Political motivations drove guilty verdict of second Khodorkovsky case

Olga Khvostunova [Institute of Modern Russia]: "On the last days of December 2010 the guilty verdict in the second case of Mikhail Khodorkovsky, the former Russian oil tycoon, was announced at the Khamovnichesky Court in Moscow. For the second time the trial and the verdict raised questions not only of the state of country's independent judiciary, but also of Russia's "sovereign" democracy. The answer is quite obvious: they both failed.

Many experts agree that the first and the second trials are both symptomatic of what is going on in the Russian political system -- diminishing political freedoms, increasing corruption, controversial legal practices, suppression of opposition and critical media. Others, following public claims of the Russian Prime-Minister Vladimir Putin, believe that the Khodorovsky case is a fair trial of a former oligarch who didn't pay taxes and stole money and oil from his own company, Yukos.

Still, to see that the trials have been politically motivated, one need only to look to the facts. Mr. Khodorkovsky became a billionaire in the rough 1990s after the collapse of the USSR, snapping up state-owned oil fields and then creating one of the world's largest oil companies, Yukos. Like many Russian businessmen at the time, he gained a reputation for engaging in practices that could be viewed as ambiguous now, but at the time of initial capitalization and market formation in Russia they were merely dealings with the government. Later, Khodorkovsky reformed his business into a role model of corporate governance.

Mr. Putin became president in 2000 and soon made it clear to the class of Russian oligarchs who earned their fortunes in the 1990s that they could keep their holdings if they did not try to undermine the Kremlin. Mr. Khodorkovsky was first and last to question the terms of the deal. He delved into politics which is where he ran into trouble. In 2003 he was arrested and has been in prison since. He and his business partner Platon Lebedev were accused of tax fraud and embezzlement, and after an outrageous trial that brought attention to the case from the media all over the world, they were both convicted to 9 years in prison (later reduced to 8). Meanwhile, Yukos, once the major oil company in Russia, was dismantled, and assets worth over $30 billion were expropriated. Now they mostly belong to state-owned Rosneft. Thus, there were at least two central motives behind the Kremlin's campaign against Khodorkovsky: eliminating Khodorkovsky as a political opponent, and eliminating Yukos as a way to re-nationalize the company's assets and increase the Kremlin's power.

Overwhelming evidence that the case was politically motivated can be found throughout the whole trial process. For example: in 2003, the General Prosecutor found that there was no basis for the criminal case, still, it was reopened, notwithstanding the previous conclusion; violations of client confidentiality and the searches of Khodorkovsky lawyers and seizures of documents on illegitimate grounds; refusals to permit the summons of various government officials to furnish evidence; denial to adequate time and facilities for the preparation of the defense in the cassational appeal, and many more.

In 2005, the Parliamentary Assembly of the Council of Europe issued a resolution regarding the case: it stated that the circumstances of the case "go beyond the mere pursuit of criminal justice and include elements such as the weakening of an outspoken political opponent, intimidation of other wealthy individuals, and the regaining of control of strategic economic assets". In further notes the reference was made to the judgment (in French) of the European Court of Human Rights in the Gusinsky case of 19 May 2004, in which the Court found that the detention in remand of NTV television channel owner Vladimir Gusinsky violated Article 5 of ECHR because the applicant's prosecution had been used to intimidate him into selling off his stake in NTV to Gazprom.

Moreover, at the conclusion of the first trial of Khodorkovsky, then-US Senators Obama and Biden and current-Senator McCain co-sponsored a Senate resolution [PDF] condemning, inter alia, the manipulation of the Russian criminal justice system in the campaign against Khodorkovsky and Yukos.

In 2007, new charges of embezzlement were brought by the prosecution against Mihkail Khodorkovsky and Platon Lebedev. By the beginning of the trial three years later, 200 volumes of so-called "evidence" against the convicted tycoon were gathered to back-up the charges in the second case. Most of those -- like the stealing of all the oil extracted by Yukos in 1998-2003 (350 million tons) -- Khodorkovsky's lawyers qualified as "absurd". Russian prosecutors criminalized normal internal trade practices (transfer pricing), common for any vertically integrated oil company. Despite the second trial's manifest absurdities, the verdict was "guilty", thus increasing the imprisonment time for Khodorkovsky and Lebedev up to 14 years.

The evidence behind the political motivations of Khodorkovsky's imprisonment was bolstered in 2009. In a Financial Times interview, the former Russian Prime Minister Mikhail Kasyanov revealed details of closed-door conversations he had with then-President Vladimir Putin, who told him that Khodorkovsky had "crossed a line" by supporting certain political parties without his permission.

If there are still doubts that the Khodorkovsky case is politically motivated, here's the final detail: two weeks before the verdict was announced, Vladimir Putin in his live conversation [video excerpt, in Russian] with Russian citizens made it crystal clear that "the thief must stay in jail", quoting a line from a popular Russian TV-series. In the current Russian political environment it is the equivalent of a judicial verdict, and leaves no other interpretation as to who makes the decisions in the country."


This article was prepared for publication by Yuriy Vilner, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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