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Legal Nihilism in Suspended Animation

It’s been a pretty slow news week in Russia, and my suspicion that this involves something more than just the approach of the Jan. 7 Orthodox Christmas. We’ve had relatively few events of any major importance in the political environment (at least that we know of), no major moves against companies or individuals, and the economic and currency reports feel like a broken record – the same announcements of another devaluation seemingly seem not to change from day to day.

However for those of us involved in highly public legal cases in Russia, we long ago became accustomed to this condition of “suspended animation.” Whenever I attempt to explain to colleagues what it is like to fight a truly political case, I often say that the first thing to understand is that this genre often resides completely outside of the law. For so many of these cases, every “legal” outcome is in fact a decision handed down from the highest levels of the Russian Federation.

Take the Anna Politkovskaya trial, which is quickly becoming abeacon of painfully incompetent lawlessness. Let’s do some math. Annawas murdered on Oct. 7, 2006. It wasn’t until August 2007 when YuriChaika announced that ten had been arrested in connection with thecrime, acknowledging involvement of the FSB. Then it wasn’t until lateNovember 2008 that trial proceedings opened against three of the men,of course plagued by irregularities (the judge closing the trial to thepublic, only to be discredited by a brave outspoken juror). Then theprosecutors attempted to dismiss the judge, the defense identifies thekiller as a politician not involved in the trial, while lawyers for thedefendants produce DNA evidence allegedly proving they weren’t eveninvolved. The prosecutor’s case is falling apart before our eyes.

Altogether, from Oct. 7 2006 up to the present is two years, twomonths, and 21 days with practically zero results and no justiceadministered, representing intolerable inefficiency – (even theinfamous OJ Simpson got a verdict about 16 months after the murder).

Take the Mikhail Khodorkovsky case, which has become known as thelitmus test of the campaign against legal nihilism: there is virtuallyno aspect of this legal process which is not politically determined.The bobbing and weaving of the various participants in this judicialfarce defies credulity, let alone the imagination. Khodorkovsky andPlaton Lebedev have been kept in pre-trial detention, in the harshestconditions, for upwards of 22 months. They are illegally being held inSiberia (in violation of the constitution), their convictions obtainedvia fraudulent show trials, and we no longer find that any one bothersto dispute these facts.

The most notable development of 2008 is that the medicallyblackmailed former general counsel Vasily Alexanyan, who is dying ofAIDS and tuberculosis as a result of his incarceration with noconviction, has been offered bail at a price of a 50 million rubles($1.78 million) bond – which even Alexander Arkhangelsky of RIA Novostidescribes as “an outrageously high sum.” Alexanyan has seen his healthdestroyed because he declined to play a role in the state’s perversionof justice, refusing to submit false testimony in exchange for medicaltreatment. In today’s Russia, under the rule of this administration,the unwillingness to pervert justice is punished, while those willingto play along with these travesties are generously awarded.

When legal nihilism is stalled in suspended animation like this,sometimes the most important developments happen far away from thegulag and the Basmanny Court. During a recent trip to Brusselsand Paris, I accompanied Khodorkovsky’s mother, Marina Khodorkovskaya,to a meeting with the President of the European Parliament, Hans-GertPöttering. After hearing her story, Mr. Pöttering’s office issued astrong statement of support to Khodorkovsky – which contributespowerfully to similar statements made by France’s Hervé Mariton andmany others. In other news, the defense for Alexanyan won an importantcase at the European Court of Human Rights, which has now orderedRussia to release the dying prisoner.

In combination with the harsh treatment and openly cruel, falsesentences given to the Yukos prisoners, there is no longer any debateabout whether or not they are political prisoners, but rather who willbe made to come forward to be made accountable for what is happening,and accept responsibility for the investigation.

The conduct of the prosecutors in this case represents a page out ofone of the worst chapters of Russia’s history – yet we still havedoe-eyed optimists in Europe willing to forget it all for business asusual, and the so-called “realists” in Washington who only want to talkto Moscow about nuclear proliferation and Iran. Let me make thisperfectly clear without beating around the bush: if the internationalcommunity is unwilling to hold the Russian leadership accountable forthe near complete subversion of justice in these various politicalcases, Yukos and beyond, then there is little reason to expect any kindof accountability of the Russian leadership to their domesticconstitutional commitments or international treaties and agreements.Accountability and transparency are the first predicates of realism.

With regard to other countries, we are already seeing novel andimportant attempts to seek international venues to driveaccountability. For example, a group of Venezuelan human rightslawyers, representing political prisoners held in jail beyond thepre-trial legal limits, have filed a suit against President Hugo Chávezbefore the International Criminal Court of The Hague, citing Article 7of the Rome Statute. It will remain to be seen whether the ICC willopen proceedings against a sitting head of state, but it could mark avery important precedent that the global leadership must be madeaccountable for human rights abuses.

But for the moment, political cases will remain political in Russia, determined by the outcomes of disputes within the Kremlin – which are no doubt considerably shaken up by theeconomic crisis. Let’s just hope that the better minds prevail in thosefights under the carpet.