Wednesday, June 8, 2011

The Khodorkovsky Ruling: Something Fishy in Strasbourg?

The European Court of Human Rights ruled on May 31 that Mikhail Khodorkovsky, the jailed former owner of Yukos, had not proved political motivation in his prosecution on charges of fraud and tax evasion:

“While Mr. Khodorkovsky’s case might raise some suspicion as to what the real intent of the Russian authorities might have been for prosecuting him, claims of political motivation behind prosecution required incontestable proof, which had not been presented.”

The Strasbourg Court did rule that he had been illegally arrested and held under inhumane conditions and levied a nominal fine on the Russian government.

The Strasbourg ruling set off elation in Putin’s “power” ministries of justice and the procuracy. Although Khodorkovsky’s supporters welcomed the court’s rebuke for illegal arrest and inhumane conditions of confinement, no international court ruling was really necessary. Any picture of Khodorkovsky – a non-violent white collar defendant – held in a glass cage for months in a Moscow court was more than enough to prove this point.

The European Court of Human Rights exudes an aura of impartiality and stature. If we dig beneath the surface, however, we find it is a political institution that must consider member countries, like Russia. Suspicious is the fact that Russia blocked the court’s expedited review until it was guaranteed in January of 2010 that Russian judges would review complaints against Russia.

Up to that date, one third of complaints had been filed against Russia, and the Court had already found Russian officials guilty of corruption, torture and other misconduct.
Putin could not risk a similar ruling in the Khodorkovsky case.

Indeed, of the seven judges who wrote the Khodorkovsky decision, one was from Russia and another from a Russian ally (Azerbiajan) and another from Croatia. Decisions are by majority vote. There was no dissenting opinion issued.

Notably, the Strasbourg court did not review the facts of the case. It punted the football by basing its decision on fear of setting a precedent for others is a position similar to Khodorkovsky. I quote:

“The fact that Mr. Khodorkovsky’s political opponents or business competitors might have benefited from his detention should not have been an obstacle for the authorities to prosecute him if there were serious charges against him. Political status did not guarantee immunity. Otherwise, anyone in Mr. Khodorkovsky’s position would be able to make similar allegations, and in reality it would be impossible to prosecute such people.

The Court, persuaded that the charges against Mr. Khodorkovsky had amounted to a “reasonable suspicion” and hence had been compatible with the Convention, held that there had been no violation of Article 18 in conjunction with Article 5.”

It seems that Strasbourg declined to examine the facts for fear of a rash of other complaints concerning Russia, asserting political motivation. Their docket is already bursting at the seams.

As far as I can see, the Strasbourg Court is a court in name only. It has no subpoena power, does not appoint a prosecutor, lacks power to punish perjury, etc. It seems more a political forum, and it cannot afford to have its business held up by an angry Russia.

The Strasbourg court’s “incontestable proof” standard makes any judgment of “political motivation” impossible for Russia cases. How can anyone establish “incontestable proof” in a country whose own President declares it has no rule of law?

The Strasbourg Khodorkovsky ruling means that “serious charges” brought by a non-rule-of-law country establishes “reasonable suspicion” for proceeding against a defendant. In such a setting, “incontestable proof” of political motivation is an impossible standard. Political and legal authorities make individual and arbitrary judgments in each case in non-rule-of-law countries. Political motivation can only be discovered by examining the facts, where the political motivation will be carefully concealed.

In the Khodorkovsky case, there exists no “smoking gun” whereby Putin issues a written order to jail Khodorkovsky because he represents a political threat. Perhaps the Strasbourg court would not find even that “incontestable proof.”

At the time of Khodorkovsky’s arrest, taxes were levied arbitrarily based on connections, bribes, and political considerations. Khodorkovsky himself gamed the tax system when he was an oligarch in good favor. After Khodorkovsky fell afoul with Putin, Putin’s tax police placed Yukos’s tax liabilities in excess of annual revenues – a common strategy at the time to force bankruptcy. Indeed, Yukos was purchased on the auction bloc by a shadow company headquartered in shabby storefront that immediately resold Yukos’s assets to Gazprom. At that juncture, Yukos’s tax liabilities miraculously disappeared into thin air as if they had never existed.

Amid such chaos, political racketeering, and incredible chutzpah, who in the world can offer “insurmountable proof” of anything? It is hard enough to believe what had just gone down.

If Strasbourg reviews Khodorkovsky’s second conviction, they must confront something closer to “incontestable proof” of political motivation. Two court officials have gone public to state that the Moscow court decision was dictated to the presiding judge by his superiors, over his objections. But by the time Strasbourg gets to the second conviction, these witnesses will have disappeared or will recant their testimony to save their skins.

It seems as if Putin and his power ministry gang can rest easily. So far, the European Court of Human Rights has proven itself as paper tiger. Such a court might work for countries that have a reasonable rule of law, but it is citizens of the Zimbabwes, Russias, and Chinas of this world that require the protection of such an international court.

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