Will the ECtHR Give Khodorkovsky a Ticket to Freedom?

I usually do not cover this issue, as you can generally find all things Khodorkovsky over at the Robert Amsterdam blog and in the Western Media. But an issue, and more importantly a dispute, is arising that could have potentially huge significance for both Khodorkovsky personally and Russia as a whole. The issue is Khodorkovsky’s pending appeal before the European Court of Human Rights. The NYT reported today:

The European court is expected to issue decisions soon on two appeals from Mr. Khodorkovsky, the former oligarch, which assert that his rights were violated during his arrest and first trial. If the European court rules in his favor and calls for a new trial, it would be a significant embarrassment for the Kremlin.

For those who were not aware, the Court has become a sort of shadow legal system for Russian plaintiffs whose rights have been violated by Russian authorities, and who are unable to receive a fair hearing in Russian courts. Most of these complaints concern red tape or the inhumane treatment of convicts, though they also occasionally touch on politically sensitive topics like the war in Chechnya. Significantly, Russia generally complies with the rulings of the Court.

Russia, however, has grown increasingly upset over the Court’s rulings on Chechnya cases, and about the proposed reforms discussed in today’s NYT article. As such, we have recently seen growing resistance to the Court’s role from members of the Duma. Even Pres. Medvedev has criticized the Court, but more from the perspective that it hinders the development of the Russian court system (of course, PM Putin has been critical of the Court).

L’Affaire Khodorkovsky’s arrival at the Court is kind of a perfect storm that can influence Russia’s legal development, in my humble opinion. I think it can be argued that, just as Khodorkovsky’s business dealings were not within the law, his prosecution was equally not motivated by concerns with enforcing that law. Thus, whether he engaged in criminal conduct or not, he still walks like, talks like, and looks like a political prisoner. And having a political prisoner has been, and continues to be, completely antithetical to Russia’s ‘narrative’ of the last 4-5 years of being a modernizing, increasingly-enlightened, country where investors can safely put their money and have no moral qualms about doing it. In other words, Khodorkovsky’s continued imprisonment puts a face on what Pres. Medvedev has called ‘legal nihilism’. This raises the question – will Medvedev comply with the Court’s ruling on Khodorkovsky (assuming it is in Khodorkovsky’s favor)?

There are only two scenarios, both of which I think are completely possible. First, Russia (i.e., Mededev) could comply with a Court ruling in favor of Khodorkovsky. I think Medvedev personally wants to go this route, as he was never really involved with the ‘stealing’ of Yukos in the first place. Also, I think Obama will bring up Khodorkovsky this week in London and I bet that Medvedev would like to give an answer that pleases Obama – this is an issue that does not affect Russia’s national interest, and yet can benefit the country by silencing foreign critics and yielding political capital. This route could be simple for Medvedev, as Russia already has a long history of compliance with the Court’s decisions, is consistent with the modernizing narrative, and shows Medvedev is genuine in wanting to combat legal nihilism.

The second scenario is non-compliance. It is unlikely that Russia would wait until the day of the ruling on Khodorkovsky, and then say ‘Nyet’. Rather, they would likely seize on the growing imbroglio over the Court’s proposed reforms as a pretext for not complying with the Court’s rulings going forward. Medvedev could easily raise the arguments that Russia needs to develop its own court system, cannot be dependant upon Strasbourg institutions, national sovereignty, etc. Still, it would go down as yet another one of those instances where Russia raises an on its face legitimate arugment to support yet another indefensible stance.

You do not have to be an expert to see which variant would be better for Russia’s national interests and that country’s domestic legal development. Competency in making technical legal arguments that allow Russia to essentially do what it wants is not the way to fight legal nihilism. Rather, it encourages it. Furthermore, I hope the realists over in the Kremlin look at the situation and its likely impact on US-Russian relations, and understand how releasing Khodorkovsky pays far more dividends to the country as compared to keeping him locked up.

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