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Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

“Russia begins again to live by the theme of prison”

Khodorkovsky’s lawyer Vadim Kliuvgant on Russia’s highest-profile court cases and falsification techniques
29 October, 2013 - 10:48
VADIM KLIUVGANT AND MIKHAIL KHODORKOVSKY / Photo from the website RFERL.ORG

Ten years ago, on October 25, Federal Security Service (FSB) commandos stormed Mikhail Khodorkovsky’s airplane in Novosibirsk. Since then, the former co-owner and head of the company YUKOS has been behind bars. With his prison term to expire next August, many begin to doubt that he will be freed by that date. Or is there another ace up the sleeve?

We happened to see Khodorkovsky’s lawyer Vadim Kliuvgant at Moscow’s Nikulinsky District Court. He is now defending the interests of Nikolai Kavkazsky, a party to the Bolotnaya Square case. Asked why he took up the Bolotnaya Square case – for, by the logic of other high-profile Russian cases, it is sure to be lost, Kliuvgant presents several arguments. He says, among other things, that the categories “lose” and “win” envisage a competition and, since the Bolotnaya Square case clearly does not have one, these notions assume a different meaning. “There can be other, for example, moral, victories here, when society begins to understand on whose side the truth is and lawyers see who is right in legal terms,” he says. As for the Bolotnaya Square case today, prosecution witnesses are still being interrogated.

What effect has the YUKOS case had on Russia? What message are the authorities sending to society by means of the Bolotnaya Square case? Why does Vladimir Putin need William Browder? These are the pivotal points of an interview with the lawyer Vadim KLIUVGANT.

We have heard and read more than once that as long as Vladimir Putin is president (nominally or in fact), Khodorkovsky will remain inside. Do you agree to this?

“I do not belong to those who think they have the right to categorically speak on the destinies of other people who, all the more so, are in such a difficult situation. Highfalutin’ twaddle should also have some limits of decency. I also think there is a tight blend of components in this case or, to be more exact, in this terrible story referred to as YUKOS case (for, in reality, there is no criminal case because there is no crime – just an outer shell bearing this name). Among them, there is, naturally, a person-related component that makes it easy to understand why so many people are saying so. But it is an ungrateful thing to make forecasts in this story. I know very few forecasts that have come true.”

Your personal forecasts do not come true, either?

“I never make any. For two reasons – one of them, less important, is that they don’t come true. But the main reason is that soothsaying is not a lawyer’s job. My job is to be guided by the law and facts. No matter who was the president (there was a certain change, wasn’t it?), we have long been demanding that Khodorkovsky, Platon Lebedev, and other YUKOS prisoners be freed as soon as possible. We are not appealing to a dear tsar for mercy. We are saying that an individual unfoundedly and unlawfully languishes in prison. We have at least managed to cut three years and two months off the term set by the second sentence. Maybe, we will manage to do something more before August 2014, when Khodorkovsky’s prison term runs out.”

“AND WHY ARE YOU SMILING AT KHODORKOVSKY? WANT TO SHARE THE SAME CELL WITH HIM?”

If it is difficult to make forecasts in this story, then let us speak about the results or, to be more exact, about the impact the YUKOS case has on what is going on in Russia today. To what extent does the current situation result from this case?

“To a very large extent. There are several levels of impact. The most obvious and tragic one is decay of Russia’s law-enforcement system under the influence of this case. The metastases are spreading and multiplying in various cases about all kinds of people. The YUKOS case has assumed the status of a standard (with a minus, naturally) in that it helped devise and test the techniques that can foster lawlessness under the guise of judicial proceedings. It is a medical fact, so to speak.”

What techniques do you mean?

“There are lots of them. For example, the one I call ‘change of signboards.’ You take, for instance, the text of a YUKOS job description and rewrite it in the prosecution papers under the title ‘the role of such and such person in an organized crime group.’ The same is done with a company management’s decisions which thus turn into ‘fulfillment of a criminal plan.’ As a result, the entire company becomes an ‘organized crime group’ and all its activities are considered ‘criminal.’ The same applies now to the Bolotnaya Square case. Unarmed people came to exercise their constitutional right to take part in a public rally. This was coordinated with the Moscow government. But they were not allowed, by deceit and force, to march to the agreed-upon venue of the rally. It is only natural that the people were outraged, the government’s actions provoked a stampede – and now it is claimed that ‘they changed the agreed-upon itinerary of the procession in order to stir up mass-scale riots.’ Is it not the same technique?

“In addition, the so-called ‘evidence collection’ in fact boils down to stuffing a large number of volumes called ‘criminal case’ with rubbish and lies. For it is impossible to speak seriously about the evidence of what has never happened. As a result, what ‘confirms the guilt’ of Kavkazsky [Nikolai Kavkazsky is a party to the Bolotnaya Square case and Kliuvgant’s client. – Ed.] is a bullhorn seized at his home. But the truth is he did not bring the bullhorn to Bolotnaya Square, and no bullhorn-related actions have been blamed on him. And here is a mirror reflection of the YUKOS case: there is a contract on, say, the supply of oil. It was signed and really fulfilled in strict compliance with its terms and conditions and nobody denies this. But the prosecution and court treat this contract as an act of ‘embezzlement.’ The plot of the YUKOS and Bolotnaya Square cases is an unpronounceable, incomprehensible, and meaningless set of words, which was, however, printed in many publications and is full of numerous scary epithets, such as ‘malicious,’ ‘criminal,’ etc. In other words, negative and criminal characteristics are being deliberately imposed on non-criminal actions without taking into account facts and the law. Besides, some hitherto unknown quasi-juridical (in fact senseless and legally worthless) terms are being coined, such as ‘fake deal,’ ‘bogus right to ownership’ – whatever fantasy will allow.

“Another technique is the way people are treated. It is not new, of course, but the scale of this falsification is unprecedented. People are cynically bargained with and blackmailed into giving false evidence to carry out reprisals. And there can be two options here: if an individual rejects bargaining and refuses to confirm something, it will be just written: ‘being guilty of embezzlement/money laundering/riots has been also confirmed by the testimony of Mr. So-and-So’ without concretizing what exactly they ‘confirmed.’ The few who accept bargaining are forced to be perjurers under the threat that otherwise they will become the accused. Poor things, they exert themselves and get confused, only to be cheated in the long run. At the Khamovniki Court, a public prosecutor, in the rank of colonel, asked one of this category of witnesses the following, if I may say so, question: ‘And why are you smiling at Khodorkovsky? Perhaps missing him? Want to share the same cell with him?’

“Common human decency required people to show great courage, and, unfortunately, this cost a lot of them years behind bars or in exile, and some even had to depart this life – for example, Vasily Aleksanian [the former YUKOS vice-president who refused to testify against Khodorkovsky and was held in jail for a long time in spite of being critically ill; he died after a protracted illness in 2011. – Ed.]. Investigators repeatedly told him that they knew about his health problems and were ready to free him and help him undergo medical treatment, even abroad. But, to get this, he was to confirm that Khodorkovsky and Lebedev were embezzlers and he helped them. In other words: buy your life from us for your conscience.

“The same applies to the Bolotnaya Square case and the Kirovles case. But, thanks God, everybody is alive in these cases, and the object of bargaining was ‘only’ physical freedom or a shorter prison term in exchange for conscience.”

My colleagues have already asked you this question, and your unwillingness to give a straight answer is easy to understand… It is about the political future of Mikhail Khodorkovsky. But I will put the question differently: can Russia society need him as a politician?

“Firstly, to begin with, he should be free at last. Secondly, I must not invent things. I know that Khodorkovsky does not view himself today as a politician, i.e., a person who takes part in the struggle for power. I will also say that the YUKOS case has undoubtedly formed, to a large extent, an agenda of sorts for civil society. It is also a form of his influence of which you have asked before. In 2003, when this case started and Khodorkovsky was arrested, the public at large tended to believe that it was a problem of the rich – so let them sort it out by themselves. But, as time went by, many people began to be aware that the same might happen to anybody else. The only difference is that one was chosen as victim of reprisals because he was rich, behaved in his own way, and had lucrative business and another because an office or an apartment was needed or because he was an undesirable rival. In the case of Khodorkovsky, the executors were generals, even though a sergeant was enough at some moments. The YUKOS case signaled that things could be done this way.

“Undoubtedly, while in prison, Khodorkovsky has become one of the most authoritative – in the best sense of the word – figures in the country thanks to his irreproachable, courageous and decent conduct, and an active civic stand. I do not know in what forms this authority may be needed and implemented when he is freed but have no doubts that he will be needed as a wise and respected person whose opinion matters in society. It seems to me this is far more important than direct participation in political campaigns.

“Besides, Khodorkovsky and I once spoke and came to a conclusion that it is time for the next generation to take the key positions in active politics.”

THE BOLOTNAYA SQUARE CASE IS LIKE NOAH’S ARK

Speaking of the younger generation… The Bolotnaya Square case mostly involves people born after 1985. This case is a signal for whom and about what?

“This story shows that the authorities are so far unprepared to have a civilized dialogue with civil society. Among those on whom the authorities have launched a crackdown are usually people who are not even political leaders. Some of them are civic or political activists, and some cannot even be called activists – they are just concerned young people. They came to Bolotnaya Square not because they wanted to smash shop windows or support a certain politician or party but because they are not indifferent to what is going on in their country – and what is going on simply ‘grosses them out.’ By this court case, the authorities are telling these and other like-minded people: only we know how to ‘properly’ love our fatherland and only what we consider proper is allowed. And if we don’t like what you are doing or speaking, we will throw riot police at you, and you will end up first in the Butyrskaya or Matrosskaya Tishina jail and then in a prison camp.

“It is widely believed that the composition of ‘Bolotnaya Square prisoners’ is a matter of chance, but this is only partially true. Look, it is like Noah’s Ark: a couple of anarchists, a couple of left-wingers, a couple of socialists, a couple of LGBT sympathizers, a couple of right liberals, and the undecided – the entire spectrum of civil society. It is a ‘signal’ to everybody. Therefore, the attitude of society to this case is a very serious indicator. Unfortunately, this indicator causes depression.” 

In what exactly?

“In passivity and indifference. People used to come out on the streets in tens of thousands, but only dozens come to court – mostly relatives and friends of the defendants, as well as a small number of journalists and activists who are making a heroic effort to support and draw attention to the accused. The same inertness also prevails in the public space, although there are, of course, some exceptions. Very few know the crux of the matter. There is a widespread opinion which the official propaganda willingly supports: ‘Well, they clashed with policemen, as do soccer fans or neo-Nazis. But it’s wrong to beat up policemen. So let them answer for this now.’ But there was a totally different story on Bolotnaya: the people did not intend to smash anything. No matter what attempts have been made to bend the truth in the case materials, it is clear that the authorities’ actions were provocative and the actions of police, including the use of force, were unlawful and incommensurate to boot. And people have the right to defend themselves from unlawful actions. One more thing: we are questioning some policemen in court. They allege that some aggressively-minded provocateurs ‘were winding up the crowd.’ But, for some reason, law-enforcers detained none of them. Nor can they answer such questions as ‘Who are these people? Who sent them there? Why did you not detain them?’ And, what is more, ‘what does this have to do with those involved in the Bolotnaya Square case, who have been prosecuted for 18 months and are in prison now?’ Besides, the physical damage inflicted on many participants in the Bolotnaya Square peaceful action was very serious. But this was also swept under the rug, and all the attempts to open an investigation into the actions of the governmental officials who abused their power are being thwarted. Unfortunately, this also fails to find a proper place on civil society’s agenda.”

Some of the Russian political journalists tried to assess the recent events in Biryulevo against the backdrop of the Bolotnaya Square case. The authorities view the Bolotnaya events as “organized extremist crime” and the Biryulevo pogroms as “hooliganism.” Do you also think it is characteristic?

“This comparison undoubtedly comes to mind. I will emphasize again that the authorities did not even pretend to investigate what had happened to peaceful people on Bolotnaya Square and what and why the governmental forces had done there. By contrast, in Biryulevo officials were immediately dismissed, the investigation is on, some bosses were even arrested. And all this was done openly, for effect. On the whole, as far as I can judge from what I’ve seen, heard, and read in open sources, the Biryulevo events resemble a classical pogrom – in terms of the goal, slogans, and actions. But I repeat that people came to Bolotnaya Square as citizens who pursued a lawful goal and carried lawful slogans. Nobody was smashing or setting fire to anything, turning over cars, cordoning off the streets full of traffic, or using weapons against the law-enforcers. For these are the legally binding signs of a mass riot. But all this must have occurred in Biryulevo except for an armed assault on the police. Yet the participants in those events are facing charges of breach of the peace only.”

What do you think – against this background – of what Alexei Navalny suggests? Some say his rhetoric is dangerous, and others call it “intellectual nationalism.”

“I can say clearly, without reference to any personalities, that I can share no chauvinistic sentiments – by force of my profession and civic position and by force of my people’s genetic memory. If a line like this is being seriously pursued by some politicians (including the authorities which are playing up to these guys), it is a powder keg that can blow up tomorrow if not today. For this reason, I am not prepared to support ‘Russian marches’ or any other assemblies and actions aimed at dividing people into ‘pure’ and ‘impure.’ Nor can I say that the organizers of and active participants in such actions are political leaders of a serious caliber and with serious prospects. I think you must make a choice at a certain moment: you lay claim either to leadership among marginal chauvinists and play up to them or to leadership in the healthy part of society to which the future belongs.

“I am not prepared to assess Alexei Navalny from this angle today.

“I happened to hear a lot of his comments and comments on him in connection with this big and painful issue, although I have not much sunk into details. I cannot say for sure what his views are all about. At the same time, it is obvious that Navalny is being baited and faces unfounded criminal prosecution. There are all kinds of attempts to discredit him and reduce his potential of a rival. I am, of course, glad that he remains free, but I think that, unfortunately, this fact may also be used to discredit him.”

“ENEMY OF THE STATE” WILLIAM BROWDER

Russia is now actively discussing a draft amnesty to mark the 20th anniversary of the Constitution and whether it can benefit the “Bolotnaya prisoners.” What do you think about the prospects?

“Our authorities have not exactly shown themselves as magnanimous in the past 15 years. We have had no more or less significant amnesties, there is in fact no such thing as pardoning, and the institution of release on parole works difficultly and opaquely. Besides, this has brought about a very unpleasant thing: these events are acquiring the extremely unpleasant traits of a show that is alien to true mercy. At first, a propaganda campaign is launched, in which everybody tries to position themselves as initiator and author of the only correct opinion, and then a blank shot follows. The so-called economic amnesty is a good example of this [resolution on an amnesty for entrepreneurs, which Russia’s State Duma passed in the summer of this year. – Ed.]. There are so many words, fanfares, and drums! As a result, just a few hundred people were pardoned – in such a big country with such a wide scale of this ‘malady.’ Unfortunately, something of the sort is underway now. There will be some kind of amnesty. A small group of people is really trying to make it real and adequate to society’s requirements and the magnitude of the problem, but what is around is a publicity show with never-ending fortune telling on tea leaves, alternative ‘individual’ projects, squabbles, and reciprocal accusations.

“I think we badly need an amnesty. Of course, it is not a rehabilitating mechanism, but it at least allows people to be freed. Our repressive conveyer-belt-type prosecution and trial mechanism, which does not know such thing as acquittal, has broken so many human lives over these years… These logjams must be cleared one way or another. It is dangerous to pretend that they do not exist. All the more so that the cases that involve the largest number of ‘appointed criminals’ are well known. The country begins again to live – as it did for decades in the last century – by the theme of prison. Is this good in the 21st century? Besides, the level of tension, confrontation, and aggression in today’s society goes beyond the giddy limit. So a properly administered amnesty can be very much to the point. And a government, which wants to be really strong, must also be magnanimous and merciful.”

In conclusion, would you comment on another important case in Russia – the Magnitsky case? There are two aspects here. Firstly, it is the West’s attempts to exert pressure, which resulted in the so-called Magnitsky List. Some human rights advocates question its effectives, saying that there should be personal responsibility. Secondly, it is the never-ending attempts of the Russian authorities to get hold of Browder. The Interpol recently refused to meet their demands, referring to the political nature of the prosecution, but this will hardly stop anybody. Why does Putin need Browder?

“There is a Hollywood film titled Enemy of the State. And we have several people who bear this informal, but very ‘binding,’ title. William Browder turned out to be one of them, although nothing had presaged this until a certain moment. There was a time when he supported the Russian government’s actions, including the arrest of Khodorkovsky. What is more, by a surprising and symbolic coincidence, it was the time when Browder was making the deals for which a Russian court has now sentenced him in absentia to nine years in prison, as if those deals were criminal actions. He has confessed now that he was unaware of what was really going on at the time. I think the reason why he is being prosecuted is quite clear. I don’t know what kind of crimes Browder committed against Russian assets, and I have never seen anything that confirms this. But I can see that the globally-trusted organizations, particularly the Interpol, do not view him as one who was justifiably accused. The Interpol’s activity in restoring the good name of its associates – above all, Sergei Magnitsky who died in prison – inspires deep respect. And he managed to do very much.

“As for the so-called Magnitsky List… Firstly, any country can pronounce any individual undesirable on its territory. It is a sovereign right of the state which is not obliged even to explain the reasons of this decision. Secondly, these measures do not rule out at all the personal juridical responsibility of every corrupt official for their misdeeds in, first of all, their own country. And, thirdly, judging by the hysteria of some people in the government and the pro-governmental propaganda, these measures have surely touched them on a sore place.”          

By Maria TOMAK, special to The Day

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