Russia Claws at the Rule of Law
Posted Jul 02, 2009 04:40 am CDT
The courtroom gallery brimmed with lawyers during the trial in January of four men accused of murdering Anna Politkovskaya, a reporter for the Russian newspaper Novaya Gazeta who was gunned down in 2006 at the elevator of her Moscow apartment.
The newspaper had paid a high price for its investigations into political corruption. In 2000, another Novaya reporter had been beaten to death with hammers on a Moscow street. Three years later, the paper’s managing editor died mysteriously from something that caused his skin to peel off.
For the lawyers gathered to watch it, the trial of those accused in Politkovskaya’s murder was itself a victory. The very fact there was a trial at all signaled that the rule of law finally mattered in Russia.
Suddenly, cell phones began to chime across the courtroom with text messages; Politkovskaya’s attorney—34-year-old human rights lawyer Stanislav Markelov—had been murdered. A young Novaya Gazeta intern walking with him was also shot and killed.
Markelov was founder and president of Russia’s Rule of Law Institute. His murder had all the marks of a professional hit. He was shot point-blank in a crowd of people on a busy street by a gun topped with a silencer.
To his colleagues, Markelov’s killing came as no surprise. The only question was why. Was his assassination related to a Chechen murder, in which he was representing the victim’s family? Or to the case of an environmentalist targeted by neo-Nazis? Or was it linked to attempts to stop the development of a mixed-use luxury real estate project?
Each matter involved powerful politicians, organized crime or well-connected military officers. And each seemed evidence to Markelov and his friends that the rule of law in 21st century Russia is a captive of the rich, the powerful and the well-connected.
For lawyers in Russia these days, life is difficult, even dangerous. Even attorneys who handle run-of-the-mill corporate work—including real estate deals, corporate contracts, environmental regulations and tax matters—have reported threats and harassment, according to the Moscow-based think tank Memorial Human Rights Center.
Though few will speak for attribution—or even allow their exact words to be quoted—American lawyers who once practiced in Russia say the law there has become increasingly politicized and unpredictable.
“A lawyer can keep a low profile and work on cases that never bring him close to peril, but the problem in Russia is, danger can lie in unexpected places,” says Ethan Burger, an expert on Russia and an adjunct law professor at Georgetown University.
THE YUKOS FACTOR
A radical change in Russia’s deference to due process can be traced to the government’s enigmatic prosecution of Yukos Oil. U.S. investors lost an estimated $6 to $7 billion. Yukos executives lost their freedom. And lawyers who helped defend Yukos interests are still feeling the reverberations.
From its beginning in the 1990s, Yukos was steeped in allegations of intrigue and violence. Created in 1993 after a controversial privatization of former Soviet assets, by 1999 Yukos was supplying 20 percent of Russia’s oil production of 5.9 million barrels a day.
Handsome and charismatic, company founder and CEO Mikhail Khodorkovsky was once considered a potential rival to Vladimir Putin for the Russian presidency.
In 2003, Khodorkovsky was arrested for fraud and, after months in prison, resigned from Yukos. Two years later he was convicted and sentenced to eight years in a Siberian prison. In March of this year, the Russian government began prosecuting Khodorkovsky on new charges of embezzlement and money laundering. He faces 22 more years in prison if convicted.
The U.S. State Department warned that the prosecution of Khodorkovsky had led to capital flight and a plunge in new foreign investment in Russia. Carol Patterson, a partner and nearly 20-year veteran of Baker & McKenzie’s Moscow office, concedes that investing in Russia “requires thorough due diligence—both of the legal environment and of the people you are dealing with.” But she believes the Khodorkovsky case is “not representative of the business experience of most multinationals.” Patterson notes that the “challenge in building corporate, tax and commercial law from scratch in 20 years has been immense,” but “overall Russia has made tremendous progress.”
By contrast, Robert Amsterdam—who represented Khodorkovsky until 2005, when Russian police burst into his hotel room and ordered him to leave the country—has little faith in Russia’s legal system.
“Until the rule of law is established in Russia, I won’t be back” says the Canadian attorney, who maintains an international practice based in London and Toronto that specializes in emerging markets. “I would advise lawyers to warn their clients not to invest in the raw materials in Russia. No timber, oil, mining, agriculture or fishing. There is too much political corruption in that sector.”
John Pappalardo, a former U.S. attorney in Massachusetts who co-chairs Greenberg Traurig’s white-collar practice group in Boston, became part of Khodorkovsky’s defense team in 2003. A month before he arrived, Moscow police seized files belonging to Khodorkovsky’s Russian lawyer, Anton Drel.
Pappalardo told the Boston Globe that the police had to remove a wall of Drel’s office so they could cart off his mainframe computer. Pappalardo received a death threat by phone and said he never took cabs in Moscow for fear of being kidnapped.
Another Yukos attorney, Vasily Aleksanyan, was also imprisoned on charges of fraud. Aleksanyan, a Russian-American who holds a master’s in law from Harvard Law School, had headed the Yukos legal department since 1996 before he was appointed executive vice president in April 2006 and given a mandate to root out political corruption within the firm. Just days after his appointment, Aleksanyan was arrested for money laundering and fraud.
Aleksanyan’s arrest became a human rights issue when it was revealed that he suffered from cancer, tuberculosis and AIDS while in prison, and had been refused proper medical attention. After international demands for his release, Aleksanyan, now 38, was freed in December after posting $1.8 million in bail.
Another turning point—this in the law itself, rather than its application—came in the aftermath of the Beslan school massacre of 2004, which scarred the Russian psyche in much the same way Sept. 11 devastated Americans.
On the first day of school, 32 Chechen terrorists seized the Beslan elementary school, taking more than 1,100 parents, children and staff hostage.
After several hostages were murdered, Russian forces stormed the school with tanks and rockets. On TV sets across Russia, viewers saw the roof collapse on screaming victims as fire engulfed the school, leaving 334 hostages dead, 186 of them children.
In response to the Beslan attack, then-president Putin demanded and received expanded powers of pretrial detention for terrorism suspects, including the use of “duress” in interrogations.
Christopher Osakwe, a retired Tulane University law professor now teaching at Moscow University, says the new powers are tough and broad. “Russian prosecutors are allowed unlimited pretrial detention without a charge,”says Osakwe, who has provided the authoritative English translation of the Russian civil code.
“Russian judges and political rulers do not consider attorney-client confidentiality crucial to a proper defense. Russian officials can depose a defendant’s attorney as a witness, making it impossible for him to continue representing his client,” Osakwe says.
Osakwe’s Moscow law students are often bewildered by the American debate over the legality of torture because “they find human rights are a somewhat alien concept,” he says.
Russian lawyers don’t have to be involved in human rights cases to suddenly find themselves on shaky legal ground. Last year, Russian prosecutors prepared a case against the nationwide 2x2 television network for broadcasting The Simpsons, South Park and The Family Guy. Prosecutors claim the cartoons violate Russian laws by “mocking patriotism, respect for family values and the importance of sport.” As this magazine went to press, 2x2 was having trouble finding a lawyer to represent it.
Such cases can seem capricious and outright odd to an American ear. But lawyers who work in Russia say they have the very real effect of leaving legal boundaries so uncertain that even mundane transactions can involve personal risk to the lawyers involved.
AN INSIDE JOB
When he was arrested in November, Moscow tax lawyer Sergei Magnitsky was working for Firestone Duncan, a firm that offers legal, accounting and other financial services in Russia.
Magnitsky was charged with tax fraud for advice he gave in 2001 to Hermitage Capital Management, a British fund that invests in Russia, according to Business Week. Jamison Firestone, managing partner of Moscow-based Firestone Duncan, has called the charges a fabrication, designed to pressure anyone associated with Hermitage Capital.
HSBC, the British bank that serves as trustee of Hermitage, filed a formal complaint with the Russian government about the apparent use of several Hermitage subsidiaries in a 2007 fraud. The companies were improperly reregistered under new owners and subsequently used to steal $230 million from the Russian treasury. The complaint implicates several members of Russia’s interior ministry. After it was filed, in an apparent act of retaliation, three firms hired by Hermitage came under criminal investigation by Russian authorities.
According to the International Bar Association, Russian police raided the law offices of Eduard Khairetdinov last August. Khairetdinov, who was representing Hermitage Capital, was issued a summons, along with two other lawyers, demanding that the three appear as witnesses in a case they were involved in. “This not only contravenes Russian legislation, but also goes against the Basic Principles on the Role of Lawyers adopted by the United Nations,” the IBA noted.
Fearing arrest, Khairetdinov and several other lawyers have since fled Russia.
Mark Ellis, executive director of the IBA, denounced the raids as a sign of deterioration of the rule of law in Russia. “When government agents interfere with the work of lawyers, it is not only the legal profession that is threatened, but the overall legal order in the state,” said Ellis last September.
And in what critics say is an attempt to turn the legal profession against itself, the Russian government has been putting pressure on the lawyer-discipline process.
In the Yukos case, for instance, prosecutors tried to have all 14 attorneys who represented former CEO Khodorkovsky disbarred. The prosecutor-general singled out one attorney, human rights lawyer Karinna Moskalenko, for particular humiliation. He wanted her disbarred for “incompetent defense,” even though Khodorkovsky wrote a statement praising her work.
Although disbarments would have curried favor with Putin, the Moscow Collegium of Advocates refused to disbar any of the attorneys. And perhaps as a result, the Russian government has proposed a new law that would allow lawyers’ licenses to be yanked without bar approval.
A HALL OF MIRRORS
It is the hall of mirrors that is the murder of Stanislav Markelov which observers say best demonstrates the current troubled Russian legal landscape.
On the day he was killed, Markelov held a press conference about one of his cases—the rape, kidnapping and murder of an 18-year-old Chechen woman by Russian Col. Yuri Budanov.
Markelov represented the teenager’s family during Budanov’s trial. In 2003, Budanov was convicted of murder and sentenced to 10 years in prison, but he was released in January. Markelov announced at the press conference that he would challenge Budanov’s release. Minutes later, Markelov was dead.
Markelov’s friends are not sure whether it was the Budanov case that prompted his assassination. He also represented a number of Chechens who claimed to have been tortured or kidnapped by Russian officers and politicians, including the family of a Chechen student.
While preparing the case against a Russian police officer accused of falsely arresting, torturing and murdering the young man, Markelov was beaten by skinheads in a Moscow subway. They left his watch and wallet untouched, but stole his briefcase full of legal documents, says Markelov friend and Russian human rights activist Oksana Chelysheva. Despite the intimidation, Markelov persisted, and the police officer was eventually sentenced to 11 years in jail.
Markelov’s colleagues say his work representing newspaper editor Mikhail Beketov may be another case that led to his assassination. One of Beketov’s stories probed Russian developers’ plans to raze the ancient Khimki Forest near Moscow to build a luxury mixed-use real estate project.
Abusive phone callers began harassing Beketov at work and home. Someone poisoned Beketov’s dog and left the corpse at the back door. In November, neighbors found Beketov unconscious and drenched in blood in his backyard. He was beaten so savagely, pieces of his shattered skull were pried from brain tissue. His mangled right leg and frostbitten fingers were amputated. The hospital received threatening phone calls vowing to “finish Beketov off.”
Thanks to lobbying by Russian and American activists and lawyers, the comatose Beketov was moved to Sklifosovsky Scientific-Research Institute, Russia’s leading emergency care center.
Crimes such as Markelov’s murder are handled by the 50,000-lawyer Procuracy—the entity that investigates and prosecutes crimes. It is considered the elite of the legal profession, and has been credited with jailing Russian street criminals and taking back financial institutions from mob control.
But in a paper co-authored with New York University Law School professor Mary Holland, Burger says the agency “has been otherwise ineffective when it comes to cases treading on government interests and those of high-level officials.”
“The Procuracy reflects the interests of the presidential administration and the elites within it,” explains Burger. “It has not solved any of the politically motivated contract murders in recent years.”
Asked for its views on the state of the rule of law, the Russian Embassy’s press office deferred to former presidential adviser Andranik Migranyan of Russia’s Institute for Democracy and Cooperation.
“The 1990s were wild times, people grabbing all they could during a period of privatization with a weakened central government and weak law enforcement. People were not placing faith in the judicial system, just settling scores and feuds themselves,” says Migranyan.
“Things are much better, much calmer now. There is a strong government. Our current presi- dent, Dmitry Anatolyevich Medvedev, is a lawyer himself,” Migranyan notes.
Prosecutors, he says, need to learn how to be competitive in the courtroom. “Medvedev said the days when prosecutors could rely on presumption of guilt are over. Guilt must be proved.”
Medvedev himself stirred hopes among lawyers in a January 2008 speech. “Russia is a country of legal nihilism. No European country can boast such a universal disregard for the rule of law,” said Medvedev. “Corruption in the official structures has a huge scale and the fight against it should become a national program.”
Markelov’s friends are not holding their breath for the start of a government campaign in support of the rule of law. Meanwhile, police have no suspects and no leads in the assassination of Markelov and Baburova. However, they did show up to see the two buried.
At Markelov’s funeral, each mourner at the graveside tossed a handful of dirt on the coffin. Novaya Gazeta reported that the crowd was so big “the gravediggers had very little work to do in the end.” And on the day the newspaper buried its former lawyer, its front-page headline read, “We Are Not Afraid.”
The paper’s lead article began, “The killers have no fear because they know they will not be punished. But neither are their victims afraid, because when you defend others, you cease to fear.”