Khodorkovsky and Yukos - The Second Judgment

Discussion in 'Russian Society' started by Alexander Mercouris, Aug 6, 2013.

  1. Alexander Mercouris

    Alexander Mercouris Ship Secretary (11th class)

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    The Supreme Court of the Russian Federation has been undertaking a legal examination of the second Khodorkovsky case made in 2010. As I understand it, its decision came out today and has upheld the verdict in that case though it has shaved 2 months off Khodorkovsky's and Lebedev's sentence so that Khodorkovsky will be released in August rather than October 2014.

    I have not read the Supreme Court's Judgment but the person I know as Peter helpfully provided on my blog something referred to as an executive summary of the original trial verdict prepared presumably by Khodorkovsky's legal team.

    http://www.scribd.com/doc/95542596/Justice-Under-Pressure-The-Verdict

    If this is supposed to be a legal submission by Khodorkovsky's lawyers, then it is written in language unlike that of any legal submission I have ever come across. The document nonetheless makes three points about the case which may explain in part why the Supreme Court decision has gone against Khodorkovsky:

    1. It has been repeatedly said that in 2010 Khodorkovsky was reconvicted of the same crime he was convicted for at his first trial in 2005. If my recollection is true, that was also said by the Presidential Human Rights Council in its report on the second Khodorkovsky case.

    I have never understood this argument. Anyway this executive summary surely puts paid to this idea. The first Khodorkovsky case was about tax evasion. The second Khodorkovsky case was about theft and embezzlement of oil and money. I cannot see upon what possible basis the two cases can be said to be the same.

    2. The executive summary argues that the verdict in the second case contradicts the verdict in the first case because the verdict in the first case requires Khodorkovsky to be guilty of evading tax on income the second case says is stolen income. The argument seems to be that if the income was indeed stolen then it did not belong to Khodorkovsky and his companies so he and they could not have been liable to pay tax on it.

    I do not know what the legal position is in Russia, but tax law in Britain and the US is quite clear on this point: income obtained through what in Russia would be treated as embezzlement is taxable income of the thief or embezzler and the thief or embezzler must pay tax on it. This can come as an unpleasant surprise to people who steal money from their employer and then think they can get themselves out of trouble by paying it back. Even when they do this they still have to pay tax on the money as they quickly discover when Revenue & Customs or the IRS come knocking on the door.

    Of course it may be that the legal position in Russia is different though I very much doubt it. Even so the point is nothing like as strong as the people who drafted the executive summary seem to think it is.

    3. The executive summary ridicules the notion that Khodorkovsky can have stolen and hidden the quantities of oil he is alleged to have stolen. The executive summary makes the point that there is no evidence from Transneft of any oil going amiss. As it happens I understand that over the course of the appeal the amount of oil Khodorkovsky is alleged to have stolen was revised down. However the point anyway seems to me a poor one. As I discussed in my Navalny essay, theft does not need to involve the physical taking and concealing of property. What it requires is an assumption of the rights of the owner over someone else's property. That presumably was what happened in Khodorkovsky's case.

    I do not know the facts of this case in detail but it seems to me that if Khodorkovsky's defenders are making such weak arguments then the chances are the decision in the second case was the correct one. Presumably now that the Supreme Court of the Russian Federation has made its decision the way is open for the European Court of Human Rights to have its say.
  2. Sky Fisher

    Sky Fisher Collegiate Registrar (14th class)

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    Good legal analysis you made here. I have some experience in the legal profession myself (US law), and I do agree with your points. I didn't see the names of the lawyers who wrote this legal submission anywhere on the document. That is very unusual, particularly for a court document, don't you think ?

    Khodorkovsky strikes me as a very creepy individual.
  3. Alexander Mercouris

    Alexander Mercouris Ship Secretary (11th class)

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    I completely agree. I noticed the point myself. Thanks for your comments.

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