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Moscow Times
June 24, 2009
European Watchdog Castigates Courts
By Ira Iosebashvili / The Moscow Times

Russia's court system came under a withering attack by Europe's top human rights watchdog on Tuesday for "politically motivated abuses" that it said have especially victimized two companies, Yukos and the Hermitage Fund.

The Council of Europe issued a report that deals with legal abuses in Russia, France, Britain and Germany. But roughly half of the document was devoted to Russia, where it said companies must contend with a litany of abuses, including " legal nihilism" and judges who are pressured to deliver convictions at any cost.

Russia, which is a member of the Council of Europe, has rejected criticism of its courts in the past, and it was unclear what effect Tuesday's report might have on the legal system. President Dmitry Medvedev, a lawyer by training, coined the term "legal nihilism" in January 2008 in calling for a crackdown on corruption and a strengthening of the rule of law.

Companies said the Council of Europe testimony was an important step in increasing international pressure on Russia to comply with worldwide standards in legal proceedings and to allow companies operating within the country to bring their cases before international courts.

"This report makes official what so many of us knew all along. The criminal justice system is Russia is broken," said William Browder, CEO of Hermitage Fund, once the largest foreign investor in the Russian stock market. Browder was barred from Russia as a national security threat in 2005 after battling Gazprom over high corporate spending and Kremlin-linked oil major Surgutneftegaz over its murky ownership structure.

Vadim Klyuvgant, a lawyer to jailed former Yukos CEO Mikhail Khodorkovsky, said the report was "one of the drops of water that will eventually make a hole in a stone and a rather big drop, at that."

He said it might mean that the Council of Europe would adopt a resolution on Khodorkovsky's case when it next convenes in September.

Last month, the European Court of Human Rights agreed to consider a complaint by Khodorkovsky that his 2003 arrest and subsequent detention were unlawful and politically motivated and that he had experienced inhuman and degrading treatment. The complaint was submitted in 2004.

"My application to the Strasbourg court was necessary so that corrupt Russian strongmen know and understand that their actions will be evaluated on the international level," Khodorkovsky said in an interview with The Moscow Times last month. "The verdict of the Strasbourg court will be important for all in Russia who have become victims of raiders' attacks and contract criminal cases."

The report, which was presented to the Council of Europe's Committee on Legal Affairs and Human Rights by Sabine Leutheusser-Schnarrenberger, a former German justice minister, is based on interviews that Leutheusser-Schnarrenberger conducted with judges, prosecutors, defense lawyers and defendants, including Khodorkovsky. It paints a picture of a Russian legal system turned on its head, where judges receive intimidating telephone calls from superiors telling them how to rule in various cases, defense attorneys are threatened and corporations are at the mercy of corrupt law enforcement officials.

It details a multitude of individual cases, including one of a Moscow region judge who was dismissed and told by her superiors, in open court, that she "ought to be shot" after voiding the results of a local election, and a Moscow judge who was given a sentence of 12 years "on very scant evidence" after being charged with participating in a property scam at a time when fighting judicial corruption was given the highest public priority.

It also mentions the case of opposition lawyer Karina Moskalenko, who feared an attempt on her life after finding a small amount of liquid mercury in her car in Strasbourg last year. It says French police are still investigating the incident, and reports that the car's previous owner had accidentally broken a thermometer in the vehicle are "not compatible with the amount found."

Leutheusser-Schnarrenberger highlights the tribulations of Yukos and Hermitage Fund as being "emblematic" of the dangers faced by corporations who get on the wrong side of the authorities.

New charges that Khodorkovsky embezzled profits and oil are "bizarre" and "contradictory," the report said, also accusing the authorities of waging an "unrelenting campaign" against the company and its executives. It describes a long list of inconsistencies in arguments made by the prosecution, calling them "perplexing."

Hermitage Fund, meanwhile, was "another example of a Russian-style raid, or corporate takeover," the report said. "But in addition to the sheer size of the corporate victim and its international repercussions, this case is special in that the management of Hermitage, when it attempted to defend itself against these massive frauds with the help of the competent authorities, became itself the victim of systematic retaliatory measures that must have the support of senior law enforcement officials," the report said.

Hermitage's Browder said he was hopeful that the report would lead to justice for his company and others that have suffered at the hands of the country's legal system as well as help put international pressure on officials who flout laws. "Until now, Russian criminals have been able to hide behind the failings of the Russian judicial system," Browder said. "They should now expect increasing pressure from law enforcement authorities overseas, affecting everything from their foreign bank accounts to their ability to travel."

Klyuvgant, the Yukos lawyer, said he was not sure what effect the case would have on Khodorkovsky's case in Russia, but that he hoped for the best. "When it comes to the Yukos case, you're always hoping for a miracle," he said.