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Russia Profile Weekly Experts Panel: Will Khodorkovsky Be Released From Prison? (Russia Profile)

June 6, 2008
Introduced by Vladimir Frolov
Russia Profile


Contributors: Stephen Blank, Ethan Burger, Andrei Liakhov, Sergey Shishkarev
In an interview with the French daily Le Monde last week, Russia’s Prime Minister Vladimir Putin indicated that former YUKOS owner Mikhail Khodorkovsky could be amnestied and released from prison if President Dmitry Medvedev found that the law allows for his release.
This is the second time following the presidential election that Putin publicly deferred to Medvedev to make a decision on Khodorkovsky’s fate. Last March, at a joint press-conference with German Chancellor Angela Merkel, Putin responded to a question about Khodorkovsky by saying that were the latter to plead for amnesty, the new Russian president would be free to make a decision, provided that it complies with the law.
This time around, Putin again emphasized that the decision would be solely up to Medvedev to make, and that Khodorkovsky’s prison conditions could be improved in the meantime, if the legal procedures for this are strictly followed.
We have also learned that Germany has been actively lobbying for Khodorkovsky’s release on humanitarian grounds, or for his transfer from a prison in Chita to a correctional facility in Moscow. During his last visit to Moscow in May, German Foreign Minister Frank-Walter Steinmeier privately met with Khodorkovsky’s lawyer to discuss possible ways of improving Khodorkovsky’s detention conditions, and his transfer to Moscow.
Khodorkovsky and his partner Platon Lebedev are serving an eight-year-long sentence for tax evasion and financial fraud. In December 2006, they were charged with laundering $7.5 billion, and are currently awaiting a new trial that could potentially land them in jail for another 10 to 15 years.    
Is the Kremlin seriously considering Khodorkovsky’s release? And if so, why now? Is it due to Western pressure, or is it because of internal Russian dynamics? How would this action be perceived in the West and at home? Would it serve to improve Russia’s image and Medvedev’s international standing? How would this affect foreign investors’ attitude? What would Khodorkovsky’s release mean for the rule of law in Russia? How would this affect future political developments in Russia?

Andrei Liakhov, Doctor of Law, Professor, London:
No way! Putin was answering a very specific question of “whose decision it is to release.” By the Constitution, it is exclusively within the president’s power to grant a pardon, and that was the correct answer. However, it says nothing about whether such a move is contemplated.   

Sergey Shishkarev, Chairman, Committee on Transport, the Russian State Duma (United Russia), Moscow:
I think president Medvedev has just answered this question in Berlin, when he said that a presidential pardon is feasible, were the internal Russian legal requirements fulfilled.
Of note, however, is Medvedev’s warning against making Khodorkovsky’s eventual release a matter of international bargaining. Medvedev signaled that attempts by Western powers to mediate on behalf of Khodorkovsky, or to put pressure on the Kremlin, would backfire and be treated by Russia as interference in internal affairs. We are no longer in a cold war, and Khodorkovsky is no Andrei Saharov.

Ethan S. Burger, Adjunct Professor, Georgetown University Law Center, Scholar-in-Residence, School of International Service, American University, Washington, D.C.:
For the purpose of disclosure, I feel that it is imperative for me to state explicitly that I have always regarded the prosecution of Mikhail Khodorkovky as politically motivated. I have always regarded him as someone who took advantage of huge loopholes in the law with respect to transfer pricing and related party transactions – mechanisms used to date by individuals who control commercial entities involved in the extraction and sale of Russian natural resources (energy, lumber, metals, etc).

Since Khodorkovsky’s and his associates’ “crimes” could not have been committed “but for” the involvement of corrupt government officials, the fact that the latter have not been prosecuted further supports the theory that Khodorkovsky was imprisoned primarily for political reasons – the nature of his sentence supports the idea that there was an inadequate legal basis for bringing charges against him. Furthermore, Khodorkovsky was denied due process in numerous ways in the course of his “trial,” and it seems as if the judges of his demonstrative trial were subject to political pressure, rewarded or publicly acknowledged for their “performances.”

The RIA Novosti news agency report that last month, numerous human rights activists and public figures, including the head of Moscow Helsinki Group Lyudmila Alekseyeva, human rights activist Lev Ponomaryov, the Russian Academy of Science member Yury Ryzhov, and president of “In Defense of Glasnost’” Alexei Simonov sent an open letter to President Dmitry Medvedev noting that “[d]uring the election campaign, [he] repeatedly stressed the importance of the rule of law in Russia” and that “[p]olitically motivated criminal prosecutions, and politically motivated convictions, are clearly at odds with the principle of the rule of law.”

The group called upon president Medvedev to pardon numerous individuals, including physicist Valentin Danilov (accused of spying for Russia’s good friend China), foreign affairs analyst Igor Sutyagin, imprisoned for allegedly passing classified information to foreign countries, even though it appears that he did not have access to such information, Mikhail Khodorkovsky and Platon Lebedev.

The President of the Russian Federation has the ability to pursue Article 89 of the Constitution, the power to “effectuate a pardon.” Russian prime minister Putin is either not familiar with the Russian Constitution, which is doubtful, or is sending a signal to the Western political and business leaders that he intends to pursue a policy of “good cop/bad cop.” Putin may not want to state explicitly that his policy for the state to control Russia’s national resources had achieved its purpose, but that a continuation of this policy may be counter-productive both politically and economically.

He can give his “blessing” to president Medvedev to elevate the rule of law in the country. If Western courts continue to apply concepts such as the “Act of State Doctrine” and the concept of “forum non conveniens” in pro forma ways, the billions of Russian dollars invested abroad or deposited in Western banks may be able to avoid any “retaliation.”

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

If Khodorkovsky is released, it is quite likely that he will be debarred from political activity.  And it will no doubt improve the foreign image of Russia and that of Medvedev personally. All this probably owes a considerable amount to Western pressure. But it signifies a change only if it is followed up with consistent reforms. 

We should not lose sight of the fact that while Khodorkovsky was no angel, his persecution was essentially politically motivated, and a decisive move towards the return of autocracy. Therefore, if he is pardoned or released, it would only have genuine or lasting political significance insofar as it leads to a genuine rule of law and to an end of “telephone justice.” There is yet no sign of any such reforms on the horizon, so one has to remain agnostic as to what this betokens for the future, if it does occur.
As for foreign investment, the situation is worse. Russia is presently squeezing out TNK-BP, making this the third time BP has been victimized in Russia, and one would have thought the company would have learned its lesson by now, but evidently it hasn’t. The new law on foreign investment is quite restrictive, so while stock market investment seems to be growing, foreign investors, especially in the many areas deemed by Moscow to be strategic sectors, should be more wary. In this context, Khodorkovsky is yesterday’s man, and today and tomorrow, autarchy and discrimination against foreign investment will triumph in Moscow.