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RA in The Diplomat: A Trial that Should Not Be Happening

The following by-lined article by Robert Amsterdam was published in the latest edition of The Diplomat magazine, pages 23-24.  Download a PDF here.

A Trial that Should Not Be Happening

International lawyer Robert Amsterdam on his defence of Mikhail Khodorkovsky in one of the most high-profile trials in modern Russian history

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When the Russian authorities first decided in 2003 to detain the country’s most successful businessman, Mikhail Khodorkovsky, on charges of tax evasion and money laundering, special attention was paid to the importance of public spectacle. In a scene reminiscent of a Hollywood action film, dozens of armed men laid siege to Khodorkovsky’s private jet on an isolated and snowy Siberian runway, as though their target were a dangerous terrorist rather than a mild-mannered entrepreneur on his way to give a university speech. The theatrics intensified during subsequent months as the first trial of Khodorkovsky mounted, with prosecutors doing their best to portray the former chairman of Yukos (once Russia’s largest oil producer) as the original Bernard Madoff, thus tapping into the Russian public’s widespread distrust of success and wealth.

In the end the efforts to frame Khodorkovsky failed, thanks in no small part to a series of highly discriminatory and selective actions undertaken by the state prosecution which carried the case beyond any plausible legal explanation, transforming this Kremlin fantasy of the ultimate white collar criminal into the country’s most well-known political prisoner. Now, with Khodorkovsky about to face fresh charges at a second trial, his case is widely seen as the most high-profile example of both the degeneration of Russia’s legal system and a continuing erosion of the state’s commitment to democratic values.

Contrary to popular belief among many Russians, this is not an enviable position for their country to be in. The very idea of carrying out another ‘show trial’ – after the first had been roundly denounced by the Council of Europe and the highest court of Switzerland, among other respected foreign institutions – shows a new level of disregard for due legal process. If this is yet another Hollywood production brought to you by the Russian prosecutors, then they are making it increasingly difficult for the audience to suspend its disbelief. It is important to recognise that although the ew trial of Khodorkovsky may share many of the features and political characteristics of the previous one, some aspects will be markedly different.

For one, this time Khodorkovsky’s trial will play out under the watch of President Dmitry Medvedev, who succeeded Vladimir Putin as official guardian of the Russian constitution in 2008 (Putin currently holds office as Prime Minister). President Medvedev has elsewhere spoken of the need to reform Russia’s judicial system and, more broadly, has said of Russia’s development that ‘freedom is better than non-freedom.’ In addition, Khodorkovsky has now been moved from the far reaches of Siberia back to Moscow, thus ending a geographical banishment which was in fact illegal under Russian law. This change of venue represents a win for the defence and might indicate a positive change in attitude by the state; indeed, any sign that the authorities are prepared to act ‘by the book’ and observe the defendant’s basic right to due process would be a welcome change from the experience of the first trial. In a statement on his website, Khodorkovsky himself expressed hope that the new court will work from a blank slate to show that it can demonstrate a higher regard for the rule of law.

However, and notwithstanding these grounds for optimism, we should remain clear about one thing: the Russian authorities are, for a second time, using unjust and illegal means in an attempt to imprison Khodorkovsky for crimes that he did not commit. Some of the allegations even invent crimes that do not exist. Both during the first trial and its subsequent legal history, the case against Khodorkovsky has been riddled with blatant procedural violations, including – to cite just one example – efforts by prosecutors to extort false testimony from Vasily Alexanyan in exchange for medications he desperately needed to slow the onset of AI DS and terminal cancer. (Dirty games such as these prompted the defence to present a motion for termination of proceedings.) Among many other violations in their persecution of Khodorkovsky, both during the first trial and up until the present, Russia’s prosecutors have:

• Used their power of criminal prosecution on behalf of others seeking to punish Khodorkovsky for political reasons – namely, that Khodorkovsky openly challenged the Russian leadership by opposing corruption, supporting opposition parties and seeking to develop the Russian energy industry along lines not welcomed by certain state officials;

• Invented bases of criminal liability that simply do not exist in Russian law, thereby criminalising and selectively attacking what are in fact ordinary and widespread business practices;

• Unlawfully seized the multi-billion-dollar assets of Yukos;

• Violated lawful procedural deadlines and limitations periods for criminal investigations;

• Held closed trials in order to establish invariably damning ‘facts’ against Khodorkovsky and his partner Platon Lebedev and refused to allow either defendant to testify at these trials;

• Brushed aside requests for explanations of the allegations;

• Harassed and disdainfully treated defence counsel – in some cases going so far as to impute criminal liability against them – in order to hinder their performance.

Above all, there is the issue of the pure irrationality of the current round of allegations. As my colleague in Russia, lawyer Vadim Kluvgant, told the Associated Press: ‘Talk to a lawyer, an economist, [or] just any normal person – the so-called logic of this case is impossible [to understand].‘ So far many media publications have not reported the actual figures and details underlying the allegations being made by the prosecution, thus failing to grasp how fantastical they are. Khodorkovsky and Lebedev are accused of embezzling 350 million metric tons of oil, worth over $25.4 billion, and ‘laundering’ over $21.4 billion in revenues, which would imply that they somehow managed to embezzle the entire oil production of Yukos and its subsidiaries over a six-year period and ‘launder’ the majority of the proceeds, all without being caught by independent auditors. These accusations, aside from having no proper basis in law, have been completely refuted not only by the defence’s evidence – which investigators refuse to consider as part of the case file – but also by common-knowledge facts.

Significantly, the new trial will take place in different political and economic circumstances. Russia’s leaders were taken by surprise by the global economic crisis, which has since exposed the vulnerability of the Russian economy and, in doing so, highlighted their own failure to diversify it away from a dependence on raw materials exports. The economic crisis could yet turn into a political crisis as social discontent grows and the government struggles, in the absence of robust political institutions, to cope with a declining revenue base. If this happens – as many Russian political analysts predict it will – the net result is likely to be increased divisions within the ruling elite, and the Khodorkovsky trial might therefore represent an important litmus test as to where Russia’s leaders intend to take their country in terms justice and the rule of law. Corruption levels in Russia have spiked during recent years: according to Transparency International’s Corruption Perceptions Index, in 2000 Russia was listed in 79th place; in 2008 Russia had slipped to 147th alongside Bangladesh, Syria and Kenya (below even Ukraine, which occupied 134th place). This statistic is symptomatic of an overall deterioration of the investment environment that is deterring both domestic and foreign businesses – which can no longer count on a consistent application of commercial law or the fair exercise of powers of criminal prosecution – from investing in Russia’s future.

The Khodorkovsky case will also impact Russia’s relationship with the US and Europe, both of which are trying to find new ways to build relations with Russia since the policies of ‘engagement’ and ‘containment’ lost their relevance. But Russia cannot have its cake and eat it: politically-driven manipulation of the courts at home is inconsistent with Russia’s efforts to develop a new rules-based international order and will further isolate the country and fuel mutual distrust in its relations with the West.

Until recently, the Khodorkovsky case has been characterised by the exploitation and abuse of the Russian criminal justice system for personal, political and mercantile ends – considerations of the public good or the principles of justice and the rule of law have been scarcely evident. It is now incumbent upon the authorities of the Russian Federation to decide whether the previous manipulation of the courts was an aberrant mistake, from which the judicial system is capable of recovering, or whether we are dealing with a wilful and systemic failure of the state model. As Khodorkovsky himself has famously said, ‘It is always darkest before dawn.’