Case Reviews

Over the course of the two show trials against Mikhail Khodorkovsky, a number of independent institutions examined the proceedings and found serious problems with the handling of his cases. Below are the summaries of these findings.

RUSSIAN PRESIDENTIAL HUMAN RIGHTS COUNCIL

About the Council

The Presidential Council of the Russian Federation for Civil Society and Human Rights is an official state consultative body established to assist the President in the exercise of his constitutional responsibilities as guarantor of human and civil rights and liberties. The Council informs, advises and drafts proposals for the President on matters within its mandate and facilitates the development of civil society institutions in Russia. This official institution of the Russian presidency was established in 1993, as Russia’s modern constitution came into force. The 40-member Council is composed of Russia’s most prominent and highly respected human rights and civil society advocates and experts.

About the Inquiry

In January 2011, in response to public criticisms of multiple abuses by state officials in the handling of the second Khodorkovsky-Lebedev case, and apparent contradictions between the outcome of the case and numerous standing judicial decisions in other cases related to Yukos, the Council elaborated plans for an independent expert assessment of the case. In February 2011, then-President Dmitry Medvedev agreed with the Council that an analytical report drawn up by an independent public expert group would be of interest in addressing public concerns about the case.

The Council’s inquiry on the second Khodorkovsky-Lebedev case was conducted by a multidisciplinary group of nine independent experts vetted for conflicts of interest and working without remuneration. The group of nationally and internationally renowned experts was constituted of six Russians and three foreigners. The foreign experts hailed from Germany, the Netherlands and the United States. This independent group was mandated to study the second Khodorkovsky-Lebedev trial for compliance with Russian and international norms, to identify trends in Russia’s judicial and law enforcement practice and to elaborate possible recommendations for reform. The subject matter of the experts’ analysis was the 689-page verdict and other official court documents. The inquiry was conducted from April to December 2011. A report and recommendations were released in December 2011.

The Inquiry’s Findings

The inquiry identified serious and widespread violations of the law, finding that there was no valid legal basis or evidence supporting the guilty verdict in the second Khodorkovsky-Lebedev trial, which ran from March 2009 to December 2010, and that the proceedings were severely marred by violations of fundamental human rights. More broadly, the inquiry found that the Khodorkovsky-Lebedev case highlighted widespread systemic problems in Russia’s law enforcement practices and judiciary. The inquiry prompted calls for an annulment of the “illegal” guilty verdict and the release of Khodorkovsky and Lebedev, and also for a series of reforms to address the systemic problems illustrated by this case.

The inquiry made the following findings in assessing the verdict, with respect to the legal and factual merits of the case and with respect to compliance with fundamental principles of human rights:

— The court’s findings about the illegality of Yukos’s business operations were categorically rejected.

— No evidence proved the allegations of embezzlement or money laundering.

— The second Khodorkovsky-Lebedev case contradicted judgments in the first Khodorkovsky-Lebedev case and in dozens of other Yukos-related cases, which have not been overturned, and which condemned the defendants to criminal liability for tax evasion and subjected Yukos to punitive taxation on oil sales.

— The defendants were deprived of the presumption of innocence.

— The court lacked competence and independence.

— Evidence favourable to the defendants was not considered or was rejected; evidence that was considered unfavourable to the defendants was of questionable relevance and admissibility.

— The prosecution was unfairly and consistently granted procedural advantages over the defence.

— The defendants’ detention in the courtroom and the conditions of their confinement on remand during the proceedings constituted inhuman or degrading treatment.

— The proceedings exceeded a reasonable time.

— The court’s interpretation of the facts and the law were unforeseeable.

— The verdict lacked coherent reasoning.

— The court failed to respect the statute of limitations.

Council Recommendations Based upon the Inquiry’s Findings

Based on the inquiry’s findings, the Council declared that the “miscarriage of justice” in the second Khodorkovsky-Lebedev case was so grave and so obvious that the verdict should be annulled through appropriate legal channels. Proceeding from fundamental requirements of the Russian Constitution and Russia’s international obligations, which do not permit convictions for acts not prescribed by criminal law, and where evidence of a crime is lacking and where due process is not observed, the Council declared it imperative that Russia’s General Prosecutor refer the case for supervisory evaluation with a view towards repeal of the verdict, and that Russia’s Investigative Committee also examine the grounds for a review of the case.

In terms of broader systemic reforms to restore public confidence in law enforcement and the courts, the Council recommend the adoption of numerous measures based upon the findings of the inquiry, including: expansion of the use of jury trials; reinforcement of measures ensuring judicial independence; protections of the right to an effective defence at trial; restriction of the broad interpretation and application of criminal law; increased certainty in the application of tax laws; removal of abusive administrative obstacles that prevent the release of prisoners on lawfully-earned parole; reduction in the use of pre-trial detention in cases of alleged economic crime; and implementation of a broad amnesty for wrongfully imprisoned entrepreneurs.

The Council’s recommendations have no judicial force and cannot compel the courts to reopen the second Khodorkovsky-Lebedev case for reconsideration.

In December 2011 and then in January 2012, Medvedev was scheduled to meet with the Council to receive and discuss the findings of the inquiry and the resulting recommendations. On both occasions the meeting was postponed, and by the time the presidency passed back to Vladimir Putin in May 2012, no substantive meeting on the Council’s inquiry on the second Khodorkovsky-Lebedev case ever occurred. At Medvedev’s last meeting with the Council, in April 2012, he accused the Council of focusing too heavily on high-profile cases, including the Khodorkovsky case, and ignoring lesser-known cases.

In March 2012, in response to public pressures and perhaps obliquely in response to the Council’s findings and recommendations, Medvedev ordered an official assessment by the prosecutor general of the legality of the cases against Khodorkovsky and several other political prisoners. Unsurprisingly, given that the prosecutor general was given less than a month to examine the cases, and that his office was engaging in a self-assessment exercise, no wrongdoing was identified.

Click here for a summary regarding the Council’s inquiry on the second Khodorkovsky-Lebedev case.

Click here for an English translation of the 400-page report issued by the Council on the second Khodorkovsky-Lebedev case.

Click here for the Council’s original documentation, in Russian, regarding the second Khodorkovsky-Lebedev case.

INTERNATIONAL BAR ASSOCIATION

About the International Bar Association’s Human Rights Institute

The International Bar Association’s Human Rights Institute (IBAHRI) is the human rights arm of the world’s main organisation of international legal practitioners, and is a leading voice in the promotion of the rule of law worldwide. It works to promote, protect and enforce human rights under a just rule of law.

The IBAHRI’s Trial Observation Findings

In September 2011, the IBAHRI released a 44-page report on the second Khodorkovsky-Lebedev trial. The report was based on the IBAHRI’s own independent observation of the trial. The focus of the IBAHRI’s trial observation was, as stated in the report, “on the quality of procedural justice displayed and practised as opposed to the substantive merits of the charges, judgment and verdict.” The IBAHRI was the only organisation that had a full‐time observer in the courtroom throughout the trial.

The IBAHRI’s report was highly critical of the numerous failings of the proceedings, concluding that “this trial was not fair”, and citing numerous legal failings and violations demonstrating that the proceedings “were incapable of producing clear proof” for a sound conviction.

The IBAHRI specifically criticised:

— the “long, chaotic, mistake-ridden and self-contradictory” indictments that made the charges unclear;

— the explicit breaching of Russian procedural law in the construction of the indictments;

— the continual amending of the indictments throughout the trial;

— the lack of “equality of arms” between the defence and prosecution in the court’s handling of trial witnesses;

— Khodorkovsky’s and Lebedev’s detention conditions, which hindered access to their defence lawyers and “militated against them being able to mount a defence”;

— the lack of trial transcripts that would have been necessary both for an effective defence and for the judge to construct a decision and sentence.

In a press release, the IBAHRI’s Co-Chair, Sternford Moyo, stated: “Russia is a party to both the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms. However, there have been a catalogue of procedural errors in the trial which cumulatively violate the rights of Mr Khodorkovsky and Mr Lebedev to a fair trial under the provisions of the mentioned conventions.” (read more)

PARLIAMENTARY ASSEMBLY OF THE COUNCIL OF EUROPE

About the Parliamentary Assembly of the Council of Europe

The Parliamentary Assembly of the Council of Europe (PACE) has been a driving force behind many developments that have shaped the Council of Europe, from the European Convention on Human Rights to the integration of the new democracies of central and eastern Europe after the fall of the Berlin Wall. The PACE Committee on Legal Affairs and Human Rights has been on the vanguard of PACE’s promotion of the rule of law and defence of human rights throughout the member states of the Council of Europe, which include Russia.

PACE Report on First Khodorkovsky-Lebedev Proceedings

PACE undertook the most comprehensive independent international analysis of the first Khodorkovsky-Lebedev proceedings, based on fact-finding visits to Russia that included communications with a range of Russian officials, with representatives of non-governmental organisations and with Russian legal experts. A report on the proceedings published on November 29, 2004, entitled: “The circumstances surrounding the arrest and prosecution of leading Yukos executives”, questioned the objectivity of the Russian authorities, highlighted numerous procedural shortcomings and stated that the proceedings appeared politically driven.

The report concluded that “the circumstances of the arrest and prosecution of leading Yukos executives suggest that the interest of the State’s action in these cases goes beyond the mere pursuit of criminal justice, to include such elements as to weaken an outspoken political opponent, to intimidate other wealthy individuals and to regain control of strategic economic assets.”

The November 2004 report was followed by a series of follow-up actions by PACE which continued to pressure Russia over the treatment of Khodorkovsky and the broader implications of the Yukos affair. These actions included Resolution 1418 (2005) on “The circumstances surrounding the arrest and prosecution of leading Yukos executives; a report published June 3, 2005 on “Honouring of obligations and commitments by the Russian Federation”, and the associated Resolution 1455 (2005); and another report published September 18, 2006 on “Europe’s interest in the continued economic development of Russia” and the associated Resolution 1523 (2006).

The PACE Committee on Legal Affairs and Human Rights rapporteur responsible for the November 2004 report was Sabine Leutheusser-Schnarrenberger, who has served twice as Minister of Justice of Germany: from 1992 to 1996 in the cabinet of Helmut Kohl and again since 2009 in the cabinet of Angela Merkel.

On May 31, 2005, Leutheusser-Schnarrenberger issued a statement on the guilty verdict in the first Khodorkovsky-Lebedev trial, in her capacity as PACE Committee on Legal Affairs and Human Rights rapporteur on the proceedings. Leutheusser-Schnarrenberger stated: “The proceedings tainted by numerous shortcomings regarding the rule of law, as well as the sentence meted out by the court constitute a merciless act of revenge against a man who has openly stood up against the policies of Russia’s President Putin.”

PACE Report on Second Khodorkovsky-Lebedev Proceedings

Attending the opening of the second Khodorkovsky-Lebedev trial nearly four years later, in March 2009, Leutheusser-Schnarrenberger stated “Whilst I do not wish to interfere in pending judicial proceedings, I cannot help feeling bewildered by the fact that the two men are again being tried for facts which appear to be essentially the same as those for which they were condemned in 2005”.

A further PACE report was published on August 7, 2009, entitled “Allegations of politically motivated abuses of the criminal justice system in Council of Europe member states”. This report highlighted persistent systemic problems in Russia’s criminal justice system, with an emphasis on Yukos-related cases. Leutheusser-Schnarrenberger, who again served as rapporteur for PACE’s Committee on Legal Affairs and Human Rights, highlighted the Yukos affair as “emblematic” of the risks faced by investors who come up against state authorities. The report described the new charges that emerged against Khodorkovsky and Lebedev in 2007 as “bizarre” and “contradictory,” and asserted that Russian authorities were waging an “unrelenting campaign” against Yukos and its executives. The report also described many of the inconsistencies in the prosecutors’ arguments as “perplexing”.

On September 30, 2009, PACE Resolution 1685 (2009) was adopted, based on the June 2009 PACE report regarding politically-motivated abuses of the criminal justice system in Council of Europe member states. The resolution cited “a number of high-profile cases, such as the second trial of M. Khodorkovsky and P. Lebedev…[that] give rise to concerns that the fight against ‘legal nihilism’ launched by President [Medvedev] is still far from won.”

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