JURIST Special Guest Columnist Robert Amsterdam, international defense counsel for Russian billionaire and former Yukos CEO Mikhail Khodorkovsky, imprisoned in Siberia for tax fraud after a controversial trial and now facing money laundering charges, says it is increasingly clear that the case against his client is political in nature…

In the Kremlin's zeal to keep Mikhail Khodorkovsky in prison and frustrate his expected release on parole this past October, prosecutors brought ludicrous new charges against him in February of last year. A sloppily-drafted indictment, replete with factual errors and clear impossibilities, seems set to be the basis for a new trial and longer prison sentence.

Meanwhile, the estimated $200 billion worth of assets expropriated and redistributed to state-owned firms during the Yukos affair are believed to be at the heart of the Kremlin clan wars that have erupted at the end of President Vladimir Putin's second term. These clan wars suggest that the much-touted stability of the Putin era may well rapidly collapse, with wholly unpredictable results.

Coupled with the incomprehensible indictment, a series of foreign legal developments in Khodorkovsky's and Yukos's favor appear to have been at least partially responsible for the delay in the launch of the new Khodorkovsky trial. With the indictment process in procedural shambles, responsibility for the case has been transferred to a newly-created investigative agency under even closer control of the Kremlin. However, the new trial is now unlikely to start until March 2008 at the earliest – even though Khodorkovsky has been in pre-trial detention since December 2006 (in a violation of Russian law, I might add).

The most important legal development of 2007 came in the form of a set of six decisions issued in August by the Swiss Federal Tribunal. This court ruled that Swiss authorities are no longer to comply with Russian prosecutors' requests for assistance concerning the Yukos affair. The Tribunal validated a series of appeals from Khodorkovsky and several of his former partners, who had asserted that helping the Russian authorities would bring about grave moral and legal injustices. The judgment cited several legal violations in the criminal proceedings against Khodorkovsky and his associates, and deemed those proceedings to be politically motivated.

According to the judges, "Switzerland would be in breach of its international obligations if it cooperated with a foreign criminal proceeding presenting a risk of treatment of an accused, particularly discriminatory treatment, which is inconsistent with minimal guarantees recognized under international law."

The Tribunal also revealed details of Russia's inability or refusal to satisfy Switzerland's requests for routine justifications regarding the Yukos-related demands of the Russian prosecutor: Russia's responses to legitimate Swiss questions were deemed by the court to be "scattered and evasive" and without credibility. This was the first time in history, outside of extradition cases, that Switzerland rejected a request to provide assistance to prosecutors from another country.

Russia's response to this series of judgments was to turn around and characterize them as "politically motivated" – a charge that no one who knows anything about Switzerland can take plausibly. More telling, shortly after the Swiss decision, the prosecutor overseeing the Khodorkovsky case was dismissed and the new investigative agency was created.

The Swiss judgment closely followed upon a judgment in a Czech court, which in July 2007 refused to allow the extradition to Russia of Elena Vybornova, who was wanted for testimony related to new charges brought against Khodorkovsky this year.

Despite an international warrant issued by Russian procuracy, the Czech court decided to protect Vybornova from the certainty of unfair treatment in the hands of Russian justice. The Czech judge presented a broad collection of evidence showing in what ways the Russian justice system has serious flaws: persons viewed as inconvenient or troublesome are jailed regardless of guilt or innocence, they are denied access to legal counsel, they are tortured or abused to extract testimonies, they are bullied into perjury, and judges are subjected to political pressure to decide cases regardless of facts or proof. Vybornova clearly had no hope for any guarantee of a fair trial, and so the court refused to allow her extradition to Russia.

In September 2007, the Lithuanian Prosecutor General's Office also decided against cooperating with Russia on a Yukos extradition case, concerning Mikhail Brudno. Laima Cekeliene, Chief Prosecutor of the Division of Judicial Cooperation and Mutual Assistance of the Lithuanian Prosecutor General's Office, stated: "Upon analyzing the materials on the Yukos case, we have concluded that this case is politicized and Mikhail Brudno has been persecuted, maybe because of other people involved in the Yukos affair, and we have decided that the charges against him are politically motivated."

Then in December 2007 a Dutch court ruled that Russia had illegally forced the bankruptcy sale of certain Yukos assets in the Netherlands. The court cancelled the validity of that sale and ordered a new auction.

Meanwhile, in a series of procedures undertaken in the United States in the latter half of 2007, courts in California and Texas have granted applications by Khodorkovsky for discovery pursuant to 28 U.S.C. § 1782. This has helped Khodorkovsky to prepare his defense in response to the new charges in light of what has now become obvious – namely, that when prosecutors were raiding Yukos in Moscow in connection with the first trial, they were not only seizing evidence, but also destroying evidence, especially any exculpatory evidence.

After nearly five years of arguing that the case against Khodorkovsky is political in nature, the truth of his defense counsels' position has been validated time and time again. Last week the respected Russian business paper Vedomosti reported that the complete political steering of the affair meant that there were essentially three most likely scenarios that could be played out. In any case, the judges will have little or no role determining the precise outcome. Rather, the precise outcome will depend upon the political options facing the Kremlin. By the time of trial, prosecutors will no doubt show up to court wearing jerseys from either "Team Rosneft" or "Team Gazprom". So transparent are the vested interests of the state-controlled companies in legitimizing their theft of Yukos assets that the prosecutors will themselves be little more than puppets acting out the Kremlin's orders.

The competing clans may not have agreed whether Khodorkovsky should be locked away for another five, ten or twenty years. In the meantime, the defense team, in the words of Yuri Schmidt, is left attempting to puzzle out the winds of change in the Kremlin to determine whether or not the phony trial against Khodorkovsky will be closed or open, in Siberia or in Moscow, short or long.

This sad farce has left not only Khodorkovsky as victim. Others, from his closest business partner to a junior member of his in-house legal department, have paid a terrible price for their proximity to Khodorkovsky. One Yukos prisoner, as reported in The Financial Times on January 15, 2008, is near death as his jailers deny him urgently needed life-saving
medications. This is the cruelty of those in the Kremlin who have illegally expropriated a company that today would be worth nearly $100 billion – and who need to assert the legitimacy of their acts through incredible abuses of state authority.

The Kremlin is reeling from the loss of legitimization that comes from the generally-shared understanding worldwide that in cases that relate to national resources or political diversity, the rule of law in Russia is honored only in its breach. The fight over assets going on in the Kremlin highlights the unfortunate probability that the May 2008 inauguration will herald a new President dangerously low in legitimacy.

With the Kremlin firmly in control of the national energy sector and fuelled by its revenues, the world has been confronted with the repercussions of the Yukos affair. A hubristic Kremlin does as it wishes, with impunity, whether domestically or internationally. For the Kremlin, law is either a pretext for the exercise of brute power, or an inconvenience to be brushed aside. What matters is power, not law.

Robert R. Amsterdam is based in London and is founding partner of the law firm Amsterdam & Peroff. He is international defense counsel for Mikhail B. Khodorkovsky, and writes a blog at www.robertamsterdam.com
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