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Cablegate: Rule of Law Lipstick On a Political Pig:

VZCZCXYZ0003
RR RUEHWEB

DE RUEHMO #3144/01 3641427
ZNY CCCCC ZZH
R 301427Z DEC 09
FM AMEMBASSY MOSCOW
TO RUEHC/SECSTATE WASHDC 5829
INFO RUCNCIS/CIS COLLECTIVE
RUEHXD/MOSCOW POLITICAL COLLECTIVE
RHEHNSC/NSC WASHDC

C O N F I D E N T I A L MOSCOW 003144

SIPDIS

E.O. 12958: DECL: 12/29/2019
TAGS: PREL PGOV PHUM KDEM RS
SUBJECT: RULE OF LAW LIPSTICK ON A POLITICAL PIG:
KHODORKOVSKIY CASE PLODS ALONG

REF: A) MOSCOW 603 B) MOSCOW 1226

Classified By: Pol Minister Counselor Susan Elliott for reason 1.4 (d)

1. (C) Summary: The prosecution in the Khodorkovskiy/Lebedev
trial has finished reading its 188 volumes of evidence, and
has moved on to questioning witnesses. An observer for the
International Bar Association stated his belief that the
trial is being conducted fairly. Related events outside of
Russia continue to affect the case. A deposition in a U.S.
court by Price Waterhouse Coopers (PWC) may show that PWC
received GOR pressure to disavow its prior Yukos audits; the
Russian Supreme Court upheld an ECHR ruling that Lebedev's
initial arrest was illegal; and an arbitration court in the
Hague found Russia to be bound by the Energy Charter Treaty,
leaving it open to a large judgment against it and possible
seizure of GOR assets abroad by Yukos shareholders. Despite
the case's wide implications, it continues to be a cause
celebre only for foreigners and a minority of Russians. The
case also shows the great lengths that the GOR is willing to
go in order to place a "rule of law" gloss on a politically
motivated trial. End Summary.

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Recent developments
-------------------

2. (C) The trial of former Yukos chief Mikhail Khodorkovskiy
and his associate Platon Lebedev continues in Moscow's
Khaminovsky court, having moved from the reading of the
prosecution's evidence -- which comprised 188 volumes and
lasted throughout the summer -- to questioning of the
prosecution's witnesses. Thus far the prosecution has called
31 of its 250 witnesses, meaning that the trial will probably
last until 2012. XXXXXXXXXXXX told us December 23 that he believes the trial is being
conducted fairly and that Judge Danilkin has been doing
everything in his power to make sure that the defense gets a
fair opportunity to present arguments and challenge the
prosecution's evidence.

3. (C) Among recent developments in the case, the defense has
been trying to introduce the testimony of a former Price
Waterhouse Coopers (PWC) auditor, who was deposed in
California in August by Khodorkovskiy lawyers. The
prosecution has objected to the introduction of the
deposition into the case, complaining that they had not
received sufficient notice; however, according to Teets, the
Russian Embassy did not inform the head investigator in
Russia until recently. The PWC deposition goes to the heart
of Yukos's guilt or innocence; as Yukos's auditor, it signed
off on Yukos's financial statements from 1994 to 2003, only
to disavow this prior approval in 2007. As XXXXXXXXXXXX noted, if
the audits were properly withdrawn, this will be a "black
mark" for the defense; if not, it could help the defense, but
would greatly tarnish PWC's international reputation. Teets
said that the content of the deposition had not yet been made
public, but speculated that the auditor had testified that
PWC had been pressured by the Russian government into
withdrawing its prior certifications of Yukos books and
records.

Lebedev ruling and other "international" issues
--------------------------------------------- --

4. (SBU) The Yukos battle continues simultaneously both on
domestic and the international fronts, with some concrete
effects on the case's proceedings in Moscow. On December 23,
the Russian Supreme Court ruled that the 2003 decision to
arrest and detain Lebedev was illegal, in keeping with a 2007
ruling by the European Court of Human Rights (ECHR). (Note:
The GOR often loses cases at the ECHR, and its common
practice is to pay the compensation required by the ECHR's
rulings while ignoring the substantive redress of the
systemic problem involved. This decision represents a rare
departure from this practice and signals a potentially
encouraging trend. End Note.) The Supreme Court's ruling
indicated only that the first two months of Lebedev's six
years (to date) of incarceration were illegal, and thus might
be considered only marginally relevant. However, the defense
might use this ruling to argue that the entire conviction was
tainted by the illegal detention and therefore should be
thrown out. Defense lawyers told Radio Free Europe that they
have not yet decided how to proceed, but called the ruling a
"victory," while expressing bewilderment at the Supreme
Court's two-year delay in ruling on the case.

5. (SBU) On December 23, Moscow's Basmanny Court issued an
arrest warrant in absentia for former Yukos treasurer Andrey
Leonovich, which Khodorkovskiy's lawyers called a ploy to

pressure witnesses, and which will likely further exacerbate
tensions with the UK (where Leonovich now resides) over the
issue of extraditions. This move follows a December 2 ruling
by an international arbitration tribunal in the Hague that
Russia is bound by the Energy Charter Treaty (ECT), thus
requiring the GOR to defend itself against claims from Yukos
shareholders for an estimated 100 billion USD in damages (ref
A). This sum would be the largest arbitration award ever,
representing 10 percent of Russia's GDP, and although
collecting the entire amount would be difficult, it could
allow shareholders to seize state assets outside of Russia.
The ECT ruling could affect, among others, companies such as
Royal Dutch Shell and BP who were forced to renegotiate
contracts on terms favorable to the GOR.

Russians apathetic, but skeptical towards GOR
---------------------------------------------

6. (SBU) Given such significant international implications to
the case, and given Khodorkovskiy's former stature, one might
expect a large amount of focus on the Yukos case inside
Russia. However, most Russians continue to pay scant
attention (ref B). According to a December poll by the
Levada Center encompassing 1,600 respondents in 127 cities
and villages, only a little more than one-third of Russians
are following the case (a May Levada poll showed the same
figure for people who were at all aware that the case
existed). The same poll, however, revealed a notable
divergence in public opinion from the "party line" maintained
by Prime Minister Vladimir Putin. In his December 3
televised question and answer session with the public, Putin
defended the legitimacy of Khodorkovskiy's incarceration and
accused Khodorkovskiy of also being a murderer. He also
claimed that all of the earnings from the sale of Yukos were
being funneled into the country's Housing and Utilities Fund.
The Levada poll, however, showed that 65 percent of
respondents did not believe Putin's claim about the Housing
Fund, and 50 percent believed that Putin should be summoned
as a witness in the case.

Khodorkovskiy starting to lose hope
-----------------------------------

7. (SBU) Khodorkovskiy and Lebedev have consistently
maintained an upbeat demeanor, frequently smiling and
laughing during the proceedings, and chatting buoyantly with
supporters. Over the course of his imprisonment,
Khodorkovskiy has written a series of philosophical articles
(printed in liberal papers such as Vedomosti) that have
amounted to shadow policy papers of the type that he might
write if he were one of the President's advisors. He had
also expressed faith that the Russian court system would
exhibit sufficient fairness and rule of law, and Judge
Danilkin sufficient independence, to acquit him. In recent
months Khodorkovskiy has made pessimistic statements that he
does not expect ever to be freed. By all accounts, in 2003
Khodorkovskiy did not believe he would actually be arrested.
His thinking here seems to following a similar trajectory,
from naive refusal to believe what is happening, to the
gradual sinking in of the reality of his situation.

Comment
-------

8. (C) The fact that legal procedures are apparently being
meticulously followed in a case whose motivation is clearly
political may appear paradoxical. It shows the effort that
the GOR is willing to expend in order to save face, in this
case by applying a superficial rule-of-law gloss to a cynical
system where political enemies are eliminated with impunity.
It is not lost on either elite or mainstream Russians that
the GOR has applied a double standard to the illegal
activities of 1990s oligarchs; if it were otherwise,
virtually every other oligarch would be on trial alongside
Khodorkovskiy and Lebedev. There is a widespread
understanding that Khodorkovskiy violated the tacit rules of
the game: if you keep out of politics, you can line your
pockets as much as you desire. Most Russians believe the
Khodorkovskiy trial is politically motivated; they simply do
not care that it is. Human rights activists in general have
an uphill battle in overcoming public apathy and cynicism,
but nowhere more so than in the Khodorkovskiy case. We will
continue to monitor the case as it unfolds.
Rubin

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