MOSCOW BLOG: ECHR rules Khodorkovsky charges "reasonable"

By bne IntelliNews July 26, 2013

Ben Aris in Moscow -

The European Court of Human Rights (ECHR) arrived at a long-awaited ruling on the trial and detention of Russian oligarchs Mikhail Khodorkovsky and Platon Lebedev on July 25, who are serving out lengthy but controversial sentences for tax evasion and fraud in a bleak prison camp on the Chinese border.

The ECHR came to the surprising conclusion that the charges of tax evasion and fraud were "reasonable" and not trumped-up charges as the oligarchs had claimed.

(The original press release said the charges were "sound", but as the judge didn't actually use that word the Khodorkovsky Centre, a lobbying group, got the court to retract the missive. Ironically, the centre had countered with a tweet accusing the court of having a "hidden agenda", but the linked press release seems to have also disappeared.)

The oligarchs complained to the ECRH that they were subjected to "novel and unpredictable interpretation of the tax law", but the court ruled that the application of the tax law to convict the men had been "reasonable" and had "corresponded to common sense."

This is not quite the same as saying that Khodorkovsky and Lebedev are "guilty as charged" as that lies outside the court's mandate - the ECHR can't pass judgments on the guilt or innocence of the subjects of an appeal - but this ruling is as close as it can come to saying there was nothing wrong with the charges or the interpretation of the law in their case and their subsequent sentence once convicted of breaking those laws.

Khodorkovsky and his supporters claim he is a political prisoner and the case against him is politically motivated. He clashed with Russian President Vladimir Putin shortly after the latter took office in 2000 and was widely accused of bribing deputies to support his business, especially a plan to build an oil pipeline to China, a decision the Kremlin thought was a state prerogative.

Khodorkovsky quickly found himself in hot water. First the authorities accused his Yukos oil company of tax evasion and fraud. Then he was arrested in October 25, 2003 in his plane on the tarmac of a Siberian airport by Kalashnikov-wielding special forces. Both Khodorkovsky and Lebedev were eventually convicted of the charges and sentenced to eight years in a prison camp in 2005.

The ECHR's also dismisses the claim that the charges were politically motivated. Both men pointed to the European Convention of Human Rights, which is the framework the ECHR works in, and its rules on the "limitation on use of restriction on rights". But on this point the ECHR found that there had been no violation of the Convention's relevant article in connection with the complaint that the hearing had been politically motivated.

This is not quite true. The charges were political, and clearly Putin was furious with Khodorkovsky for hijacking foreign policy, so he was taken out and his company effectively nationalised (most of it bought by the state-owned oil firm Rosneft, now one of the biggest oil companies in the world).

The politics comes into it not from how the Kremlin prosecuted Khodorkovsky, but the decision to prosecute him at all - and more specifically, its decision not to prosecute anyone else. All the other oligarchs were equally guilty of the crimes that Khodorkovsky has been convicted of.

The bottom line was at the start of last decade there was no real rule of law, as the legal system was in such a mess. There were only rules of the game. As Khodorkovsky chose to face Putin down he was accused, arrested and convicted. The irony is that all this was done quiet legally, which is the conclusion that the ECHR came to as well.

Still, while the court found the trial was not "fixed", it didn't find it was exactly "fair" either. The two oligarchs had a whole shopping list of complaints, many of which the ECHR held up.

Khodorkovsky complained that the protection of his property rights were abused by the state ordering him to reimburse Yukos' tax arrears to the state and that his lawyers had been subjected to harassment. The court agreed with him on both points.

Both men complained there were not brought to trial "within a reasonable time" as required by the Convention, but the ECHR disagreed.

Lebedev objected to being made to stand in a metal cage during his trial, which he says breaks the Convention's prohibition of inhuman and degrading treatment, and also his rights to liberty and security had been violated while in remand. The court said that his rights had not been violated while he was held in remand, but that putting him a cage in the court room was not on.

And both claimed that sending them to prison in the far-flung regions of Russia, close to the Chinese border, breaks their rights to respect for private and family life, because their wives and children can't visit them easily. The ECHR agreed.

However, most damaging of all for the Russian state was the ECHR conclusion that the two men's rights to a free and fair trial were violated. The ECRH said this was true with regards to breaches of lawyer-client confidentiality and the trial court's unfair taking and examination of evidence. The Court was damning in its criticism of the way the trial and the appeal were conducted. 

This last one basically says that despite being accused correctly as far as the charges and laws broken are concerned, the actual trial itself was not conducted in a way that was fair. In any western country this would be enough to get the sentence overturned.

The court ordered Russia to pay €10,000 in non-pecuniary damages to Khodorkovsky within three months of the judgment becoming final, but rejected Lebedev's claims for damages. The Khodorkovsky camp say this is enough for the trial to be re-examined and the men to be release, but don't hold your breath.

Mixed message but limited damage

All in all, this ruling will hurt Khodorkovsky's campaign to prove himself a victim, as it is based on the assumption that he was jailed on trumped-up charges and his arrest was politically motivated - both of which the ECHR has ruled is not the case. But it won't hurt too much, as the court also ruled that the trial was not fair.

Journalist will be left to choose which line they want to take on this story now and by the end of the day it was already clear they are going to be split down the middle between "ECHR rules Khodorkovsky trial unfair" and "ECHR rules Khodorkovsky guilty as charged."

What is so deliciously ironic is that the editors are guilty of exactly the same selective use of judgement as the Kremlin: the Kremlin didn't misuse the law, but chose to selectively apply it to only one oligarch. Likewise, the stories so far are selectively picking through the details and choosing those bit that suit the paper's line.

What makes this selective use of reporting, or at least headline writing, a bit galling is the collective amnesia that has afflicted most of the papers that cover this story. They seem to have forgotten that in the late 1990s most of them ran virulent articles and op-eds condemning Khodorkovsky and Yukos as the baddest of the bad.

The shoe was on the other foot in those days after Khodorkovsky abused the rights of his shareholders in the most egregious way. US multi-millionaire Kenneth Dart had invested tens of millions of dollars into Yukos production subsidiaries only to see his stakes diluted to nothing at fixed shareholder meetings.

Khodorkovsky engineered one of the most impressive reputation turnabouts in corporate history in 2000, which sent the stock from $0.20 to over $15 in under three years. He has been seen as some sort of martyr ever since - maybe because everyone made, then lost, so much money.

When was the last time you saw Dart's name in a Khodorkovsky story or even a line about his 1990s reputation? And it was a big story in those days. The journalists covering this complicated tale have so many blind spots they might as well be holding a colander to their faces.

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