From the start last week of the new trial of oil tycoon Mikhail Khodorkovsky and his business associate Platon Lebedev, it was clear that justice would be trampled -- just as it was in their first trial. The Khodorkovsky affair and its damage to Russia remain Vladimir Putin's legacy, but the outcome of this prosecution will shape the presidency of Putin's successor, Dmitry Medvedev. While Medvedev pledged to further the rule of law and judicial independence, after his first year in office there has been no progress on either.
Defense lawyers and legal experts call the case against Khodorkovsky and Lebedev absurd. Although the men were convicted of tax fraud related to the profits of their oil company, Yukos, they are now charged -- in an indictment running more than 3,500 pages -- with stealing basically all the oil that Yukos produced over the same period covered by the first trial. The accusations -- of thievery and of failing to pay taxes on the allegedly stolen product -- amount to double prosecution for the same deed.
"I was extremely surprised," Sabine Leutheusser-Schnarrenberger, former justice minister of Germany, said to Echo of Moscow radio, "that the new charges are based on the same circumstances." Leutheusser-Schnarrenberger, who attended the trial's opening session, examined the first proceeding as the rapporteur of the Council of Europe Parliamentary Assembly and said that she found "many holes in the rule of law."
Already, the judge has taken sides -- as happened in the first trial -- and dismissed numerous complaints from the defense regarding gross procedural violations. So far, only the prosecution's motions have been accepted.
Khodorkovsky's original "crime" had been daring to think he could make his own decisions about how to develop his business and spend his money. A graver "felony" was to have a vision -- independent of Putin's designs -- for his country's future. Putin would not tolerate this sort of challenge. In his political system there could be no competition; only he would have full say over government decisions and control over resources.
Khodorkovsky made things worse by antagonizing people in Putin's circle, who began to kindle Putin's hostility toward the tycoon. Khodorkovsky told the London Sunday Times last year that Igor Sechin, a high-level staffer in Putin's presidential administration who is now Putin's deputy in the cabinet, masterminded both cases against him. Khodorkovsky was arrested in 2003, and eventually his thriving business was destroyed through mind-boggling tax claims and legal shenanigans that ensured Yukos paid its "debts" to the state.
For post-communist Russia, the Khodorkovsky affair was a watershed. The faint promise of the rule of law and independent courts faded away: The accusations and trial rulings made clear that law enforcement and the judiciary could be bent to suit the interests of the executive. After the trial, any remaining hopes that respect for property rights and business ethics would take root crumbled when Putin himself endorsed dubious deals that members of his inner circle used to grab Yukos's best assets.
While Putin and others behind the Khodorkovsky charges sought to free themselves of a political rival by locking him up, they have actually become hostages of their own lawlessness. After 5 1/2 years in jail, Khodorkovsky stands unbroken, a bold challenge to Putin's rule, which is based on intimidating the elites into submission. Efforts to keep him behind bars -- the tricks used to deny him a paroled release and the new charges -- suggest that those who stole his liberty and assets are alarmed by the prospect of his going free. "I have the impression that everything is being done so Khodorkovsky and Lebedev would stay imprisoned as long as possible," Leutheusser-Schnarrenberger told Echo of Moscow.
Recently, Khodorkovsky drew a distinction between Putin and Medvedev. Answering questions from a Russian weekly through his lawyers, he said: "I'm sure [Medvedev] didn't rob Yukos . . . and he has no reason to fear me or Platon Lebedev." But it's not certain that Medvedev wants to correct the distortion of justice. He has not righted any of the wrongs associated with the Yukos affair, which has encompassed the prosecutions of about two dozen company employees and associates. He ignored public petitions seeking a pardon in the most outrageous of these cases, that of Yukos lawyer Svetlana Bakhmina, a mother of three who has been in custody on trumped-up charges for more than four years.
More people are indignant and outspoken about this trial than about the first prosecution. Complaints are heard not just from journalists and liberals but from lawmakers and members of the establishment. Unexpectedly, a state news agency even organized a news conference with Khodorkovsky's lawyers.
But even if resentment is growing, the angry voices are disparate -- and still too weak to make a difference. A change in Khodorkovsky's and Lebedev's fates would take a dramatic, and unlikely, political shift. Although President Medvedev claims to support the rule of law, if he continues to stay out of this affair he will bear responsibility for Russia's continued plunge into lawlessness.