EXPLANATIONS of lawyer V.V. Klyuvgant concerning M.B.

Khodorkovskys parole application (the Ingodinsky District Court of the City of Chita, 21 August 2008) I am in complete solidarity with everything my colleague has said. First of all, with her words that there is only one conclusion that follows from the materials submitted to the court both by us and the facility executing the punishment: there are no lawful obstacles to apply parole to MBK, and there is a lawful ground to do so. When I am saying this, by obstacles I mean facts refuting possibility of correction outside prison and by grounds I mean facts corroborating possibility for such correction. 1. Grounds for Parole. This statement is based on the imperative wording of Art. 79 CC RF [the Criminal Code of the Russian Federation] saying that a person that has served the necessary part of his/her sentence is subject to release on parole (I emphasize: not could be released but is subject to release!) on only one condition: if for his/her correction he/she does not require to continue serving his/her sentence any further. There is only one conclusion that is possible on the basis of this requirement of the law: if the indicated condition is present (there are no obstacles and there is the ground), the court is obligated to apply parole and is not entitled to deny it. Here is what the Kemerovo Oblast Court said in this regard in Review of Judicial Practice of Consideration by Courts of Materials Concerning Release from Serving Ones Sentence on Parole and Replacement of the Non-Served Part of the Sentence with a Milder Type of Punishment N 01-19/188 of 14 April 2008 prepared at the instruction of Deputy Chairman of the RF Supreme Court (published in the Garant reference system and on the Courts web-site):

Release on parole is one of the most often applied types of release from punishment because it can be applied to persons who have committed crimes of any category and is not limited to categories of convicts This type of release from punishment is obligatory rather than discretionary, i.e. its application does not depend on the discretion of the court. The CC RF links the release on parole to only two circumstances: 1) for his/her correction, the convict does not need to serve the prescribed sentence in full (Art. 79 para 1 CC RF); 2) the convict has actually served a certain part of the sentence, the size of which depends on the category of the crime for which he/she is serving his/her sentence (Art. 79 para 3 CC RF). Given that there are no other limitations for application of release on parole save for the ones stipulated by Art. 79 CC RF, denial of such release for any reasons not connected with the assessment of correction of the convict and his serving of the part of the sentence established by law is groundless. Thus, if these two grounds exist, the court is obligated to release the convict from further serving of his/her sentence on parole. And decision to deny release from further serving of the sentence on parole cannot be based on reasons not indicated in the law. This approach is the only possible one since it is it that implements the constitutional and generally recognized international legal principle of equality of everyone before the law and the requirement for legal certainty of any lawapplying act as its constituent part. This requirement directly follows from Arts. 5 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to this principle, it is not allowed to interpret and apply legal norms arbitrarily. Namely, any person can expect, when his/her rights and obligations are determined, that law provisions will be applied to him/her on a non-discriminatory basis, as well as to all the other persons, and that this application will be

certain, predictable, fair and will meet the requirements of lawfulness, reasonness and equality of rights. This means that if the law provides for the right to release on parole but in the course of a hearing it is not applied to an applicant without sufficient lawful reasoning and without [citing] clear reasons explicitly articulated in the law, then not only the denial of parole but even the further detention of the person will not be lawful. Yes, there is discretion of the court, but only on the basis of clear criteria distinctly established by the law. And this is what distinguishes court discretion from arbitrariness. 2. Conditions of Serving a Sentence and Achievement of Its Purposes. So, what is important for parole is not even the fact that the convict has been corrected but a mere possibility for such correction outside prison; this directly follows from Art. 79 CC [RF]. And a conclusion about such possibility shall be made solely on the basis of analysis of the persons behaviour after the conviction, during serving his/her sentence. I shall return later to how the law understands correction, and therefore how the court is obligated to understand it, too. But first [let me say] several words about conditions for correction. To assess ones behaviour, it is first necessary to assess whether conditions for correction have been created for the person. Creation of such condition is an obligation of the state represented by specifically authorized agencies of the system of the FSIN [the Federal Service for the Execution of Punishments]. And only having duly fulfilled this obligation is the state entitled to demand and expect anything positive from the convict. Saying this, I base my words on the principles of correctional law enshrined in Art. 8 of the Correctional Code: lawfulness, humanism, democratism, equality of convicts before the law, differentiation and individualization of execution of punishments, rational application of measures of coercion, means of correction of convicts and incentives for their law-abiding behaviour, and combination of punishment with correcting influence. I also base my words on the purposes of a punishment provided for by Art. 43 CC [RF] which, as they apply to a convict, are to correct him and by no means to oppress and humiliate him. Comparing this requirements of the law with the picture of almost five years of MBKs life based on facts that has just been presented to the court by my colleague, one can state with certainty that:

not only have conditions for his correction failed to be created for him but, furthermore, his task was in fact not to get corrected but rather not to get worse (not to get hardened in heart, not to be disappointed in everything and everyone, not to give up, not to descend into vengeance, in other words to remain a Human Being). And despite everything, he has managed to do so. But I shall talk about this later, and now Id like to add, without repetition, several important points to the words of my colleague. A) the dispatch to the colony in Chita Oblast unlawfully, by an order allotment (it is documented that only the Moscow isolator where MBK and PLL were held, and specifically and only at that time, received an allotment for Chita and Yamal. Before, the farthest place for Moscow convicts to be sent to serve their sentences was the Volga Federal District). This not only violates the law concerning the place to serve ones sentence as has already been said. This is a direct violation of those same principles of the correctional law. This is far from any kind of humanism, let alone lawfulness and equality before the law! The principle of the maximum proximity of the colony to the place of residence is important, inter alia, for maintenance of social ties of the convict. This principle is aimed at securing convicts right to communication with his family. M.B. Khodorkovsky has the right to receive visits provided for by Art. 121 of the RF Correctional Code: six short and four long visits per year. But this right should be exercisable! His dispatch to the colony located so far from his place of residence and his family substantially and unlawfully hindered exercising of this right. M.B. Khodorkovskys family his wife, four children, three of whom are minors, and elderly ill-health parents reside in Moscow region. It is obvious that his serving his sentence in such a remote colony makes it substantially more difficult, and for some of the family members even impossible, to go visit him. In particular, for his father and two young sons a trip to Chita Oblast is not just difficult but poses a risk for their health. It should be taken into account that according to Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ECHR), which pursuant to Art. 15 para 4 of the RF Constitution is a constituent part of its legal system, everyone has the right to respect for his private and family life. In its decisions, the European Court of Human Rights said: The detention of a person in a prison at a distance from his family which renders any

visit very difficult, if not impossible, may in exceptional circumstances constitute an interference with his family life, the possibility for members of the family to visit a prisoner being an essential fact for the maintenance of family life. (decision on the admissibility of application No. 23241/94, DR 79-A, p. 121, paragraph 125); It is an essential part of a prisoner's right to respect for family life that the prison authorities assist him in maintaining contact with his close family (judgment in Messina v. Italy, paras 2 and 61). Paragraph 11 of Decree of the Plenum of the RF Supreme Court No. 5 of 10.10.2003 On Application of Generally Recognised Principles and Norms of International Law and International Treaties of the Russian Federation by Courts of General Jurisdiction says that courts should act within their competence in such a way as to ensure fulfilment of commitments of the state ensuing from participation of the Russian Federation in the ECHR. Under such circumstances, confinement in the specified colony far from his family, let alone in the Chita investigative isolator, where the possibility to receive visits per se substantially limited by the regime (long visits are completely impossible), in fact became an additional punishment not provided for by the verdict and running counter to the law. And the punishment not only for M.B. Khodorkovsky but also for his family. And the court cannot disregard this while considering this application. B) M.B. Khodorkovsky, who was sentenced to a general-regime colony, spent in such a colony only one year and 2 months out of four years and 10 months spent in custody. For the entire remaining time, i.e. for more than three and a half years, he has been held in the conditions of the investigative isolator, which according to Art. 16 of the RF Correctional Code does not even belong to correctional facilities executing punishments (with one exception not applicable to our case). The regime conditions of the investigative isolator, even without the specificity characterizing holding MBK in it, are much harder and harsher. They are analogous to the prison rather than general regime. As we know, there was even a draft law tabled in the State Duma according to which one day spent in an investigative isolator should be counted as two days in a general-regime colony. Thus, contrary to the law and the court verdict, during most part of the term served MBK was knowingly held not in conditions that the court believed would facilitate his correction but in incomparably harder conditions, to which nobody

sentenced him. It is clear that this does not facilitate any of the purposes and is not in conformance with any of the principles about which I spoke above but on the contrary, runs counter to them. And therefore the conclusion of the reference letter from which it follows that holding MBK in the SIZO [investigative isolator] conditions does not facilitate his correction is not accidental. C) The conditions created specifically for MBK, i.e. definitely selectively, in the Krasnokamensk correctional colony, as my colleague has convincingly demonstrated, also, to put it mildly, did not facilitate the purposes for which he had been allegedly sent there by the court by its verdict. Humiliation and discrimination during employment, refusal to take into account his level of education and experience. Endless fault-finding, falsifications: invented violations and selective, intentionally cruel and unjust penalty for them. Seven days in ShIZO [punishment block] for a glass of tea drunk where everybody drinks it; 10 days [in ShIZO] for a lemon and two apples given as a present by neighbours after almost a month of solitary confinement this, probably, is the summit of humanism, lawfulness, equality before the law and correctional influence as understood by the administration of the Krasnokamensk colony. Especially harsh conditions, provocations, including artificial stirring up of conflicts, artificial and absolutely unjustified isolation. The most sophisticated abuse was, of course, when for almost a month he was placed into a solitary confinement mockingly called a safe place with reference to a newspaper article and a lawyers comment, plus an attempt to punish there nobody knows for what, just to punish. On three occasions during those three years MBK had to go on hunger strikes as a protestation. And I ask you to note: only on one occasion it was because of himself when that exact placement into a safe place was committed and again, contrary to all the laws, there was demonstrative silence in response to his application asking to be returned into the ordinary detention conditions. On the two other occasions, the hunger strikes were because of abuses and life-threats concerning other persons Platon Lebedev and Vasily Aleksanyan who were also being corrected, or more precisely had not yet even been found guilty but were held in detention. Zealous executives tried to regard even the hunger strike in defence of Aleksanyan as a violation there was

a public statement of the head of the UFSIN to this effect. Later they, to tell you the truth, came to their senses. But they did not fail to make use of that hunger strike as a pretext to humiliate him one more time: arranged for him to be examined by as psychiatrist. The following outrageous event became the apotheosis of this exclusive especially attentive and sensitive attitude of the prison administration to MBK (vol. 14, case file sheets 42-45): simultaneously by three reports and a statement about violation of the rules of internal order officers of the Chita SIZO demanded that MBK be punished because you see he was not only sleeping after 9pm but also did not react to criticism. Just imagine this unimaginable impudence: he was asleep and did not react to criticism in his sleep! I am not even mentioning that this unequalled outrage of failure to react in his sleep lasted a whole 10 minutes, and that it in fact does not constitute a violation of the rules of internal order in SIZOs. Now all these occasions for which MBK was and was not unfairly punished are shamefacedly called numerous violations of the regime requirements. Of course, without any references to the facts. 3. Correction. Let me remind you once again: possibility of correction of the convict outside prison is the necessary and sufficient condition for parole. In other words, there is no need to find the person corrected. What is needed is to ascertain that he can be corrected without being held behind bars. What in particular do we speak of when we talk about correction of a convict? Law answers this question. It follows from the provisions enshrined in Art. 9 para 1 of the RF Correctional Code that correction of convicts means developing in them of respect for human beings, society, labour, standards, rules, and tradition of human community life and encouragement of law-abiding behaviour. As it has already been said, the criterion with the aid of which it is determined whether it is possible to have the convict corrected without completion of his sentence is convicts behaviour during serving his sentence. It is, of course, clear that there is no formal scale which can be used to measure and decide whether the convict will or will not be corrected. This is measured by facts, figuratively speaking, by such lines and dashes that form

letters, the letters form syllables and from those syllables a word appears, and this word is correction. Let us go through them. A) Letter of reference. I am citing verbatim the letter of reference concerning MBK submitted to the court by a group of authors from the Chita SIZO and approved by its chief: [he] is not registered for prophylactic monitoring. [He] has not been noticed consuming alcoholic drinks or narcotic or psychotropic substances His character is calm, tactful and equable. In communication with representatives of the administration [he] is restrained, polite and affable. [He] chooses his line of behaviour on the basis of his intellect, education, knowledge and ability to apply the law in force in pursuance of goals set. Self-esteem is proper; [he] listens to opinions of other people. In communication with officers of the facility [he] observes the line of authority and is regardful. [He] asks questions of interest for him thoughtfully and competently, can listen and make appropriate conclusions. [He] reacts positively to educative measures. [He] builds his relationships with cellmates on mutual respect and trust. [He] maintains relationships with group of positively-oriented persons. [His] appearance is tidy and trim; [he] is physically healthy. His personal belongings and sleeping place is kept in order; [he] is neat. Social ties with the family and parents are maintained. Your Honour, let me ask you a rhetorical question: what is this if not a description of a person who is not even forming but has absolutely formed respect for human beings, society, labour, standards, rules, tradition of human community life and law-abiding behaviour?! And I want you to note that this was written on the basis of MBK's behaviour during serving his sentence. Thus, this letter of reference confirms not even possibility for correction but the correction itself exactly in the meaning attributed to this term by the law. And this means that the only necessary condition for parole provided for by the law is here. Let me clarify something: I have not cited the entire text of the letter of reference but it is main content. I shall comment on the remaining arguments of the letter later one by one and prove that they either do not square with the facts and the law or do not affect the general estimation which I have just made. Moreover, the material contains two earlier letters of reference in relation to MBK prepared in this colony (vol. 12 case file sheets 124 and 210). And despite

the fact that they were prepared in view of penalties, their descriptive parts do not have a single bad word except for the fact of the penalty itself on the sole basis of which it was concluded that he did not settle down to a correction course. But we have already talked about the penalties and shall talk more about them later. We shall also talk about the absence of remorse and non-admission of guilt that were referred to in the most recent letter of reference as the only sign that MBK did not settle down to a correction course. Thus, we can see that the conclusion of the letter of reference that MBK needs to continue serving his sentence not only is based on nothing but is even in full contradiction with its own content. And one more thing: it explicitly demonstrates that holding him in the current conditions does not facilitate his correction since such correction, in the opinion of the administration, could only e achieved in the conditions of a general-regime colony, and not in those of an investigative isolator. B) Respect for Human Beings, Society, Labour, Standards, Rules and Tradition of Human Community Life. From the first days in the colony to the day he left it, MBK worked, and did the unskilled job he was given which was not in conformity with his education, qualification and experience in good faith. Aspiring to be maximally useful even in the conditions of custody and discrimination there, he, as it has already been said, showed the initiative to be involved in scientific and teaching activity. There were no obstacles for such activity, while it would have been much more useful for people and society. Although he was not allowed to do that, it is important for us today that such position is an unconditional criterion of positive motivation and socially useful behaviour, i.e. correction. MBK actively participated in the public life of the collective and in the fates of the people among whom he found himself. The job of a correspondent, which he was not allowed to do either under a far-fetched pretext, has already been mentioned, but this is far from it, and this is not even the most important point. He personally was setting an example to encourage rightful behaviour of persons who were serving their sentences alongside him. In colony, he taught convicts reading and writing and basics of various sciences, ordered text-books for them and left there an excellent library with books that he had received, and this knowledge can be now used by every convict. Another living and vivid example is Igor Gnezdilov, who spent a year with MBK in a cell in the Chita SIZO. He is a

person with not an easy background (19 years in detention facilities) but he started thinking about his family, took his child and is raising him, got a job and is studying. And he openly says that all this is only thank to MBK. This, of course, is not the only example of MBK's positive influence on peoples fates over the last five years. Things of this kind are usually not spoken of aloud, and we are grateful to Igor Gnezdilov for having expressed such readiness. In their letter of reference, the administration mentioned that MBK had not written an application to be given a job in the SIZO. It is given as a fact, without comments: it is neither bad, nor good, but at the same time it is somehow hinting: he could work but did not want to. However, the SIZO administration know MBK's daily routine better than anybody else: he has been held in the SIZO as an accused since 21.12.2006, and throughout this entire period from 10 am to 6 pm on daily basis he has been busy with investigators, courts and lawyers. This is absolutely not a secret, it is confirmed by take-out requests available in his personal files. Hardly anyone can dispute that this is hard labour. It is another thing that this is not the kind of labour that MBK himself would like to do. But it was not him who chose this labour; it was other people who have made this choice for him. One thing is clear: no other kind of labour, and no existence of proper conditions for any other kind of labour mentioned in Art. 27 of the Federal Law On Detention of Persons Suspected or Accused of Having Committed Crimes can be even spoken of. Thus, there could not have been an application for it either. C) Law-Abiding Behaviour. In his speech at this court hearing, MBK has said that he is a law-abiding person and abides by the law even when he does not agree with it, and tries to seek to repeal or amend it if there is a lawful opportunity to do so. This is nothing but law-abiding behaviour. The MBK's letter of reference says the same: [he has] knowledge and skill to apply the law in force. Here are just two out of a host of examples demonstrating how M.B. Khodorkovsky's law-abiding behaviour during serving his sentence facilitated development of the current law and lawenforcement practice. - In IK-10 there was limitation of lawyers access to MBK (access was only allowed outside the working hours). A decision of the RF Supreme Court of 02.03.06 issued at the initiative and with participation of MBK found words outside

working hours from article 83 of the Rules of Internal Order null and void (vol. 12 case file sheets 92-97). - After MBK had been punished for receipt of food allegedly in violation of the order, a decision of the RF Supreme Court of 30.10.06 gave an interpretation of article 15 paragraph 5 of the Rules of Internal Order as to what should be regarded insignificant when it is given or accepted as a present or alienated. (vol. 13 case file sheets 95-98). This, as well as appeal of penalties to court about which we shall talk later are unconditional evidences of law-abiding behaviour: even in such difficult conditions the person seeks to exercise his rights and lawful interests exclusively by a lawful way, by legal means. This is a sign of correction provided for by the law. D) Violations and Penalties As follows from the documents submitted to the court and as was mentioned in the explanations by my colleague, while serving his sentence MBK was brought to disciplinary liability on six occasions. First of all, it is necessary to clarify that the notice submitted by the administration of the facility misstates the date of the penalty applied in 2006: in reality, it happened in June, not in July, and the correct date of MBK's placement into the ShIZO for 10 days was 03.06.06, three weeks after he had returned from the solitary confinement the safe place. In addition, the notice concerning the penalties failed to reflect the fact that this penalty had been found unlawful and repealed by a decision of the Krasnokamensk Town Court of 31 January 2007 (a copy of the decision is attached to the parole application). We all have already heard the story about the factual circumstances of these so-called violations, and there is nothing to add to it. Their far-fetched and unjust nature is obvious. But I should briefly talk about the legal assessment of those events. The penalties of 12.12.2005 (a reprimand for having searched for a mechanic without leaving the workplace vol. 11 case file sheet 203), of 24.01.2006 (5 days in ShIZO for possession of orders of the Ministry for Justice that were public domain, had been officially received from the censor and were directly relevant to MBK as a convict vol. 12 case file sheet 31) and of 03.06.2006 (10 days in ShIZO for two lemons and an apple given to him as a

present by his neighbours after his return from the solitary confinement and a hunger strike vol. 12 case file sheet 207): these three penalties were found unlawful and repealed by decisions of the Krasnokamensk Town Court of 04 May 2006 (vol. 12 case file sheets 156 and 161-162), of 18 April 2006 (vol. 12 case file sheet 143) and of 31 January 2007 (attached to the parole application), respectively. All those decisions have become final. Legally it means that those violations and penalties simply did not happen, and the administration had no right to mention them in the documents submitted to the court and refer to them anywhere as violations. In addition, on 29 August 2005 MBK was put in karzer [punishment dungeon] for 5 days for possession and use of prohibited items (a nail file instead of a knife not issued by the administration; for a long time, it had been openly stored in a desk, had never been seized during daily searches, and had been openly used by the entire cell vol. 10 case file sheet 207); on 17 March 2006, he was placed into ShIZO for 7 days for consumption of food in a non-designated place (he drank tea where it was easily done by everybody and which specifically for that reason had a tea-pot vol. 12 case file sheet 110). It is clear that these are in fact not violations but fault-finding, selectivity and discrimination. It is clear that they in no way characterize the behaviour of the convict. That is why none of the documents speak and they cannot of any kind of maliciousness of the violations and the violator himself. These facts are more characteristic of the maliciousness of the behaviour of the administration, and we have already talked about this. But in addition to this, it is important for us that pursuant to Art. 117 para 8 of the RF Correctional Code if within a year from the day of serving a disciplinary penalty a convict has not been subjected to a new penalty, he is regarded as having no penalties on his record. The seven days in the ShIZO upon the order of 17 March 2006 were served by MBK on 24 March 2006, and he did not have penalties through 24 March 2007. It follows from this that both of these penalties have been removed from his record. Therefore, the court has no right not only to refer to them as penalties but even to take them into account when assessing the convicts behaviour in order to make a decision concerning release on parole. Thus, nothing remains of the numerous violations of the regime mentioned in the letter of reference and of five out of six penalties listed in the notice both from the factual and legal points of view.

Let us now deal with the sixth, so-called unremoved one. It is a reprimand announced by the chief of FBU IZ-75/1 on 15 October 2007 (vol. 18 case file sheet 138). First of all, I would like to say the following. We MBK lawyers are sometimes asked why we filed for parole having an unremoved penalty, even more so because it will soon be removed from his record on 15 October 2008 anyway. The answer is very simple: there are no guarantees that closer to 15.10.08 the administration or other persons, lets call them influential and interested, will not wish to find a new violation and impose a new penalty, as it has been done so far. The most recent penalty was imposed on 15.10.07 10 days before he would have been eligible for parole. So we decided: let this one obviously invented stay rather than they will invent another one. And we will assess it in court at the parole hearing. Out of the same considerations we did not appeal to court an earlier penalty (which by now has been removed from the record) in 2006. In terms of the disciplinary penalty imposed on 15 October 2007, we have every reason not only to dispute its lawfulness and reasonableness but also to state that the fact of this violation per se did not take place. We submit that while considering this MBK parole application, the court is entitled to and should give assessment to this circumstance. Let us turn to documents first. From the order to impose the penalty (vol. 18 case file sheet 138) it follows that on 11.10.07 at 09.18 during lead-out from the little yards for outside walks [he] refused to carry out the lawful demands of employees of the administration, namely to take the hands behind the back during motion, thereby violated para. 1.2; para. 1.13 of the Annex No. 1 to the SIZO Rules of Internal Order approved by Order No. 189-05 of MJ RF. Non-compliance with (refusal to carry out) such a demand of the administration and it is this in which a violation has been discerned had it had place would be indeed a violation of para 1.2 of the mentioned Annex since an accused during accompanied motion should hold his hands behind his back. Now we need to figure out whether such refusal took place. We state that there was no refusal, no failure to carry out the demand, no anything that is tried to be portrayed as the violation. We further state that the material submitted by the administration does not contain reliable proofs of the violation and none of its substantial circumstances the time and place where the command (demand) was uttered, the person who

uttered it and the time and place where MBK refused to carry it out are either established or proved. The data contained in the administration documents are not just contradictory they are mutually exclusive. And we have evidence in our possession that refute the allegations about the violation. For instance, from the report by Kozulin (vol. 18 case file sheet 139) it follows that the command to the accused to the effect that they must hold their hands in the rear position (behind their backs) was issued by him personally at 9.18 while leading [them] out of the premises of little yard for outside walks No. 1. One immediately doubts the truthfulness of those words. And then it is impossible to understand anything in this report since here is what it says verbatim: Khodorkovsky failed to carry out this demand and continued (!) his motion along the corridor of the 1st floor of regime building No. 1 holding his hands as he wished until he reached the premises of his cell. It seems that having somehow found himself in the corridor of the first floor of the building instead of the yard, MBK was simply walking along it, strolling, until he reached the premises of his cell. But the cell is located on the 3rd floor! Nothing is clear: when and where did he start his motion to then continue it? when exactly should he have carried out the demand and when did he refuse to carry it out and stopped holding his hands behind his back? The next piece of evidence is a report of another officer, Belomestnov (vol. 18 case file sheet 139). I am reading from it: at 8.26 during lead-out from cell 125 Kholmogorova gave the command Hold your hand behind your backs during motion, and it was carried out. Then it becomes a total mess. It reads: at 9-21, returning from an outside walk, accused Khodorkovsky, going along the 3rd floor of regime building No. 1 accompanied by officers, was walking as he wished from the entrance door premises [sic] to the premises of his cell without holding his hands behind his back. So, according to this theory the command was given at 8-26 rather than at 9-18, by Kholmogorova rather than by Kozulin, and during lead-out from the cell on the 3rd floor rather than in the yard for outside walks. The command was not carried out on the 3rd rather than on the 1st floor. It is unclear and unknown where the author of the report was at that time, what he saw himself and what, when and from whom he learnt. The third piece of evidence is a report of Kholmogorova (vol. 18 case file sheet 142), the same Kholmogorova to whom Belomestnov refers as the person who gave the command. This is truly miraculous: not a word about the event of 11 October, everything is in general: usually every day the command is given

And thats it. The Kholmogorova report does not bear witness to any violation of the regime requirements by MBK, it has no facts at all. There is one more piece of evidence: a statement (vol. 18 case file sheet 141) signed by Kozulin, Cherin and Baksheyev. Its content repeats that of the report of Kozulin and therefore runs counter to the report of Belomestnov which in its turn runs counter to the report of Kholmogorova to whom it itself refers. In addition, it is unclear from the content of the statement how its signatories, Cherin and Baksheyev, learnt about the events described in it, whether they saw anything themselves, and what is the meaning of their signatures under this statement. After all these it still remains unclear how could it have happened that the accused, having received a command hands behind your back but obstinately and demonstratively holding them as he wished, was marching through all the floors of the special facility while those who were accompanying him, and the chief of the special facility himself among them, were looking at it calmly and silently and did not stop this until he reached his cell? And one more unclear thing: why none of the CCTV cameras, with which building No. 1 is literally bedecked like with Christmas lights, recorded this march? As a matter of fact, MBK, who denied the fact of the violation itself and called it invented since with the approaching parole, *he was+ scrupulously carrying out all commands, requested in writing that the CCTV data be checked (MBK's explanation vol. 18 case file sheets 143-144). But the case file does not contain those data, nor does it contain references thereto although they would have constituted objective evidence. Had it existed In addition, according to the order, MBK was punished only for failure to carry out the command during lead-out from the yard for outside walks. Thus, all those reports and the statement concerning actions on the 3rd floor should not be taken into consideration at all. And one more rhetorical question. Your Honour, can one believe or even simply imagine or suppose that a serious grown-up person, who understands everything about the law and order and behaves in a regardful and proper manner (all this information is from the SIZO letter of reference), 10 days prior to becoming entitled to parole would show such boyish bravado, knowingly provoking a penalty? Why? For the sake of what?

All those questions are answered by an explanation of Igor Gnezdilov, MBK's cellmate who on that day had a walk together with him. However, not the one [available] in the personal file it, by the way, contains nothing either pro or contra. The written explanation that he voluntarily gave to the defence which we ask to be added to the case file. And also in an oral one, which he is ready and willing to give to the court in this court-room. And to explain, among other things, how and why the explanation available on case file sheet 144 of volume 18 of the personal file and the MBK penalty itself appeared. The explanation is simple and clear: it was an intended falsification pursuing the only goal to prevent a parole application. And this means that the authors of the falsification realized that it would be impossible to deny parole without it. These are all pieces of evidence of the violation, if they can be called so. In this kind of cases people usually say: It has been sewn together with white thread. In this case I would say: it has not been sewn together at all, just patched together haphazardly. Because they realized that what did not happen at all cannot be sewn together with any thread. CONCLUSIONS: - the fact of the violation of the Rules of Internal Order on 11.10.2007 has not been established and did not take place; - there were no factual or legal grounds to impose the penalty on 15 October 2007; - imposition of that penalty pursued the goal to prevent MBK from applying for parole, for denial of which there were and are no lawful grounds; - the penalty in the form of the reprimand of 15 October 2007 cannot be taken into consideration by the court because of the aforementioned grounds. GENERAL CONCLUSION CONCERNING VIOLATIONS AND PENALTIES: - despite the unreliable allegation of the letter of reference, MBK has no violations of the regime requirements or penalties that could be taken into consideration by the court while considering the parole application. 4. Other Circumstances The letter of reference alleges that MBK did not settle down to a correction course. This conclusion is made following a comma after the words he is not remorseful for the crime committed, and it means it is based specifically on this allegation. And Id like to emphasize: exclusively on it, since the

letter not only contains no other arguments in corroboration of this conclusion but, as I have already said, the entire content of the letter (save for the groundless references to the violations and penalties that have just been dealt with) directly refutes this conclusion. In addition, the letter of reference points out at the existence of a nonrepaid debt in the amount of RUR 62 thousand under the writ of execution and says that MBK does not take measures to repay the claim [sic]. The defence submits that: - both those allegations are untenable from both the factual and legal points of view; - irrespective of whether or not they are true, neither of them can be taken into consideration by the court while deciding on parole. However, since those allegations have been made, I cannot confine myself to what I have just said and have to adduce arguments to support it. First of all, despite the fact that those circumstances are also referred to in Art. 175 of the RF Correctional Code as circumstance which, inter alia, can be reflected in a parole application, it is obvious that neither of them characterizes the behaviour of the person while serving his sentence. The Constitutional Court, for instance, on numerous occasions unambiguously expressed its legal position in this respect; those words are cited in our application and were partially mentioned by my colleague. Let me briefly remind you that: - the court should proceed from the fact that by virtue of the principle of lawfulness recognized by rule-of-law states, punishability and other criminal legal consequences of a criminal deed shall be determined by the criminal law, pursuant to which sufficient grounds for release of a person serving his/her sentence on parole are constituted by a courts finding that for his/her correction the person does not need to serve the sentence prescribed by the court in full and the actual serving of the part of his/her sentence indicated in the law (Article 79 paragraphs one-five of the CC of the Russian Federation); - the legislator does not establish what importance during resolution of the issue of the release on parole can be attributed to various circumstances and

thereby entitles courts of general jurisdiction to decide in each specific case whether the information contained in the appeal and other materials are sufficient to find that the convict does not need to serve the sentence prescribed to him/her by the court in full and is subject to parole; - it does not follow from the provisions of Article 175 para 1 of the Correctional Code of the Russian Federation that if the convicts application does not point out at some information, including remorse for the deed committed, this prevents consideration of such an application or granting parole. Nor are there grounds to consider those provisions as regarding non-admittance by a person of his/her guilt in commission of the crime as a circumstance ruling out parole; moreover, in the meaning of the law, grounds predetermining possibility or impossibility of application of parole are circumstances characterizing the personality of the convict and his behaviour after issuance of the verdict, during serving his sentence (Decree of the Constitutional Court of the Russian Federation N 1-P of 27 February 2003 in the case of reviewing constitutionality of the provision of Art. 130 para 1 of the Correctional Code of the Russian Federation; Rulings of the RF Constitutional Court: N 453-O of 16 November 2006 On Refusal to Admit for Consideration of an Appeal of Citizen Oleg Alexandrovich Tsipelshtein against Violation of His Constitutional Rights by Art. 175 para 1 of the Correctional Code of the Russian Federation; N 110-O-P of 20 February 2007 On Appeal of Citizen Vladimir Nikolayevich Savenkov against Violation of His Constitutional Rights by Art. 79 para 1 of the Criminal Code of the Russian Federation; N 173-O-P of 20 February 2007 On Appeal of Citizen Timur Said-Magomedovich Idalov against Violation of His Constitutional Rights by Art. 175 para 1 of the Correctional Code of the Russian Federation). I would like to emphasize that appeals of the aforementioned citizens to the Constitutional Court, as directly follows from the content of its rulings, were made specifically in connection with the need to establish the role of such circumstances as compensation of damage (Tsipelshteins appeal) and admission of guilt and remorse (appeals by Savinkov and Idalov) while deciding on the issue of parole. By virtue of Arts. 6 and 79 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, the aforementioned decisions of

the Constitutional Court have direct force and do not require any confirmation on the part of any bodies or persons, and the constitutional legal meaning of the indicated provisions of the CC RF and the RF Correctional Code as revealed in them is generally binding and rules out any other interpretation of theirs in the law-enforcement practice. In addition, with regard to the compensation of the damage I would like to refer also to the legal position of the RF Supreme Court articulated by it on numerous occasions. For instance, the Review of the Supervisory Practice of the Judicial Collegium for Criminal Cases of the RF Supreme Court for 2006 says: As to the arguments of the court of the first instance to the effect that Yefremova failed to compensate the pecuniary damage caused by her deeds, this circumstance is not an obstacle for application of parole to her. Supervisory ruling of the same Collegium of the RF Supreme Court of 21 February 2007 in case No. 2-DO704 says: Refusal to grant Ss parole application for the reasons that he has not repaid a large sum of debt under writs of execution is not based on the law. And, finally, the factual side of the case concerning the issue of compensating the damage: we are submitting to the court documentary proofs of payment of RUR 62,230.09 to the federal budget under writs of execution 1-33, 139/05 of 15 December 2005. This fact means that all the demands under all the writs of execution referred to in the notice and letter of reference concerning M.B. Khodorkovsky have been paid in full. As concerns the allegation of the letter of reference that MBK is not taking measures to repay his debt under the writ of execution, to put it mildly and diplomatically Id call it light-minded. In reality: firstly, MBK, as he himself has explained to the court, because of the arrest and conviction lost everything that he owned, and Yukos had been worth 40 billion US dollars. Today he owns nothing, and the company itself ceased to exist, while its assets were distributed among creditors, the biggest of which was the Russian Federation represented by the tax service. The entire debt to creditors of the first, second and third priority, including the RF, has been repaid. So if somebody believes that some additional damages have been inflicted, after completion of the story with Yukos they have been repaid with a vengeance; secondly, as far back as during the trial in 2005 an attempt was made to repay fully the MBK personal tax arrears with which he was charged. The

Meshchansky Court of the City of Moscow, however, did not accept that money without offering any reasons and did not even issue any documentary proof of its arrival although mentioned this on p. 659 of its verdict. The money did not come back either...; and, finally, thirdly, as I have already said it is light-mindedly, to put it mildly, to speak of failure to take measures to repay the debt by a person who was first deprived of all his sources of income and then for five years has not been allowed to work (and thus to have a source of income) not only as efficiently as he could but for most of this period at all. And if we call things by their proper names, it is simply cynical. Now about admission of guilt and remorse. The Russian Constitution (Article 50 paragraph 3) provides for two rights for each and every convict listed one after the other and separated by a comma: the right to review of the verdict by a higher court in the procedure prescribed by the law and the right to ask for a pardon and mitigation of the punishment. Attempts to condition exercising of one of those two rights the right to mitigation of the punishment by way of parole by deprivation or waiver of the other right to review of the verdict cannot have anything to do with either law or justice. It is absolutely unacceptable to apply provisions of the Constitution and law in such a way that if a person has a different point of view, in particular, to lawfulness of a trial and verdict, he/she, with all other conditions being the same, will spend in prison twice the time than a person who obediently accepted the unfair conviction or a person that intentionally demonstrated such obedience. In other words, it is unacceptable to discriminate persons who consistently defend their rights, in particular the right to have a point of view to a court verdict in relation to him/her different from that of the official authorities. Such discrimination would also lead to impairment of the right to free expression of ones opinion without unjustified persecution and repressions by the state, the right enshrined in Art. 10 ECHR and Arts. 19 and 29 of the RF Constitution. This would be a form of reprisal of the state against the convict who consistently exercises his rights to judicial protection appealing the verdict in his case. Let me emphasize: he appeals it lawfully, i.e. acts lawabidingly.

According to the general rule and meaning of the law, correctional facilities hold persons who are truly guilty, have committed crimes, persons who have socially negative priorities and criminal behaviour. Proceeding from this, the legislator formulated the criteria of remorse I have previously cited them from Art. 9 of the Correctional Code. It is understandable that it makes sense to speak of remorse when a convict has an internal understanding that he has committed a crime and sincerely regrets committing it. But it is a completely different case when we speak of judicial errors that happen in any judicial system. History knows numerous cases of judicial errors, including tragic and irreversible ones. It is indicative that everybody except the convict himself and maybe his family were sure that the verdicts were correct even in the cases when innocent people had been convicted. Everything becomes even more complicated with we speak of results of an unjust trial, and in this case it is this that is being reviewed by the European Court by way of asking about 30 questions to the Russian authorities concerning circumstances of MBK's conviction. In such cases, the issue of remorse as a circumstance having any importance for parole cannot be raised at all. Because if we agree with the allegation that non-admission of guilt leads to denial of parole, it would mean that the convict is punished for the lawful and even socially-useful activity an attempt to correct the judicial error! That is why the Constitutional Court said in its decisions that the factor of remorse cannot be determining or even important while the question of parole is decided. This problem has another, equally important side. Obviously, punishment of a convict cannot pursue a goal to snap the person in two forcing him to be insincere and dishonest. In other words, he knows that he has not committed the crime, but in order to gain liberty, to preserve his health and sometimes even his life or for the sake of his near and dear ones the system prompts him to lie. At the same time, a situation when a convict not only does not negate the fact of commission of the crime but even believes that it is normal for him is quite real. It costs nothing to such a person to admit his guilt to get out of the prison as soon as possible. I knew a case when an especially dangerous recidivist who was given the capital punishment after the verdict confessed to his lawyer that he had

previously on numerous occasions got released on parole. He said literally the following: I knew how to demonstrate correction and intentionally got corrected: I showed remorse, joined the Section of Internal Order, was an activist because I needed to get released as soon as possible since my friends were waiting for me outside to get to business. And who of these two types of convicts is more law-abiding, has more respectful attitude towards society and people: the one who honestly and lawfully fights for justice while serving his sentence or the other one who gets intentionally corrected? Who of them poses a real danger for society and should remain in custody and who is subject to release? Of course, the question is rhetorical. MBK himself has already expressed to the court his attitude towards remorse, and I shall hardly say anything better about this attitude of his. Who and what is waiting for MBK in free life? Can the court have any justified fears that he will behave non-law-abidingly and disrespectfully towards people and society? It is obvious that it cannot. And nobody can say this better than he himself and his mother, who is now present in this court-room. This family (let me reiterate: not only MBK himself, whose further fate we are discussing now, but the entire family that is waiting for him at home: his children, two of which are very young and one is a minor, his wife, his elderly parents) has suffered and has lost so much during the past five years owing to the involuntary separation that if they reunite, this alone will make them happy, and they will use all of their efforts and energy to repair their tiny world destroyed against their will. The court has no reasons to doubt this, even more so because even the SIZO administration do not doubt that M.B. Khodorkovsky is socially adapted. And all the formal signs of this social adaptation possibility to have a home and get a job, permanent place of residence, higher education, large, various and successful work experience, which will allow him to be useful for people and society in future as well are present, too. And the last circumstance, to which I cannot fail to draw the attention of the court. Of course, MBK himself and we, his lawyers, realize that the decision to apply parole which we, your Honour, are reasonably expecting from you will not set him free as long as he is under arrest due to the second set of charges. Nevertheless, we proceed from the following:

- the new arrest is not an obstacle to the release on parole under the previous verdict because the charges are not connected with deeds committed while serving the sentence. They are connected with much earlier events and in no way characterize the behaviour of the person that should be the only thing assessed while making decision about parole. In addition, MBK is legally not guilty with regard to those charges since they have not yet been confirmed by a final court verdict; - it is impossible and unlawful to continue this vicious circle endlessly, when, having put a person behind double bars, they then refer to this denying him freedom. And I would like to emphasize that the party of the prosecution itself explicitly admits the existence of grounds for parole for MBK. To ascertain this it is enough to take a look at any of the orders submitted to the court on the basis of which MBK is being held in detention: as one of the grounds for arrest as a measure of restraint adduced by the investigators and prosecutors each and every of them says that starting from 25 October 2007 MBK has the right to parole, and this right can be exercised. Thus, the investigators and prosecutors themselves, despite accusing MBK, admit that there are ground to release him on parole, and have been regularly confirming this for already about a year and a half. I believe that the court will take this circumstance into consideration as well. Your Honour, The information about circumstances in possession of the court characterizing MBK's personality and his behaviour upon issuance of the verdict, during serving his sentence, are sufficient to find that he does not need to serve the sentence prescribed to him by the court in full and is subject to parole. While serving his sentence, M.B. Khodorkovsky by his rightful behaviour, absence of violations, good faith fulfilment of the obligations assigned to him and respectful attitude towards other convicts proved that he does not need to further serve the punishment prescribed to him by the court. This information also leaves no doubts that the purposes of punishment provided for by Art. 43 para 2 CC RF have been fully achieved. There are also no grounds to assume that M.B. Khodorkovsky can commit any crimes in future. There are no legal obstacles for his release on parole. Under such circumstances, M.B. Khodorkovsky can be much more useful for society if he is released on parole from serving the remaining custodial sentence.

On the basis of the above and taking into consideration that M.B. Khodorkovsky has actually served the part of the sentence indicated in the law, we in full compliance with the law are petitioning for release of Mikhail Borisovich Khodorkovsky on parole from serving the unserved part of the sentence prescribed by the verdict of the Meshchansky District Court of the City of Moscow of 16 May 2005. Your Honour, A hundred years ago in 1908 introducing a draft law for creating of the institution of parole in the country to the State Council and the State Duma for the first time in Russian history, the Russian Minister of Justice, Ivan Grigoriyevich Shcheglovitov, called this institution a beam of light in our prison order beneficial influence of which will not take long to be felt. During the hundred years, the validity of this opinion has been fully confirmed, and five years ago THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE in its recommendation N 22 TO MEMBER STATES OF THE COUNCIL OF EUROPE of 24 September 2003 on conditional release (parole) said the following: it is desirable to reduce the length of prison sentences as much as possible and conditional release before the full sentence has been served is an important means to that end; conditional release is one of the most effective and constructive means of preventing reoffending and promoting reintegration of the prisoner into the community; conditional release measures require the support of political leaders, administrative officials, judges, public prosecutors, advocates and the public. It only remains to us to hope and believe that in this complex case, realizing all its complexity but on the other hand also realizing the lawfulness and substantiation of the petition filed, the court represented by you will hear these appeals as well and will make the only lawful and substantiated decision to grant our petition. And we, on our part, will endeavour to practically implement it.