Khodorkovsky comes out Swinging

“Legalized” Violence

By Mikhail Khodorkovsky

Nezavisimaya Gazeta

March 3, 2010

Translated from the Russian by Khodorkovsky & Lebedev Communications Center

My view of the work of our law-enforcement System and of the feelings experienced by a person who has been caught in its grindstone would be far too negative if it were based only on my own personal experience.

After all, I am a somewhat different kind of prisoner.

My adventures are taking place under the double classification of “special control” – my lawyer Yuri Schmidt happened to discover this by chance in the course of a session of the Supreme Court of the RF. And I have always been sitting under this same “special control”. Audio, video, and human. They have never placed ordinary homeless people, in jail for a break from the tough conditions of life on the street, with me in my cell.

What I am about to recount is the result of the instinctive work of an analyst (something the manager of any large entrepreneurial structure invariably is), who, over a period of nearly 7 years, has continually found himself in the thick of the struggles of our law-enforcers – both amongst themselves and against Russian citizens.

The first and most important thing that I understood already in the third month of my imprisonment was this: the ideas we have “on the outside” about how the police, the procuracy, the courts and the Federal Service for the Execution of Punishments (FSIN) [the government agency in charge of jails and prison colonies—Trans.] are some kind of independent structures are absolutely erroneous. You don’t know a thing about the System until you’ve found yourself in its claws.

The System is in essence, a single enterprise, whose business is – legalized violence. The enterprise is very large, with a huge quantity of internal conflicts and clashing interests. At this enterprise – which has both decent people and low-life scum working for it – the point is not in the quality of the human material, it’s about the very principles of the organization of the System.

The System – the conveyor belt of a gigantic plant, which lives inside a logic of its own that does not submit, in general, to any kind of regulation from the outside. If you have become the feedstock raw material for this conveyor belt, then at the end of it there is always a Kalashnikov machine-gun, i.e. a guilty verdict. Any other outcome to the processing of the feedstock by the System is regarded as a defective product. Therefore – again, in general – you should abandon the very thought that somebody someplace is actually going to be try to figure something out and get to the bottom of things in your case. No, they are not going to just let you walk off scot-free simply because your guilt has not been proven, or does not exist. This – is the overriding principle of the way the System works. Its objective – not to establish the truth, but to carry out its own internal agenda. A person? – just an object, a material required for statistical reporting purposes.

The work of the conveyor belt consists of three fundamental stages.

1. The Operative Stage – attributing some real or made-up fact to a crime and assigning a guilty party. Although it often happens the other way around – first the assigning of the guilty party, and then a search for what can be packaged as the crime.

The investigation of an economic crime (I’m not talking here about garden-variety street crime) rarely begins with a complaint from a real victim. Usually the event of the crime is found – or invented – by the law-enforcers themselves. Indeed, real victims get in the System’s way. One of the very few times when the System actually did react to complaints from swindled citizens was in the “Mavrodi case”. Mavrodi got 4.5 years for the organization of a financial pyramid of Russia-wide scale. However, the usual average term today for a person who has been charged with an economic crime and has not admitted his guilt is – 10 years.

2. The Investigative Stage – filling out all the paperwork and getting final approval of the role allotted to each of the assigned (justly or not) guilty parties.

It is necessary to note that the system as a whole is indifferent to concrete individuals and does not suffer from maniacal cruelty. If there is no personal order from above requiring that the person be thrown in jail, then the victim can simply give them what they demand from him (usually – 90% of his property) and receive a suspended sentence. Or even set up some other person as the “fall guy” who will do the time instead of himself. Assistance in redoing the necessary papers will be provided by the law-enforcement System itself. It knows how to do this. Dismissing a case? – that is a defective product, or “private interest”; it is something against which the system puts up a fight, albeit not always successfully.

3. And, finally, the Trial Stage – legalizing the decisions adopted at all the previous stages, in the course of a court procedure.

There’s an old joke: “A judge is asked a question – ‘Could you convict an innocent person?’ Answer: ‘No, never. I’d give him a suspended sentence!’”. It isn’t very far from the truth. If a case is completely hollow and there is no clear-cut order from above, then the court may give a suspended sentence, release the prisoner “for time already served” or even return the case to the prosecutor.

The “System” is built and works in such a way that a judge who actually acquits a defendant risks not only finding himself an outcast within the System, but also getting labeled as someone “questionable” or “dubious” as far as corruption goes. For the generation of judges who were raised and nurtured by this System and who feel themselves to be not so much dispensers of justice as functionaries in a certain “vertical”, this is a very real and high risk. That’s why an acquittal (if this is not a jury trial) is the stuff of myths and legends, and why the percentage of not-guilty verdicts is so paltry (0.8%).

The role of the FSIN is exclusively that of a supporting player, and can fluctuate in a range from supportive indifference all the way to active torture.

The active-torture mode can be brought into play if an order has come down from relatively high up (the level of generals), or in the form of a personal favor done by one major to another, or – if the prison brass want a little piece of something for themselves. For example, the inmate’s apartment (the most common example).

The System has an extremely disdainful and contemptuous attitude towards the law, so resting one’s hopes on the law – in the general case – is a dangerous folly. There are individual important particularities, however.

The System is very careful to make sure that the formal requirements of the Code of Criminal Procedure are properly executed:

– they may beat you, withhold medicine and competent medical treatment, abuse you boorishly or with sophistication – but they will always have you sign on the dotted line that you have been duly informed of your right not to have to testify against yourself;

– they will prohibit you from attaching documents that prove your innocence to your case file – but they will duly hand all the rest of the junk and outright forgeries that aren’t worth the paper they’re printed on to you for familiarization – once again against your signature showing that you have duly received it;

– you will very often see – both in the indictment and even in the verdict – the words “in an unestablished place, at an unestablished time, entered into collusion with unestablished persons” – but they will never neglect to duly hand this actual pile of waste paper to you.

At the same time, documents seized during searches might perhaps not be in the case file, while completely different ones – which came from who knows where – will turn up in it. And the fact of such an unconventional “document flow” will not raise even a shadow of concern on the brow of the judicial functionary. “Lawful and grounded” [a fundamental concept in Russian trial procedure rules—Trans.] – these words, like the American “How do you do?”, have long ago lost their original sense.

The only thing the System pays any attention to in the Criminal Code is the maximum terms of punishment. They aren’t going to give you more than what is due (and “what is due” for economic crimes for a “first-timer” is as much as 22.5 years, since Art. 174 (“laundering”) is tacked on to pretty much any other economic crime, which makes you “particularly dangerous”).

If somebody thinks that you can walk away from criminal punishment in the RF simply because there was no actual incident or corpus delicti, – this somebody is a hopeless idealist.

If an article of the Criminal Code mentions “without exchange for value”, while you bought the item in question for a million and so you feel you’re on safe ground, – that means you are poorly informed. An expert (for example, an employee of the MVD institute or a “freelancer” from the Procuracy-General) will have no problem appraising the item at a million one hundred thousand (or at nine hundred thousand, depending on what’s needed), and – pay attention here! – for a criminal court, the million you paid will be regarded as “without exchange for value”!! This is no joke – it is the way the law is applied in practice.

If an article of the Criminal Code mentions “against the will of the joint-stock company”, but you are the sole shareholder, so you assume that the company can not possibly have any other will besides your own, – well, our “most humane” court will help you change your profoundly flawed perception of reality. In point of fact, the will of your company is determined not by you and not by the company, but by the prosecutor.

The changes introduced to the Criminal Code articles on tax crimes at the initiative of president Medvedev have for now had little impact on the interests of the gangs of raiders-in-uniform. They didn’t exactly love these articles before this either: the terms are too short, “only” 6 years. But then the amendment to the article about collateral estoppel (a prohibition on ignoring factual circumstances previously established by courts) has stirred them into a furious outburst of loathing and an active search for ways to ignore the new law. Under threat are bribes and kickbacks valued at many billions. Especially in consideration of the rather independent position being demonstrated in recent times by the top judges of the Higher Commercial Court.

But for now, this is still just the periphery of the drama, all the more so given that even without any verdict, any investigator can “at least” offer any entrepreneur a year and a half in jail without any difficulty at all. After all, those documents that the functionaries themselves had once issued to you can at any moment be found to be unlawful (the “Rechnik” housing development being an example of this), and if the president of the country doesn’t get personally involved, then the resale, for example, of your own house can make you a “launderer”. And that means – pay attention here! – that pursuant to our humane law, you are a “particularly dangerous criminal”, and are facing 22.5 years in a strict-regime colony.

Did you really think that having your house demolished and then being slapped with a fine on top of that is cruel? Why, Yuri Luzhkov is a humanist’s humanist compared to any of the raiders-in-uniform.

Well, and finally: do you want to really give the court a good laugh? Cite a constitutional principle – the presumption of innocence. Our judicial system is not based on this principle. That is the real reason why the attacks on the institution of jury trials have gotten more frequent in recent times.

Jurors, as a rule, interpret nagging reasonable doubts – in accordance with the Constitution – in favor of the defendants, and unproven guilt they deem to be tantamount to innocence.

But every little cog in the System’s machine is convinced that just the opposite is true. If you’re innocent, then prove it – and do it while sitting in jail at that. And his confidence is confirmed every day by judicial practice – 0.8% of trials end in acquittals, and a shade more than 20 % of jury acquittals are subsequently overturned.

A judge has “no grounds not to trust what is written by a person in uniform”, while what is said by an ordinary citizen is “a way of getting away from liability”.

It is very interesting that the clear confidence of the majority of judges in the rightness of what is said above correlates with the rules of the criminal world, where the word of an “authority” carries considerably more weight than the word of a “muzhik” [an ordinary convict in the prison hierarchy—Trans.]. This is a vestige of feudal society, where the word of a nobleman was valued far more highly than the word of a commoner.

Every year, the judicial-and-police conveyor belt devours the human dignity and the fates of hundreds of thousands of our fellow citizens – who end up in jails, who are separated from kith and kin or who “simply” lose their property. Here too belong the fates of the real victims, the ones the System has no need for. Those who end up getting caught in the grindstone don’t get out without losses. The conveyor belt paralyzes with fear and destroys the life energy of millions.

But this conveyor belt is not eternal. For one thing, because every year it creates many thousands of people who loathe the System.

The question of the day now is not about the economy or about the decline in entrepreneurial activity.

The question is simple and direct:

– either the criminal conveyor belt System is destroyed, while those parts of it that any country truly does need are made to comply with the Constitution – something that will require will and decisive action on the part of the country’s top political leadership;

– or its destruction will take place in the traditional way for Russia – from below, and with the spilling of blood.

And anything at all can become the detonator of the explosion.

It can be said with confidence that the siloviki conveyor belt, which has undermined justice is truly the gravedigger of modern Russian statehood. Because it turns many thousands of the country’s most active, sensible and independent citizens against this statehood – with enviable regularity. These are the very people on whose choice depends, in the final analysis, the fate of the state.

And the results of sociological surveys are no reason to be lulled into a false sense of security. The inert majority often votes for the power, especially in conditions of a lack of democracy. A social explosion (just like social progress) is caused by an active minority – when it can no longer stand the existing order of things. 3% of the population – if that is its most active part – is the critical mass necessary and sufficient for radical changes.

The siloviki conveyor belt, in that boorishly methodical way it always seems to do things, is forging just such an anti-systemic minority today. What is strange is that Russia’s ruling elite – other than its not-very-large sensible part – seems not to be afraid of this at all. Not even its instinct for self-preservation seems to be working properly.

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