A Jail For A Thief. A Thief For A Jail. (A Reflection On The Verdict In The Khodorkovsky & Lebedev Trial.)

There doesn't seem to be any common ground between critics and supporters of the guilty verdict in the trial of Mikhail Khodorkovsky and Platon Lebedev.  (I feel obliged to at least mention Lebedev, if only once, in this piece.  Hey, the man was accused of the same crimes as Khodorkovsky and got exactly the same punishment.  Yet, in contrast to his superstar co-defendant, no one in the West calls this guy with a typical Russian surname a "political prisoner", nor suggests that his arrest in 2003 was a "watershed moment" in contemporary Russian history.)

Speaking of the verdict's critics, the West's obsession with Khodorkovsky has long struck me as a cultural phenomenon of sorts.  I could in principle contemplate Khodorkovsky as being a "prisoner of conscience" — depending, of course, on how you define "conscience" (or lack thereof).  Yet comparing Khodorkovsky to Andrei Sakharov, as Jackson Diehl of the Washington Post recently did, should insult anyone who knows what the great Sakharov stood for.  And awarding Khodorkovsky with the Rainer-Hildebrand medal "for non-violent commitment to human rights" simply borders on insanity.  (I'm just curious: is there a medal/award  for a "violent commitment to human rights"?)  Moreover, if the recent performance of the clowns from the Nobel Peace Prize Committee is a prediction of their future actions, then Khodorkovsky will undoubtedly top the list of contenders for this year's Nobel Peace Prize.

Khodorkovsky's fans maintain that he was convicted on "trumped-up charges" and that the real reason for his persecution was his support for "opposition parties" in Russia.  I'm not a lawyer, but after having read a 2006 legal opinion written by Peter Clateman, I remain convinced that the charges against K&L were real and proved by documents.  So before I listen to the "trumped-up charges" argument, I'd like anyone with more legal experience to please explain to me why Mr. Clateman's analysis is wrong. 

(The often made claim that the Khodorkovsky case was one of "selective prosecution" doesn't make me cry, either.  Sure, every prosecution is selective, and this selectivity reflects the ability of any state to prosecute only as many cases as it has the resources for.  It's outside the frame of this post to discuss cases of "selective prosecution" elsewhere, but even in the U.S., it's not unheard of that among many potential criminal investigations, the prosecution unmistakeably selects the one involving a big name.  The 2004 Martha Stewart's ridiculous stock trading case immediately springs to mind.) 

As for Khodorkovsky's "real crimes", I'd recommend for all those interested to re-read a five-part investigative report published by Izvestia in 2006, titled "What is Mikhail Khodorkovsky sitting for?" ("За что сидит Михаил Ходорковский", Part 1, 2, 3, 4, 5).  The Izvestia report makes it abundantly clear that those believing that Khodorkovsky was supporting "opposition parties" are either ignorant or have a passion for "trumped-up" evidence.  True, during the 1999 Duma election campaign, Khodorkovsky supported the liberal Yabloko, a perennial "opposition party" due to its constant poor election performance.  But he also financed the Communists (calling them "opposition" is somewhat awkward given that at the time, the KPRF had the largest faction in Duma) and pro-Putin Edinstvo (Unity).

Such a diversified investment had nothing to do with Khodorkovsky's ideological flexibility: he didn't fund "opposition parties"; what he was funding was the so-called Oil Lobby, a group of Duma deputies belonging to different parties that were successfully promoting legislation favorable to Khodorkovsky's YUKOS.  According to different calculations, the Oil Lobby consisted of between 100 and 200+ Duma deputies (of 450 total) and was headed by a Vladimir Dubov, who happened to represent the ruling, pro-Kremlin and pro-Putin, United Russia party.  Funding "opposition parties" indeed!  (After Khodorkovsky's arrest in 2003, Dubov suddenly aborted his brilliant legislative career and emigrated to Israel.)  

Turning now to the supporters of the guilty verdict, I must say that I don't share their glee, either.  Sure, I agree with Gleb Zheglov and his admirers that "a thief should sit in jail."  The question is: for how long?

It goes without saying that a guilty verdict in a criminal case will serve its purpose of a public message only if this verdict can be understood by ordinary citizens.  No, I'm not talking about legalities such as "fraud", "tax evasion", and "embezzlement."  But people should be convinced that a thief goes to jail because he is a thief.  That's why the guilty verdict in the first K&L trial was generally accepted as fair.  The very reason Khodorkovsky's supporters kept talking about "selected persecution" and his support of "opposition parties" was because they couldn't challenge the legal basis of his conviction.  Because deep down, they knew that Khodorkovsky was a thief.

The second trial is different exactly because it's difficult to understand which crime has been punished.  Khodorkovsky has been in jail since 2003 and obviously couldn't committ any additional crimes.  Even if a difference between "tax evasion" and "embezzlement" does exist, why weren't these embezzlement charges brought forward during the first trial?  Because the prosecution was in a hurry?  Or because people pushing for the trial believed that Khodorkovsky's eight years in jail will last forever?  But bringing these charges now doesn't make any sense to a common person like me.  It's like saying: "Sorry, guys, we did a sloppy job in 2005 and we want to correct this mistake.  So, please, sit in jail for a few more years."

Therefore, the major problem with the second K&L trial, as I see it, is that it undermines the legitimacy of the first.

Up until now, President Medvedev didn't "own" the K&L trial: he didn't initiate it, he didn't support it, and he didn't benefit from the YUKOS destruction.  For as long as Khodorkovsky was serving his first prison term, Medvedev could safely deflect all the inquiries to his predecessor.  Now, things have changed.  The long shadow the guilty verdict in the second trial has cast upon Russia in the eyes of the world public opinion is Medvedev's problem now.  And he has to do something about it.

Khodorkovsky is a thief and will remain one for the rest of his life, regardless of whether he's in jail or not.  But Russia doesn't have to look like a jail to the rest of the world. 

About Eugene Ivanov

Eugene Ivanov is a PMI-certified Innovation Management Consultant who helps organizations increase the efficiency of their internal and external innovation programs.
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16 Responses to A Jail For A Thief. A Thief For A Jail. (A Reflection On The Verdict In The Khodorkovsky & Lebedev Trial.)

  1. Mark says:

    Excellent post, Zhenya. Although I’m in the glad camp, it’s not because I personally hate Khodorkovsky, even if he is a thief. A large part of it is the smackdown to the simpletons like Diehl, who want to raise statues in his memory and commission Barbara Streisand to sing selections from “Yentl” outside his cell window (if he has a window. Some of them have an agenda, much of it incorporating a hatred of Putin and therefore a doglike adoration of anyone who stands against him, even if the aim was personal gain. Others are just sheep, who follow the banner of stamping out oppression even where it isn’t present, just to be part of something. But the truly russophobic thought Khodorkovski would have made a great leader in a political role himself, in Russia. What twaddle! All he cared about was getting richer and more powerful. He only stayed in Russia as long as he did because the sloppy anti-corruption laws offered the best chance of achieving his aim; it certainly wasn’t because pelmeniy makes him tear up.
    As to the second verdict, I’ll wait to see a legal analysis, hopefully approaching the excellence of Clateman’s, and make up my mind then. It is not at all unusual for a sentence to be based on new or more conclusive evidence, and a more pertinent question than, “why wasn’t he charged with embezzlement the first time” might turn out to be, “why wasn’t he given 14 years the first time”? We’ll see.

  2. Igor says:

    Solid summary, Eugene – especially the part about Khodorkovsky’s political “investment” strategy – IMHO.
    So, you want him out? You feel that there is a Human(with the capital letter) somewhere deep inside Misha, The Capitalist(him), who deserves it? Well, a point of view one has the right to have. Very Christian too. Although, in broader terms, to let him out will be an indirect statement of official approval/(acceptance of legitimacy)of the whole 90s period. I think there are (political) costs in this too.
    I hear other(reasonable) people also saying that the second trial was a mistake – something you mentioned – “if to prosecute – then everyone else”.
    I tend to agree (with you too) that the second trial was a political mistake – they should have tried someone new – there are still plenty who are still not in the family (-ies) 🙂 Maybe Luzhkov. But to jail “EVERYONE else”? One needs a revolution for that to happen.

  3. Eugene says:

    Thanks Mark,
    I actually agree with most of your points. I know that “it is not at all unusual for a sentence to be based on new or more conclusive evidence.” As I argued on your blog, if we have a killer who’d killed 5, and now we discover that he’d killed 5 more, there is every reason to open a new case. But so far, I saw no evidence of a NEW crime; it’s a REVISITED case of tax evasion/fraud/embezzlement over the same oil.
    Yes, exactly, he should have been given 14 in the first trial. And that’s my major problem with the second trial: it tells me that the first wasn’t quite right. And I feel disappointed because I trusted that in the first trial, the justice spoke.
    p.s. We’ll definitely talk about this more elsewhere.

  4. Eugene says:

    Well, Igor, there is no shame in being Christian, is it?:)
    No, I see nothing “human” (even with the small “h”) in Misha. No, I don’t want him out: he still has some time to serve. But yes, I want him out when he’s done. And I hope I made it clear enough that my concern isn’t about him but about Russia’s image and future too.
    You’re making excellent point about legitimacy of the 90s. Exactly, IMO, his first trial was about that. But we’re already in ’10s. It’s time for the country to move on.

  5. kujer says:

    But I, as a Russian living in Russia, I would like to Khodorkovsky sat in jail for as long as he and his lawyers will hide behind the “political dimension” of the court. If he will rot in prison – a fate of stubborn.

  6. Eugene Ivanov says:

    Dear Kujer,
    I’m not a Khodorkovsky fan, to say the very least. However, I believe that at certain point, Russia should conduct a cost-benefit analysis of sorts and decide what is costlier: to keep Khodor in jail at the price of spoiling relations with, say, Germany — or let him go because as a free man, he’s not interesting to anyone in the West.
    I would vote for the second option. That’s it, nothing personal.
    Best Regards,

  7. kujer says:

    Khodor should sit in jail. It’s not fair, but the lesser evil. Otherwise, above the law in Russia will be those who can influence Western public opinion. Half of the perpetrators call themselves politicians and the judiciary finally cease to be.

  8. Leo says:

    Like it or not Khodorkovsky has unwillingly become a symbol of Russia’s modernization. Sorry to repeat banalities here, but his continuing incarceration means the following for direct investment in Russia:
    – Small/medium size business will not open shop in Russia. If K’s well greased PR and defence machine cannot prove anything in court, a lucid small guy would fear going belly up if run afoul with the government.
    – For large transnational corporations – they would expect to take a loss if their local partners run afoul with the government. Forget long-term projects then, just snatch and run ones in raw materials extraction.
    – Oligarchs – the message is “we’ve got something on every one of you, so behave and do as told”. It is then hardly surprising that building yachts and acquiring sports clubs are safer activities for these people than investing in Russia.
    – On a positive note, there are still JV opportunities with Russian companies under partial or full government control (like the recent BP deal). Optimism here can be based on hopes that the government won’t run afoul with itself. But this again is limited to natural resources. Investment in high-tech is inherently long-term, limitations described above.
    So, with the latest conviction of K and L these issues have been swept under the rug once again. They will not go away and their unresolved status simply arrests Russia’s development into a modern economy. If one is to do a cost benefit analysis, I really don’t see a benefit of K’s imprisonment. Markets can grow and shrink because of perceptions and in that sense 2003 indeed was a turning point for Russia’s economy.
    Best wishes,

  9. Eugene Ivanov says:

    Hi Leo,
    Happy to see your comments. Without them, the whole discussion looked somewhat unfinished…
    My cost-benefit analysis brings me to exactly the same conclusion: there is no net benefits of ADDITIONAL K&L imprisonment. Please note that up until October 2011, they still serve their first term.
    I’m not sure that small/medium size business will suffer any more than it suffers now. In your opinion, will freeing K&L stop the pervasive corruption that chokes the small business? Hardly.
    As for oligarchs, Prokhorov, Potanin, Vekselberg still invest a lot in Russia. But they don’t mess in politics. Here we go.

  10. MBK Center says:

    I will take it for granted that most readers here probably are not going to change their mind about the Khodorkovsky case, but in terms of your question (“I’d like anyone with more legal experience to please explain to me why Mr. Clateman’s analysis is wrong”), there are quite of a lot of facts being ignored in making your conclusion.

  11. donnyess says:

    “Russia should conduct a cost-benefit analysis of sorts and decide what is costlier”
    He’s a scare-crow else he’d be dead by now…right?
    The more evil people that get exposed and scared off the better. Anybody who has the money to invest knows perfectly well what the story is…deal with the risk and move prudently on whatever opportunities present themselves. NATO is a much bigger SWOT factor than some jihad goon from the 90’s with a raging nut-job fan base in NY or LA.

  12. После того как я прочитал Вашу статью, мне пришло в голову одно предположение, которое скорее всего не отражает действительности. Давайте представим такую ситуацию, в которой Ходорковский имеет некоторых ныне действующих высокопоставленных политиков, в качестве соучастников своих преступлений. Вот как его судить за эти преступления не привлекая к уголовной ответственности этих действующих политиков. А если эти соучастники преступной деятельности Ходорковского ещё и важные соратники Путина. Выход только один, представить суду ложные доказательства и предъявить Ходорковскому несовершённые им преступления.
    Такая вот теория у меня родилась…

  13. Eugene Ivanov says:

    Уважаемый г-н Фадеев,
    Спасибо за Ваш комментарий. Я бы все же Вашу теорию назвал гипотезой, поскольку для теории нужны факты, а у Вас пока одни только намеки. А гипотеза хороша, спору нет. Тогда почему бы Вам не назвать этих людей из окружения Путина, которых надо судить вместе с Ходорковским? Мне, например, жутко любопытно.
    И вот еще что странно. Ходорковский из тюрмы направо и налево раздает интервью иностранным СМИ, а до Вашей идеи никогда не договорился. Подзабыл что ли подельников?
    Всего Вам доброго,
    Евгений Иванов

  14. Если следовать моей гипотезе\теории, то он не может выдать этих подельников, потому что тогда он обвинит себя вместе с ними. И превратится из невинно осуждённого “Солженицына” в обычного уголовника “Мэдоффа”. Кому нужен ещё один Мэдофф…

  15. Eugene Ivanov says:

    Откуда Вы знаете? Может, Мэдофф просто взял на себя всю вину. А подельники у него были Обама и Мать Тереза…

  16. Обама и Мать Тереза,это уже Ваша гипотеза… 🙂
    Что касается имён подельников то я естественно их не знаю. Я же написал в начале что это моё предположение, которое скорее всего НЕ отражает действительности.

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