La gran filtración

Cable en el que el abogado de Jodorkovski explica detalles de dos procesos contra su defendido

27 dic 2010 - 07:11CET

ID:	104768
Date:	2007-04-18 07:48:00
Origin:	07MOSCOW1770
Source:	Embassy Moscow
Classification:	CONFIDENTIAL
Dunno:	07MOSCOW697 07MOSCOW774
Destination:	VZCZCXRO8902 PP RUEHDBU RUEHFL RUEHKW RUEHLA RUEHROV RUEHSR DE RUEHMO #1770/01 1080748 ZNY CCCCC ZZH P 180748Z APR 07 FM AMEMBASSY MOSCOW TO RUEHC/SECSTATE WASHDC PRIORITY 9433 INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE PRIORITY RHEHNSC/NSC WASHDC PRIORITY RHMFISS/DEPT OF JUSTICE WASHINGTON DC PRIORITY
C O N F I D E N T I A L SECTION 01 OF 03 MOSCOW 001770 SIPDIS SIPDIS DOJ OF OPDAT/ALEXANDRE, LEHMANN AND NEWCOMBE, OCRS/OHR AND SHASKY, OIA/BURKE AND DITTOE STATE FOR EUR/RUS E.O. 12958: DECL: 04/17/2017 TAGS: ECON, KCRM, KJUS, PGOV, PREL, RS SUBJECT: RUSSIA: MEETING WITH KHODORVOVSKIY'S ATTORNEY YURIY SHMIDT REF: A. MOSCOW 774 B. MOSCOW 697 Classified By: Ambassador William J. Burns for reasons 1.5 (b, d) 1. (C) Summary: On April 11, Emboffs met with Yuriy Shmidt, attorney for Mikhail Khodorkovskiy. He described the new embezzlement and money laundering charges -- that Khodorkovskiy engaged in transfer pricing that harmed unwitting minority shareholders in Yukos' three production subsidiaries -- as a re-packaging of the charges in the first case. He claimed the defense has substantial evidence these shareholders were fully informed of these activities. Further, Shmidt maintained that the charges are without legal or factual support and questioned the prosecution's claim that the loss to the subsidiaries was USD 30 billion, a figure he said was about equal to the value of the oil produced by the three units during the period in question. Shmidt said he was surprised that a Moscow court had agreed to change the venue of the trial from Chita to Moscow. He described two cases pending before the European Court of Human Rights (ECHR). The first case claims that Khodorkovskiy was arrested and held in pre-trial detention in violation of the European Convention on Human Rights (the Convention), while the second alleges violations of Khodorkovskiy's right to a fair trial. Shmidt maintained that the case against his client is politically motivated and being run out of the Kremlin, and does not foresee any change of status for Khodorkovskiy while the Putin Administration remains in office. End Summary. The New Charges --------------- 2. (C) On February 16, the General Procuracy charged Khodorkovskiy and Platon Lebedev with embezzlement and money laundering (Ref B). According to the indictment, Khodorkovskiy and Lebedev acquired controlling interests in three oil companies (Samaraneftegaz, Yuganskneftegaz, and Tomskneftegaz) and then caused these companies to sell oil at below-market prices to other companies that they controlled without disclosing to other shareholders their role in these transactions. They then allegedly re-sold the oil at market prices, which were approximately 3-4 times greater than the original purchase price. The alleged victims were the other shareholders of Samaraneftegaz, Yuganskneftegaz, and Tomskneftegaz, who were entitled to the benefit of an arms-length sale at market prices, but instead received only the artificially deflated prices allegedly set by Khodorkovskiy and Lebedev (Ref B). 3. (C) As an initial matter, Shmidt said that the new charges are simply a re-packaging of the charges in the first case. According to Shmidt, in the first case, prosecutors relied on the very same transactions to charge Khodorkovskiy with tax evasion. However, he said, they were unsatisfied with Khodorkovskiy's eight-year sentence and decided to bring new charges carrying potentially heavier sentences. The money laundering charges carry a maximum sentence of 15 years and the embezzlement charges carry a maximum sentence of 10 years. He said the defense will challenge them on the grounds that they violate Russian and international norms prohibiting double jeopardy. Shmidt also suggested that the new charges may have been brought to prevent Khodorkovskiy from being released on parole before upcoming Duma and Presidential elections. (Note: Russian law provides that a prisoner is eligible for early release after he has served half of his sentence. Because Khodorkovskiy was arrested in October 2003 and was sentenced to eight years, he might have been eligible for early release in October 2007. However, his prison violations, which Shmidt claims were provoked by authorities, would likely have prevented his early release in any event. End Note.) 4. (C) Shmidt also said that the new charges are without merit since this transfer pricing technique was not only legal but engaged in by "thousands of firms." He noted that the business groups and industrial firms emerging from privatization during the 1990s were generally organized to take maximum advantage of benefits the GOR provided via "internal offshore" zones. The headquarters and some operating units of a group or firm were typically located in identified havens and conducted most of the transactions, thus allowing for tax optimization. According to Shmidt, this structure facilitated and encouraged the widespread practice of transfer pricing, whereby one part of a company MOSCOW 00001770 002 OF 003 purchased the output made by another part of the company at below-market prices before selling the same output at a market price. 5. (C) Shmidt stated that the defense would present substantial documentary evidence, including records of corporate meetings, proving that the minority shareholders of Samaraneftegaz, Yuganskneftegaz, and Tomskneftegaz were fully informed of all relevant aspects of the subject transactions. Shmidt also claimed that if the minority shareholders had actually been defrauded, as prosecutors claim, they would have filed civil suits, which they did not do. Finally, Shmidt said that the prosecution's claim of a USD 30 billion loss to the shareholders is &absurd8 because the sum would represent the total value of all the oil produced by the subject companies during the relevant time period rather than the difference between what the minority shareholders actually received and what they would have received in arms-length transactions, which, he said, would have been much a more sensible way to measure the alleged loss. The Trial: Where and When? -------------------------- 6. (C) The Procuracy filed the new charges in Chita, where Khodorkovskiy is presently incarcerated, and sought to conduct the preliminary investigation and trial there (Ref B). Shortly after the new charges were filed, the defense filed a motion seeking a change of venue to Moscow, claiming that the majority of witnesses and evidence are located there. On March 20, the Basmanny Court in Moscow granted the defense motion. The Procuracy appealed this decision and the appeal was heard on April 16 in the Moscow City Court. This Court upheld the Basmanny Court's decision transferring the case to Moscow. During the meeting and in public comments after the April 16 ruling, Shmidt said that, "although the prosecution could appeal the Moscow City Court's decision, Khodorkovsky would first have to be transferred to Moscow." Russian law provides that the preliminary investigation should be conducted in the place where the crime was allegedly committed, but may be conducted in the place where the defendant is located to ensure &completeness, objectivity and compliance with procedural norms." 7. (C) Shmidt claimed that the Procuracy chose Chita to make it difficult for the defense team to meet with their clients and prepare their defense. Specifically, he said, Chita is difficult to reach and lacks the copying machines and other office equipment the defense needs to prepare its case. Shmidt said that although the Procuracy's decision was clearly wrong as a matter of law, he was surprised by the Basmanny Court's decision because the same court had consistently ruled against Khodorkovskiy in the first case. He claimed that the ruling was an indication of a general recognition that the Procuracy had "gone too far." 8. (C) Shmidt also said that he did not know when the trial on the new charges would take place. He said that the prosecution had sought to start the trial in June so that it would be completed before the elections, but noted that the case materials consist of 127 volumes and said that the defense is "not hurrying" to review them all. Under Russian law, a case cannot proceed to trial until all defendants have reviewed the case file compiled by investigators. Shmidt said that the prosecutors will likely move to cut off the defense's review of the case file in May, but said that the defense would challenge such a motion. Under Russian law, the prosecution can seek to limit the time that the defense has to review the case file if there are grounds to believe that the defense is engaging in unreasonable delay. Shmidt also said that a trial date could not be set until the location of the trial had been determined. Therefore, because of ongoing litigation regarding the venue of the trial and the voluminous nature of the case file, it is not clear when the case will proceed to trial. The European Court of Human Rights ---------------------------------- 9. (C) Shmidt also said that Khodorkovskiy has filed two complaints to the ECHR in Strasbourg alleging violations of his rights under the Convention in the first case. The ECHR in Strasbourg adjudicates claims brought under the Convention. As a result of Russia's ratification of the Convention in 1998, Russia is bound by the Convention and any ECHR decisions interpreting it. The first complaint, he said, MOSCOW 00001770 003 OF 003 alleges that Khodorkovskiy was arrested and held in pre-trial detention in violation of the Convention. Shmidt said that the ECHR had agreed to hear this case on an accelerated timetable, but had not yet set a date. 10. (C) The second complaint, he said, alleges violations of Khodorkovskiy's right to a fair trial. Shmidt explained that before adjudicating a case, the ECHR typically sends a list of specific questions about the movant's claims to the respondent government. According to Shmidt, the Russian government has not yet responded to the ECHR's questions regarding the second complaint and it is therefore not clear when this case will be considered. Shmidt also said that the second complaint is "more interesting" than the first because, if successful, it could result in a reversal of Khodorkovskiy's conviction. By contrast, the first claim could only result in an award of monetary damages. Shmidt also noted that the French Embassy in Moscow and German Bundestag have shown interest in this case. No Changes Expected ------------------- 11. (C) In his final remarks, Shmidt claimed that the new charges against Khodorkovskiy are politically motivated and said that the case is being orchestrated entirely by the Kremlin. Although he stated confidently that the charges are without legal or evidentiary support, he concluded by saying that Khodorkovskiy would likely remain in prison as long as the Putin Administration is in power. BURNS