In two previous posts I discussed the misreporting of a court case in Russia involving two personalities in Russia’s popular music world. I also discussed the malign effects this sort of reporting has on the administration of justice in Russia. Given what I said in those posts and certain recent developments I feel it is only proper if I discuss the two most famous cases before the Russian courts. Those are the case involving the jailed Russian billionaire oligarch Mikhail Khodorkovsky and the case involving Sergei Magnitsky, a lawyer and company auditor who in December 2009 was found dead in a cell where he was being detained prior to his trial. In this post I shall discuss the Khodorkovsky case. I shall deal with Magnitsky in a later post.
Anyone who has made any attempt to follow Russian news with any attention over the last ten or so years can scarcely be unaware of the Khodorkovsky case. At the time of his arrest in October 2003 Khodorkovsky was reputedly Russia’s richest man and the owner of Yukos its largest oil company. He was arrested in dramatic circumstances by a special forces unit as his private jet was trying to take off from Novosibirsk airport. At his trial in May 2005 he was convicted of tax evasion on a massive scale. His assets including his company Yukos were confiscated by the Russian state and were used to create a new oil company, Rosneft, which is under state control
In December 2010, whilst still serving his sentence for his first conviction for tax evasion, Khodorkovsky was convicted for a second time following a second trial, this time for company fraud. The total length of his sentence for his convictions from his two trials is 14 years though the Russian authorities are currently considering his application for parole. In addition his case is being reviewed by Russia’s Presidential Council, which is due to report to the Russian President Dmitri Medvedev in the autumn. As President, Medvedev has the power to grant pardons and there is some speculation that he may eventually do so in Khodorkovsky’s case.
The above simply stated are the facts of Khodorkovsky’s case. They in no way no hint at the international furore the case has caused. From the moment of his arrest Khodorkovsky has been the subject of a stream of western reporting and commentary that has been overwhelmingly biased in his favour. He has been represented as the innocent victim of a sinister vendetta by the Russian government and by Vladimir Putin in particular who supposedly concocted charges against him and imprisoned him because of his attempts to open up the Russian political system by providing financial support to opposition parties. By doing this it is claimed that Khodorkovsky broke an agreement he and other oligarchs had made with Putin whereby Putin supposedly agreed to leave Khodorkovsky and the other oligarchs alone in return for the oligarchs’ agreement to stay out of politics. Khodorkovsky’s imprisonment is supposedly his punishment for his breach of this agreement. As for his supposed crimes, these are said to be no different from standard Russian business practice, the implication being that Khodorkovsky has been unfairly singled out or that he is innocent of the crimes of which he is accused.
This version of the Khodorkovsky case has been accepted uncritically in the west and by what passes for liberal opinion in Russia where Khodorkovsky has been represented as a martyr for his political beliefs. All the major western governments have expressed support for him. Several western parliaments have passed resolutions in his favour. Amnesty International has recently declared him a prisoner of conscience. Meanwhile the western media has campaigned relentlessly on his behalf with every single national newspaper in Britain voicing its support and with angry editorials written on his behalf in I believe all of them.
In June this thesis met its test when Khodorkovsky’s case came before the European Court of Human Rights. This Court enforces the European Convention of Human Rights of which Russia is a signatory. The Court is based in Strasbourg and is the world’s foremost court deciding human rights cases. Khodorkovsky’s application to the European Court of Human Rights was based on his claim that the case against him was politically motivated and was therefore a breach of the European Convention of Human Rights.
The European Court of Human Rights looked into Khodorkovsky’s claims, studied them in detail and deliberated. Though the European Court of Human Rights has a history of making decisions against Russia on this occasion after considering Khodorkovsky’s case in detail the judges of the Court unanimously decided to throw it out. They dismissed Khodorkovsky’s claim that the case against him had a political basis by saying that Khodorkovsky had simply not come up with sufficient evidence to prove that this was so. In its Judgment the Court also said that the case against him involved serious crimes, which is tantamount to the Court saying that he is guilty. Though the Court recognised certain procedural irregularities in the way in which Khodorkovsky had been arrested and in his pre trial detention (which unofficially had already been admitted by the Russian authorities) the Court decided that these did not detract from the overall validity of the case brought against him or his conviction and that they merited no more than a payment of compensation, which the Court assessed at 35,000 euros.
In other words the European Court of Human Rights, the court best qualified to decide the matter and a court with a proven track record of decisions against Russia, looked at the theory that Khodorkovsky is a victim of his political beliefs and that he is being persecuted for them and rejected it.
In the light of this decision I waited to see what western governments and media would say. I did not expect that they would admit that they had been wrong all along and that they had been deceived by a clever PR campaign orchestrated by a ruthless convicted fraudster and his lawyers. However I did expect that the Judgment of the European Court of Human Rights would at least merit some attention and commentary and that some lessons would be learnt.
Well I was wrong. Apart from a few perfuctory mentions when the Judgment was made the news of the decision of the European Court of Human Rights has been greeted by western governments and media with stony silence. The contrast with the round the clock commentary, ferocious editorials and loud and angry protests at the time of the verdict in Khodorkovsky’s second trial just a few months before at the end of December is astonishing. The Economist, which has been amongst the loudest of Khodorkovsky’s supporters and the most relentless of Russia’s critics and which as recently as May was publishing articles saying that Khodorkovsky’s arrest was the moment Russia took its turn towards dictatorship, has not reported the decision of the European Court of Human Rights at all. Whilst there has been a certain lowering of the volume of western reporting of the Khodorkovsky case since the European Court of Human Rights published its decision such reporting as there has been continues much as before. For example an editorial this week in the Financial Times touched on the Khodorkovsky case as if the decision of the European Court of Human Rights had never happened. Even a supposedly pro Russian commentator like Geoffrey Hahn writing on Russia Other Points of View continues to write about the Khodorkovsky case as if it was an example of what Russia’s President Medvedev has called “legal nihilism” and has managed to write a piece about the case which shows no awareness that the European Court of Human Rights decided otherwise.
Indeed Geoffrey Hahn’s article is interesting since unintentionally it reveals a western blind spot on the subject of court cases in Russia. In his article Hahn praises what he sees as evidence of growing independence on the part of the Russian judiciary. This evidence turns out to be a long catalogue of Russian court cases in which Russian courts have made Judgments he approves of. He contrasts this with the decision in the Khodorkovsky case, which he cites as an example of the old bad practice.
It cannot be said too strongly that the fact that a court system makes decisions with which we happen to agree is not a proper measure of that court system’s competence or independence. “Favourable” decisions can be procured by wrongful pressure just as much as “unfavourable” ones and it is as wrong to exert pressure to procure such “favourable” decisions as it is to procure “unfavourable” ones. This however is what the west constantly does. Had western pressure succeeding in getting the Russian courts to quash the proceedings brought against Khodorkovsky a man who we now know is a major international criminal guilty of massive company fraud and tax evasion would have walked free. That would not have been good for the rule of law in Russia. On the contrary it would have undermined it. That is the true lesson of the Khodorkovsky case.