Decorative Due Process and Adaptive Legal Nihilism
When we talk about some of Russia's biggest problems in the areas of human rights, corruption, state theft and legal nihilism, it is a mistake to assume that these concepts remain static and defined by past examples. In today's Russia, the travesties and mockery of rule of law that we became accustomed to back in 2003 are actually quite different from those practiced today, even if the final consequences are identical.
Take for example the clumsiness of the government's theft of YUKOS, which was not only brazenly illegal (under Russian law, non-core assets must be sold first to settle tax arrears), absurdly executed (an unknown fake company registered to a Siberian vodka shack buys the most valuable oil producer in the country?), and extraordinarily damaging to the Russian economy (especially when the stolen oil landed in Rosneft and Igor Sechin's hands). This of course would not be the last time we would see the Russian government exercise its control over the courts to steal, intimidate, and knock down opponents, but we would instead see them get much better at concealing their methodology (just ask anyone involved in state pressure against Royal Dutch Shell, BP, or the horrendously tragic attack on Hermitage).
Legal nihilism in Russia is an adaptive animal, always learning, always refining, and constantly innovating new ways to establish the basic appearance of fairness and normality in political cases before finally delivering the exact same result. The new efforts to appear fair have been relatively successful in selling the message - it has become a frequent question from reporters attending the second trial of Mikhail Khodorkovsky and Platon Lebedev if the proceedings are actually free, fair, and independent.
What needs to be understood is that the judges, prosecutors, and government officials in charge of orchestrating the trial have placed an enormous amount of importance on the form in which it is conducted, to say nothing of the substance.
In the first trial, there were more guns, dogs, and riot police, while in the second trial there is a media room for the journalists (until that was suddenly taken away recently), so everybody takes away the impression that things are more open and transparent. In the first trial, the defendants were placed in rusty iron cages in the tiny courtroom and allowed very few breaks, while in the second trial they have been upgraded to a more modern glass enclosure. Whereas in the past, requests, arguments and motions from the defense lawyers were routinely blocked while the judge copied and pasted the prosecutors submissions into decisions (including the same typos), in the second trial the judge does everything possible to appear even-handed - scolding the prosecutors one day, and showing impatience toward the defense the next day. In the current proceedings, the judge even denied a rare motion from the prosecutors which sought to dismiss evidence from an auditor which hadn't even yet been submitted to the court, but if we look at the total court of motions granted and denied, the numbers still point toward a rigged trial.
In sum, what we are witnessing in the second trial of Khodorkovsky & Lebedev is the judicial version of how Mikhail Gorbachev has described the government's modernization effort: it's purely decorative. It looks like due process, it smells like judicial independence, but underneath it is rotting with arbitrary political persecution. The Kremlin controlled television has censored any and all coverage of the trial, so it cannot ever be considered open to the public when the vast majority of Russia's citizens aren't even aware it is happening. While the judge may be meticulous in exercising good form, he has done nothing to resolve the outstanding issues and fundamental problems which render the indictment incoherent, requiring that any law abiding independent court of justice would immediately send the case back to the investigation stage to clear up the inconsistencies (which are detailed in full in the stay motion).
So the end result of having gone through more than 7 years of blatant Kremlin injustice is not that the prosecutors have been pressured into more lawful conduct, but rather they have gotten much better at carrying out convincing show trials, and minimizing the risk that international tribunals can declare that the due process had violated the basic minimums.
Obviously it's going to take a lot more than just tidy decorations to fix legal nihilism, and until real issues of substance are targeted alongside the token gestures of form, we aren't going to get very far toward the normalization of the judiciary in Russia.
By James Kimer, Guest Commentator to the Khodorkovsky and Lebedev Communications Center