Tuesday, December 06, 2005

Khodorkovsky To Appeal - III

Now that the YUKOS case is no longer sub judice, it's perhaps as well for those of us in the West and and in Russia who care about what has happened to Mikhail Khodorkovsky to become acquainted with the views of Khodorkovsky's Canadian lawyer, Robert Amsterdam (left). I've already posted the content of an RFE/RL interview Mr Amsterdam gave in October. Now here is an excerpt from an earlier interview, given on September 23:
Amsterdam: Let's be clear. The Russian criminal courts are problematic historically. The conviction rate in Russian courts is presently over 99 percent, particularly in cases where there are not juries, and [they are] notoriously subject to executive control -- let alone in political cases, where the control is absolutely intense. What we've seen in the Khodorkovskii case is such a complete breach of the rule of law that it is actually difficult for me to even call these courts. This is a show trial without the sophistication of the original show trials of the '20s and '30s.

RFE/RL: Does it reflect the state of the whole court system?

Amsterdam: It certainly reflects very much the state of the criminal system. The use of the cage for prisoners demonstrates a tremendous need for Russia to establish the presumption of innocence. Even though that presumption is contained both in the new [Criminal Procedural Code] and the constitution, it does not exist in fact. Judges clearly see their role as to assist the prosecutors in obtaining a conviction.

RFE/RL: Is there a proper...adversarial process between the prosecutor and the defense?

Amsterdam: No, there isn't. The European Convention of Human Rights term would be "equality of arms," and there is absolutely none. The procuracy has a virtual handmaiden in the judges who work with them. The amount of control the prosecutor is given over the process is immense. In our case, many of our witnesses were not able to testify, while the witnesses for the procurator were being led by the procurator in a way that would be absolutely impossible in a court that was balanced.

RFE/RL: You referred several times to this trial as political. Is there a way, a mechanism, to separate politically motivated trials from strictly business fraud, financial fraud related to a case?

Amsterdam: It's really something that you have to understand is a process that has to be examined from its inception. In the Khodorkovskii case, it wasn't even begun as a criminal investigation. There was no complainant. Essentially it was begun as a propaganda campaign launched by instruments of the state against Khodorkovskii. A black PR campaign. And so from its very beginnings, it didn't even look like a criminal investigation.

RFE/RL: Can you be a little bit more specific please?

Amsterdam: Yes. There was a magazine called "Kompromat," which we believe was paid for by one of the state organs which was dedicated to the destruction of Khodorkovskii's reputation. It came out in April of 2003. I call it "The Law of the Table," which means that what happened, what we were told actually happened, was that in the FSB office there was a directive to get Khodorkovskii, so they took all of the old files, everything relating to Yukos over the last dozen years, put it on a table, and tried to find those files that they could artificially resuscitate. One of the key elements in political cases often is that they normally relate to charges or incidents that are very old. And clearly in our case all of these allegations were -- many of them -- nine or 10 years old. The very Apatit privatization that formed the basis of the charges ended up by the end of the trial having been lost by the procuracy simply on the basis of the statute of limitations.

RFE/RL: In your interviews you have pointed out several times that the Kremlin is afraid of Khodorkovskii. You...referred to the authorities putting riot police in front of the court building, in the street, and intimidating those who came to show their respect and support for Khodorkovskii. And you referred to it as "fear" from the Kremlin. But fear of what?

Amsterdam: Well, essentially, I think you see it in the establishment of [the pro-Kremlin youth movement] Nashi by the Kremlin, the fact that any possible political opposition, let alone someone such as Khodorkovskii who not only has principles but at some point had the money to support those principles. Any individual like that represents a threat. The entire concept under which Mr. Putin is operating is the vertical of power. Any distortion, any movement away from that vertical seems to be crushed. He's doing that with NGOs; [he has] consistently done it with respect to television and certain other media outlets. And Khodorkovskii and Yukos are a prime example of that.

RFE/RL: But I think that Khodorkovskii was mostly involved in building civil society, rather than really strong political parties.

Amsterdam: Yes, but you have to understand that to an individual trained in the KGB, civil society and movements toward a civil society are political acts.

RFE/RL: Let's move to another aspect of the same case. I think, to my mind, it is the most tragic aspect: Svetlana Bakhmina. Are you going to protect her? Are you going to somehow move this case?

Amsterdam: Listen, I don't represent Svetlana. We talk about Svetlana all the time in every capacity we can. She is the most tragic part of the case. She is an admitted hostage. The procuracy has admitted that she is a hostage of the Kremlin. They want the former general counsel back and they are using her as a pawn to get her back. It is a terrible situation.

RFE/RL: Can you describe the state of this case at the moment?

Amsterdam: Allegedly, the procuracy is ready to take it to trial. She has been incarcerated for over nine months. She is a young mother. She was arrested at five in the morning. She was interrogated for 12 hours. She collapsed. She was resuscitated and they put her into a cell. She spent many months not even being able to speak to her children. It is a case that defies the imagination. It is just incredible to me. For essentially at its worst, some sort of economic crime relating to some shares she may have endorsed.

RFE/RL: Why is this case not in court yet?

Amsterdam: I am not her lawyer and I can't tell you that.

RFE/RL: OK, but is it the inability of the authorities to present it in court or...?

Amsterdam: I could only speculate that what she is really there for is a hostage; and when you have a hostage there is not a tremendous amount of speed to be used to bring it to trial. Plus they know it is going to attract a tremendous amount of negative attention.
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