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Analysis & Opinion
13.03.09 Is Khodorkovsky A Present-Day Sakharov?
Introduced by Vladimir Frolov

Last week, the Russian authorities initiated new legal action against Mikhail Khodorkovsky and his partner Platon Lebedev, former co-owners of the YUKOS oil company now serving eight-year prison sentences on financial fraud and tax evasion charges. Is it justified to claim that Khodorkovsky is Dmitry Medvedev’s Andrei Sakharov? Does Khodorkovsky equal or rival Sakharov in moral status? Will the world judge Medvedev on the basis of how he treats this high-profile prisoner? How will the world watch the new trial for Khodorkovsky, and will it be looking for signals of changing attitudes in Russia?

Contributors: Stephen Blank, Ethan S. Burger, Vladimir Belaeff

Last Tuesday, preliminary hearings began in Moscow's Khamovnichesky District Court regarding the new charges brought against Khodorkovsky. The prosecution accuses him of stealing all of the oil YUKOS extracted while he was the company's chief shareholder and CEO from 1998 to 2003. In other words, the prosecution claims that Khodorkovsky stole 350 million tons of oil -- from himself.

Most observers pessimistically say that Khodorkovsky and Lebedev are unlikely to get acquitted on the new charges. Both could face up to 22 additional years in prison. The new case against Khodorkovsky coincides with the one-year anniversary of President Dmitry Medvedev's term in office. A year ago it was widely believed that, having successfully engineered the presidential transition from Vladimir Putin to Dmitry Medvedev, the Kremlin would move to release Khodorkovsky on parole, if only for the sake of good international PR. And indeed, Khodorkovsky’s attorneys tried to secure parole or even a presidential pardon for him, but to no avail.

Despite his rhetoric in regard to the great value of personal freedom, Medvedev has shown no mercy or leniency toward any of the YUKOS defendants. Some Russian commentators have argued that Khodorkovsky is turning into Medvedev’s Andrei Sakharov, whose return from exile the former Soviet Leader Mikhail Gorbachev had allowed as a signal to the outside world that the Soviet regime was indeed changing.

Along this line of reasoning, were Medvedev to allow a free and fair trial for Khodorkovsky and Lebebev in which they were acquitted, it too would send a signal to the world that Russia under president Medvedev was changing. An acquittal, the argument goes, would make Medvedev look good without forcing him to make any politically risky decisions, like granting a presidential pardon.

The new Khodorkovsky trial is receiving scant attention in Russia, however. The economic crisis clouds out all other developments for the majority of Russians, and even the stock market does not in any way react to Khodorkovsky’s news. It is hard to see how this new trial would generate public outcry or even a faint protest.

Is it justified to claim that Khodorkovsky is Medvedev’s Sakharov? Does Khodorkovsky equal or rival Sakharov in moral status? Will the world judge Medvedev on the basis of how he treats this high profile prisoner? Would a free and fair trial result in a guaranteed acquittal for Khodorkovsky and Lebedev, or would it actually keep them behind bars?

How will the world watch the new trial for Khodorkovsky, and will it be looking for signals of changing attitudes in Russia? Would Khodorkovsky’s acquittal or a new long sentence have any political significance in Russia? How would it change public perceptions of president Medvedev? Would Russia’s opposition benefit in any way from Khodorkovsky’s possible acquittal? Would Medvedev and Putin have different views on Khodorkovsky’s fate?

Ethan S. Burger, Adjunct Professor, Georgetown University Law Center, Washington, DC:

Both domestically and internationally, Mikhail Khodorkovsky lacks Andrei Sakharov's stature and integrity. Nonetheless, their treatment by the Russian and Soviet authorities have demonstrated that the Russian (and Soviet) leaderships have no compunction about the use of their countries' "law enforcement" systems as political weapons against their opponents. In a nutshell, Russian and Soviet written law has no relevance in "high stake" matters (be they economic or political), when it is being used against the interests of those who control the exercise of state power.

In 1975, academician Sakharov won the Noble Peace Prize for his efforts to promote nuclear disarmament and for drawing attention to human rights violations in his country. Previously, the Soviet authorities had named him a "Hero of Socialist Labor," as well as a winner of the Order of Lenin, the Stalin Prize, and the Lenin Prize. The Soviet authorities exiled academician Sakharov to Gorky without bothering to hold a trial, since it would have been a public relations disaster of the highest order. At the time, it was alleged that he had violated certain provisions of the Soviet Criminal Code -- but was never given an opportunity to refute the charges -- perhaps since he could have quoted the Soviet Constitution and the Soviet Union's international treaty commitments in his defense.

There is no doubt that the Russian authorities conducted what amounted to a "show trial" against Mikhail Khodorkovsky. The Russian prosecution does not usually place on the Internet a detailed description of the crimes that a criminal allegedly committed prior to trial. Clearly, such actions were prejudicial. What was surprising was the poor quality of the case presented-- it stated conclusions rather than convincing present facts.

In my view, Khodorkovsky's greatest offense was that he did not show sufficient respect for Russian president Putin, and failed to understand the president's objectives. In ancient Greece, hubris was a crime. The Russian Criminal Code does not identify either hubris or arrogance as a crime. Despite the efforts of Khodorkovsky's courageous defense team, as well as the world's human rights community, the fact that this principle was not followed did not matter.

Khodorkovsky understood that in a country that did not protect private property rights and did not observe the rule of law, those holding political power could use the state to further their own personal interests (and those of their favorites). Consequently, he looked for political allies in Russia who opposed then-president Putin's efforts to regain control over the Russian natural resources sector directly or indirectly, supported NGOs promoting human rights and the rule of the law in the country, criticized Putin's policies publicly, and did not hide his own political ambitions.

Frankly, I was surprised that when he became president, Medvedev did not press the "reset" button as a way of communicating to Russian state officials, Russian citizens, and other observers that he believed in the rule of law and Russia was entering a new chapter in its history. In light of the obvious "irregularities" in Khodorkovsky's and Lebedev’s prosecution and sentencing, I naively thought they would both be released immediately. Since I thought that president Medvedev would not want to challenge his mentor's actions, I did not expect him to admit that "errors were made."

Naturally, there would remain the consequences of the Russian government's actions toward YUKOS, Khodorkovsky, Lebedev, and similarly situated legal entities and individuals. If Russia were to withdraw from the Council of Europe, depriving the European Court of Human Rights of jurisdiction over the Russian state, it is not clear to me that Russia would have much to fear from any "blow back." President Medvedev may still have future opportunities to publicly establish his independence, even if it is consistent with a deal made with Putin and his most prominent supporters.

Professor Stephen Blank, the U.S. Army War College, Carlyle Barracks, PA:

There is clearly no legal justification for this trial, which is purely political in motivation and another sign that the forces opposed to any reform still hold sway. They want to make Khodorkovsky into a scapegoat during the crisis, and demonstrate that the problem is the greedy (Jewish) oligarchs, and not the state’s policies. They also wish to make it clear that there will be no legal reforms.

If Medvedev wanted to do something to show that there were going to be legal reforms, he might have commuted Khodorkovsky's sentence and certainly not have started a new trial. All this talk about reform and liberalism is therefore just another smokescreen of the type habitually generated by Russian officials who wish to blow smoke in the eyes of foreign observers.

In fact, politically Khodorkovsky is now the equivalent of Sakharov (but certainly not morally by any stretch of the imagination). And similarly, we can virtually guarantee that there will not be a free and fair trial, and that this will again cause an eruption of negative opinion (not that the siloviki care about it). But one should not expect that Khodorkovsky and Lebedev will be exonerated. If they were not guilty, there would not be a trial. What this trial really signifies is the elite's fear that Khodorkovsky will come back and campaign against them, so they are also attempting to lock him up for years to come.

Vladimir Belaeff, President, the Global Society Institute, United States:

First, I'd like to point out that my comments are not intended to express any opinion regarding the factual innocence or guilt of Khodorkovsky and his associates.

Regarding the attempts to draw parallels between Nobel Peace Prize laureate Andrei Sakharov and convicted tycoon Mikhail Khodorkovsky, I believe such analogies to be exceptionally maladroit, insensitive to present circumstances and possibly insulting to the memory of the great champion of human rights. Those like me, who respect the memory of Sakharov for his fearless struggle against Soviet totalitarianism, may feel rightful umbrage at what can be considered as a brazen attempt to exploit the memory of a great man in favor of an individual not exceptionally distinguished as a promoter of legality and the rights of his fellow citizens.

Before his incarceration Khodorkovsky was one of many Russian nouveau-riches, not especially known for even moderate philanthropy, and certainly not established as a defender of human rights and respect for the law. When he was tried, Khodorkovsky had access to top lawyers, used an appeals process, and enjoyed lots of international media attention. Not exactly an experience of "oppression." Before his trial, Khodorkovsky was an "overnight multi-billionaire" whose fast achievement of huge wealth would have drawn the attention of financial police in any civilized country in the world.

Khodorkovsky was indicted and convicted for financial crimes that would lead to long prison sentences in many countries, including the United States. At this writing, the notorious Bernard Madoff, having pleaded guilty to embezzling nearly $65 billion, is facing an aggregate sentence of 150 years in prison - a term much longer than the sentence of Mikhail Khodorkovsky. No hard, usable evidence has surfaced to indicate that Khodorkovsky's trial was procedurally invalid. At present, American prisons are rather thickly populated by CEOs and executives who were convicted of crimes similar to those attributed to Khodorkovsky. To propose that any trial is "free and fair" only if the accused is acquitted is specious.

Those who demand the liberation of Mikhail Khodorkovsky do not explain why Russian president Medvedev must provide any clemency. In effect, any action of this kind would again reinforce in the Russian public mind that the law treats a wealthy and influential individual differently, giving freedom to a multi-billionaire, while convicts for similar indictments who are not rich serve full sentences. Russia is slowly rebuilding respect for law, destroyed by the Bolsheviks in 1917. Any special treatment of a particular, wealthy convict would contradict the principle of equal application of laws to all citizens. The value of individual freedom recognized by all is not a license to break the law.
In the present climate of global economic crisis, many individuals everywhere - often owning great personal fortunes - are indicted for financial malfeasance. I do not think that world public opinion is favorably disposed to leniency for such persons.

Thus, to propose that Mikhail Khodorkovsky is like a present-day Andrei Sakharov for today's Russian government can be seen as degrading the memory of a true hero. It is also irresponsible to suggest that Russian president Medvedev - who swore an oath of office to execute the laws of his land - now break his oath and free a wealthy convict just to please the irrational preferences of a persistent but tiny domestic clique.
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