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Amid Economic Crisis, Deepening Legal Nihilism

mbk031809.jpgAs many readers are well aware, yesterday Judge Viktor Danilkin of the Khamovniki District Court in Moscow concluded pre-trial hearings against the political prisoner Mikhail Khodorkovsky by rejecting all appeal motions brought by the defense to stay proceedings.  The judge did see it fit, however, to accept the only appeal presented by prosecutors to keep the defendants in custody throughout the trial.

This second show trial of Khodorkovsky is markedly different from the first, perhaps most importantly by the fact that no one is bothering to defend the obvious lack of merit in the state’s case.  As was highlighted in the summary of our appeal for dismissal, the “new” charges against Khodorkovsky are so preposterous and implausible, and the process so severely flawed, that one can’t help but be struck by the generalized disrespect and hostility toward the institution of law and justice shown by the prosecutors.

As my colleague in Moscow, lawyer Vadim Klyuvgant, has told the press, the state’s claims against the prisoner “could only be dreamed up in some very elaborate fantasy.”  Indeed Khodorkovsky is formerly accused of embezzling a staggering 350 million tonnes of crude oil – the equivalent of the company’s entire oil production over a period of six years without PricewaterhouseCoopers, independent auditers, or other shareholders in Russia’s most transparent corporation taking notice.  It is an accusation akin to blaming him for the great Chicago fire of 1871, the Stalinist purges of 1937-1938, and Sept. 11, 2001 all at once … such insane allegations would carry about the same level of evidence and mere possibility:  none.


But the fact that the judge has rejected all the stay motions and that this second show trial will lurch forward in the absence of fairness and legal grounding does illustrate many important developments inside Russia at a critical time.  One is the subtle coincidence that the trial start date is slated to be within two days of the first meeting of Dmitry Medvedev and U.S. President Barack Obama (such timing is frequent and regular in these kinds of political cases). 

Second, we have a foggy insight into the strengths and weaknesses of those clans currently struggling for influence within the Kremlin and fighting over the diminishing state pie:  the fact that a political order came down, instructing this judge to seize control of the case, must be recognized. 

From a procedural context Russian law, it is less than dispositive as a final answer on legal nihilism, but for a major trial to begin on such shaky ground, any reasonable observer can see that the process is illegitimate from inception.  Such are the grounds, as Karinna Moskalenko points out, to present this case urgently before Strasbourg. 

Lastly, given the absurdity of the charges, the rules of the game are changing, and more than just depriving the defense of the ability to present evidence or call witnesses (which was the regular practice of the first trial), I expect that the prosecutors will have to fabricate false testimony and pressure individuals into perjury to make the impossible possible (we already know this was attempted with the medical blackmail of Vasily Alexanyan).

I continue to stress that the outcome of this second trial against Mikhail Khodorkovsky is of enormous importance far beyond those directly involved in the case … the very weight of these charges, and a court’s ability to press them forward for trial, has the potential to completely shatter what is left of the minimally functioning Russian justice system, cause serious and irreparable damage to the political leadership, and leave the country cast backward in time – not in the eyes of other nations or other meaningless moral judgments – but to her own people and her aspirations as a great power.

Photo: Former Yukos chief Mikhail Khodorkovsky walks into a court building in Moscow March 5, 2009. Jailed Russian oil tycoon Khodorkovsky is currently on a new trial for money laundering and embezzlement.(Reuters Pictures)