Writing in the Moscow Times, pundit Yevgeny Kiselyov (pictured) analyzes the proceedings in the Khodorkovsky retrial:
For over a week now I have been perplexed by the fact that those monitoring human rights in Russia have not come up with an answer for the following question: Why after four years of relentlessly prosecuting the Yukos case did Moscow’s Basmanny District Court decide in favor of former CEO Mikhail Khodorkovsky on March 20?
Why has the court — the very name of which has become synonymous with selective application of the law, or simply lawlessness — suddenly granted the defense’s motion against hearing the latest charges against Khodorkovsky and his former business partner Platon Lebedev in a court in the remote Chita region?
There was another decision from the court, on Monday, that muddied the waters a bit but likely didn’t represent a change in the outcome. I will return to that later.
The fact remains that over the last four years the court has handed down dozens of rulings regarding Khodorkovsky, Lebedev and Yukos. The defense lawyers have, as a rule, challenged the actions by the Prosecutor General’s Office. The court, as a rule, has decided in favor of the prosecution. That’s why the latest decision was so surprising.
Those who prepared the proceedings moved the hearing to Chita, almost 6,000 kilometers away. This would have made it more difficult for the press, defense witnesses and defense lawyers to attend. It looked like a move to reduce publicity after the initial Moscow proceedings were accompanied by daily demonstrations and the presence of high-profile supporters.
Shifting the venue to Chita was against the law, which states that defendants should be tried either in their city of residence or where prosecutors claim a crime was committed. Nobody expected the court to allow an end run around this requirement.
Even less expected was its subsequent change of mind.
Some starry-eyed optimists might suggest the court has just decided that strict adherence to the law is paramount. But the shift is more likely linked to a comment by Yury Shmidt, Khodorkovsky’s lawyer. He said that when the court openly and repeatedly sides with the prosecution it helps the defense. The more Khodorkovsky’s rights are violated, the greater the chance he will win when he seeks redress from the European Court of Human Rights in Strasbourg.
The Strasbourg court will examine if the defendants had access to objective and impartial proceedings; whether the adversarial principal of justice was properly applied; if the defendants’ procedural rights were ignored; if the proceedings were open to the public and media; and how state-controlled media covered the proceedings.
There were clearly violations. Neither Khodorkovsky nor his lawyers was given sufficient time to become acquainted with the prosecution’s materials in the case. The defense was refused the right to introduce documents, reports by independent experts and other materials into the record of the court’s proceedings. And, as defense lawyers have often pointed out, the verdicts have been nearly verbatim repetitions — including grammatical errors — of the indictment.
It is not hard to imagine Khodorkovsky and Lebedev winning their case in Strasbourg.
Until recently, Russian authorities have maintained a very condescending attitude toward the Strasbourg court. It might have been unpleasant losing different cases in the court, but the decisions obtained on human rights violations there don’t have the power to overturn rulings from Russian courts. Telling the public that the problem is in the court’s anti-Russian bias, fanned by enemies who cannot bear to watch the country’s return to power and greatness, is also an integral part of the strategy.
But the authorities now seem to realize that decisions from Strasbourg have legal as well as political consequences. The legal consequences could roll over into financial penalties in the billions of dollars.
As a case in point, this year the European Court of Human Rights is expected to hear complaints connected with the Yukos case. A parallel process has been taking place quietly and unobtrusively. Yukos shareholders have filed a lawsuit against the Russian government demanding compensation for what was essentially the nationalization of the oil company. The amount they are suing for, $50 billion, is the largest in the history of legal arbitration.
Although the authorities are publicly silent about the case, they are taking it very seriously. They have spared no expense in hiring a major U.S. law firm, Cleary, Gottlieb, Steen & Hamilton, and bringing in top-notch Russian lawyers.
The first hearings at the International Court of Arbitration at The Hague will come at the end of the spring. The court could rule that the case is outside of its jurisdiction, which would end Russia’s problems. If it takes the case, the proceeding could stretch out for years. Imagine the difficulties for Moscow if the Strasbourg court ruled in Khodorkovsky’s favor while The Hague was still considering the unlawful nationalization complaint.
The Kremlin now has to deal with the possibility that future verdicts from Strasbourg will be used in arbitration lawsuits or criminal proceedings against the state or senior Russian officials.
This helps explain why President Vladimir Putin replaced Pavel Laptev, who ended his term in Strasbourg in disgrace, with Veronika Milinchuk, a close associate of Justice Minister Vladimir Ustinov, as representative to the human rights court. Her appointment came with the announcement that, henceforth, the country’s representative to Strasbourg will hold the post of deputy justice minister.
Ustinov has his own reasons for being concerned about the result of the proceedings in Strasbourg. After all, it was he who ran the Prosecutor General’s Office that brought criminal charges against Yukos executives, applied for warrants to conduct searches and arrests, and managed to obtain the strict verdicts it was seeking against the accused.
Taken together, all of this suggests that the looming hearings in Strasbourg might be behind the decision to transfer the trial back to Moscow.
If this is the case, we might even expect the new proceedings to be conducted in accordance with all proper procedures. Even if it adds a year to the duration of the hearings, it will be worth it. A facade of irreproachable punctiliousness will have to be maintained during the process of reaching the predetermined guilty verdict. Only then will the state have any hope of defending its actions in Strasbourg.
Monday’s decision on the legality of moving Khodorkovsky and Lebedev to Chita might introduce some confusion here. But, as a member of Khodorkovsky’s legal team explained to me, the ruling was of no real importance.
For the defense, what is important is that it has in hand a decision with greater legal bearing. This is the Basmanny District Court ruling that the investigation into the charges against Khodorkovsky and Lebedev can’t be carried out in Chita, and this ruling can only be overturned by a higher court. If the Moscow City Court upholds the decision, this supports my theory that there is a political consideration in relation to the Strasbourg Court in play. If the Moscow City Court does overturn the decision, I’m wrong, and the Basmanny District Court ruling was just a blip.
We probably won’t have to wait long to find out what the real case was.