The following is a translation from the website of Marieluise Beck, a German Member of Parliament who made herself available to attend hearings of the second trial of Mikhail Khodorkovsky as an observer. This memo summarizes her impressions of the process.
Khodorkovsky on trial: Impressions of a show trial
Marieluise Beck (Member of Parliament, Bündnis 90/Die Grünen) travelled to Moscow to observe the second trial against Mikhail Khodorkovsky, former principal shareholder of the oil company Yukos, and his business partner Platon Lebedev. Each was sentenced to 8 years of imprisonment in 2005 in a trial that on no account complied with constitutional standards and was obviously politically motivated. The second trial is on the verge of taking a similar course, particularly because the charge has absurd proportions and is completely contradictory to the first charge.
Read her impressions from the court room:
April 27th, 2009 A day in the county court Khamovniki in Moscow. The great “corporate criminal case” against Mikhail Khodorkovsky and Platon Lebedev is being heard; the sum in dispute amounts to $20 billion.
The court building is unimposing and the court room is small and shabby. Brawny policeman ‘secure’ the room. One would rather not get in their way.
For 18 days the prosecution read out the charge – an attritionstrategy not only for the defence team and the accused, but also forthe potential observers of the trial, whose patience is supposed tocome to an end given such a marathon.
However, a small group has not yet given up and attends the trial.The benches offer only little room for observers, about the space aschool class would occupy.
Among them is Marina Filippovna, Khodorkovsky’s mother, awhite-haired elderly lady. Grigory Javlinski, former president of thedemocratic Yabloko party, also stops by for a few hours.
Khodorkovsky and Lebedev are led into the court room in handcuffsand are then put into a glass cage which is barred at the ceiling. Theylook grey and tired. After all they have been in prison for over fiveyears, the two last of them in remand, i.e. no participation in theprison yard walks, no physical activity, small cells, marginalcommunication.
It evokes an oppressive feeling to imagine that these two men haveto live with the thought of disappearing in prison for more time tocome after the trial.
There are eight defenders in front of the cage, some of themexperienced human rights advocates. They know that they act withinconstitutional means of defence, but that there is no rule of law on onthe part of the court and of the prosecution.
The prosecutors wear uniforms and read out evidence for hours. Thejudge makes an inconsiderable impression, even stoic, like a poorblighter. No vain showmanship for being in charge of such an importanttrial. One wonders whether he has any judicial latitude at all? Afterhe has halted the legal proceedings, does he call somebody who ordershim to deny the defence’s motion to reject the case?
The defence team’s motion is rejected – a visibly ambitious youngprosecutor continues to read out the means of evidence. Impassively shereads out page after page.
The files comprise several cubic meters – 14 volumes, 3500 pages.However, the key data of the trial is easily summarized. The chargesaccount for embezzlement of 350 million tons of oil worth $20 million,money laundering of $21.4 million.
If these charges accorded with the facts, the accusations of taxfraud of billions of dollars raised in the first trial would beobsolete. Khodorkovsky’s company would not have had any revenue thatwould have been taxable. The sentence to eight years of imprisonmentfrom the first trial and the new charge are therefore mutuallyexclusive.
There are many indications that Khodorkovsky’s political engagementled to his downfall and that Putin wanted to get rid of a disagreeablerival. This is what differentiates him from other oligarchs which arenot put on trial by the Kremlin.
Insiders therefore assume that Khodorkovsky has no chance of beingreleased as long as Putin has the power to render him ‘innocuous’.
A whiff of futility that is characteristic of political trials inauthoritarian regimes lies over the court room. While passing off asformally correct, everybody knows that the outcome of the trial is notdecided in the court room.
Russia is a member of the Council of Europe and of the OSCE and hastherefore committed itself to principles of constitutional legality. Alarge extent of the new president’s credibility at home and abroaddepends on the outcome of this trial. If Khodorkovsky and Lebedev arerelegated from the Russian public life once again, Medvedev’s promisesof reform would appear insubstantial.
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“If these charges accorded with the facts, the accusations of tax fraud of billions of dollars raised in the first trial would be obsolete. Khodorkovsky’s company would not have had any revenue that would have been taxable. The sentence to eight years of imprisonment from the first trial and the new charge are therefore mutually exclusive.”How so? Isn’t it possible that Khodorkovsky (1) embezzled funds, (2) laundered those funds, and, (3) evaded paying tax on those funds?In all Western jurisdictions these offenses would be classified and prosecuted as three separate and distinct offenses, and Russia is no different.It is true that in the West perhaps one or more of those charges might be dropped as part of a plea bargain, but a plea bargain presumes a cooperative subject, and one that admits that he broke the law. To my knowledge Khodorkovsky still steadfastly (and arrogantly) maintains that he is the completely innocent victim of some wicked conspiracy and he has no idea why he was arrested or convicted for anything. Obviously Khodorkovsky is still encouraged in the belief that his ‘people on the outside’ will yet come through for him.The original conviction for tax evasion still stands whether (1) Khodorkovsky left the oil in his company, sold it, and evaded paying taxes on it, or, (2) whether he embezzled the oil out of his company, sold it, and evaded paying taxes on it. In both cases the common denominator is that taxes lawfully due to the state were illegally evaded.If the tax evasion was committed by Khodorkovsky’s company, then the company’s assets could be seized to pay the debts and fines. (This means that both Khodorkovsky and his shareholders would lose out, as actually happened.) However if Khodorkovsky embezzled company assets (without the knowledge and consent of the company) and then sold those embezzled assets himself, without paying personal taxes, then presumably only Mr. Khodorkovsky’s assets could be seized (his share of the company as well as his other assets).To my knowledge the state is not claiming that Khodorkovsky embezzled 100% of the company’s assets and profits, leaving the company with “nothing to owe taxes on.” Rather he personally embezzled a substantial fraction of his company’s assets, and he illegally evaded taxes on those stolen assets using the same money laundering and tax evasion schemes that his company was also using. For all intents and purposes Khodorkovsky and the company he controlled were one. The fact that other investors and shareholders were (unknowingly) “brought along for the criminal ride” by Mr. Khodorkovsky is not material for the criminal charges against him.Khodorkovsky silent partners and shareholders were beneficiaries of Khodorkovsky’s corporate tax evasion, at one level, even as they were victims of his private embezzlement at another level. (Ultimately those shareholders were victims of Khodorkovsky at both levels, as the consequence of the misdeeds which were attributable to the company ultimately resulted in the company’s assets being seized by the state.)The evidence shows that Mr. Khodorkovsky, a thoroughly criminal and corrupt individual, founded and ran a thoroughly criminal and corrupt company. For all intents and purposes Khodorkovsky and his company were one. But pertaining to the issue of embezzlement, Khodorkovsky didn’t simply “steal from himself” when he stripped assets from his company (shifting his own assets “from his right pocket to his left pocket” as it were). Khodorkovsky’s company had significant outside shareholders, all over the world, who could not have been aware of Khodorkovsky’s stripping of company assets. Hence the additional charge of embezzlement.The new charge of “embezzlement” is not a crime against the state, per se, like tax evasion is. Rather it’s a crime against Khodorkovsky’s partners and shareholders at the time. (Whether those victims want to pursue civil remedies against Mr. Khodorkovsky is their business. The criminal matter of the embezzlement of the assets of a publicly traded company is a matter for the state to prosecute.)“A large extent of the new president’s credibility at home and abroad depends on the outcome of this trial.”That’s absurd. “At home,” the oligarchs–and especially Khodorkovsky–are reviled by the vast majority of the Russian people. And “abroad” Khodorkovsky tiny clique of die-hard groupies have never considered his actual guilt or innocence to be material to his case. They prefer to cast Khodorkovsky in the role of victim, political prisoner, or perhaps even a saint. (The patron saint of liars, cheats and murderers?)For Khodorkovsky’s groupies it never really mattered how heinous his crimes were nor how large the mountain of evidence compiled against him was. As the writer of the article above admits, it’s boring to sit there and listen to volumes of evidence being read into the court record by the prosecutors. (May as well just take a nap during that part of the trial and wake up during the good parts, when Khodorkovsky jumps to his feet and indignantly announces that he is only being prosecuted because he is a liberal or a Jew.)It’s ridiculous to suggest that the hatred that Khodorkovsky’s clique holds for all things Russian is going to be somehow ‘appeased’ by anything President Medvedev does. It’s even more ridiculous to suggest that Medvedev has any intention of appeasing them. The President would damage his credibility far more, abroad and especially at home, by attempting to interfere in Khodorkovsky’s criminal trial one way or the other.Let’s assume, just for the sake of argument (because it isn’t going to really happen) that President Medvedev does everything the Khodorkovsky clique wants, and grants poor Mr. Khodorkovsky a full and complete pardon. What then? Will the clique then just roll up its magic carpet and disappear in a puff of smoke, having accomplished its apparent mission? No, rather they would only seize on President Medvedev’s action as an “admission of guilt” by the Russian state. They would jump up and down, howl and point their fingers, like a pack of wild jackals. Does anyone doubt it?It would do a disservice to the Russian justice system, not to mention the Russian constitution, if the President established the precedent that a tiny “cult of personality” can alter the course of justice in Russia, if only they scream and holler (and distort the truth) long enough.How does the credibility of a country’s president depend on reaching a pre-ordained “outcome” in an criminal trial that is only just beginning, as the author suggests? I would think rather the opposite is the case. Medevedev ought not to interfere in this case or any other criminal case, one way or the other. That’s just not a proper constitutional role for Russia’s chief executive.It may be true the President of Russia does have the constitutional authority to issue pardons, but based on my knowledge of Mr. Khodorkovsky, and his complete lack of any remorse, it’s hard to think of anyone in Russia less deserving of presidential clemency.As far as Putin is concerned, he is the Prime Minister now, not the president, and as such he has no role whatsoever in such matters. Putin is certainly entitled to express his opinion, as anyone else is, but in my view Putin does better not to speak about it. The Prime Minister has other more pressing things to focus his energy on these days.Please see my short article about Mikhail Khodorkovsky here: http://mishasrussiablog.blogspot.com/2009/03/curious-case-of-michael-khodorkovsky.html