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Rejection of Khodorkovsky appeal latest example of due process failures

Robert Amsterdam [counsel for Mikhail Khodorkovsky]: "This summer, a second trial is being carried out by the Russian government against Mikhail Khodorkovsky - once Russia's most successful oil executive and opposition financier. As may be expected, the good news continues to come from outside of Russia, where some rule-of-law courts are able to fairly view the evidence. On May 21 the European Court of Human Rights issued a decision to admit a complaint from Khodorkovsky that Russia had violated three articles of the European Convention on Human Rights in their persecution of him. Inside Russia, the courts have tended to ignore the defense and rule in favor of the State, most recently on June 1 when the Moscow City Court rejected an appeal from Khodorkovsky regarding his inordinately long and illegal pre-trial detention.

Prior to this new trial, Russia's most well known political prisoner had spent more than two years imprisoned in an "isolator" facility (SIZO), which is an unusually long period for anyone to be held awaiting trial. The fact that Russia has broken the law to hold Khodorkovsky in this painful limbo illustrates several realities about the case in my opinion: first, the prosecutors have been totally incapable of fabricating a credible case; second, Russia's political elite are likely in disagreement over what precisely should be done with Khodorkovsky; and lastly, there is reason to believe some hold a vindictive desire to impart as much suffering upon the prisoner as possible.

By placing Khodorkovsky in the isolator so early, prosecutors deprived him of the more relaxed rules of incarceration of the prison colony. In the harsher conditions of this facility, being kept in a small jail cell, Khodorkovsky has been under round-the-clock surveillance, he has been deprived of exercise and fresh air, and his family visits have been restricted to a minimum.

Under Russian law, even if prisoners are under investigation for new allegations, they are to continue to serve their existing sentence as stipulated by the existing court verdict — which for Khodorkovsky would have meant the far less inhumane general prison colony. I can only speculate over whether the authorities were upset that Khodorkovsky was successful in building strong support among other prisoners; for example, he had begun teaching some inmates finance and economics classes during their free time and he had purchased books and periodicals for the prison library. Other ex-prisoners have come out in his defense, denouncing various pressures from the prison administrators.

In the face of the obvious bad faith of the authorities in holding Khodorkovsky under the isolation regime, he petitioned the courts to ensure that his rights — and Russian law — be respected. However the June 1st rejection of this appeal by the Court struck down this request, confirming the prosecution's view that Khodorkovsky can be held until August 17 — and thereafter for additional renewable three-month periods.

Furthermore, the court refused to hear all of Khodorkovsky's other complaints about the severe due process violations that have been and are being committed against him, finding them not subject to appellate review. These complaints addressed the absurdity of the current charges in both fact and law; the expiry of the statute of limitations for certain elements of the indictment; and the refusal of the court to accept any defense evidence whatsoever. The appeal hearing was unlawfully closed to outside observers.

Either the Russian Constitutional Court or the European Court of Human Rights would have to disagree with the rejection of Khodorkovsky's appeal. Khodorkovsky is fully supported in his positions by both Russian law and international norms — yet the prosecutorial bulldozer continues unabated. As new chapters in this Kafkaesque story are being written, we can only hope against all odds for a surprise verdict when the current trial finally wraps up."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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