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Winter of Justice: Words and Reality

Source: hro.org (info), 02/02/11

· The Yukos Case»

Mikhail Khodorkovsky: “I have felt it necessary to address the President of Russia personally in connection with the shameful verdict of the Khamovnichesky Court. I know that my move may not meet with understanding among those of my fellow citizens who are convinced that President Dmitry Medvedev does not decide anything, and among those who consider that it is impermissible that he should interfere in the work of the courts. I want to respond to both these groups. The question at issue is not that of interfering with the course of justice, or about my own salvation. The collapse of the justice system that we can see threatens grave consequences for each and all of us, for the whole country.”

The constitutional duty of the President is to ensure the independence of the judiciary, and not just to make declarations to that effect. Therefore, I consider that when facts emerge in the most high-profile case that witness to the lack of independence of the judge, it is not only the right of the head of state, but his duty to order that there be a truly independent investigation. A recent example of an investigation ordered by the president has been that which took place in the ‘Three Whales’ case.

I would like to point out that while my conclusion about the lack of independence of the judge is far from based exclusively on the prime minister’s scandalous speech, I consider it inadvisable, however, to reveal in their entirety all the evidence I have before an investigation has been ordered. At the same time, try to explain in any other way the ridiculous situation when by a ‘court decision’ tens of millions of tonnes more oil were stolen than were produced, when the court’s ruling includes a statement of a ‘lack of trust’ regarding the fact that oil in Siberia is cheaper than in Western Europe, and so on. This is what the defence, the media and even the judge, together with some of the prosecutors, were laughing about during the course of the trial.

The President of Russia is the guarantor of the rights and liberties of citizens. The ever-worsening legal nihilism of judges, and in particular their loose interpretation of criminal law, is a blatant violation of these rights. Where might such a pseudo-judicial practice lead the country, when a court asserts that a transaction that results in the seller receiving a profit in the billions is ‘seizure without compensation’ - theft?!

An enquiry on this point in the name of the President to the Constitutional Court could once and for all put an end to the artificial criminalisation of ordinary business turnover that is widely used by mercenary officials for the purposes of corporate raiding and extortion. My petition to the court on this issue received a stock meaningless response, as have a multitude of other such petitions.

Of course, if a court fails brazenly to implement the law, and the President of the country is not able to change the situation, a constitutional crisis arises. But, fortunately, things have not reached that point yet. The experience of the commercial courts shows that Dmitry Medvedev and his team know how to start changing the situation in the courts for the better.

Much is said nowadays about the informal limitations on the powers of President Dmitry Medvedev. However, I believe it counterproductive to get into a discussion of these views. My country has a President, and his constitutional duty is to protect the rights and freedoms of citizens.

The state of the judicial system is his direct area of responsibility and he has announced it to be one of his priorities.

I am convinced that President Medvedev, as a reasonable and pragmatic politician, is aware of the real attitude of the Russian intelligentsia and of all people who are not indifferent to the evident lawlessness within the agencies of law enforcement and the court system. These people, of course, would never stoop to take part in pogroms, but it is extremely irrational and dangerous for the authorities to deepen the divide between declarations and reality yet further, and thereby show that in practice no other way is left open in the country to defend civil rights than to take to the streets. The ability to rule through the use of crude force without the trust of the people in state institutions is not unlimited.

There is no point in talking about the chances for modernization in the 21st century while ‘administrative methods’ of this kind are in use. It is hard to find a country claiming to be civilised in the 21st century, where at the same time a government official is above the law and the courts, unless we are talking about Russia. The demand for justice, human rights, and the protection of one’s own dignity in our society has reached a point where it is seeks for ways to be realized.

The judicial and law enforcement systems that demonstrate legal nihilism and their sense of impunity are leading both the brazen bureaucracy and its victim – the ordinary person – beyond the pale of the law.

Officials, including judicial officials, have growing appetites and the last remaining incentives for them to honestly carry out their official duties are disappearing. Citizens are compelled either to pay bribes or to find appropriate forms of protest. At the same time, it would be foolish to underestimate the role of the intelligentsia as a catalyst in the process of finding these appropriate forms of protest. When decent people are ashamed for their country, then there arises a sense of ubiquitous lies and of defencelessness before the bureaucrat who knows no bounds and the politician who is nothing more than a corporate raider. When it becomes obscene for a true member of the intelligentsia to serve the government, there is a profound moral conflict and a dangerously festering abscess in society. It is extremely dangerous when government institutions lose their legitimacy in the eyes of a large number of people.

In such a situation, I considered it to be my civic duty to directly address the President with a call to take steps necessary to return the judicial system to the law. I want to emphasize that I do not propose putting pressure on the courts or dictating to them. On the contrary, I propose that the courts be freed from any pressure, public or covert, and from the humiliating role of being a mere appurtenance to the repressive system and an object of manipulation by it. I propose to explain, on the basis of specific examples, that the courts are needed in order to serve justice in the interests of society, not for carrying out orders, even if they come from the very “top”.

So far as the examples of demonstrative legal nihilism are concerned in the monstrous verdict that crowned this landmark trial, they are a direct threat to the entire legal system of the country, at any rate in the realm of economic life. I gave the President just a few examples of the many possible, selecting those I believe to be especially dangerous. This might seem like the ravings of a mad person, but the court’s verdict really does state:

- that the purchase of output by the head company from its 100% consolidated subsidiaries is theft, that is, the seizure of goods without compensation, and by no other than its own shareholder;

- that the receipt by the producer of the output of a profit in the billions confirms the ‘seizure without compensation’ of this same output from these same producers;

- that the ‘correct’ price of oil in the Siberian oil fields is the price in Rotterdam (a port in Western Europe), notwithstanding even customs duties and transport costs.

All of the court’s ‘reasonings’ has been gathered on the website http://www.khodorkovsky.ru/. These include, for example, the following:

‘The decision of the commercial court lacks any assertions that the oil became the property of the Yukos Oil Company … From the decision of the commercial court it follows that the owner of the oil was the Yukos Oil Company …’ I cannot call this anything other than pseudo-legal devilry.

Or: ‘…the guilt of the defendants [for theft of oil] is confirmed by the fact that they took an active part in the creation of the vertically-integrated structure of the Yukos Oil Company’; ‘the defendants… concealed the theft they had committed … through payment of dividends [to shareholders]’; ‘the increase in the volume of oil produced by Yukos [confirms the charge, since]… it corresponded to the mercenary striving to receive ever greater profit.’

That is, while the country’s leaders invite investors and promise them a maximally favourable environment, Russian courts declare that increasing production volumes, profit, and the payment of dividends are evidence of criminal activity.

But, all things considered, Dmitry Medvedev is himself a civil lawyer, with a law degree, and should he so wish he has enough specialists to analyse the hundreds of pages of obvious and demonstrative legal heresy signed by an official in a judge’s mantle who was himself appointed by the President. What is important is something else: what happened at the Khamovnichesky court is not an exception but just the clearest and best known example of the Russian practice of extortion, unlawful redistribution of property and the prosecution of those who are considered undesirable, with the help of a mockery of a justice system. A completely shameless verdict in a high-profile public trial demonstratively lacking in credibility but with an obvious extralegal objective and a shocking 14-year sentence – what is this but an unequivocal signal and invitation to the ‘brotherhood of bureaucrats’ that anything goes?

One should not lull oneself, or the world, into a false sense of security by tales of the exceptional nature of the Yukos case (if it is exceptional, then only in terms of the scale of the disaster), nor of the presidential initiative to ban pre-trial detention in cases of economic crime. Our judicial system, hiding behind incantations about independence and the impermissibility of ‘pressure’, simply disregards any ‘inconvenient’ law. But even if they do not place you in pre-trial detention, the fee for ‘protection’ in the absence of judicial protection will undoubtedly rise in future. And as for human dignity, it is best not to even think about it. Accountability exclusively to the bosses combined with non-compliance with the law is both an indication and a benefit of the tool of extralegal repression. The right not to implement the law is bought at the price of political and bureaucratic submissiveness.

In such conditions it is clear why Russia is attractive to adventurists and embezzlers, but how can serious investors and intellectuals, for whom the whole world is open, be attracted and retained? By a multiple overstatement of the usual profit ratio? By prime ministerial personal guarantees? What kinds of methods of modernisation are these in the 21st century?

So far as I am concerned personally, then, the first ‘tax’ case, about which the President spoke in Davos, and the bankruptcy of Yukos connected with it, has already been recognised more than once by international and foreign courts as ‘discriminatory’, with an ‘unusual’ application of the law. The second case is not only absurd, but is in direct contradiction to the first, and this is already clear to everyone. Given such ‘standards of proof’, the latest sentence has no meaning at all. ‘Grounds’ for the absurd charges, for the purpose of securing an imprisonment without end, are limited only by the fantasy of the officials, and this in turn by the wishes of the bosses.

I know that Viktor Danilkin, the judge of the Khamovnichesky court, is not in the least mad. Furthermore, over the twenty months of the trial I became convinced that he is a very competent professional and a conscientious person. What kind of a choice did they present him with to force him to sign the ‘verdict’? What will his conscience do to him? What do you call people who have done this to someone? What do you call those who pretend they have not noticed what has been going on, who believe in the independence of this ‘court’ and who call the shameless piece of paper an ‘act of justice’? After all, similar things take place in hundreds of trials throughout the country.

Perhaps the time has already come to tell the authorities out loud: ‘Enough promises. Show us here and right now that there is no place for arbitrariness in Russian courts. That a person can achieve justice in them not through bribery, not through extreme forms of protest, but according to the law, as is usual in a normal modern society! That you want to protect, and are able to protect, a person and their business from arbitrariness, and that you do not use arbitrariness in your own interests.’

It was as long ago as the 4th century that St. Augustine said that a state without justice is nothing more than a band of robbers. But in the 21st century Russia deserves better. Would you not agree?

Mikhail Khodorkovsky

The author is a prisoner currently held in the Federal Pre-trial Detention Centre No. 1 of the Federal Penitentiary Service

Source:
Vedomosti

For another English language version of this text see also: Khodorkovsky & Lebedev Communications Center: The Winter of Justice: Words and Reality

 

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Rights in Russia,
8 Feb 2011, 14:02
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