Following last week’s summary of an exclusive interview with Khodorkovsky’s defence lawyer Vadim Klyuvgant, the English translation can now be read in full below:

Neprikosnovenny Zapas, interviewer Yulia Schastlivtseva.

Vadim Vladimirovich Klyuvgant (born 1958) – defence lawyer, member of the Russian Federation Supreme Council’s Committee for the Rule of Law, Law and Order and Crime Control (1990–1993), Mayor of Magnitogorsk (1991–1995), currently a defence lawyer for the former head of Yukos, Mikhail Khodorkovsky.

Neprikosnovenny Zapas: One of the latest achievements of the defence in the Yukos case was a Moscow City Court decision to reduce the sentences for Mikhail Khodorkovsky and Platon Lebedev. The court granted a request of the prosecutors, and therefore the former Yukos executives will be set free in 2014. Are you satisfied with such a decision?

Vadim Klyuvgant: Certainly not. Despite the fact that the Moscow City Court reduced the sentence, all the falseness, unfairness and absurdity of the second “Yukos case” remained hard and fast. Moreover, we, the defence, as long ago as a year ago demanded that in addition to the repeal of the verdict Mikhail Khodorkovsky and Platon Lebedev be released due to the mitigation of the sanctions of the criminal law under which they had been convicted. In summer of 2012, the Chairman of Russia’s Supreme Court ordered the Moscow City Court to consider this issue as well. The Moscow City Court procrastinated for five more months, and only in late December finally managed to get around to reduce the unlawful sentence from thirteen years to eleven. And the prosecutors did not submit any requests at all, although they were definitely obligated to do so. In Arkhangelsk courts, the prosecutors opposed any substantial reduction of Lebedev’s sentence as much as they could and managed to have court decisions overturned twice. At the hearing by the Presidium of the Moscow City Court the prosecutor simply graciously agreed that the law makes the reduction of the sentence mandatory, but his “generosity” was only enough for a reduction by a year-and-a-half. However, these are just particulars, although important ones. And the main thing is that I’ll be happy when political hostages have been freed and exonerated. No individual improvement of their situation can negate this task. I can also tell you that the defence is doing everything it can to achieve this goal. Defence of Khodorkovsky, who is definitely a prisoner of conscience, definitely cannot be boiled down to the political component alone, however important it is. And this is a matter of principle. Every single word, every single flourish of the charges have been analysed by us far and wide and inside out. The diagnosis, which has never been evidentiary rebutted but has been confirmed on numerous occasions, is as follows: the charges are false through and through, from the point of view of logic and common sense as well as in legal and economic terms.

NZ: That is, the frequently used analogy between the “principal inmate of the country” and characters of Franz Kafka is absolutely appropriate?

VK: It is true that the notion of a “Kafkaesque trial” in relation to the “Khodorkovsky case” has become widely used both inside and outside Russia. I don’t want to sound kitschy, but in our case it feels like Kafka does not even come close. Believe me, when you are inside the trial, when you see real faces, their shoulder straps and gowns, when you hear what they are saying and read what they have written, the feeling from what is going on is more powerful than from a literary work. By the way, I’m absolutely against calling such actions drivel-like or schizophrenic. These are psychiatric definitions, they are used to characterise behaviour of unhealthy people who don’t understand what they are doing. Therefore, they can’t be held responsible. Those who I’m talking about, and those who are behind them, understand everything, are doing everything consciously, and will have to be held accountable. The issue is that they are not only unscrupulous but also sometimes ignorant. Such an explosive mixture leads to a monstrous result, and because of that the scale of the shame and the ridicule is even larger. And scarier.

NZ: So why is it that the Strasbourg Court, having spent seven years considering the application that was filed back under the first case, in its 2011 judgment failed to see political background behind the case?

VK: Let’s start by saying that Khodorkovsky and Lebedev have been declared prisoners of conscience by international human rights organisation Amnesty International – the one that coined the term. Also, a conclusion about political and corrupt motivation of their prosecution was reached by numerous international organizations, international and foreign courts and tribunals and parliaments of many countries. The latest proof of that is the resolution of the European Parliament of 13 December 2012 called “Political use of justice in Russia”. Every single international request of the Russian authorities concerning extradition of persons accused in the Yukos case or provision of information related to the case has been denied in every country to which they had been sent. They were denied on the grounds of political motivation behind the prosecution and the lack of a fair and impartial tribunal. The full list of such decisions and statements is available at the website Khodorkovsky.ru; those who want to find documentary proofs are welcome to go there.

And the European Court of Human Rights unfortunately still didn’t find strength to consider and resolve on the merits Khodorkovsky’s and Lebedev’s complaints concerning even the first charges, the first trial and the first verdict. The only ECHR judgment in relation to Khodorkovsky was issued on his 2004 application concerning the unlawfulness of his apprehension, arrest and detention. And it found very serious violations of his right to freedom and security of the person; Russian officials and their propaganda don’t really like to talk about this. The Strasbourg Court in its judgment speaks of political motivation behind those exact actions. It says that the Court takes into consideration numerous opinions of other courts and organisations, but to find the violations it requires an irrefutable, incontrovertible and direct proof that all the actions of all the bodies and officials of the Respondent Government had the unjust prosecution as their solely purpose. Never before did the ECHR bring such unreasonable and openly impossible requirements for proving of such a violation. Let me emphasize, the criminal charges, the trials, and the judgments in relation to Mikhail Khodorkovsky are yet to be assessed by the ECHR.

NZ: Two years ago you were talking about an information blockade on the main federal TV channels and about “massive ordered lies in some other media and in the official propaganda.” Is it any easier to bring information to the society today?

VK: I don’t see any changes for the better on the main federal TV channels. In my opinion, the pro-power propaganda has become even more deceptive and aggressive; now it includes much more obscurantism as well. And the society is not homogeneous: those who want to hear and understand things will make efforts and manage to find truthful information and come to their own conclusions. Good thing we have Internet and honest journalism. Although their existence, to put it mildly, is not easy and not getting easier.

NZ: During all these years, “the Khodorkovsky case” has become an indicator of the political climate in the country. Let’s say, a liberalisation of the Criminal Code is announced – and we are immediately shown how it will reflect on the main political prisoners. It seems to many that the tone of Putin’s utterances when he speaks of this case has changed as well. For instance, during a large press conference at the end of the past year, the President said: “I’m sure that when everything is in conformity with the law, Mr Khodorkovsky will be released. May God give him health.” Do you agree that the criminal policy of the state is changing its direction, and a turn to the rule of law and fairness can be seen?

VK: You have found very precise words: liberalisation of criminal law has been “announced”. I can’t argue with the fact that it was announced loudly, with fanfares and drums. But unfortunately, it didn’t turn into a real event. Of course, it is great that as a result of the pinpoint amendments to the law in the past two years some convicted persons were released earlier or were not detained pending trial. However, others continue to die, lose their health, families and property as a result of repressions, arbitrariness and corruption. And there are just as many of them as there are of those who lucked out. And their numbers are not going down. The level of fulfilment of those legislative innovations is such that there are many opportunities to go around them, and that’s exactly what happens. In addition, the liberalisation is something like, if I can say so, “mellowing out” of the punitive practice. But punishments should be given for proven guilt, while our main misfortune is in the fact that fierce (slightly less fierce recently) repressions are cast on those who are not guilty: in falsified cases, for acts that don’t constitute a crime and sometimes for ones that haven’t even been committed. And if in the tenth year of the unlawful detention without guilt the court decided that the prisoners should suffer for eleven years instead of thirteen, is this indeed liberalisation? Shall I applaud it? And, oh, one should discern the arrival of the era of mercy in the “changed tone of utterances” of the President? When a non-guilty person has been held in jail for nine years in the conditions unbearably harsh and humiliating even by Russian standards and was a target of sophisticated lies, and then in the tenth year he was called by his first name and patronymic and wished good health – does this mean a turn to the rule of law and fairness? Count me out.

NZ: So what are we dealing with then?

VK: If we disregard propaganda tricks and look at the situation at face value, we will see growing repressions rather than liberalisation. The set of laws adopted and bills introduced during the past year can easily compete for the title of legal “anti-event” of the year. It includes the “foreign agents”, the law on rallies, restrictions on the Internet (of course under the cover of “protection of children”), the notion of high treason that lost any boundaries, and the multiplication of “fraud”. Add to this the hasty return of the criminal liability for slander just several months after it had been abolished, removal of barriers for endless re-hearing of cases in view of toughening the sentences, and continued consistent elimination of jury trials – the only type of trials where the number of acquittals is real and not on the level of an arithmetical error. I’m not even talking about the prohibition of adoption of orphans by Americans, bizarre by its design and equally bizarre by its enforcement. Let me reiterate: the growing repressiveness of the law is obvious; it is dangerous in and of itself, but it is also intensified by crafty vagueness of the wording and often unsatisfactory low legal technique. All of this creates additional opportunities for arbitrariness in the work of “state persecutors”, who are in fact not subjected to any control even without that. A couple of modest legislative units of apparently democratic nature, such as elections of governors or party reform, do not change the general picture. Especially because their enforcement is also very crafty, largely in keeping with Lenin’s famous formula: it’s correct in its form but it’s a mockery in its essence.

NZ: With the slander it ended up being funny, taken into account how fast this legislative norm adopted in the framework of modernisation initiatives under Dmitry Medvedev’s presidency was rolled back. And Pavel Krasheninnikov, the head of the State Duma Committee on Civil, Criminal, Commercial Litigation and Procedural Law, stated that the decriminalization of the [Criminal Code] article [on slander] led to “some citizens” accusing decent people of some horrible sins.

VK: In my opinion, the back-and-forth around the article on slander is not even worthy of being called legislative activity. The mechanism of judicial protection of one’s honour and dignity, good name and business reputation have been worked out quite well a long time ago and is actively used by those for whom those exact values are important. This mechanism is regulated by provisions of the Civil Code. As concerns criminal liability for slander, it does not make such protection more effective; on the contrary, it makes it more difficult, because a new requirement to prove that the accused knew that the information he was spreading was false. But it’s very good as a tool of selective repressions for undesirable words. Especially because on such occasions nobody bothers to prove guilt.

NZ: There were enough “anti-events” in the past year in the judicial practice as well – take, for instance, the Pussy Riot trial. Commenting on it, you noted that there is no crime there. Why? The court, as we all know, made the opposite decision?

VK: I did not and do not see a crime in this case. The criminal law currently in force in the Russian Federation does not provide for criminal liability for the actions imputed to the convicted. Let me emphasize, I’m not talking about the lack of proof of these or those actions but about the fact that the actions with which those people were charged and for which they were convicted are not criminal. I think this was the exact (and only) reason why immediately after the judgment an exotic idea appeared to introduce criminal liability for “hurting feelings of believers”. This is a great proof “by contradiction”. And the references to the church canon made during the trial can be regarded as a classic example of obscurantism. While the court and its judgment made me feel ashamed. And sad.

NZ: What is it like to be Mikhail Khodorkovsky’s defence lawyer? You face expectable arbitrariness in courts, but keep on fighting. What do you see as a result of those efforts? Exclusively opposition to the repressive machine?

VK: A huge lawyer’s experiences of such sort had been accumulated in Russia even before us. In the Soviet times, its treasury was enriched by such excellent aristocrats of the spirit as Sofia Vasiliyevna Kallistratova, Dina Isakovna Kaminskaya, Boris Andreyevich Zolotukhin, Semen Lvovich Aria. With one of the great lawyers-fighters from this cohort, Yuri Markovich Schmidt (may he be remembered forever), I was lucky to work shoulder to shoulder in the Mikhail Khodorkovsky team for almost six years. I hope that we enriched this experience by something as well. Of course, the demonstrative lawlessness, unpunished arbitrariness and brute force in response to irrefutable arguments cannot but be depressing. But high stress tolerance and readiness to go to the very end to achieve the goals of the defence are mandatory qualities for a defence lawyer, without which one cannot survive in this profession. And also, those who order and do these outrageous things are waiting for our disappointment and capitulation. But they haven’t got that yet, and I don’t think they ever will. On the contrary, it is them who have to get disappointed, because the fight has been going on for ten years already. The issue has not been forgotten in Russia and in the world, and this is, of course, a result. Incontestable moral victory and unwavering legal rightness of Khodorkovsky, Lebedev and other people from the Yukos team can be regarded as another result. In other words, for me to be Mikhail Khodorkovsky’s defence lawyer is a matter of honour. And a serious challenge – for me as a professional, a human being, and a citizen if you will.

NZ: Those who follow you will definitely find the conceptually different stylistics of the oral arguments that distinguish this trial very useful. First of all, oral arguments actually exist in the Yukos trial, which in itself is a rarity in today’s courts. Second, it’s image-bearing, bold and demonstrative. Here is a quote from a speech of your colleague: “And so now you, respected members of the Presidium of the Court, once again face a choice: you can either comply with the Law or continue to replicate the apparent rubbish, either stop the machine of lawlessness launched some ten years ago or once again close your eyes and leave everything as is.”

VK: In the contemporary Russian court, unfortunately, oratorical skills of the parties are not in demand – it’s sad but true. A talented speech in court is now mostly a thing of the past, and a standard reaction to it is either apparent boredom or irritation and bark. In trials we are constantly told, “Don’t repeat yourselves, we’ve already read this.” Excuse me, but court proceedings are supposed to be oral!

NZ: Although the Yukos case has been setting standards of abuse of law for so long, it has also been creating a practice of defence against this abuse. Tell me please, does this case require personal courage?

VK: Of course it does, and not only this case, although this case, of course, in particular. A defence lawyer in Russia is, if you will, a legalised oppositioner. In his day, St. Petersburg attorney at law Nikolay Karabichevsky used to say that the activity of a defence lawyer is oppositional merely because he tries to ensure compliance with the existing laws. This was said in late 1800s, and now we live in 2000s. Has anything changed?

NZ: You know the court system from the inside. What measures, in your opinion, are required to establish autonomy and independence of the judiciary in Russia?

VK: For a start, we need to at least start moving in that direction rather than just creating an appearance. The last time such movement happened in our country was in early 1990s, but it quickly slowed down and then died out completely. Today, we see a move back: courts have again been turned into an appendix of the executive branch and the security agencies, while judges have been reduced to the level of ordinary bureaucrats. At the same time, the Court is irreplaceable. If the only alternative to justice is a pervasive arbitrariness that can claim anyone as its victim, the direction of reforms is quite obvious. For a start, judges should be released from the total subordination to the chairs of their courts and other bosses; the judiciary should stop being formed from among “the insiders” (officers of security agencies and judicial clerks); judges’ performance should stop being assessed on the basis of the “check-mark” system, and, most importantly, the criterion of “stability/repealability” of a court judgment, which has nothing to do with justice, should be abandoned. A fair court decision should be a trivial thing rather than an act of bravery. And of course the discrediting and consistent destruction of jury trials should be stopped; on the contrary, they should be strengthened as much as possible and used more widely. These are not all the steps, only the top-priority ones. In fact, we should be talking about a revival of the Russian judiciary rather than about its reform.

NZ: Let us go back to the criminal policy of the state. This past November, the State Duma adopted amendments to the RF Criminal Code and the RF Code of Criminal Procedure which did not get much public attention. You were one of the few people who did pay attention to them and pointed out in one of publications that the “mad printer” is quickly turning into a machine of repressions. Where exactly is the catch in the aforementioned legislative initiatives?

VK: It’s true that the amendments were not talked about almost at all, they were put through very quietly. It is interesting that this time they were not initiated by parliamentarians, who have recently been bringing forward many exotic projects, but by other, very serious, subjects of legislature initiative, namely the Supreme Court and the Government. As of today, one bill has already become a law, the second one has cleared the first reading, and the third one has just been introduced. What is the idea of the suggested novelties? The Government believes that any criminal case, irrespective of how many years have passed since the final judgment has been issued in it (whether it was an acquittal or a conviction), can be sent for a retrial at any time, notably with the purpose to worsen the situation of the convicted person. That is, a new graver charge can appear on the basis of an earlier story. The only time limit is the general statute of limitations, which today is fifteen years, and for the gravest crimes it may not be applied at all. A case can be re-tried on two grounds. First: in case of new publicly dangerous consequences of the act – and nobody knows what this means. Second: in case of discovery of new circumstances providing grounds for bringing new graver charges – which is even more vague.

NZ: In other words, investigative agencies will be able to think up new interpretations of the acts on which verdicts have already been issued and open new criminal cases?

VK: Let’s imagine a person who has already been convicted and is serving his sentence or has already served it, or maybe has been released early due to mitigation of the law. And suddenly “new circumstances” are discovered – which, by the way, are limited only by how far the fantasy of the investigative, prosecutorial and judicial bodies can take them. In principle, repressions can go on forever: the person will never be sure that his case has been resolved once and for all. The situation becomes especially cynical because the authors of the amendment refer to a Constitutional Court Decree issued in 2007, but distort its meaning. The Decree said that victims should have a statutory means of protection of their breached rights in case when the entire scope of the harm done to them was not and could not be known during the court hearing of their case. For instance, a person was convicted for inflicting serious bodily injuries, but after the judgment was issued the victim died from the same injuries. Notably, then, in 2007, it was emphasized that such a re-trial should be used in exceptional circumstances and it is inappropriate to use it to correct shortcomings of the first trial. Now there are no such reservations; instead, there are unlimited possibilities: any “new consequences” and, in addition to this, any “discovered new circumstances” give grounds for graver charges. And, of course, it will be investigators and prosecutors who will decide whether there are “consequences and circumstances” in the case, and the court will then readily rubber-stamp their decision. Feel the difference…

NZ: If such are the amendments suggested to the Code of Criminal Procedure by the Government, I’m scared even to ask what novelties have been initiated by the Supreme Court?

VK: The bill introducing amendments to the Criminal Code, which has been adopted at the initiative of the Supreme Court and has already become law, concerns criminal liability for fraud. It is thought that this concept and this liability have now been sufficiently clarified. But this is not true, because the “limitless” Article 159 of the Criminal Code stayed the same, while six more articles concerning various types of fraud were added to it. I’m calling it “limitless” because it is it that is used to bring most of corporate raiding and corruption charges, in which absolutely anything can be classified as felonious deceit. For instance, the notorious breach of contract, which now also became a separate type of fraud. If need be, anything can be shoved into this Article 159 or its clones. It is clear that appearance of such “differentiation” of fraudulent acts makes it easier to “discover” and apply those same “new circumstances” that we discussed above.

But wait, there’s even more: another bill introduced by a Supreme Court’s Plenum Decree changes jurisdiction over criminal cases. All cases except those that can receive capital punishment or life sentence will be transferred to district courts. And according to the official statistics of the Judicial Department for 2011, they have an acquittal rate of just 0.2%. If we take into account that a third of acquittals by district courts are overturned on appeal, we get 0.13%. In courts of regional or equal levels such percentage is much higher, first and foremost because of cases heard by a jury. Of all the verdicts issued by jury 15–20% are acquittals. It’s understandable that jury trials have always been quite unpredictable for those who order corruption and political cases. Now the cases transferred to district courts, where there are no jury trials, will also include cases under notorious Article 210 of the RF Criminal Code concerning organised criminal associations. It is widely known that charges concerning almost any white-collar case contain a qualifier of “being committed as a part of an organised group”. Entrepreneurial activity in its essence is carried out in organised forms: if there is a company, it has shareholders, managers, employees, accountants. And this organised nature can very easily be presented as criminal. The existence of such a qualifier makes the charge graver, but it’s still a single charge. Today in “ordered” cases Article 210 is not invoked for one single reason: if the accused asks for a jury trial, he will have to be allowed to have it. And now this Article 210 goes to district courts and away from jury trials. I can expect with a high degree of probability that soon the “organised group” qualifier will be replaced en mass with a discrete and separate charge of creation of an organized criminal association or participation in it, which is punishable by up to twenty years of deprivation of liberty. These are our bright prospects.

NZ: Won’t it lead to a crisis of the institution of jury trials per se?

VK: In my view, such crisis has been here for about eight years already; it is getting worse and accompanied by aggressive discrediting of the institution of jury trials. There is every reason to speak of a consistent downgrading of the share and the role of this type of trials to a level comparable to an arithmetical error. At the same time, jury trials is the only form of Russian court proceedings that still enjoys at least some trust of the society and issues a really palpable percentage of acquittals.

NZ: Not very long time ago, expert community was working on the Conceptual Framework for the Modernization of Criminal Legislation in the Economic Sphere. What happened to it?

VK: Yes, such a document was prepared in 2010, if I’m not mistaken either at the instruction or with the approval of President Medvedev. On the basis of that document, which was drafted by top experts, the Presidential Human Rights Council sent to the head of state a whole package of bills that included a multitude of measures, from an amnesty for entrepreneurs to systemic (as opposed to pinpoint and peripheral) changes to criminal procedural and other laws. It was dismissed as early as at the stage of preliminary discussions with the participation of representatives of the Presidential Administration and State Duma – and it was done with the help of such arguments as “we don’t need this” and “the society is not ready for this”. But the opposite things, as we can see, are adopted with enthusiasm. Meanwhile, the Conceptual Framework offered a simple model that was the only reasonable one, according to which the criminal law has only one function in relation to the economy – a protective one, and nothing more than that. From this perspective, the criminal law shall support civil-law regulation of our life (in particular, it protects the economy and economic activity from the most dangerous encroachments) rather than weigh on it and subjugate it. No business disputes can be resolved by criminal-law methods and bring about criminal repressions. Absolutely no “criminal civil law”, with its own parallel view on the freedom of economic activity and its limits, has the right to exist. When the “substantiation” of prices and contractual terms is determined by investigators and prosecutors, or when they selectively ignore property rights, what modernisation and competitive economy can we talk about?! It is interesting that in this “creative” attitude toward economic freedom our Government follows the teachings of Lenin:

“We do not recognise anything “private”, and regard everything in the economic sphere as falling under public and not private law. We allow only state capitalism, and … it is we who are the slate. Hence, the task is to extend the application of state intervention in “private legal” relations; to extend the right of the state to annul “private” contracts; to apply to “civil legal relations”   not the corpus juris romani but our revolutionary concept of law; to show systematically, persistently, with determination, through a series of model trials, how this should be done wisely and vigorously; to brand through the Party and expel those members of revolutionary tribunals and people’s judges who fail to learn this or refuse to understand it.” [1].

By the way, Putin spoke of the need to put an end to this monstrosity in the course of the latest election campaign and in his last year’s Address to the Federal Assembly. But since such a model is unhelpful and dangerous for those who really control the “law deforcement” sphere and, to a large degree, the economy, it still remains blocked.

January 2013 (Neprikosnovenny Zapas is published six times a year – Press Centre)

[1] V.I. Lenin, The Complete Set of Works. M., 1970. Vol. 44. P. 398.