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Khodorkovsky as a Political Currency

The unprecedented 400-page report released this week by the Presidential Council of the Russian Federation for Civil Society and Human Rights regarding the violations of law and mishandling of the second trial of Mikhail Khodorkovsky comes as a bombshell, landing in the middle of a series of protests punctuated by competing promises to finally put an end to his incarceration.

The content of the report should not exactly be surprising to anyone who has followed these events, but given the source of the document, and the idea that powers within the Kremlin would tolerate such a harsh appraisal of the legal system, indicates that at least among some influence groups within the power structure there is an attempt underway to pave the way forward to make a face-saving opportunity possible to undo Russia’s most embarrassing case of legal nihilism.

The language used in the report offered scathing critique of a trial so lacking in due process rights and evidentiary common sense that it prompted one council member to call it “…yet another fiction that our justice system has succeeded in.”

That this member, Tamara Morshchakova, is also a highly respected former judge of Russia’s Constitutional Court, added an additional touch of irony.

“Taking into account effective means of legal support which are present in the national judicial system, it is necessary to raise with the Prosecutor General the issue of appealing the current verdict in order to annul it,” RIA Novosti quoted from the report.

Among the “fictions” that the report calls out were allegations that Khodorkovsky had embezzled 218 million tons of oil as part of Yukos’ operations, the main charge undergirding the indictment. That Khodorkovsky was found guilty in his first trial, in 2005, of not paying taxes on this very same oil negates the possibility of him then embezzling it, for how can one be guilty of stealing and evading taxes on the same goods?

As for due process violations, the experts found violations of the presumption of innocence; a lack of competence and independence on the part of the court; the non-consideration and rejection of evidence favorable to the defendants; and the granting of procedural advantages to the prosecution. Experts discovered that over 600 pages out of the 700-page verdict were copied verbatim from the guilty verdict in the first criminal case.

As The Moscow Times reports, the council also called for the amendment of numerous legal provisions to prevent the prosecution of other entrepreneurs, thousands of whom have been jailed on similar charges.

The council’s conclusions, which were forwarded to Russian President Dmitry Medvedev, are non-binding and carry no judicial weight. And yet it is significant. This marks the first time that a Kremlin-affiliated body has admitted on record that the second Khodorkovsky trial was largely bogus, confirming the long-held suspicion that Khodorkovsky is the personal political prisoner of Vladimir Putin, and continues to sit in jail for no other reason.

The issue of Khodorkovsky’s release has now been transformed into a political currency.  Both Putin and his newly unveiled billionaire presidential challenger, Mikhail Prokhorov, have raised the prospect of freeing Khodorkovsky as an election device. Grigory Yavlinksy has done the same thing. And the spector of Khodorkovsky has hovered over the protests that have rocked Moscow in recent weeks, if in no other way than as an emblem of the genuine dissent the Kremlin fears the most.

Despite this stunning turn of events, it would be a mistake to conclude that the Presidential Council’s findings will influence how the Kremlin has handled the Khodorkovsky affair to date. The same body recently prepared a similarly scathing report in reference to another scandal in Russia’s human rights domain: the death in pretrial detention of Sergei Magnitsky, a lawyer working for the brokerage firm Hermitage Capital who was arrested while investigating a $230 million tax fraud perpetrated against Hermitage by Russian officials.

Though the report helped lift the veil on the complicity of Russian officials in Magnitsky’d death, an investigation continues to drag on. In a sense, in its reports on both Magnitsky and Khodorkovsky the Presidential Council runs the risk of coming off like the Kremlin’s guilty conscience, well-meaning but ultimately incapable of enacting real change.

Nonetheless, at least as far as the polarizing Khodorkovsky is concerned, the report shows a clear struggle within Russia’s leadership to do the right thing.

It is hard to imagine that such an honest, well researched, and firmly principled report would have been possible in any other country, and I applaud the members of the Council for having the courage to produce the document despite the risky consequences of offending the criminal authors of the verdict.  When we look to Europe’s conduct on this case, there is vast disappointment.  When we look at the Obama Administration’s contribution to civil society in Russia, we just see a reset policy that has dragged us back to the dark ages.  Instead, the task falls to the Russian people to confront these issues from within.  In combination with the renewed sense of civic engagement on display at the protests, the Russian people are challenging the stereotype of docility and indifference, and showing the world what it means to treasure freedom, to stand up for their rights, and to participate in the future of their country, wherever it may take them.

Now isn’t it time that Russia’s real friends in the West supported them, instead of their thieving leaders?