European Court of Human Rights: Khodorkovsky Case

Lord Wood of Anfield Excerpts

Tuesday 23rd July 2013 Lords Chamber

[Lord Wood of Anfield]

My Lords, I, too, would like to commend the noble Lord, Lord Trimble, for the great knowledge, conviction and clarity with which he spoke about this subject. I thank him for bringing this timely debate, coming as it does two days before an important judgment by the European Court of Human Rights on whether Mr Khodorkovsky’s rights to a fair trial under Article 6 of the European convention have been violated.

Mr Khodorkovsky has been detained and imprisoned by the Russian authorities since October 2003, nearly 10 years ago. It is fair to say that he is a controversial character in post-Soviet Russian history, as the noble Baroness, Lady Williams, pointed out. Prior to his arrest in 2003, he enjoyed an astonishing—and astonishingly rapid—rise to economic success, and to cultural and political prominence. He had a career ranging from internet trainer, philanthropist and funder of political parties to Minister of Fuel and Energy and financial trade magnate. If the proposed merger between Yukos and Sibneft had gone through after 2003, he would have been at the helm of one of the world’s largest oil companies.

During this period, however, he became the subject of a range of allegations concerning fraudulent activity: allegations that he engaged in asset-stripping of Yukos for private gain, and that he engineered forced sales of oil within the holding company to transfer billions of roubles to shell companies owned exclusively by him. Whatever one’s view of these allegations, the concern, which tonight’s debate has shown is shared by Members on all sides of the House, centres on Mr Khodorkovsky’s experience of Russian justice—the circumstances and process surrounding his arrest, trial and continued detention. The central point is that expressed by the Council of Europe Parliamentary Assembly’s Committee on Legal Affairs and Human Rights in November 2004, when it said that,

“the circumstances of the arrest and prosecution of leading Yukos executives suggest that the interest of the State’s action in these cases goes beyond the mere pursuit of criminal justice”.

I want to talk briefly about three aspects arising from the long and continuing saga of this case: first, the circumstances surrounding Mr Khodorkovsky’s arrest and charges; secondly, his treatment in the Russian judicial and prison system since he was detained; and thirdly, wider lessons for the state of justice in Russia today. Starting with his initial detention in 2003, Mr Khodorkovsky was arrested after an investigation into the tax and financial arrangements surrounding Yukos’s purchase of a stake in a company called Apatit. He was arrested to appear as a witness, but within hours of being in custody he was charged with fraud. In 2011, the European Court of Human Rights found that his arrest was,

“unlawful as it had been made with a purpose different from the one expressed”,

and that he had been held in “degrading and humiliating conditions”.

It has been widely thought that the motives for his arrest and prosecution go well beyond the pursuit of justice. Many have noted, for example, that in February 2003, just a few months before formal investigations began, Mr Khodorkovsky accused the Russian Government of large-scale corruption at a meeting with President Putin that was broadcast on Russian television. The European Court of Human Rights found in 2011 that it did not have sufficient evidence to conclude that his first trial was politically motivated and that the charges against him were grounded in “reasonable suspicion”. However, Mr Khodorkovsky’s family and supporters, as well as the Council of Europe committee that I referred to earlier, see his detention as motivated by a desire to weaken an outspoken political opponent.

Whatever one’s views on political motivation, two worrying aspects of Mr Khodorkovsky’s initial prosecution seem clear. First, the arrest furthered a widespread impression that the Russian authorities were engaged in selective prosecutions against those oligarchs and senior businesspeople who had come into conflict with the Putin regime. In the words of the US State Department, the arrest,

“raised a number of concerns over the arbitrary use of the judicial system”.

It damaged not just the Russian economy and the climate for investment but confidence in the consistent application of the rule of law in Russia.

Secondly, it is difficult to avoid the conclusion that part of the motivation behind his arrest and subsequent treatment was to enable the Russian state to regain control of strategic economic assets. A 2009 Council of Europe report spells this out clearly, noting that,

“Yukos, a privately owned oil company”,

was,

“made bankrupt and broken up for the benefit of the state-owned company Rosneft. The assets were bought at auction by a rather obscure financial group, Baikalfinansgroup, for almost €7 billion. It is still not known who is behind this financial group. A number of experts believe that the state-owned company Gazprom had a hand in the matter”.

What representations we have made to Russia about the Government’s view of this first trial, given that this is the issue at hand in Thursday’s judgment? In addition, given that the Russian criminal procedure code stipulates a direct dependence between the court’s acknowledgement of the violation of Article 6 of the European convention and the necessity of cancelling a sentence, can the Minister tell us whether the Government have talked to the Russian Government about our expectation that they should comply with the decision of the court and adjust his sentence accordingly?

I turn now to the second set of issues: the way in which Mr Khodorkovsky has been treated by the Russian judicial and penal system since his trial. The timeline of his 10 years in prison is both depressing and bizarre. In 2005, he was taken to a labour camp attached to a uranium mining and processing plant—at which, according to my quick Google search on it, inmates now have,

“much better chances of survival than in the past”.

In April 2006, he was attacked by a prison inmate. In February 2007, new charges were brought against him just before his parole was due, one year before the Russian presidential election. The emergence of new charges related to the alleged crimes of which he was initially convicted. At the time, President Obama said it looked like,

“a repackaging of the old charges”.

France’s Human Rights Ambassador expressed a similar view, saying:

“It seems odd that Khodorkovsky could be sentenced twice on facts which look the same, or even contradictory … the charges seem to be so unclear … the defence does not even know what the precise charges are”.

In August 2008, he was denied parole for myriad reasons including—famously—because he refused to attend sewing classes in jail. When he was convicted of the second tranche of offences in October 2010, the judge convicted him and colleagues of stealing 40% more oil than the prosecutors had even alleged.

Alongside this, as set out in a joint letter by Human Rights Watch, Freedom House and three other reputable NGOs, there is evidence of: intimidation of defence counsel, Yukos executives and witnesses; repeated procedural irregularities during the second trial over the use of evidence; and prosecutorial misconduct. An assistant to the judge who convicted Khodorkovsky in his second trial in 2010 alleged that the judge had the verdict read against his will. She remarked that,

“everyone in the judicial community understands perfectly that this is a rigged case, a fixed trial”.

It is little wonder, in light of these and other facts of the case, that Amnesty International designated both Mr Khodorkovsky and Mr Lebedev “prisoners of conscience” in 2011 and that grave concerns about his treatment at the hands of Russian justice have been expressed by Parliaments in Italy, Germany and the United States, as well as by President Obama, Angela Merkel and our own Foreign Secretary.

Lastly, I turn briefly to the wider set of concerns, of which this case is merely a particular example, about access to justice in Russia. Other noble Lords have talked about people such as Sergei Magnitsky, Anna Politkovskaya and Natalya Estemirova. This is not an isolated case. Just last week we saw Alexei Navalny, an anti-corruption campaigner, sentenced to five years’ imprisonment for embezzlement. The case bore many familiar hallmarks: ambiguity about the charges; an admission by investigators that the authorities’ inquiries were prompted by political activities on the part of the defendant; and near-universal condemnation of the verdict by Russian media and public opinion, as well as NGOs abroad. Mikhail Gorbachev commented after the verdict:

“Everything I know about this case ... unfortunately confirms we do not have independent courts”.

We are also seeing a more restrictive social and legal climate for free expression since President Putin returned to power. Human Rights Watch has commented that the Russian authorities have,

“introduced a series of restrictive laws”—

the foreign agents law, the treason law and the assembly law”—

“harassed, intimidated, and in several cases imprisoned political activists … and sought to cast government critics as clandestine enemies”.

Does the Minister share my anxiety about these developments? In what forum have the Government shared these anxieties with the Russian Government?

Finally, some may argue that issues of internal due process should remain a matter for national Governments, a point to which the noble Lord, Lord Bates, alluded in his remarks. My honourable friend Emma Reynolds, the shadow Minister for Europe, has said,

“raising human rights issues is not about interfering in the affairs of the Russian Government, but is a way of holding Russia to its international obligations. Russia has signed the European convention on human rights, the universal declaration of human rights, the charter of Paris and the EU-Russia partnership and co-operation agreement … In signing each of those agreements, Russia made a solemn commitment to respect human rights … It is therefore reasonable to ask whether the Russian Government are living up to their side of the bargain”.—[Official Report, Commons, 7/3/12; col. 932.]