Putin’s decision to grant the imprisoned oligarch Mikhail Khodorkovsky’s request for a pardon has come as a shock. Some especially amongst Putin’s critics in the west and in Russia itself have seen the move as a political masterstroke. A great many others especially in Russia have responded with anger and a sense of betrayal. The purpose of this post is to discuss whether either response is appropriate.

Khodorkovsky was formerly and notoriously Russia’s richest man. In 2003 he was peremptorily arrested and shortly after was put on trial with his partner Platon Lebedev for massive tax evasion. This, the first Khodorkovsky trial, ended in Khodorkovsky’s and Lebedev’s conviction. The assets of Khodorkovsky’s company, Yukos, were seized and have now been absorbed by Rosneft, an oil company in which the Russian state has a significant stake and which is headed by Igor Sechin, a former high ranking official of the Russian government. Subsequently Khodorkovsky and Lebedev were tried for a second time on charges of embezzlement and received a second conviction. The sentences in the two cases are concurrent and initially totalled 14 years but have been reduced on appeal to just over 10 years. Prior to his unexpected release in December 2013 Khodorkovsky and his partner Lebedev were due to be released in August 2014.

Western opinion of Khodorkovsky has not always been favourable. The character of the villainous Russian oil oligarch Yuri Gretkov in the film the Bourne Supremacy appears to be at least in part based on him. The effect of Khodorkovsky’s arrest, prosecution and trial however instantly transformed him for many people in the west (including western governments) and for some people in Russia into a victim of political repression and a democratic martyr. I have previously commented on the reflex response in the west in any conflict between the Russian government and a businessman – especially one like Khodorkovsky who had gone out of his way to cultivate western connections – to side against the Russian government and with the businessman.

It needs to be said clearly that any notion of Khodorkovsky as a victim of political repression or as a democratic martyr is entirely false. The European Court of Human Rights has not yet considered the proceedings that led to Khodorkovsky’s second conviction for embezzlement. However it has considered in detail the circumstances of the first case and has repeatedly said in a succession of Judgments that Khodorkovsky is indeed guilty of massive tax evasion just as the Russian authorities say he is and that there was no political motive behind the prosecution brought against him outside the facts of the case itself.

It is deeply frustrating that western commentary has chosen almost entirely to ignore these Judgments, which so completely contradict the common western narrative of Khodorkovsky’s case. On the rare occasions when these Judgments are mentioned all the emphasis is given to secondary findings of (sometimes serious) procedural faults rather than to the overall finding that he is indeed guilty as charged.

The European Court of Human Rights has not yet had an opportunity to consider the findings of embezzlement made against Khodorkovsky in the second case. Until that happens it is premature to make any definite statements. However it should be said clearly that even if the European Court of Human Rights were to exonerate Khodorkovsky entirely of this charge in the light of its previous findings that he is guilty of massive tax evasion he would still not be an innocent man. Moreover two claims repeatedly made about this case are certainly false. Firstly, it is simply not true that the second case is a re trial of the first case given that the charge in the first case was tax evasion and the charge in the second case was embezzlement and fraud. Secondly, it is wrong to say that the charge in the second case somehow contradicts the verdict in the first case because Khodorkovsky and Yukos supposedly cannot be liable to pay tax on money and property they have stolen. In all jurisdictions I know including that of the United States profits and income obtained through fraud and embezzlement are taxable in exactly the same way as profits and income obtained by legitimate means.

In recent months there have been rumours of a possible third case against Khodorkovsky. Very little about this case is known save that the economist Guriev is apparently a witness and that he fled to France to avoid testifying in it. Definite confirmation of the existence of this third case only came a few days ago in Putin’s marathon end of year press conference when he said this case is doubtful and problematic.

Beyond these three cases (the third of which has not been tried) there has been a swirl of stories linking Khodorkovsky to money laundering, various murders and contract killings and the like. Weight to these stories has been given by none other than Putin himself who in various press conferences and interviews has referred to precisely such behaviour by individuals and agencies working for Yukos. These stories have never been substantiated against Khodorkovsky himself (though they may have been the basis of the plot in the Bourne Supremacy) and it seems that some of the key witnesses have fled to Israel rendering any investigation of these claims impossible. In the absence of such an investigation little weight should be placed on these stories.

In light of Khodorkovsky’s unquestioned guilt of the charge of tax evasion and of the other Judgments and allegations made against him the campaign waged in the west on his behalf has been grotesque to the point of absurdity. Russia is endlessly criticised for its lack of respect for the rule of law and its “legal nihilism”. This criticism has gone hand in hand with a campaign for the unconditional release of a man the European Court of Human Rights says is guilty of massive tax evasion. It is impossible to see how such a campaign can support the rule of law in Russia as opposed to undermining it.

The Russian authorities have consistently refused up to now all demands for Khodorkovsky’s release. Over time interest in his case has faded. Whilst it would be untrue to say that Khodorkovsky has been entirely forgotten most of the demands for his release have long since acquired a ritual character. There was no evidence of any very strong pressure on Russia concerning him immediately prior to his release.

Three explanations for his release are commonly made (1) that it is a public relations move prior to the Sochi Olympics (2) that it is connected to a recent general amnesty and (3) that he was released to avoid any further extension of the US government’s Magnitsky list. None seem very convincing. Briefly:

(1) there is no evidence of anyone planning to stay away from the Sochi Olympics because Khodorkovsky was in prison or of his continued stay in prison having any negative impact on the Sochi Olympics. Interest in Khodorkovsky had faded to such an extent that his continued imprisonment in presentational terms had ceased to matter;

(2) the general amnesty did not apply to Khodorkovsky and both Khodorkovsky and the government have made no reference to it in relation to the decision to release him; and

(3) the Russian government has taken a very strong line towards the Magnitsky list and is extremely unlikely to say the least to have wanted to show weakness by releasing Khodorkovsky in response to any threats to extend it if only because any such show of weakness would be bound to lead to more demands for more concessions backed by more threats to extend the list if those concessions were not made. It is inconceivable that the Russian authorities would not be aware of this and would submit to this blackmail. In fact what we know about the circumstances of Khodorkovsky’s release points to the involvement of the government of Germany and not to that of the United States.

What did then result in Khodorkovsky being released?

The short answer is that Khodorkovsky did in November what he had previously consistently said he would not do, which is apply for a pardon. Khodorkovsky has previously consistently refused to apply for a pardon because he has always protested his innocence and has always denied the legitimacy of the charges and proceedings that have been brought against him.

Khodorkovsky has now given a press conference and an interview for New Times in which he has tried to explain why he applied for a pardon when he had previously consistently said he would not do so. Here are the relevant comments as provided by Voice of Russia:

http://voiceofrussia.com/news/2013_12_22/Khodorkovsky-didnt-admit-crimes-in-pardon-plea-5666/

Khodorkovsky says that he never ruled out applying for a pardon. He says that a request for a pardon is simply a one line request for clemency and does not in and of itself imply an admission of guilt. He explains his previous reasons for refusing to apply for a pardon and his decision to apply for a pardon now with these very remarkable words:

“My lawyers conveyed to me that a decision on pardoning may be made. And that the confession of guilt is not put forward as a condition for my release. That was a key issue since Medvedev’s times. It was absolutely not critical for me to appeal for pardon. The trial was a frame up and everyone realised it perfectly well. To write one false paper (this clearly refers to a pardon request containing a confession of guilt – AM) in reply to another false paper (the verdict in the second Yukos case – AM) – I would not feel any moral discomfort in relation to that. And there was only one problem that was not false in this false paper (the pardon request containing a confession of guilt- AM) – the confession of guilt. Because as soon as I write that I recognise my guilt, plenty of people whom I respect will themselves be in a very difficult situation. Actually any person who used to work for Yukos would become vulnerable”.

What this intricate language says is that Khodorkovsky would have had no compunction openly confessing his guilt in a request for a pardon if that had got him released because as the entirety of the proceedings against him was fraudulent the confession would also have been fraudulent. Khodorkovsky says the reason he didn’t make such a confession was not because he is innocent and did not want to lend credence to the proceedings brought against him but because of the effect his confession would have had on other people.

The first point to say about this is that this is not the impression of his reasons for not applying for a pardon that Khodorkovsky has given in the past. Up to now Khodorkovsky has given the consistent impression that he was not prepared to seek a pardon because he did not want to confess his guilt as he is innocent. What he is now saying is that he would have signed a confession of guilt if this has got him released and that the only reason he did not do so is not because he is innocent but because of the effect this might have had on other people.

The second point is that it is difficult to see this as anything other than an acknowledgement that the pardon request he has now signed is an admission of guilt, which is what the Russian government says it is.

Paragraph 89(c) of the Russian Constitution does not require a prisoner to apply for a pardon in order for one to be granted. It is either practice or secondary law that a convict must request a pardon before one is granted. As the government has again made clear in connection with the pardon request Khodorkovsky has made, this is because a request for a pardon is a request for clemency by a convict who has been convicted of a crime. The state therefore treats it as an admission by the convict of his guilt for the crime for which he seeks pardon.

It is difficult to see Khodorkovsky’s previous refusal to apply for a pardon – even one that contained no confession of guilt – as anything other than an acceptance of this logic. Perhaps Medvedev or Putin would have rejected such a request but it would surely have greatly increased the pressure on them to release him, which was already great. Given that Khodorkovsky now says that he would have had no qualms signing a pardon request containing a confession of guilt but for its effect on other people there is no reason on his own logic why he could not have signed a pardon request that did not contain a confession if he genuinely thought that no such confession would be implied by his doing so.

As it happens I am far from sure that Medvedev and Putin would have rejected a pardon request that did not contain a confession if Khodorkovsky had made one. All I understood them to say was that they would consider a request for a pardon if Khodorkovsky made one. Up to now he never did.

I have to say that Khodorkovsky’s complicated reasoning looks to me like a carefully crafted explanation of why he requested a pardon when he had previously said he would not do so. Whether it impresses his supporters I do not know. I doubt it will impress the European Court of Human Rights especially if it decides that the embezzlement proceedings were not fraudulent as he says. Rather I think the European Court of Human Rights will be more interested in his actually quite extraordinary admission that he would have been prepared to sign a confession of guilt in order to obtain his release had this not had consequences for other people.

As to why Khodorkovsky applied for a pardon now when he had previously consistently refused to do so and when he was due to be released in 8 months anyway despite knowing that the government would be bound to treat his request for a pardon as an admission of guilt, I do not know. The comments Khodorkovsky made in his interview with New Times and in his press conference today (22nd December 2013) leave me none the wiser. It is possible that the Germans who seem to have brokered the deal have given assurances that he will stay away from Russia, not interfere in its politics and not pursue further litigation in connection to Yukos. Khodorkovsky has specifically ruled out legal action to recover Yukos’s assets and has also said that he will not involve himself in Russian politics.

If there has been such a deal it is not clear what the Russians have given in return bearing in mind that Khodorkovsky was due to be released in 8 months anyway. My best guess is that they agreed to drop the pending third case against him. If so then given how problematic and politically embarrassing that case almost certainly is the Russians have got a good deal.

I appreciate that many people in Russia are upset and angry about this decision. Following Berezovsky’s suicide Khodorkovsky is left as the single most iconic figure amongst the oligarchs who plundered Russia in the 1990s. His imprisonment was for many Russians an indication that at least some justice had been done for what happened. Certainly there can be few people in Russia (other than Khodorkovsky’s small group of admirers) who seriously think the 10 years he has spent in prison is remotely proportionate to the harm he has done. Letting him go must seem to many a betrayal.

The practical reality is however that Khodorkovsky was due to be released in August 2014 anyway. Keeping him in prison beyond that date would have required the Russian authorities to prosecute the third case against him, which Putin says is highly problematic. If this case is as problematic as Putin says then this case might have ended in an acquittal, which would have been humiliating and politically extremely damaging. At the very least it would have led to a storm of further criticism, which Russia hardly needs now. Khodorkovsky has been in prison for 10 years following his conviction on tax evasion charges of which the European Court of Human Rights says he is guilty. His business has been destroyed and most of his wealth has been confiscated. He no longer represents the danger that he did when he was arrested in 2003 and prosecuting him on problematic charges in order to keep him in prison when he is due to be released soon anyway is counterproductive and serves no useful purpose. Releasing him 8 months early by granting his request for a pardon and treating that as the admission of guilt that in spite of his explanations it arguably is draws a line under the affair.