Telephone Justice: Khodorkovsky, Magnitsky and Navalny

Recent attempts by the Kremlin to smear its political antagonists and critics mark a return to a pre-perestroika use of the judicial system. The Khodorkovsky, Magnitsky and Navalny court case decisions resemble the telefonnoye pravo or ‘telephone justice’ of the Soviet Union, an expression that references the custom of political leaders calling judges in order to instruct them on what rulings pleased them. Though western critics tend to focus on the problems related to freedom of the press in Russia, the implications of rotten courts can be much more deep-rooted and harmful to Russian society as a whole. The legal system’s systemic disregard for the constitution in its entirety is an overreaching issue that deserves more attention.

Sadly, this alarming trend is not a recent development. In 2005 and 2010, Mikhail Khodorkovsky and Platon Lebedev were found guilty of fraud, money laundering and embezzlement. Before his trial, in 2004, Khodorkovsky was the wealthiest man in Russia and Lebedev was his close associate. A strong advocate for more democracy and freedom of the press, Khodorkovsky could have been a potential political alternative to Putin had he chosen to run for the Russian presidency. After the trial, US State Department commented on the case, saying it “raised a number of concerns over the arbitrary use of the judicial system.” After the 2010 trial, in which Lebedev was convicted and Khodorkovsky’s prison sentence was extended, Secretary of State Hillary Clinton commented that the case was symptomatic of the “rule of law being overshadowed by political considerations.”

Another Russian court case displaying a flagrant lack of reason or justice is the posthumous conviction of Sergei Magnitsky.  Magnitsky was a Russian lawyer hired by the British and US-owned Hermitage capital group to research corruption in the Russian state and local government. He was accused of tax evasion in 2008, after his discovery of a $230 million tax scam implicating Russian police and government officials. Following his arrest and subsequent suspicious death in prison in 2009, the US Senate passed a bill named the Magnitsky Act. The act blocks the Russian officials deemed responsible for his death, though the officials were not convicted in Russia, from entering the US or using the US banking system. The Magnitsky Act is thought to be the reason for the Kremlin’s arbitrary decision to ban Americans from adopting in Russia earlier this summer.

After Magnitsky’s posthumous conviction, Dmitry Kharitonov, a lawyer representing Magnitsky’s widow, Natalya Zharikova, gave his reaction to the case in a telephone interview with Radio Free Europe/Radio Liberty: “As a lawyer who defended Sergei for one year, I consider [this trial] a farce.” With no custom for posthumous convictions of this sort in Russia (or many other places), the very conviction itself makes the court case exceptional, and gives credence to the theory that it was largely a political statement. Czech Foreign Minister Karel Schwarzenberg also commented on the case, saying “It’s a remarkable return to the Middle Ages, where sometimes you put people out of the grave, brought them to trial, and hanged them officially.” What makes Kremlin involvement particularly blatant here is the fabricated nature of the evidence presented in the case. New pages would show up in the court documents that had previously not been there, and “documents submitted for his detention hearing had been altered, fabricated, and tampered with.” The sponsor of Magnitsky’s anti-corruption work, Bill Browder, was convicted in absentia alongside Magnitsky. Browder is a British (formerly US) citizen and has not returned to Russia after becoming a wanted man there. Interpol has declined to include him on its international search list because they deem the case against him as political. Browder has called the charges against himself and Magnitsky “absurdities”.

The most recent case of telephone justice is that of Alexei Navalny, a famous Russian anti-corruption blogger, who gained international attention when he was accused and convicted of stealing timber from a state-owned company. He has been openly criticizing the Kremlin on his campaign trail, and has previously branded Putin’s party United Russia as the “Party of Crooks and Thieves”. Mikhail Gorbachev characterized the persecution of Navalny as explicitly political, and commented on the conviction of Navalny, saying, “it is unacceptable for the Putin administration to use the courts against political opponents.” He also said that this conviction was proof that Russia does not have independent courts, and that the way the trial was conducted leaves a “sad impression.” A Loeb&Loeb LLP analysis of the prosecution against Navalny concluded, “the Kremlin has reverted to misuse of the Russian legal system to harass, isolate and attempt to silence political opponents”.

Some may argue that the judicial system in Russia was never properly reformed in the tumultuous 90’s, though it has gone through several attitude changes. In a sense, the courts are and have always been a reflection of the Kremlin’s attitudes and wishes. During the 90’s, Yeltsin’s Kremlin was generally interested in a more open society, and the executive branch therefore affected court decisions to a lesser extent. The return to a more authoritarian flavor of courts fits well with the general trend towards a more controlling Kremlin. In a statement issued on July 11, Browder told Reuters that the guilty verdict against Magnitsky for tax evasion was “one of the most shameful moments for Russia since the days of Josef Stalin.” This bombastic statement carries with it an implication that the telephone justice of the Soviet Union is making a comeback.

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