 6, 79 and 106 of the Federal Constitutional Law On the RF Constitutional Court, its decisions are binding on all representative, executive and judicial bodies of state power. The substantive ground for the repeal of the judicial acts under appeal is constituted by their demonstrative disregard of the RF Constitutional Court’s constitutional-law interpretation of the provisions of the law regulating consideration of matters of parole.

In its judgment of 27.07.2011, the Velsky Court said: “Detailing the provisions of Art. 79 CrimC RF, the correctional law in Art. 9 of the RF Correctional Code gives a regulatory definition of correction, and in Art. 175 of the RF Correctional Code it statutorily enshrines criteria demonstrating that for his further correction the convict does not require serving the sentence set by the court in full: full or partial repayment of damage, remorse in relation to what has been done, and other information demonstrating that the convict has been corrected» (last paragraph on page 3 – first paragraph on page 4). On that basis, the court denied the application for parole, having pointed out “the lack of P.L. Lebedev’s intentions” to pay the amounts awarded under the civil lawsuit “voluntarily” (last paragraph on page 5), and also that Lebedev “has no remorse for what he has done” (paragraph 2 on page 6).

The Judicial Collegium of the Arkhangelsk Oblast Court endorsed the above statements and added the following: “Within the meaning of Art. 175 of the RF Correctional Code, information about the following shall serve as grounds for application of the conditional early release: that a convict does not need to serve in full the sentence imposed by court for his/her further correction because during the period of serving his/her sentence he compensated partly or fully the damage caused or otherwise redressed the harm caused as a result of the crime, had remorse for the deed committed, or any other information which would attest the convict has corrected” (paragraph 6 on page 6). And further: “Notwithstanding the arguments of the convict and his representatives, the (first-instance) court’s conclusion made based on the body of circumstances in the case that P.L. Lebedev had no remorse for the crimes for the commission of which he has been serving his sentence under the final verdicts, is not a violation of law and does not prejudice the convict’s right to a defence.” (paragraph 6 on page 7 of the cassation ruling).

The judges who considered the case in the supervisory procedure completely failed to analyse arguments of the appeals and confined themselves to a bare allegation about the correctness of the conclusions of the courts of the first and the cassation instances.

Thus, in the opinion of those courts, the provision of Art. 175 para. 1 of the RF Correctional Code in its constitutional-law meaning in the system of the criminal and criminal procedural law allegedly allows and even prescribes to deny a parole application if the convict has not admitted his guilt, has not shown remorse for what he has done and is not repaying the damages established by the verdict (that is, if he does not agree with it (the verdict) in that part as well), while the refusal of parole on the basis of the lack of remorse is in compliance with the law.

As the RF Constitutional Court indicated in its decisions on numerous occasions, a court considering the matter of parole shall proceed from the fact that “by virtue of the principle of legal certainty accepted in a rule-of-law state, criminality of a deed and its punishability and other criminal-law consequences shall be determined by the criminal law, in this case by Article 79 paragraphs one through five of the CrimC of the Russian Federation, according to which a court finding that a person does not need to serve in full the sentence given to him by the court … and the actual serving of the part of the sentence indicated by the law constitute sufficient grounds for his conditional early release” (Decree No. 1-P of 27 February 2003; Ruling No. 110-O-P of 20 February 2007).

The Plenum of the RF Supreme Court in its decree No. 8 of 21 April 2009 (as amended by decree No. 31 of 23 December 2010) On Judicial Practice of Conditional Early Release from Serving One’s Sentence in full compliance with the legal authority accorded to it by Art. 126 of the RF Constitution explained that when courts resolve the matter of parole, they should only take into account the circumstances explicitly indicated in the law.

Considered together, those determinations of the highest court instances mean that it is the RF Criminal Code that constitutes the substantive-law basis for a lawful decision on parole.

The binding legal position on this matter has been formulated by the RF Constitutional Court in its Ruling No. 173-O-P of 20.02.2007: “From the provisions of Article 175 paragraph one of the Correctional Code of the Russian Federation, … it does not follow that lack of indication of various pieces of information in an application by a convict, including of his remorse in relation to the act committed, prevents consideration of such an application or application of the conditional early release from serving his sentence. Nor are there any grounds to consider those provisions as giving the non-admission by the person of his guilt a meaning of a circumstance ruling out the conditional early release; moreover, in the meaning of the law, grounds predetermining a possibility or impossibility of application of the conditional early release are constituted by circumstances characterizing the personality of the convict and his behaviour after the issuance of the verdict, while he was serving his sentence.”

The judgment of the Velsky District Court, upheld by the ruling of the Judicial Collegium for Criminal Cases and by supervisory instances of the Arkhangelsk Oblast Court, was based on an interpretation of the provision of Art. 175 para. 1 of the RF Correctional Code according to which a person’s refusal to show remorse and admit his guilt allegedly made it impossible to grant his parole application. Thus, the court attributed to the provision of Article 175 paragraph 1 of the RF Correctional Code “a meaning other than the one revealed as a result of its review in the constitutional proceedings, which it is not entitled to do by virtue of Arts. 118, 125, 126, 127 and 128 of the RF Constitution” (Ruling No. 883-O-O of 18.12.2007).

In the parole application and at the court hearings, P.L. Lebedev and his lawyers substantiated the unacceptability of such an approach, among other things in connection with the continuation of the lawful procedure of appealing the verdicts, which we considered and still consider to be unjust, in the supervisory procedure to the RF Supreme Court and the ECHR. (A judgment of the Chairman of the RF Supreme Court, V.M. Lebedev, of 24 July 2012 (case No. 5-D12-24) opened supervisory proceedings on those verdicts). The RF Constitutional Court in its Decree No. 4-P of 02 February 1996 indicated that “the deprivation of the right to contest a conviction apparently derogates the dignity of a person. At the same time, pursuant to Article 21 of the Constitution of the Russian Federation, nothing can constitute a ground for derogating it.” From the constitutional-law meaning of this article it follows that it is unacceptable to exert pressure on a person or limit his right to defend his dignity, protection of which is an obligation of the state which shall ensure possibility for everyone to defend their rights in a dispute with any bodies or officials. However, the courts, under the pretext of a possible positive decision on parole, were essentially forcing P.L. Lebedev to show “remorse”, that is to testify against himself.

Especial cynicism of forcing P.L. Lebedev to show remorse as a condition for a possible granting of his parole application lies in the fact that, as established by numerous non-refuted decisions of courts of various jurisdictions and statements by Russian and international organisations and public figures, the criminal prosecution of M.B. Khodorkovsky and P.L Lebedev is politically motivated. Immediately after the issuance of the verdict in the so-called “second Yukos case”, authoritative international organisation Amnesty International declared them prisoners of conscience. Under such circumstances, the demands to testify against himself and admit his guilt meant an attempt to make P.L. Lebedev demonstrate his loyalty to the current regime through the malicious volition of which he is serving his tenth year for non-committed crimes, which would allow, in their opinion, to repudiate the proven political nature of his criminal prosecution.

Thus, in the decisions under appeal the courts linked the possibility for P.L. Lebedev to exercise his right to parole with the condition of him testifying against himself, which runs counter to Article 51 of the RF Constitution.

Given such an anti-constitutional and wrongful position of the courts, P.L. Lebedev filed a complaint to the RF Constitutional Court. In it, he raised the question of incompatibility of Art. 175 para. 1 of the RF Correctional Code with the RF Constitution. Upon the complain of citizen P.L. Lebedev, the RF Constitutional Court on 1 March 2012 issued its Ruling No. 274-O-O (attached). In it, the Court reiterated its position, previously formulated on numerous occasions, that the provision of Art. 175 para. 1 of the RF Correctional Code, referenced by the decisions under appeal, in its constitutional-law meaning did not give courts grounds to consider the lack of certain information in a convict’s application, including concerning the admission of guilt and remorse for the committed act, as an obstacle for conditional early release from serving his sentence. In that decision, the RF Constitutional Court prescribed to courts of general jurisdiction “when resolving the issue of whether there are grounds for a convict’s conditional early release from serving his/her sentence … to apply Art. 175 para. 1 of the Correctional Code of the Russian Federation, taking into account the legal views expressed by the Constitutional Court of the Russian Federation in this Ruling” (emphasis added). Thus, the RF Constitutional Court admitted that in this particular case it was P.L. Lebedev and his defence who were right, not the courts that denied him parole, and that the provision of Art. 175 para. 1 of the RF Correctional Code was applied in relation to P.L. Lebedev contrary to its binding meaning previously revealed by the RF Constitutional Court.

RF Constitutional Court ruling No. 274-O-O of 01 March 2012 constitutes a new circumstance (Art. 413 CCrimP RF), and the date when the Constitutional Court’s decision came into force shall be regarded as the date of the discovery of the new circumstances.

RF Constitutional Court’s Decree No. 4-P of 28 February 2012 formulated the following binding position: “Legal force of a decision of the Constitutional Court of the Russian Federation that revealed a constitutional-law meaning of a provision and thereby removed uncertainty in its interpretation from the point of view of its compliance with the Constitution of the Russian Federation makes it impossible to apply that provision (and therefore terminates its effect) in any other interpretation different from its constitutional-law meaning revealed by the Constitutional Court of the Russian Federation. Anything else – in violation of Article 125 (paragraphs 4 and 6) of the Constitution of the Russian Federation and Article 79 paragraph three of the Federal Constitutional Law On the Constitutional Court of the Russian Federation – would mean that it would be possible to apply the provision in its previous understanding non-compliant with the Constitution of the Russian Federation entailing violation of constitutional rights of citizens, including the applicant.”

In its Ruling No. 556-O-P of 11.11.2008, the Constitutional Court formulated its legal position determining legal grounds and a specific mechanism for a subsequent review, upon results of constitutional court proceedings, of decisions of general-jurisdiction courts in cases of applicants based on application of a provision in its non-constitutional interpretation that entailed a violation of constitutional rights and freedoms of citizens. According to that position, a decision of the RF Constitutional Court that finds a provision to be in compliance with the RF Constitution only in a certain constitutional-law meaning simultaneously means finding of that provision not to be in compliance with the RF Constitution in another, non-constitutional, meaning. Therefore, such a decision has the legal consequences that follow finding a provision not to be in compliance with the RF Constitution provided for by Art. 100 para. 2 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation. That provision determines consequences of decisions adopted by the Constitutional Court of the Russian Federation and establishes that, pursuant to Articles 15 (paragraph 1) and 76 (paragraph 3) of the RF Constitution, they have priority over any federal law and cover all procedural stages and all types of court proceedings provided for by the RF Constitution.

Decree of the RF Constitutional Court No. 4-P of 28 February 2012 in this respect emphasized that under such conditions “review of an applicant’s case by a competent authority in an ordinary procedure” is guaranteed. In application to our case it means that the Chairman of the RF Supreme Court (the competent authority) shall guarantee a review of the case of P.L. Lebedev (an applicant to the RF Constitutional Court) in a supervisory (ordinary) procedure.

RF Constitutional Court Decree No. 25-P of 8 November 2012 in relation to a complaint by OAO Transnefteprodukt reasonably states that “non-compliance or improper compliance with decisions of the Constitutional Court of the Russian Federation, the binding nature of which is based on the constitutional law, not only prejudices interests of justice but also undermines citizens’ trust in courts and the state as a whole, which is obligated to recognise and protect human and civil rights and liberties.”

Consequently, RF Constitutional Court Ruling No. 274-O-O of 1 March 2012, which found a violation of P.L. Lebedev’s constitutional rights, should be perceived by the court of the supervisory instance assessing the correctness of the interpretation and application of the provisions of the substantive and procedural law in the court decisions under appeal as an unconditional ground for their repeal (Articles 381, 382, 409 and 413 CCrimP RF).

The said circumstance is substantial, fundamental, necessary and sufficient for the granting of this appeal. Other grounds are supplementary and are as follows.

The judgment of the Velsky District Court states that throughout his detention in FKU IK-14, P.L. Lebedev had no lawfully imposed reprimands (paragraphs 1 and 2 on page 5). At the same time, the courts of the first and the cassation instances based the decisions under appeal on the indication that throughout the entire period of his detention in correctional facilities prior to his arrival to FKU IK-14 of the UFSIN of Arkhangelsk Oblast he had punitive measures applied to him on numerous occasions. The first-instance court makes the following conclusion: P.L. Lebedev “for a long period of time … has been committing violations of the established procedure of serving one’s sentence”, although at the same time it correctly states that “[c]urrently, the aforementioned reprimands have been extinguished in the established procedure” (paragraph 2 on page 6 and penultimate paragraph on page 4, respectively). The judicial collegium, in its turn, said that “Throughout the period of serving his sentence, the convict’s conduct has not been law-abiding; during a long period of time he regularly (16 times) violated the sentence-serving procedure” (paragraph 2 on page 7 of the ruling). The final conclusion of the court of the cassation instance was as follows: “Given the number and the nature of the violations the convict committed, one cannot conclude that he does not need to serve further the sentence imposed for his correction” (ibid., paragraph 6). Judgment of judge A.D. Atabiyev of 08 August 2012 says the following in this respect: “Despite the fact that the reprimands imposed on P.L. Lebedev have been extinguished, the court reasonably took into account the violations he had committed as information characterizing his behaviour” (first paragraph on page 3).

Such an approach runs counter to the law (Art. 117 para. 8 CoC RF) and the court practice. Review of the supervisory practice of the Judicial Collegium for Criminal Cases of the RF Supreme Court for the year 2006 stated: “The judge’s reference that (the person) had reprimands, and that this fact characterizes her as prone to violation of the established procedure of serving one’s sentence, cannot be found to be persuasive because the violations were committed in another correctional facility and had been extinguished by the time of the consideration of the application; therefore, they could not have been taken into account when making a decision on the case” (RF Supreme Court Bulletin, 2007, No. 12, page 21).

The courts also tried to justify the denial of the parole application by saying that P.L. Lebedev allegedly had not repaid the civil damages awarded by the Meshchansky District Court in 2005. Thus, the decisions under appeal were issued contrary to the factual circumstances supported by documents submitted by the defence and examined in the court hearings. Those materials proved that as of the day of the hearing of the parole application all the civil suits against P.L. Lebedev had been fully repaid on account of the seizure and sale of the arrested property. In addition, the review of the supervisory practice of the RF Supreme Court cited above also said: “As concerns the arguments of the court of the first instance to the effect that (the person) failed to repay the pecuniary damage caused by her actions, this circumstance does not constitute an obstacle for application of the conditional early release to her.” On the same subject, a supervisory ruling of the Judicial Collegium for Criminal Cases of the RF Supreme Court of 21 February 2007 in case No. 2-DO7-4 explains: “Denial of S’s application for conditional early release on the motives [sic] that he has not repaid a large debt under writs of execution is not based on the law.” In the meaning of RF Constitutional Court Ruling No. 274-O-O of 01 March 2012 issued upon P.L. Lebedev’s complaint, the arguments of the Velsky District and Arkhangelsk Oblast courts that the lack of P.L. Lebedev’s intentions to “voluntarily repay” the allegedly caused damages constituted one of the grounds to deny his parole application are not based on the law and are contrary to the constitutional-law interpretation of the provision of Art. 175 para. 1 CoC RF.

In their decisions under appeal the courts, while referring to information about P.L. Lebedev’s personality, failed to cite a single circumstance based on a specific provision of the law that would prevent the application of the conditional early release from serving one’s sentence to him. The court decisions in this part contain nothing but bare phrases of unjustifiably negative nature. At the same time, the cassation and the supervisory instances left without attention the requirement of the defence’s appeals to assess the fact that the court of the first instance ignored the objectively positive character reference from the SIZO-1 of the UFSIN of Russia for the city of Moscow of 23 May 2011 (volume 3, c.f.s. 187), where P.L. Lebedev had been held for the previous two years.

The courts ignored the following materials added to the file of the proceedings and examined in the court hearing: a statement by the Russian Joint Democratic Party Yabloko; a diploma confirming that P.L. Lebedev was declared “The Person of the Year” upon results of a poll of readers of Novaya Gazeta; and an opinion of more than a thousand citizens in support of parole for P.L. Lebedev – that is, legal facts that occurred after the issuance of the verdict. Despite those factual circumstances, in its judgment of 27 July 2011 (first paragraph on page 3) the court agreed with the knowingly false allegation of the prosecutor that the information characterising P.L. Lebedev presented at the court hearing had allegedly “been taken into account during the issuance of the verdict”.

The decisions of the Velsky District and Arkhangelsk Oblast courts violated the principle of legal certainty. P.L. Lebedev reasonably assumed that considering his application for conditional early release [the court] would apply the approach formulated by the Constitutional and Supreme courts of the RF which was ignored in the judicial acts under appeal without explanation of the motives and grounds. The decisions to deny parole based on the knowingly false allegation that P.L. Lebedev had reprimands, which in fact had been extinguished, and also on the ground that he failed to admit his guilt and show remorse and refused to voluntarily repay the so-called damages were apparently arbitrary, which in the end made the judicial acts under appeal obviously anti-constitutional and unlawful and created grounds for their repeal.

The approach of the Velsky District and Arkhangelsk Oblast courts to the resolution of the matter of P.L. Lebedev’s parole caused criticism of authoritative experts and public figures that was cited in the cassation appeal. In the ruling of the court of the cassation instance the cited assessments were rejected with the following justification: “Political and public figures’ critical view of the first instance court’s judgment mentioned by the authors of the appeals or assessment of the court adjudication by the regional non-governmental organisation Independent Legal Expert Council presented by the lawyers which [assessment] expresses an opinion that the court’s conclusions fail to comply with the provisions of Art. 50 para. 3 and Art. 51 of the RF Constitution and Art. 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms cannot serve as grounds for interference with the court adjudication either because the assessment is not based on the comprehensive, complete and objective examination of all the circumstances of this case” (last paragraph on page 8 – first paragraph on page 9). This “justification” left unchanged in the supervisory procedure only demonstrates that the judges had not lawful arguments to rebut the above documents, submitted by P.L. Lebedev and his lawyers and added to the materials of the cassation proceedings in the established procedure, which should have been assessed by the court in accordance with the rules of Arts. 15, 17, 85 and 88 CCrimP RF (the noted materials are attached).

Thus, the materials examined in the course of the court hearings proved that the conditional early release should have been applied to P.L. Lebedev on lawful grounds. The courts failed to rebut even a single argument of the defence on the basis of concrete facts and provisions of law. Consequently, there was lawlessness committed in relation to P.L. Lebedev which is unacceptable in the court system of a rule-of-law state.

This conclusion is also corroborated by an opinion of an expert, Juris Doctor and Professor N.A. Lopashenko, which was obtained in the procedure established by law and should be assessed by the court of the supervisory instance in conjunction with the other materials of the proceedings (the lawyer’s request and the opinion are attached).

On the basis of the above and pursuant to Arts. 21, 46, 50 and 51 of the Constitution of Russia, the constitutional-law interpretation of Art. 79 CrimC and Art. 175 para. 1 CoC RF, as well as Art. 127 para. 2 and Arts. 402-410, 413 and 415 CCrimP RF,

WE HEREBY REQUEST:

1. That this supervisory appeal be granted, and supervisory proceedings be opened upon it.

2. That the supervisory appeal together with the materials of the proceedings be transferred to the Praesidium of the RF Supreme Court.

3. That the judgment of Federal Judge of the Velsky District Court of the Arkhangelsk Oblast, N.M. Raspopov, of 27 July 2011 denying application of conditional early release from serving one’s sentence to P.L. Lebedev, the cassation ruling of the Judicial Collegium for Criminal Cases of 26 September 2011 and decisions of the supervisory instances of the Arkhangelsk Oblast Court of 8 August and 26 September 2012 be repealed as not based on the law.

4. That this appeal be considered with our personal participation.

Annexes:

1. Lawyers’ authorisations on 2 sheets.

2. Copy of the judgment of the Velsky District Court of Arkhangelsk Oblast of 27 July 2011 on 3 sheets.

3. Copy of the ruling of the Judicial Collegium of the Arkhangelsk Oblast Court of 16 September 2011 on 5 sheets.

4. Copy of the judgment of Judge A.D. Atabiyev from the Arkhangelsk Oblast Court of 08 August 2012 on 2 sheets.

5. Copy of the judgment of Acting Chairman of the Arkhangelsk Oblast Court, V.G. Bunkov, of 26 September 2012 on 1 sheet.

6. Copy of Ruling of the RF Constitutional Court No. 274-O-O of 01 March 2012 on 9 sheets.

7. Copy of the Report of the Presidential Council of the Russian Federation for Civil Society and Human Rights on the results of the public scholarly analysis of the court materials of the criminal case against M.B. Khodorkovsky and P.L. Lebedev (tried by the Khamovnichesky District Court of the city of Moscow; the verdict issued on 27.12.2010) on 77 sheets.

8. Copy of the Recommendations of the Presidential Council of the Russian Federation upon results of the public expert examination of the criminal case against M.B.Khodorkovsky and P.L.Lebedev on 5 sheets.

9. Copy of the publication on the Novaya Gazeta blog of 14 September 2011 on 4 sheets.

10. Lawyer’s request and opinion of specialist N.A. Lopashenko on 40 sheets.

Lawyers          V.N. Krasnov

A.Ye. Miroshnichenko