The asset freezes enforce a judgment in Khodorkovsky's favor that is procedurally flawed, grotesquely biased and still under appeal.
It also contradicts a far more balanced and proper judgment of the European Court of Human Rights.
This post first appeared on Russia Insider
News about the freezing of Russian assets in France and Belgium will come as no surprise to anyone who has followed the Khodorkovsky case.
The asset freezes will almost certainly be relaxed or lifted over the new few weeks because they are legally dubious.
To understand why, it is necessary to explain the nature of the case.
First, I should explain that there are two completely different judgments by two completely different courts in the Khodorkovsky case.
The first was made by the European Court of Human Rights. The second was made by the International Commercial Arbitration Tribunal in the Hague
The right of the European Court of Human Rights to look into Khodorkovsky's case is undisputed.
The European Court of Human Rights administers the European Convention of Human Rights. Russia has signed and ratified the Convention and is bound by it. The Convention requires Russia to prosecute its cases properly and to ensure that any case brought to trial is conducted properly and fairly.
The European Court of Human Rights decided that the case Russia brought against Khodorkovsky by and large met those criteria. It decided that Khodorkovsky is a crook who defrauded the Russian state of billions by engaging in massive tax evasion. It decided that the Russian state was right to bring legal proceedings against him. The claim it did so for purely political reasons --- because Khodorkovsky was a political threat to the Russian government --- is untrue.
Though the European Court of Human Rights decided that the conduct of proceedings Russia brought against Khodorkovsky on the tax evasion charges was by and large fair, it did identify certain serious procedural mistakes committed by the Russian authorities in their haste to act against Khodorkovsky and his company Yukos. It awarded Yukos’s shareholders $1.9 billion in compensation.
The right of the Hague Tribunal to look into Khodorkovsky's case is by contrast hotly disputed, and not just by the Russians.
It claimed the right to do so on the strength of Russia’s signature to the EU’s Energy Charter.
Russia did sign the Energy Charter but refused to ratify it. Russia has insisted that it is not bound by the Energy Charter.
Up to now this has been accepted by everybody -- including the EU. Indeed the EU constantly complains about it.
A string of top lawyers, not all of them Russian (one was a top British barrister) advised the Hague Tribunal that Russia is not bound by the EU’s Energy Charter and that the Hague Tribunal therefore has no standing to hear the case.
The Hague Tribunal paid no attention and incredibly decided that Russia is bound by the Energy Charter and that it would hear the case.
Having made that frankly astonishing decision, the Hague Tribunal then proceeded to hear the case.
The European Court of Human Rights, when it looked into the case, refused to retry the whole case against Khodorkovsky, saying this was a matter for the Russian courts. It looked instead into whether the case against Khodorkovsky in Russia had been properly and fairly conducted. It decided that by and large it was.
The Hague Tribunal simply ignored what the Russian courts did and proceeded to retry the whole case. It did not explain its grounds for doing so. On the face it of that looks like a gross violation of Russia’s sovereignty and of Russia's right to try its own cases in its own courts.
Having made that equally astonishing decision, the Hague Tribunal then accepted uncritically the evidence of Khodorkovsky and Nevzlin (Yukos’ vice president) that the case against Khodorkovsky was politically motivated, ignoring all evidence to the contrary, even though it was forced to admit that Khodorkovsky and his company Yukos had arranged their tax affairs in a way that broke Russian law.
Not surprisingly, given the obvious bias, the Hague Tribunal then decided the case against Russia and said Yukos had been illegally seized.
Where the European Court of Human Rights awarded Yukos’s shareholders $1.9 billion, the Hague Tribunal then awarded them a whopping $50 billion -- an amount it did not explain and which is completely unprecedented in any legal judgment.
The judgments of the two courts therefore completely contradict each other.
No jurist comparing the two courts would have any doubt that it is the judgment of the European Court of Human Rights that is the better, more legitimate one.
Not only is the European Court of Human Rights a much more prestigious and authoritative court than the Hague Tribunal. As the court set up to administer the European Convention of Human Rights it is also the only proper court to decide what ought to have been the only valid question in the case -- which was whether the case brought against Khodorkovsky in Russia was properly and fairly conducted or not.
By contrast the judgment in the Hague Tribunal is not only wrong but grotesquely biased -- to the point of absurdity.
Russia has made it clear it will not pay either judgment.
It is right not to pay the Hague judgment, which is wrong and absurd.
As for the judgment of the European Court of Human Rights, I suspect the reason the Russians refuse to pay this judgment is that they suspect that the person hiding behind the “Yukos shareholders” (and who would in the end get most of the money) is none other than Khodorkovsky himself.
The asset freezes in France and Belgium were made under the Hague judgment, not the judgment of the European Court of Human Rights.
What is bizarre about that is that the Hague judgment is under appeal. The much smaller --- and better --- European Court of Human Rights judgment is not under appeal since Russia’s appeal against that judgment has been rejected.
The asset freezes do not just affect the property of the Russian government. They affect the assets of all sorts of other Russian individuals and entities, including the Orthodox Church. As these had no part in the Khodorkovsky case and no connection to Yukos, there were no legal grounds for freezing their assets. Doing so was illegal.
Russia has had to face this sort of thing before -- legally dubious and in some cases straightforwardly illegal asset freezes directed not just at the Russian state but at Russian individuals and entities, made on the strength of biased and legally dubious judgments.
They should be seen for what they are -- acts of harassment directed at Russia during times of international tension.
In this case the asset freezes seem to have been timed to coincide with the EU’s decision to extend the sanctions against Russia and with the opening of the economic forum in St. Petersburg, whose mood some people obviously wanted to spoil.
The Russians know how to deal with this sort of thing. As Russian officials have said, they were expecting it.
There are numerous legal countermoves they can take, especially when some of the asset freezes are obviously illegal, and when they are made to enforce an obviously biased judgment, which is under appeal.
The Russians have also made it clear that they have no intention of paying the sums awarded under either judgment.
Though legal action of one sort or another will doubtless go on for a long time, the eventual outcome is not in doubt .
The Yukos shareholders --- whether or not Khodorkovsky is behind them --- will see at most only a fraction of the money they are claiming, and quite possibly nothing.
This post first appeared on Russia Insider
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