As an attorney for Mikhail
Khodorkovsky, former CEO and a major shareholder of the Yukos oil
company in Russia, I am encouraged by the attention his trial is
attracting in the West. This week, Yukos filed for bankruptcy
protection in a U.S. court in an attempt to prevent the Russian
government from auctioning off its main assets. But many in the West
are still unaware of the many procedural violations and human-rights
abuses in connection with the case.
Mr. Khodorkovsky, who won
respect in the U.S. and around the world for his business
leadership, who embraced corporate governance, who established and
funds charitable social foundations, and who dared to openly support
opposition political parties and candidates in the "new" Russia, now
sits in Moscow's infamous Matrosskaya Tishina prison along with his
business partner Platon Lebedev. Their joint trial, on a range of
trumped-up charges, is currently under way.
Fundamental to any
constitutional democracy is the rule of law, a fair trial and
transparent judicial system, guaranteed rights of the accused and
the presumption of innocence -- all of which still are subject to
manipulation in Russia. Indeed, many of us believe that the General
Prosecutor's office and the courts are merely an extension of the
Kremlin's political will and remain convenient instruments to
intimidate and subdue critics of the state. One judge has already
been removed from a related Yukos tax case due to her failure to
conduct the trial in a manner expected by her political superiors.
There has been a concerted
effort by the Kremlin to portray the Khodorkovsky and Lebedev cases
as if they were criminal enforcement matters, based on applicable
legal standards. Of course they are not. These are cases brought for
a variety of political reasons, among them the defendants' support
for political diversity and democracy in Russia. No small part of
their "crime" was utilizing their wealth to support freedom of
speech and political dialogue, in pursuit of the vision of a
democratic, free-enterprise Russia where the rule of law permits
citizens and businesses a full opportunity to live and work freely.
In doing so, these gentlemen defied a tacit understanding that they
could keep their fortunes and stay in business if they stayed out of
Most observers in Russia and
overseas agree that this case clearly has all the markings of a
political show trial. But questions may remain in some quarters over
the validity of the charges against the defendants. Make no mistake
about it; the charges themselves are contrived, selective, and
political in nature.
The Khodorkovsy and Lebedev
cases are fraught with violations of due process and human rights --
including arbitrary detention, closed hearings, improper search, and
denial of the right to effective counsel, among other violations.
Judicial procedures during the preliminary hearings and the trial
itself have been highly irregular, ignoring the statute of
limitations, admitting inadmissible evidence, and the like. The
Russian courts have employed a Soviet-era trick of holding the
hearings in tiny courtrooms with no spare room, to keep the media
out. Since the state now controls all Russian television networks,
which are the public's main news source, there has been a complete
lack of free and fair television coverage of the trial. Finally, the
charges are poorly prepared; materials issued by the prosecution
cannot pass the test of accuracy and substantiation in an open court
session; and the bulk of the case materials are copies which cannot
be independently authenticated. This so-called evidence simply would
not stand up in a Western court. If the Russian state prosecutor,
Dmitry Shokhin, had a real case against the defendants, would he
have to resort to flimsy and faulty evidence, and ignore the rule of
law to make his case?
In fact, nearly all the
witnesses called by Mr. Shokhin have testified in favor of -- not
against -- Messrs. Lebedev and Khodorkovsky. Many of these witnesses
-- regional officials, former employees, managers, contractors, etc.
-- testified to the huge positive impact that the defendants'
business activities had on the economic and social developments of
the regions. As a result, the prosecutor was left in the awkward
position of trying to persuade his witnesses to return to the
"testimonies" given before the trial.
Fortunately, not all Russians
consider the charges against Messrs. Khodorkovsky and Lebedev to be
valid. Those with access to independent sources of information will,
along with the rest of the world, undoubtedly dismiss the trial's
outcome as a sham and a fraud.
In March 2004, the Council of
Europe in Strasburg appointed the former federal justice minister of
Germany, Sabine Leutheusser-Schnarrenberger, as Rapporteur in the
Yukos case to investigate "the circumstances surrounding the arrest
and prosecution of leading Yukos executives." Following an extensive
investigation, which included two fact-finding missions to Moscow,
Mrs. Leutheusser-Schnarrenberger presented a comprehensive report
which meticulously lists the procedural, due-process and
human-rights violations in the case. Her report also calls into
question the continuing attacks against Yukos, concluding that the
prosecution of Mr. Khodorkovsky was designed to "weaken an outspoken
political opponent, to intimidate other wealthy individuals and to
regain control over strategic economic assets."
In Russia, government-inspired
scapegoating is a dangerous and malicious tool with chilling
historical antecedents. Many Russians, as well as students of Soviet
history, cannot help but note the parallels between the
Khodorkovsky-Lebedev trial and the infamous Stalinist show trials in
1937. Neither truth nor evidence was required or presented by
Stalin's state prosecutor Andrei Vyshinsky because Stalin's trials
were political; their purpose was repression and their outcome
pre-determined, as is the case today.
Democracy demands that human
rights, political freedom, the rule of law and due process be
honored in a country to the point of permitting open political
dissent and entrepreneurial independence. The benefits of national
stability, economic efficiency, and commercial productivity are
negligible if that progress is gained by crushing hard-won freedoms.
Any return to old authoritarian policies of repression, intimidation
and unconstitutional processes undermines the historic leap forward
that Russia took when the old Soviet system was pushed aside 13
Russian authorities have
created an extremely complicated and volatile situation. Their
investigation made many procedural errors, including violating the
constitutional right to defense, that should ultimately lead to
Messrs. Khodorkovsky and Mr. Lebedev being recognized as victims of
an unfair trial.
I hope to have the chance to
argue all these facts in an open and impartial courtroom. However,
the actions of the judges so far do not hold much promise for such
an objective trial and judicious outcome based solely on the merits
of the case. What is most critical, then, is that the rest of the
world maintains the closest attention to this trial and holds
appropriate authorities accountable, for this is a litmus test for
the future of the country.
Today, Russia itself is on