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The Trial: Justice in Times of Economic Crisis

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As the first preliminary hearing of the second trial of Mikhail Khodorkovsky is being held on Tuesday in Moscow, I have been fielding a number of calls from reporters seeking to understand the context and perspective of the defense.  For those interested, I thought I would briefly publish a few of my thoughts from these interviews here before getting back to our regularly scheduled programming of debate on Russia.

First, it is important to understand that although it may share many of the same features and political characteristics, the second trial of Khodorkovsky is already set to be markedly different from the first show trial.  For one, this is the first trial to occur under the watch of President Dmitry Medvedev, whose responsibility as guardian of the Russian constitution could be permanently damaged and stained depending on the handling of this trial.  Secondly, there is the fact that Khodorkovsky has been moved back to Moscow where the trial will take place, as he should have been a long time ago in accordance with Russian law.  This change of venue represents a very positive win for the defense, and potentially indicates an important change in posture of the state. 


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Any gesture by the authorities to carry out this trial “by the books,”and observe the defendant’s basic rights to due process represents amajor change from the first trial, and one that would be welcomed (asindicated in a statement on his website, Khodorkovsky himself implied thatthis court has a blank slate to show that it can demonstrate a higherregard for rule of law, while his parents are somewhat more open aboutpinning their hopes on President Medvedev).

But let’s be clear about one thing:  Russia doesn’t get a mulligan on its unjust attempts to imprison Khodorkovsky on false charges of crimes he did not commit.  The treatment of this case in the past trial, and the legal history up until the present, has been riddled with blatant procedural violations, including but not limited to the fabrication of false testimony under blackmail (Vasily Alexanyan) which has prompted the defense to present a motion for termination of proceedings.  Among many other violations in their persecution of Khodorkovsky in the past trial and up until the present, Russia’s prosecutors have:

  • used their power of criminal prosecution on behalf of others seeking to punish Khodorkovsky, because he openly challenged the Kremlin to address corruption, he supported opposition parties and he sought 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 criminalizing and selectively attacking ordinary, widespread business practices;
  • unlawfully seized the multi-billion-dollar assets of Yukos;
  • tortured, blackmailed, threatened and jailed potential witnesses, including denying medical care to an HIV-positive detainee who refused to perjure himself by submitting to pressure to incriminate Khodorkovsky and Lebedev untruthfully, and who therefore developed terminal cancer;
  • violated the lawful procedural deadlines and limitation periods for criminal investigations;
  • held closed trials in order to be able to rely upon invariably damning alleged facts against Khodorkovsky and Lebedev as having been established by a court of law, and refused to allow Khodorkovsky or Lebedev to testify at those trials;
  • brushed aside requests for explanations of the allegations; and
  • harassed and disdainfully treated defense counsel, in some cases going as far as to impute criminal liability against them, making it difficult or impossible for them to perform their duties.

In addition to the above, there is the issue of the pure irrationality of the “new” charges.  As my colleague in Russia, lawyer Vadim Kluvgant, has told the AP:  “Talk to any normal person, a lawyer, an economist, just any normalperson — the so-called logic of this case is impossible (tounderstand).” 

Just consider the gravity of the numbers being suggested by the prosecutors.  So far many of the media publications have gotten these numbers and details incorrectly, and fail to grasp just how impossible and inconceivable these charges truly are.  Khodorkovskyand Lebedev are formerly accused of embezzling 350 million tons of the crude oilworth 892.4 billion Rubles [or $25 billion using exchange rate of 35.3rubles to one US dollar] and laundering 487.4 billion rubles [or $13.8billion using the same exchange rate] and 7.5 billion US dollars [the $amount provided by the prosecution] of proceeds from the sale of thesame oil; and of embezzling shares (stocks) of the subsidiaries ofYukos worth 3.6 billion rubles [or $102 million using the same exchangerate] and of laundering of the embezzled shares in this same amount;These figures imply that they allegedly embezzled the entire oilproduction of Yukos subsidiaries over a six year period, and thenlaundered the majority of the proceeds – without being caught by independent auditors or anyone else until today.

These allegations are not grounded in law, not supported by evidence, and are internally contradictory. Indeed, the allegations are absurd, and completely refuted not only by defense evidence which investigators refuse to admit into the case file, but also by common-knowledge facts that are obvious and undisputed.

Lastly, I place a lot of emphasis on what this trial means for Russia’s future – not only in terms of the international court decisions which have amped up the pressure, but also with respect to whether or not the current difficult global economic circumstances will have a positive impact on civil society, rule of law, and justice in Russia.  MBK himself has commented on the indications that positive changes may be underway in Russia, with slightly more breathing room for the opposition seeking to have a voice in the solution to this crisis.  Indeed, with a new government in Washington and potential breakthroughs in the relationship seemingly within reach, what happens in this case is going to provide a clear sign of which direction Moscow is headed – toward justice and the responsibility of true global power, or away from the normalization of its international relations toward the status of a pariah state.

Up until the present, this case has been characterized by the exploitation and abuse of the Russian criminal justice system toward personal political and mercantile ends, away from the public good, motivated by reasons alien to justice and fair trial principles.  It will be upon the authorities of the Russian Federation to decide if this manipulation of the courts was an abberant mistake that the justice system is capable of recovering from, or whether we are dealing with a willful and systemic failure of the state model. 

As Khodorkovsky has recognized in his statement, “it’s always darkest before dawn.”