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Analysis & Opinion
19.05.10 Beseeching The Liberal
By Roland Oliphant

Former Yukos CEO and oligarch Mikhail Khodorkovsky has thrown down yet another gauntlet to the Russian authorities, challenging them to address what he says is the systemic flouting of a high-profile law introduced by President Dmitry Medvedev a month ago. The disgraced oligarch has little to gain in concrete terms from the law’s enforcement – he would remain in jail either way – but by putting pressure on Medvedev to stand by his words, he earns more “martyred saint” points and puts yet more pressure on the president to live up to his high-flown rhetoric.

It was a brief protest, but it seems to have done its job. After three days of front page headlines in the Russian press, Mikhail Khodorkovsky on Wednesday abruptly halted the “indefinite” hunger strike he began on Monday, after a Kremlin spokesperson said that President Dmitry Medvedev was “aware” of his plight. The particular plight in question was not Khodorkovsky’s imprisonment, but a court decision last week to extend his arrest in pre-trial detention by another three months to August 17.

At first glance the case is rather academic. Khodorkovsky is five years into an eight year long sentence for tax evasion, and the alternative “forms of restraint” allowed for suspects under Russian law – bail or house arrest – would simply mean his return to the ordinary prison system.

But in a letter to the Chairman of the Supreme Court Vyacheslav Lebedev, Khodorkovsky claimed that the decision violated amendments to the Criminal Procedural Code that Medvedev had personally pushed through the Parliament last month. Under the new law suspects in financial crimes are only to be detained in exceptional circumstances – if they are unidentified, have violated bail in the past, tried to escape, or have no place of residence in the Russian Federation. As such, the former oligarch reckons he should have been bailed – however symbolic that would have been in practice. “There are no loopholes,” said his lawyer Vadim Klyuvgant, “none of these apply to Khodorkovsky. This is a straight violation of the law.”

“The Khamovnichesky Court, in adopting a decision on extending my arrest on May 14, has openly ignored the changes in Article 108 of the Code of Criminal Procedure,” Khodorkovsky wrote, adding that he wanted Medvedev to “know precisely how the law that was adopted at his initiative all of a month ago is being applied – or more precisely, sabotaged – by the officials he has appointed.”

Article 108, which details how and when a judge should authorize pre-trial detention, was amended in response to the death in custody of Sergey Magnitsky, a lawyer for the Hermitage Capital fund who died in prison in November of 2009 while awaiting trial for tax evasion. But the real purpose of the law was not so much to minimize prison deaths as to remove a powerful tool of corrupt judges and those who bribe them, said Masha Lipman of the Moscow Carnegie Center.

“It’s very common in Russia to settle personal and business disputes by ‘buying justice’ – bribing judges and law enforcement officers to deal with your rivals,” said Lipman. “The changes to Article 108 were meant to do something about this practice by stripping judges of the ability to send businessmen straight to prison.” And that’s just the problem, said Klyuvant. “This so-called presidential law cut across the interests of many judges and law enforcement officers, and they are now going to try and sabotage it,” he said.

As Lipman pointed out, nothing either of the sides in the Khodorkovsky case does is apolitical, and it is almost superfluous to mention the implicit challenge to the authorities – and Medvedev in particular – in raising this issue. But whatever Khodorkovsky’s true motives, the former oligarch has latched onto a real problem. The Vedomosti business daily on Wednesday reported several cases in which judges had simply “refused to recognize the entrepreneurial activities of the accused.”

The paper cites the case of one Alexander Volkov, the general director of a company called Eurasia Logistic, who was arrested for fraud in March. But instead of bailing him when Medvedev’s amendments to Article 108 came into force, on April 30 Judge Sergei Podoprogorov (who, Vedomosti notes, also sanctioned the detention of Magnitsky), extended his detention until September.

How widespread the “sabotage” has become is unclear. Lebedev, whom Khodorkovsky addressed his letter to, has gone on record saying that there are no statistics yet available on how well it is being implemented, but claims to have ordered them to be gathered.

And since it was introduced last month it has had an impact – according to Vedomosti it has led to the release of several businessmen already. Boris Sokol, a banker accused of illegal activity, and Alexander Gitelson, a bank owner accused of embezzlement and money laundering, were both released when the law came into force, the paper reported. More recently the Moscow City Court quashed the extended detention of Natalia Grishchevich, a pension fund manager accused of bribery, and released her on bail on Monday.

The greatest victory in this episode probably goes to Khodorkovsky’s well-oiled publicity machine. He tellingly warned that if such an abuse of the law could pass in his case, it “would be replicated straight away by corrupt bureaucrats in hundreds of other ‘lower profile’ cases.” It’s not clear that he’s prevented them – but after a week of news coverage and a nod of acknowledgement from the president, the move has certainly kept his own case in the public eye.
The source
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