May 2005 Archives
Business Week, May 27, 2005
By Jason Bush
As a Moscow court prepares to hear the Khodorkovsky verdict, his defense team and human rights advocates are seeing red
The reading of the verdict in the fraud and tax evasion trial of oil tycoon Mikhail Khodorkovsky was still continuing on May 26, and is expected to last into next week as Judge Irina Kolesnikova reads through the 1,000-page document. But no one is paying much attention to her words anymore: They repeat the prosecution's original charges against Khodorkovsky almost verbatim, ignoring the various arguments put forward by the defense. Such has been the way throughout the Yukos (YUKOY ) saga, in which Russian courts have consistently taken the side of prosecutors.
Whatever one thinks about Khodorkovsky, or the ethics and legality of his former business activities at the huge oil conglomerate he once commanded, few have any illusions left about the capacity of Russia's justice system to secure a fair trial. Procedural flaws in the case have been documented by, among others, the Council of Europe, the Strasbourg-based international human rights organization of which Russia is also a member. In a January resolution, the Parliamentary Assembly of the Council of Europe identified "serious procedural violations" that "call into question the fairness, impartiality, and objectivity of the authorities."
ASTRONOMICAL TAX. For example, in defiance of international legal conventions and Russian laws, defense lawyers have had their premises searched and documents relating to the defense confiscated. One of the most controversial steps taken during the investigation was the arrest and detention of Svetlana Bakhmina, 35, a junior Yukos lawyer accused of stealing $650 million from a Yukos subsidiary in the 1990s. Russian media have implied that Bakhmina was arrested simply to put pressure on her superior. The media has quoted police sources who promised to release Bakhmina when her boss, head of the Yukos legal department Dmitry Gololobov, returned to Russia for questioning.
Any belief in the impartiality and independence of Russian courts in the Yukos affair was compromised last year, when successive court decisions repeatedly endorsed the ever-mounting back-tax claims against the oil company. The eventual back-tax bill, $28 billion, exceeds Yukos' revenues during the period, let alone its profits -- well above any conceivable amount on which Yukos could have dodged taxes. Even the justification claimed by prosecutors, that tax havens once considered legal were in fact illegal, don't explain such astronomical sums.
Then there's the case of Alexei Pichugin, Yukos' head of security, who was convicted of murder in March. The prosecution lacked forensic evidence, relying instead on the testimony of a multiple murderer serving a long prison term, defense lawyers said. Pichugin's original trial last year was suspended and the jury dismissed, after five of the jurors mysteriously requested relief from their duties. Defense lawyers and former jurors have alleged that the judge got rid of the original jury because prosecutors knew it would not convict based on the evidence.
JURY OF PEERS? Such accusations are nothing new, say human rights activists and many legal experts, who have highlighted similar cases of questionable convictions. Last year, Valentin Danilov, a physicist, and Igor Sutyagin, a disarmament researcher, were both sentenced to 15 years in prison for espionage and high treason, after convictions for selling their research to foreign partners. Russia's powerful security service, the FSB, declared the information was classified, even though it was available from public sources.
Danilov, accused of selling satellite technology to the Chinese, received an acquittal from a jury in 2003, but had to face a retrial, after Russia's Supreme Court overturned his original acquittal on minor technical grounds. In the Sutyagin trial, both judge and jury were replaced, after the first judge to consider the case refused to try it for lack of evidence. Sutyagin's lawyers claim to have identified at least one member of the FSB among the jury that eventually convicted him.
Of course, not all Russian trials involve the FSB or alleged issues of national security. But at least 97% of criminal cases in Russia end in convictions, showing the very strong influence prosecutors invariably have on the courts. One problem is that, in contrast to Western jurisdictions, higher authorities have huge discretion over appointment of judges, the cases they receive, and even their compensation.
OFFICIAL INTERFERENCE? In Moscow, decisions over which judges get to try which cases are made by the president of the Moscow City Court, Olga Yegorova, who was in turn appointed by presidential decree in 2000. In a letter to President Vladimir Putin in March, Olga Kudeshkina, a former Moscow judge, slammed the resulting lack of judicial independence, claiming that more than 80 Moscow judges had resigned in protest since Yegorova's appointment in 2000.
Kudeshkina, who lost her job last year after complaining about pressure on judges, alleges that Yegorova interferes regularly in court decisions, acting in concert with senior Kremlin officials and prosecutors. "The present judicial system fosters gross violation of citizens' rights. The judiciary is far from being independent," she told the Russian newspaper Gazeta on Mar. 30.
The irony is that, when he first became President in 2000, Vladimir Putin promised to emphasize reform of the judicial system. And during his early years in office, he did take several positive steps in this direction. These included higher pay for judges and funding for courts, the introduction of jury trials, and updated laws, including a new code on criminal procedure and civil code.
Yet all these steps forward have now been overshadowed by the Yukos affair, which has shown that judicial independence and impartial application of the law are as far away for Russia as ever.
In the 2005 Report released by the Amnesty International, mentions the case of Igor Sutyagin as an example of an unfair trial:
In April, Igor Sutiagin, a researcher at the Russian Academy of Sciences, was sentenced to 15 years in a strict regime penal colony after an unfair trial. He had been held in pre-trial detention since his arrest in October 1999 on charges of treason. The charges against him had been so vaguely formulated that in December 2001 the first court to consider his case had observed that they were “impossible to understand”. He was accused of providing information to a foreign company but the trial failed to adequately examine his defence, including his claim that all the information was available in public sources. His imprisonment appeared to be part of an ongoing pattern of arbitrary persecution of independent scientists, journalists and environmentalists
