The Russia Conundrum

At our televised clash in the Kremlin in February 2003, Putin had responded to my exposé of the huge scale of government corruption by implying that I myself had improperly benefited from the privatisation of Yukos. Yet nowhere in any of the charges against me was there any mention of the Yukos privatisation. Instead, there was a grab bag of indictments relating to long-forgotten business deals that Group Menatep had completed in the 1990s, including the privatisation of the Apatit mineral fertiliser company; the sales of Apatit production; the privatisation of the Research Institute for Fertilisers and Insecto-Fungicides; the use of a specially legislated zone for reducing Yukos’s tax burden; the tax implications of registration as private entrepreneurs; and the investment of Yukos funds in Media Most Corporation.

The prosecution’s case was conspicuously light on facts and figures, relying instead on misrepresentation and misinterpretation of the law, demanding a conviction based on untenable declarations and ominous insinuations rather than relevant evidence or cogent analysis. None of which mattered in the slightest, of course, because the judges were never going to decide the case on the facts; their role was simply to play the part of an independent judiciary, while waiting by the telephone for the Kremlin to ring and dictate their verdict. The prosecution knew before the trial began that it would be triumphant, yet even with all the advantages it enjoyed, it still managed to demonstrate its professional incompetence and woeful lack of understanding of the fundamental concepts of business law. The judges showed themselves to be equally clueless, making unsubstantiated pronouncements that simply parroted the prosecution’s lines, ignoring obvious violations of Russian law and refusing to consider even the most irrefutably well-founded arguments from the defence. Extensive defence evidence was simply discarded, while the judges copied vast tracts from the text of the prosecution’s indictment directly into their verdict.

Independent observers from European institutions catalogued the court’s violations of due process. Sabine Leutheusser-Schnarrenberger wrote:

The sheer number and seriousness of procedural violations in my view exceeds a mere accumulation of mistakes that could be explained by a lack of experience or professionalism. During my mandate, I have been confronted with a number of examples of the serious problems from which the Russian judiciary suffers in general, including its notorious openness to corruption, lack of respect for the rights of the defence, and, in particular, the overwhelming influence of the procuracy, which in turn is a tool in the hands of the executive.

The list of due process violations reported by observers at the trial was extensive:

The court did not treat the prosecutors and the defence equally.

The defence was not provided sufficient time to present its case and the overwhelming majority of defence motions and requests were denied.

The prosecution was allowed to introduce impermissible evidence, including unauthenticated documents and materials obtained illegally.

The defence was denied the opportunity to introduce exculpatory evidence, including key expert reports.

The scope of direct questions to defence witnesses and of defence cross-examination of prosecution witnesses was restricted.

The defence was denied cross-examination of prosecution expert witnesses.

The defence was denied requests to subpoena prosecution expert witnesses.

Witnesses were harassed and improperly influenced, including through continued investigation and interrogation; threats of searches, arrests and prosecution; and improper questioning during trial.

The court made motions on behalf of the prosecution.

The court questioned witnesses on behalf of the prosecution.

The defendants were denied effective assistance of counsel, including through interference with access; interference with confidential communications; and harassment of counsel.

The prosecution failed to disclose exculpatory evidence.