Translation from Russian The layout is the same as in the Russian original

To: the Ingodinsky District Court of the City of Chita from lawyer N.Yu. Terekhova EXPLANATIONS (Regarding the Motion for Early Conditional Release of M.B. Khodorkovsky) In the motion for the ECR, we set forth extremely briefly and curtly the information attesting that convict MBK does not need to serve the entire sentence imposed by the court in order to correct himself further. The brevity is because a real opportunity is provided to the parties to bring to the notice of the court their position on all the aspects of the case during the hearing of the motion, which is one of the necessary guarantees for judicial protection and fairness of the trial. At the courtroom today, we intend to take the path offered by the lawmakers in Art. 175 para 1 Correctional Code RF, which establishes under the criminal law (Art. 79 para 1 Criminal Code RF) the procedure for filing with the court a motion for early conditional release from serving a sentence and determines, inter alia, that the motion shall contain the information attesting that, in order to correct himself further, the convict does not need to serve the entire sentence imposed. However, it should be underscored that it does not at all follow from those statutory provisions that it all should boil down just to the analysis of the information on undoing the damage and penitence for the deed committed. Nor it follows from them that exactly those circumstances are defining in addressing the ECR issue. Of course, we will discuss them as well, but we will not restrict ourselves to that because at the same time, the lawmakers do not establish what exactly the significance is of this or that information in addressing the issue of the ECR from serving a sentence and thus authorize the general jurisdiction court to decide on a case-by-case basis whether that information is adequate for adjudging that the convict does not need to serve the entire sentence imposed by the court and is subject to early conditional release. In doing so, the court should proceed from the following: by virtue of the rule of law principle in the criminal law recognized in a rule-of-law state, criminality of a deed, as well as its punishability and other penal consequences are determined by the criminal law (Decree of the Constitutional Court RF of 27.02.2003 No. 1-P in the case regarding

examination for constitutionality of the provision of Art. 130 part one Correctional Code RF), under which the following shall serve as adequate grounds for the early conditional release of a person serving their sentence: adjudging them by the court as not having to serve the entire sentence imposed by the court in order to correct themselves and having de facto served the part of the sentence specified in the law (RULING of 24 November 2005 No. 449-O to Refuse the Complaint of Citizen A.V. Soloviev about the violation of his constitutional rights by Art. 175 para 1 Correctional Code RF). Moreover, according to the tenor of the law, the grounds predetermining whether it is possible or impossible to apply early conditional release are: the circumstances describing the convicts personality and conduct following the imposition of the sentence, during the service of the sentence. The criminal and correctional laws, without attaching in advance any certain significance to any circumstances in addressing the issue of the early conditional release from serving a sentence, authorize the general jurisdiction court to decide on a case-by-case basis whether the information contained in the motion and other materials filed with the court is adequate for adjudging that the convict does not need to serve the entire sentence imposed by the court and is subject to early conditional release (RULING of 20 February 2007 No. 173-O-P regarding the complaint of citizen Timur Said-Magomedovich Idalov about the violation of his constitutional rights by Art. 175 para 1 Correctional Code RF; RULING of 16 November 2006 No. 453-O to Refuse the Complaint of Citizen O.A. Tsipelstein about the violation of his constitutional rights by Art. 175 para 1 Correctional Code RF). Thus, the legal position of the Constitutional Court RF in interpreting the provisions governing the issues of the ECR from serving a sentence consists in the following: 1. It does not follow from the provisions of Art. 175 para 1 Correctional Code RF that lack of any information in the convicts motion impedes the examination of such a motion or application of the early conditional release from serving a sentence. The criminal and correctional laws do not attach in advance any certain significance to any circumstances in

2.

addressing the issue of the early conditional release from serving a sentence and authorize the general jurisdiction court to decide on a case-by-case basis whether the information contained in the motion and other materials filed with the court is adequate for adjudging that the convict does not need to serve the entire sentence imposed by the court and is subject to early conditional release 3. The grounds predetermining whether it is possible or impossible to apply early conditional release are: the circumstances describing the convicts personality and conduct following the imposition of the sentence, during the service of the sentence.

In order to persuade the court that there are no grounds for MBK to serve further the sentence in the conditions of isolation from society, we should follow the convicts conduct during the service of the sentence in the conditions which were and still are created for him for what is far from serene life. To do so, we have both a right and opportunity supported by the materials kindly provided by the facility administration. It is up to YOU Your Honor, experienced in examining such motions to decide whether there are a few or many of them. I do not know about the court, but I, as a lawyer with twenty years of experience, was impressed with the volume of the materials filed with the court 22 volumes, each of which has at least 250 sheets. For comparison (for those present in the courtroom), I will give you an example: the common practice is, in the examination of the motions for ECR, the convicts personal files range from 50 to 100 sheets. This circumstance underscores once again the out-of-the-ordinary personality of M.B. Khodorkovsky put in by his lawyers for early conditional release and the conditions he has been serving his sentence in, given his special treatment by the FSIN. Lest we are incriminated with deviating from the subject-matter of, and grounds for, this trial, let us address the semantics of the word conduct, S.I. Ozhegovs dictionary (p. 439) interprets it as mode of life and actions. MBK, with practically two years of his sentence served in the conditions of a prison behind him, was sent quietly, super secretly, alone (apart from the guards) in a special car to serve his sentence at a general-regime correctional colony in the City of Krasnokamensk of the Chita Oblast back then. Para 1 and 2 Art. 73 of the

version of the Correctional Code RF in force back then, like para 6 and 7 of the Instruction On the Procedure for Sending Those Sentenced to Deprivation of Liberty to Serve Their Sentences, Their Transfer from One Correctional Facility to Another, as Well as Sending Them for Treatment and Examination to Medical and Preventive Treatment and Correctional Medical Facilities indicated the venue for serving ones sentence within the limits of the territory of a constituent entity of the RF where they resided or were convicted. And the convicts are only sent to the nearest correctional facility situated on the territory of that constituent entity of the RF or on the territory of another nearest constituent entity if there is no facility of appropriate type in the constituent entity of the RF in question or if it is impossible to put the convict to the available correctional facility. The persons present in the room who arrived in Chita could experience on themselves the proximity of Chita to Moscow. But you have not yet reached the City of Krasnokamensk (15 hours by train from Chita). It adds up to 6,500 km from Moscow, and YOU get to the constituent entity of the federation geographically close to Moscow. This violation of the law in determining the venue for serving the sentence was challenged by lawyers at the Zamoskvoretsky District Court of the City of Moscow; however, the courts judgment of 06 April 2006 denied the claims filed. The court specified in its judgment that, since the decision had not been made by anyone personally, but rather it had all happened by itself somehow, there is no one to hold accountable. And the statutory provision was amended in 2007, and the Federal Service for the Execution of Punishments got a lawful opportunity to send convicts to serve their sentences to the correctional facilities regardless of their location at its discretion. On 15 October 2005, MBK made it to the list of persons serving their sentences at FGU IK-10. The only chance for MBK to inform his relatives and loved ones about his whereabouts was to invite a local lawyer. And this is the only way his parents, his wife, and his children could find out on 18 October 2005 about the location of their relative. At the colony, MBK was enrolled into an adjustment brigade (where the newcomer convicts are kept for two months to adjust to the colony). It should be pointed out that on the initiative of the facility administration MBK was adjusting until 20.12.2006 (i.e., for a year and two months up until his departure from the colony) lest he established lasting contacts with the persons serving their sentences. The materials filed by the facility administration (volume 1, unfiled and not numbered) include a certified copy of a diploma and a work record card in the

name of MBK, from which it follows that the latter has higher education in natural science and profound experience in the leading positions. Furthermore, MBK immediately expressed a desire to work (the documents will the attached and c.f.s. 166-169 volume 11): to apply his experience and knowledge in practice and engage in research or teach (mathematics, chemistry, physics, history are in the sphere of MBKs interest). His desire was supported by a publishing agreement with the publishing house of the Autonomous Non-Profit Organization of the Centre for Popularizing Research Knowledge Nauka Press (the draft was signed by the publishers party on 20 January 2006 and is ready to be attached to the case file). Furthermore, no special conditions were necessary to engage in research, it sufficed to have the items and literature allowed to the convicts serving their sentences at a detention facility; as per court verdict, MBK has not been deprived of the right to engage in any activities, and the List of Works and Posts Where Convicts May Not Be Used does not ban creating writings or having them published; remuneration paid by the publishing house is much higher than that of a sewer (as per terms and conditions of the agreement, from Rub 3,000 to Rub 9,000 per publication). By way of comparison, amounts within the limits of the minimum wage in the RF figure in the note on remuneration of MBK (volume 1, unfiled and not numbered). MBK, like any person, was interested in a higher remuneration and he could get it deservedly, but he was deprived of such an opportunity. And, finally, the interests of convict MBK were protected by Art. 37 of the Constitution RF, which provides for a right of the citizen of the RF to dispose of their abilities and choose an occupation, and Art. 103 para 1 Correctional Code RF, which obligates the correctional facility administration to involve convicts in the socially useful labour, taking into account their ability to work, state of health, and, if possible, speciality. ALAS! It did not help, and on 01.11.2005 MBK was hired by the sewing facility as apprentice sewer; and on 28 February 2006, as assistant for cut-out materials and items (volume 1, unfiled and not numbered, volume 11 c.f.s. 216), where he worked until 20.12.2006 up until his departure from the colony. MBK displayed initiative and persistence in the exercise of his opportunities, and on 15 November 2005 he filed an application for participation in the Public Correspondents Unit of The Rezonans [High Profile] high-circulation newspaper (organ of the Chita Oblast UFSIN, disseminated among the persons serving their sentences at the Chita Oblast colonies (volume 11 c.f.s. 201)). His wish was granted, and he was hired as a public correspondent on 01.12.05 (volume 11 c.f.s. 202). MBK wrote five articles on various topics from November 2005 through June 2006. And none of them was published although the articles were purely practical in nature for the persons serving their sentences and could be

useful for them. In order to deprive MBK of the opportunity to even write articles, not to mention having them published, MBK was excluded from the Public Correspondents Unit allegedly for a penalty which was cancelled by the court as unlawful. On 14 June 2006 a decision was made to exclude MBK from the amateur organization, which was justified falsely by the penalty imposed on the latter for the violation of the established procedure for serving his sentence (keeping banned documents), volume 12 c.f.s. 205, although the day before that, on 13 June 2006, judgment of the Krasnokamensk City Court of 18 April 2006 became operative, which quashed the order of the commandant of FGU IK-10 of 24 January 2006 to impose a penalty in the form of placement to a punishment isolation ward for five days for keeping banned documents (attached to the motion for ECR). MBK keeps self-educating, the circle of his interests is diverse. Khodorkovsky has been an active subscriber to newspapers and magazines. No matter where he is at the SIZO in Moscow or Chita or correctional colony in Krasnokamensk the list of printed matter he is subscribed to exceeds 130 items (we are ready to submit to the court for review the periodicals subscription receipts). There is one answer Books to the question What does MBK get in his parcels? It is mostly serious research literature, encyclopedias, and reference books. What will be the courts assessment of convict M.B. Khodorkovskys conduct from the viewpoint of his attitude towards work and social life in a team, as well as of his proactive and initiative social stance? Could anyone really give at least one fact of MBKs ill-disposition towards society? Events classified by the facility administrations at the venues where MBK has been serving his sentence as violation of the sentence-serving regime with the convict held disciplinary liable play a special role in MBKs life in the conditions of isolation. The procedure for, and conditions of, serving his sentence by convict Khodorkovsky must be no different from those established for other convicts. Unequal conditions for serving sentences could be described in one word discrimination, banned both by the Constitution RF and Russian laws and the international legal acts. Nevertheless, from day one of MBKs stay at the detention facilities, a singling-out approach to him was adopted, namely, everything allowed to all is prohibited to MBK. Specific examples can prove that.

The first penalty (mentioned in the note issued by the facility administration) in the form of placement to the punishment dungeon for five days was announced by the commandant of IZ-99/1 in Moscow on 29 August 2005 (volume 10 c.f.s. 207). The circumstances are simple: in a cell where 12 persons were kept, a metal plate was used as a knife to cut foodstuffs, and it had appeared there long before MBK was put in the cell; and at the moment it was found, MBK, as well as his other cellmates had been using it for more than a month. The plate was kept openly in the table, the investigative isolator officers could see it during daily searches. However, it was MBK and him alone who was penalized for keeping and using banned items. The second penalty (mentioned in the note issued by the facility administration) was in the form of the reprimand issued by the commandant of FGU IK-10 on 14 December 2005. As has already been mentioned before, MBK was engaged at a sewing facility, comprised of several workshops, including sewing and experimental ones. All the convicts engaged at the sewing facility moved throughout the sewing facility building without any conditions or restrictions (meaning the authorization of the administration representatives), especially because there is one restroom and one drinking water tank for the entire building. No one explained to MBK when he was hired that just the sewing workshop of the sewing facility was his workplace which he must not leave without the authorization of the facility representatives. On 12 December 2005 MBK came out of the sewing workshop and went to the experimental one, looking for an adjusting mechanic in order to have his sewing-machine fixed. Those actions of MBK were classified as violation of the sentence-serving regime leaving his workplace. The third penalty (mentioned in the note issued by the facility administration) was in the form of placement to a punishment isolation ward for five days, imposed on 24 January 2006 for keeping banned documents. Surprisingly, but it is a fact: the banned items were orders of the Ministry of Justice governing the rights and duties of the persons serving sentences at generalregime colonies. Those orders are publicly-available because they were published in mass media at a certain point, and it is known that those sentenced to the deprivation of liberty are not restricted in their right to get newspapers and magazines. On 16 January 2006, censor, in the presence of MBK, took out two plastic envelopes with torn flaps, opened them, took four files out of the envelope and gave them to MBK, and threw the envelopes in trash. MBK could not see the senders of the envelopes because the envelopes were not given to him for an unclear reason. MBK came back with what he received to the production facility and then to the brigade premises, where he put everything into his bedside table.

The next day MBK was at the production facility; the correctional colony officers came up to him and brought a report on search in the residential section of brigade No. 8 and seizure from MBKs bedside table of orders of the Ministry of Justice RF Nos. 83 of 07 May 2000 On Supervision over Convicts and 69 of 25 March 2003 On Convicts Brigade. The fourth penalty (mentioned in the note issued by the facility administration) was in the form of placement to a punishment isolation ward for seven days, imposed on 17 March 2006 for having food in an undue place. On 15 March 2006 in the evening, after a meeting with his lawyer Moskalenko, MBK had tea with a convict in the Brigade Council room, rather than in the eating room. Although everyone used to have tea before in the Brigade Council room, and there was a kettle there. The fifth penalty (mentioned in the note issued by the facility administration) was in the form of placement to a punishment isolation ward for ten days of 03 June 2006. On 30 May 2006, during the search in the personal belongings room of brigade No. 8 convicts, in the bag with personal belongings of convict Khodorkovsky foodstuffs were found, which, in the opinion of the administration, were received, bypassing the established Internal Regulation Rules (IRR), namely, from other convicts. Comparison of the list of foodstuffs specified in the search report with that of the foodstuffs delivered to MBK in the parcels and deliveries and purchased by him in the store established that, indeed, several disposable teabags, 2 lemons, and an apple were received from other convicts as treats. MBK was put to a punishment isolation ward for ten days because of those foodstuffs. Three penalties were appealed against judicially, and they all were adjudged unlawful by the courts and cancelled. But even if it were not the case and even if the limitation period for those penalties did not expire, as a result of which they no longer exist legally as of that moment and may not be taken into account in decision-making, it is still clear that those were unfair penalties and those were not real violations attesting to the wrongful and anti-social conduct. That is faultfinding and discrimination. And if MBK did not assert his rights by going to courts, the number of far-fetched disciplinary penalties imposed on MBK would have increased several-fold. My assertions are not naked. Let as refer to the personal file of convict MBK. Over several months, FGU IK-10 officers drew up several reports regarding MBK, requesting that the commandant of FGU IK-10 take disciplinary response actions regarding MBK. For example, on 06.05.06 during a search, a coil, a metal bar, was found in the cell where MBK was kept (FGU IK-10, a safe place). Those items were found after the floor was ripped open in the cell, and, judging by their appearance, they

have been there since construction. MBK did not need a coil because he officially had two tea-urns. There were no signs the cell floor had been ripped open recently. A report was drawn up on MBK keeping banned items. On 19 May 2006, white and golden felt pens were seized from MBK, which were received in a wrapper. Under the IRR version in effect until 01.01.06, the delivery of felt pens was allowed, but the new version of IRR prohibited the delivery of such items to convicts. The colony officers allowed MBK officially, in the established order to receive the felt pens sent to him, when the old version was in effect. Again a report was drawn up on keeping banned items, explanation On 16.07.06, MBK was on the residential premises near his sleeping place without wearing a jacket. MBK was not informed there was a ban on staying at that place without a jacket. A report was born, saying that MBK was arrested(!), having violated the uniform rules by not wearing a prescribed jacket (FGU IK-10). On 26.12.05 at 17.30 MBK arrived at the brigade after a discussion with his lawyer; he did not hear the invitation of the orderly to the lecture; however, he found out where the people were and went to the club; he met on his way those coming back from the lecture. The officer recorded in the report MBK was not present at the lecture, being aware that the latter was talking to his lawyer (FGU IK-10). Report, explanation, motion for punishment We will have to focus at greater length during the trial on the penalties which emerged both the day before the court trial of the ECR case and that of 15 October 2007 (statement of facts of the committed, analysis of the evidence of the event of offence) because we challenge not just the lawfulness and validity of the penalty, but also the very fact of the violation. We would like to point out that the penalty had been announced ten days before the date which would have allowed MBK to file with the court a motion for the ECR. In his explanation, MBK specified explicitly: Since I was curious how and what for a penalty would be imposed on me in connection with the approaching ECR, I fulfilled all the orders especially thoroughly volume 18 c.f.s. 143. Statement of facts of the deeds classified by the facility administration as violations of the sentence-servicing regime helped us not just show, using descriptive examples, but also prove that especially severe sentence-serving conditions were created for convict MBK artificially and statutory provisions were applied to him selectively and arbitrarily. One must not omit in the description of MBKs mode of life and actions during the service of his sentence the events of April-July 2006. I mentioned above that MBK served his sentence at FGU IK-10 in the adjustment brigade. Only those engaged in the brigade works and MBK stayed there permanently; the remaining ones were the colony newcomers who, as a

consequence, were unknown to the colony officers in terms of their capabilities. Thereby a situation was built intentionally there only were fortuitous people around MBK; the period of knowing them was limited to two months (duration of stay in the adjustment brigade). Instead of creating real conditions for adjustment, for establishing positive contacts, everything was done to prevent it. All of that led to convict Kuchma having inflicted an injury with a knife (home-made shoe-knife) on sleeping MBK in the area of the bridge of the nose on 14 April 2006 at around 4 oclock in the morning. It later became known from the explanations of the attacker that he aimed at the eye, but the hand slipped out. MBK forgave him and asked not to hold him criminally liable, deeming him a mentally disturbed person. Judgment of dismissal of the criminal case of 17 April 2006 volume 12 c.f.s.66. But it was the beginning of major events trying MBK for endurance. On 19 April 2006, MBK was placed, unexpectedly for himself, into a safe place for 30 days. Solitary confinement cell in the punitive isolation ward was chosen as a safe place. Order to place to a safe place volume 12 c.f.s. 179. MBK, not feeling any danger to himself, applied to IK-10 commandant for transfer to the regular detention conditions, viewing the safe place absolutely appropriately as a way of isolating him to the utmost from society, even that of the convicts. (application of 27 April 2006, volume 12 c.f.s. 182). Two applications were disregarded, and MBK went on a dry hunger-strike on the same day. On 30 April 2006 MBK was transferred to a medical unit due to a declining state of his health. On 04 May 2006 MBK was transferred back to a safe place although the treatment was not completed. On 14 May 2006 MBK was placed in the regular detention conditions after a safe place. It was not known to us until now that the reason for which MBK was put in a safe place was a debate in the media on the topic Is There Danger to MBK? (officers reports volume 12 c.f.s. 180, 181). The inspection, which lasted a whole month, did not confirm any danger to MBK (which was absolutely obvious from the outset) conclusion in the official inspection report of 13 May 2006, volume 12, c.f.s. 184. Even hard-boiled inmates, sympathizing with MBK, commented on the situation: he suffered heftily, trying to smooth out somehow what happened by bringing treats, hence the ill-fated teabags and lemons. MBKs trials did not end there; and since 14 May 2006 he was followed constantly, round-the-clock, like a shadow, by a colony officer. The escort lasted until August 2006. MBK was not afraid of the permanent and close supervision because he is a law-abiding person and he did not intend to breach the regime. And the surveillance, albeit oppressive in itself, would not have been an especially

major problem, if it were not for one significant circumstance. MBK was in the brigade of convicts whose number varied from 80 to 100; permanent presence of the administration representative irritated those serving their sentences because all the violations they committed were in the limelight, the number of persons held liable in the brigade where MBK served his sentence went up dramatically. Such an approach exacerbated the convicts attitude to MBK, which did not rule out the possibility of the use of violence toward the latter in order to just get rid of the undesired excessive control. That is why during their personal appointment with the head of the Chita Oblast Department FSIN the lawyers requested to solve the problem. An answer was received (attached) that everything would remain as it was. On 20 December 2006 MBK was transferred again to the prison conditions and he is in the Chita investigative isolator. I will be brief here because the bench of the Ingodinsky Court first and foremost experienced on themselves all the joys of communication with convict MBK. When MBK was brought to the court on 07 February 2007 and thereafter, the court building, just like its employees and residents of the nearby buildings found themselves hostages. The conditions of MBKs detention at the investigative isolator are also about the severest isolation from everything available to other convicts. Separate entrance, separate floor, special rooms for meetings with lawyers. Video surveillance 24 hours a day. Thus, the analysis of a set of issues has been submitted to the court, which are of defining importance for resolving the issue of lack of any need for convict MBK to serve his sentence further. We trust that when the court makes a reasoned decision on the issue under discussion, the circumstances describing the personality of convict Khodorkovsky and his conduct following the imposition of the sentence, during the service of the sentence will be assessed by the court as grounds predetermining the need to apply the early conditional release to him.