Is Khodorkovsky A Political Prisoner? Read The ECHR Judgments Before Quacking

It’s one thing if Western journalists and Yukos PR henchmen – if there is indeed any difference – shill for all they’re worth about the travails of Khodorkovsky, the former oligarch doing time for fleecing the Russian Treasury to the tune of billions of dollars, charges he sooner boasts about than denies when given the opportunity to address Russians on national TV. It’s quite another when many ordinary Russians begin to lap up their lies, with a disturbing 10% describing him as a political prisoner in a recent VCIOM poll, and opinions are split 50/50 on a Presidential pardon. Congrats to the PR team, I guess.

Fortunately, at least some court systems still keep their judgments partitioned from the demands of self-interested businesspeople, their PR hacks, libertarians who believe that money should be able to buy a Not Guilty verdict, liberals operating under the delusion MBK is a popular and legitimate political opponent of Putin, etc. According to four (by my count) judgments to date, the European Court of Human Rights (ECHR) is one such institution. The Yukos team managed to get their cases heard at Europe’s highest court of appeal, and they decided that – barring a few administrative irregularities, for which Khodorkovsky was awarded a paltry $35,000 – there was no proof for any of his allegations that the case was politically motivated. This is despite the fact that the ECHR can in no sense be having a Russian government-friendly stance, given the numbers of judgments that have gone against it there.

To wit, despite the swarms of high-profile lawyers batting for Khodorkovsky, they could (1) neither prove that Khodorkovsky didn’t engage in tax evasion – to the contrary, the ECHR sided with Russia’s arguments; (2) not could they evidence their claims that it was a case of selective prosecution, i.e. that MBK’s schemes were prevalent at the time; indeed, the ECHR judges even went so far as to point out that rich businesspeople like MBK have the position and incentive to claim that prosecutions are politically motivated, whereas courts of law need concrete evidence as opposed to the opinions and aspersions that journalists and politicians are free to indulge in.

Nonetheless, op-eds of the WSJ, FT, etc. continue to gloss over the ECHR judgments where they do not ignore them altogether, and paint Khodorkovsky as some kind of principled human rights champion standing up to the dark Chekists who surround Putin (this despite that his right-hand security man Pichugin was convicted to life for contract murders). Masha Gessen, a particularly mendacious piece of work even by the sordid standards of Western journalism on Russia, claimed that the ECHR judgments could even be “read as mandating [Khodorkovsky's] release” in a 5 page hagiography for Vanity Fair.

Since these people seem to feel safe in assuming that no-one will ever read the ECHR judgments (depressingly, it seems to be a valid assumption), I am doing what I can to expose their lies by reprinting the most relevant parts here. Bits of particular interest are bolded.

CASE OF KHODORKOVSKIY v. RUSSIA, 28/11/2011 [AK: As regards whether MBK's prosecution is politically motivated]

VIII. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION

249. The applicant complained under Article 18 that the State had used the criminal prosecution for a political end and in order to appropriate the company’s assets. Article 18 of the Convention provides:
“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

A. The parties’ observations

250. The Government submitted that the applicant’s allegations that his criminal prosecution had been politically motivated were not supported by the materials of the case. The Government referred to the judgment delivered in the applicant’s case as proof that the charges against him were serious and genuine. They also described the events which had preceded the start of the investigation into the activities of the Yukos management, especially with regard to the Apatit case.

251. The applicant maintained his allegation that his criminal prosecution had been politically motivated. The applicant submitted that the above materials were powerful evidence of ulterior purposes contrary to Article 18. He had at the very least adduced “prima facie evidence pointing towards the violation of that provision” (Oates v. Poland (dec.), no. 35036/97, 11 May 2000), which the Government had entirely failed to address. The fact that he had been convicted in no way precluded improper motives in bringing the charges. Further, as a matter of Convention law, it was immaterial whether there was evidence justifying the bringing of the prosecution, if, as a matter of fact, it was brought for “other purposes” (see Gusinskiy v Russia, no. 70726/01, 19 May 2004). Indeed, the fact that he had received a long sentence supported the inference of political motivation. The travaux préparatoires for Article 18 indicated that the drafters of this provision were concerned to ensure that an individual was thereby protected from the imposition of restrictions arising from a desire of the State to protect itself according “to the political tendency which it represents” and the desire of the State to act “against an opposition which it considers dangerous”. The applicant maintained his argument that his arrest and consequent detention on 25 October, just a few weeks before the Duma elections on 7 December 2003 and shortly before the completion of the Sibneft/Yukos merger, had been orchestrated by the State to take action against an opposition which it considered “dangerous”, contrary to Article 18.

252. The applicant asserted that those activities had been perceived by the leadership of the country as a breach of loyalty and a threat to national economic security. As a counter-measure the authorities had undertaken a massive attack on the applicant and his company, colleagues and friends.

253. In support of his allegations the applicant submitted reports from international and Russian media, various governmental and non-governmental organisations, the PACE report “On the circumstances surrounding the arrest and prosecution of leading Yukos executives” (published on 29 November 2004 by Mrs Leutheusser-Schnarrenberger, the Special Rapporteur for the Parliamentary Assembly of the Council of Europe), the US Senate resolutions on this subject, European Parliament reports, documents of the UK House of Commons, decisions by the UK courts in cases of extradition of several former Yukos managers to Russia, and decisions by the Cypriot, Dutch, and Swiss courts to the effect that the prosecution of the applicant was politically motivated. In particular, the applicant referred to the words of the Swiss Federal Tribunal, which in August 2007 found that the facts, if analysed together, “clearly corroborate the suspicion that criminal proceedings have indeed been used as an instrument by the power in place, with the goal of bringing to heel the class of rich ‘oligarchs’ and sidelining potential or declared political adversaries”. The applicant also quoted public statements by several high-ranking Russian officials who had acknowledged that “the Yukos case” had political overtones (Mr Gref, Mr Illarionov, Mr Shuvalov, Mr Mironov, Mr Kasyanov and some others). The applicant produced witness statements by several former Yukos managers. He further referred to his submissions within the case Khodorkovskiy v. Russia (no. 2), no. 11082/06, which contain a more detailed analysis of his political activities and business projects.

B. The Court’s assessment

254. The Court reiterates that it has already found that, at least in one respect, the authorities were driven by improper reasons. Thus, the Court found that the applicant had been arrested in Novosibirsk not as a witness but rather as a suspect. However, the applicant’s claim under Article 18 is different from his grievances under Article 5. The applicant maintained that the entire criminal prosecution of Yukos managers, including himself, had been politically and economically motivated. The Court reiterates in this respect that “Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention” (Gusinskiy v. Russia, no. 70276/01, § 75, ECHR 2004-IV). In the light of the above the Court will consider the applicant’s allegations under Article 18 of the Convention in conjunction with his complaints under Article 5 of the Convention, cited above.

255. The Court reiterates that the whole structure of the Convention rests on the general assumption that public authorities in the member States act in good faith. Indeed, any public policy or an individual measure may have a “hidden agenda”, and the presumption of good faith is rebuttable. However, an applicant alleging that his rights and freedoms were limited for an improper reason must convincingly show that the real aim of the authorities was not the same as that proclaimed (or as can be reasonably inferred from the context). A mere suspicion that the authorities used their powers for some other purpose than those defined in the Convention is not sufficient to prove that Article 18 was breached.

256. When an allegation under Article 18 is made the Court applies a very exacting standard of proof; as a consequence, there are only few cases where the breach of that Convention provision has been found. Thus, in Gusinskiy v. Russia (no. 70276/01, § 73–78, ECHR 2004-… (extracts), the Court accepted that the applicant’s liberty was restricted, inter alia, for a purpose other than those mentioned in Article 5. The Court in that case based its findings on an agreement signed between the detainee and a federal minister of the press. It was clear from that agreement that the applicant’s detention was applied in order to make him sell his media company to the State. In Cebotari v Moldova (no. 35615/06, §§ 46 et seq., 13 November 2007) the Court found a violation of Article 18 of the Convention in a context where the applicant’s arrest was visibly linked to an application pending before the Court. However, such cases remain rare (see, as an opposite example, Sisojeva and Others v. Latvia [GC], no. 60654/00, § 129, ECHR 2007-II). Particularly, the Court notes that there is nothing in the Court’s case-law to support the applicant’s suggestion that, where a prima facie case of improper motive is established, the burden of proof shifts to the respondent Government. The Court considers that the burden of proof in such a context should rest with the applicant.

257. In the case at hand the applicant referred to various sources which confirm his allegations of “improper motive”. First, he invited the Court to consider the facts surrounding his business and political activities, as well as the major policy lines adopted by the President’s administration at the relevant time. Indeed, those facts cannot be ignored. In particular, the Court acknowledges that the applicant had political ambitions which admittedly went counter to the mainstream line of the administration, that the applicant, as a rich and influential man, could become a serious political player and was already supporting opposition parties, and that it was a State-owned company which benefited most from the dismantlement of the applicant’s industrial empire.

258. On the other hand, any person in the applicant’s position would be able to make similar allegations. In reality, it would have been impossible to prosecute a suspect with the applicant’s profile without far-reaching political consequences. The fact that the suspect’s political opponents or business competitors might directly or indirectly benefit from him being put in jail should not prevent the authorities from prosecuting such a person if there are serious charges against him. In other words, high political status does not grant immunity. The Court is persuaded that the charges against the applicant amounted to a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention.

259. Nevertheless, the combination of the factors mentioned above have caused many people to believe that the applicant’s prosecution was driven by the desire to remove him from the political scene and, at the same time, to appropriate his wealth. The applicant strongly relies on those opinions; in particular, he relies on resolutions of political institutions, NGOs, statements of various public figures, etc. The Court took note of those opinions. However, it must recall that political process and adjudicative process are fundamentally different. It is often much easier for a politician to take a stand than for a judge, since the judge must base his decision only on evidence in the legal sense.

260. Finally, the Court turns to the findings of several European courts in the proceedings involving former Yukos managers and Yukos assets. Those findings are probably the strongest argument in favour of the applicant’s complaint under Article 18 of the Convention. However, the evidence and legal arguments before those courts might have been different from those in the case under examination. More importantly, assuming, that all courts had the same evidence and arguments before them, the Court reiterates that its own standard of proof applied in Article 18 cases is very high and may be different from those applied domestically. The Court admits that the applicant’s case may raise a certain suspicion as to the real intent of the authorities, and that this state of suspicion might be sufficient for the domestic courts to refuse extradition, deny legal assistance, issue injunctions against the Russian Government, make pecuniary awards, etc. However, it is not sufficient for this Court to conclude that the whole legal machinery of the respondent State in the present case was ab intio misused, that from the beginning to the end the authorities were acting with bad faith and in blatant disregard of the Convention. This is a very serious claim which requires an incontrovertible and direct proof. Such proof, in contrast to the Gusinskiy case, cited above, is absent from the case under examination.

261. In such circumstances the Court cannot find that Article 18 was breached in this case.

CASE OF OAO NEFTYANAYA KOMPANIYA YUKOS v. RUSSIA, 08/03/2012 [AK: As regards whether Yukos' prosecution was lawful]

γ. The Court’s assessment

588. The Court notes that in this complaint the applicant company challenged the lawfulness of the Tax Assessments 2000-2003 only in the part linked to the payment of reassessed taxes. The examination will therefore be confined to the question of the lawfulness of the additional tax liability. The Court further notes that the company did not seem to dispute that the relevant laws made it clear what taxes were due, at what rate and when. Rather, the company claimed that in 2000, 2001, 2002 and 2003 it used lawful “tax optimisation techniques” which were only subsequently condemned by the domestic courts in 2004, 2005 and 2006. It also complained that any existing legal basis for finding the company liable fell short of the Convention requirements in respect of the quality of the law and that, in any event, the application of the relevant laws contradicted established practice. Accordingly, the Court has to determine whether the relevant tax arrangements were domestically lawful at the time when the relevant transactions took place and whether the legal basis for finding the applicant company liable was sufficiently accessible, precise and foreseeable.

589. Turning to the first question, the Court would note at the outset that the applicant company disputed the findings of the domestic courts concerning the nature of relations between the applicant company and its trading entities. In view of its conclusion that the tax assessment proceedings in respect of the year 2000 did not comply with the requirements of Article 6 §§ 1 and 3 (b) of the Convention, the Court is required to decide whether the factual assessments made by the domestic courts could be used for the purposes of its legal analysis under Article 1 of Protocol No. 1. In this respect, the Court reiterates that according to its well-established case-law it is not its task to take the place of the domestic courts, which are in the best position to assess the evidence before them and establish the facts. The Court will not, in principle, intervene, unless the decisions reached by the domestic courts appear arbitrary or manifestly unreasonable (see, mutatis mutandis, Ravnsborg v. Sweden, 23 March 1994, § 33, Series A no. 283-B; Bulut v. Austria, 22 February 1996, § 29, Reports of Judgments and Decisions 1996-II, and Tejedor García v. Spain, 16 December 1997, § 31, Reports 1997-VIII) or if the court decisions have been issued in “flagrant denial of justice” (compare Stoichkov v. Bulgaria, no. 9808/02, § 54, 24 March 2005).

590. Having examined the materials of the case and the parties’ submissions and despite its earlier conclusions under Article 6 §§ 1 and 3 (b) of the Convention in respect of the 2000 Tax Assessment (see paragraph 551), the Court has little doubt that the factual conclusions of the domestic courts in the Tax Assessment proceedings 2000-2003 were sound. The factual issues in all of these proceedings were substantially similar and the relevant case files contained abundant witness statements and documentary evidence to support the connections between the applicant company and its trading companies and to prove the sham nature of the latter entities (see paragraphs 14-18, 48, 62-63, 165, 191-193, 212 and 213). The applicant company itself did not give any plausible alternative interpretation of this rather unambiguous evidence, as examined and accepted by the domestic courts.

591. From the findings of the domestic courts and the parties’ explanations, the Court notes that the company’s “tax optimisation techniques” applied with slight variations throughout 2000-2003 consisted of switching the tax burden from the applicant company and its production and service units to letter-box companies in domestic tax havens in Russia. These companies, with no assets, employees or operations of their own, were nominally owned and managed by third parties, although in reality they were set up and run by the applicant company itself. In essence, the applicant company’s oil-producing subsidiaries sold the extracted oil to the letter-box companies at a fraction of the market price. [AK: Here one is tempted to recall Khodorkovsky's open statement on Russian TV, "I’m uninterested in the cosmetic tricks of the judicial bureaucrats. The statement that oil in Siberia has to be sold at Rotterdam prices is too bizarre to comment on."] The letter-box companies, acting in cascade, then sold the oil either abroad, this time at market price or to the applicant company’s refineries and subsequently re-bought it at a reduced price and re-sold it at the market price. Thus, the letter-box companies accumulated most of the applicant company’s profits. Since they were registered in domestic low-tax areas, they enabled the applicant company to pay substantially lower taxes in respect of these profits. Subsequently, the letter-box companies transferred the accumulated profits unilaterally to the applicant company as gifts. The Court observes that substantial tax reductions were only possible through the mixed use and simultaneous application of at least two different techniques. The applicant company used the method of transfer pricing, which consisted of selling the goods from its production division to its marketing companies at intentionally lowered prices and the use of sham entities registered in the domestic regions with low taxation levels and nominally owned and run by third persons (see paragraphs 14-18, 48, 62-63 for a more detailed description).

592. The domestic courts found that such an arrangement was at face value clearly unlawful domestically, as it involved the fraudulent registration of trading entities by the applicant company in the name of third persons and its corresponding failure to declare to the tax authorities its true relation to these companies (see paragraphs 311, 349-353, 374-380). This being so, the Court cannot accept the applicant company’s argument that the letter-box entities had been entitled to the tax exemptions in questions. For the same reason, the Court dismisses the applicant company’s argument that all the constituent members of the Yukos group had made regular tax declarations and had applied regularly for tax refunds and that the authorities were thus aware of the functioning of the arrangement. The tax authorities may have had access to scattered pieces of information about the functioning of separate parts of the arrangement, located across the country, but, given the scale and fraudulent character of the arrangement, they certainly could not have been aware of the arrangement in its entirety on the sole basis on the tax declarations and requests for tax refunds made by the trading companies, the applicant company and its subsidiaries.

593. The arrangement was obviously aimed at evading the general requirements of the Tax Code, which expected taxpayers to trade at market prices (see paragraphs 395-399), and by its nature involved certain operations, such as unilateral gifts between the trading companies and the applicant company through its subsidiaries, which were incompatible with the rules governing the relations between independent legal entities (see paragraph 376). In this connection, the Court finds relevant the warning given by the company’s auditor about the implications of the use of the company’s special fund during the year 2002 (see paragraphs 206-209) and is not persuaded by the applicant company’s reference to case no. A42-6604/00-15-818/01 (see paragraphs 356-357), the expert opinion of its counsel (see paragraph 577) and its reliance on Article 251 (1) 11 of the Tax Code (see paragraph 376).

594. By contrast to the Tax Assessments in issue, the respondent entity in case no. A42-6604/00-15-818/01 was not alleged to have been part of a larger tax fraud and the Ministry failed to prove that it had been sham. The courts established that the entity had some assets, employees and a bank account at the place of its registration and dismissed the Ministry’s claims. As regards the expert opinion and the company’s reference to Article 251 (1) 11 of the Tax Code, the Court finds them irrelevant as they refer to the relations of openly associated companies and not, as was the case at issue, to the use of sham entities fraudulently registered in the name of certain third parties. Thus, the Court cannot agree with the applicant company’s allegation that its particular way of “optimising tax” had been previously examined by the domestic courts and upheld as valid or that it had used lawful “tax optimisation techniques” which were only subsequently condemned by the domestic courts. The above considerations are sufficient for the Court to conclude that the findings of the domestic courts that applicant company’s tax arrangements were unlawful at the time when the company had used them, were neither arbitrary nor manifestly unreasonable.

595. The Court will now turn to the question whether the legal basis for finding the applicant company liable was sufficiently accessible, precise and foreseeable. In this connection, the Court notes that in all the Tax Assessments (see paragraphs 14-18, 48, 62-63, 165, 191-193, 212 and 213) the domestic courts essentially reasoned as follows. The courts established that the trading companies had been sham and had been entirely controlled by the applicant company and accordingly reclassified the transactions conducted by the sham entities as transactions conducted in reality by the applicant company.

596. The courts first decided that the transactions of the sham entities failed to meet the requirements of Article 39 of the Tax Code defining the notion of a sales operation (see paragraphs 48 and 324) as well as Article 209 of the Civil Code describing essential characteristics of an owner of goods (see paragraph 48 and 381). In view of the above and relying on Article 10 (3) of the Civil Code which established a refutable presumption of good faith and reasonableness of actions of the parties in commercial transactions (see paragraph 48 and 382-383), the courts then changed the characterisation of the sales operations of the sham entities. They decided that these were in reality conducted by the applicant company and that it had been incumbent on the latter to fulfil the corresponding obligation to pay various taxes on these activities. Finally, the courts noted that the setting up and running of the sham arrangement by the applicant company resulted in an understating of the taxable base of its operations and, as a consequence, the intentional non-payment of various taxes, which was punishable as a tax offence under Article 122 of the Tax Code (see paragraph 400).

597. Having regard to the applicable domestic law, the Court finds that, contrary to the applicant company’s assertions, it is clear that under the then rules contractual arrangements made by the parties in commercial transactions were only valid in so far as the parties were acting in good faith and that the tax authorities had broad powers in verifying the character of the parties’ conduct and contesting the legal characterisation of such arrangements before the courts. This was made clear not only by Article 10 (3) of the Civil Code relied on by the domestic courts in the Tax Assessment proceedings, but also by other relevant and applicable statutory provisions which were available to the applicant company and other taxpayers at the time. Thus, Article 45 (2) 3 of the Tax Code explicitly provided the domestic courts with the power to change the legal characterisation of transactions and also the legal characterisation of the status and activity of the taxpayer, whilst section 7 of the Law on the Tax Authorities of the Russian Federation granted the right to contest such transactions to the tax authorities (see paragraph 393). In addition, the case-law referred to by the Government indicated that the power to re-characterise or to cancel bad faith activities of companies existed and had been used by the domestic courts in diverse contexts and with varying consequences for the parties concerned since as early as 1997 (see paragraphs 382-393 and paragraphs 428-468). Moreover, in a number of its rulings, including decision of 25 July 2001 no. 138-0 specifically relied upon by the domestic courts in the Tax Assessment proceedings against the applicant company (see paragraphs 384-387), the Constitutional Court confirmed the significance of this principle, having mentioned various possible consequences of a taxpayer’s bad faith conduct.

598. In so far as the applicant company complained that the bad faith doctrine had been too vague, the Court would again reiterate that in any system of law, including criminal law, there is an inevitable element of judicial interpretation and there will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. In order to avoid excessive rigidity, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, among other authorities, Sunday Times, cited above, § 49 and Kokkinakis, cited above, § 40). On the facts, it would be impossible to expect from a statutory provision to describe in detail all possible ways in which a given taxpayer could abuse a legal system and defraud the tax authorities. At the same time, the applicable legal norms made it quite clear that, if uncovered, a taxpayer faced the risk of tax reassessment of its actual economic activity in the light of the relevant findings of the competent authorities. And this is precisely what happened to the applicant company in the case at hand.

599. Overall, having regard to the margin of appreciation enjoyed by the State in this sphere and the fact that the applicant company was a large business holding which at the relevant time could have been expected to have recourse to professional auditors and consultants (see Špaček, s.r.o., cited above, § 59), the Court finds that there existed a sufficiently clear legal basis for finding the applicant company liable in the Tax Assessments 2000-2003.

600. Lastly, the Court observes that the applicant company made a number of additional arguments under this head. In particular, it also alleged that there was no basis in law to deny the repayment of VAT in respect of the export of oil and oil products, that the domestic courts had failed to apply Articles 20 and 40 of the Tax Code, that it should have been dispensed from payment of interest surcharges under Article 75 (3) of the Tax Code and that in respect of the year 2000 the company had been subjected to double taxation in respect of the profits of the sham entities.

601. The Court notes that both Section 5 of Law no. 1992-1 of 6 December 1991 “On Value-Added Tax” governing the relevant sphere until 1 January 2001 as well as Article 165 of the Tax Code applicable to the subsequent period provided unequivocally that a zero rate of value-added tax in respect of exported goods and its refund could by no means be applied automatically, and that the company was required to claim the tax exemptions or refunds under its own name under the procedure set out initially in Letter no. B3-8-05/848, 04-03-08 of the State Tax Service of Russia and the Ministry of Finance and subsequently in Article 176 of the Tax Code to substantiate the requests in order to obtain the impugned refunds (see paragraphs 326-336). In view of the above, the Court finds that the relevant rules made the procedure for VAT refunds sufficiently clear and accessible for the applicant company to able to comply with it.

602. Having examined the case file materials and the parties’ submissions, including the company’s allegation made at the hearing on 4 March 2010 that it had filed the VAT exemption forms for each of the years 2000 to 2003 on 31 August 2004, the Court finds that the applicant company failed to submit any proof that it had made a properly substantiated filing in accordance with the established procedure, and not simply raised it as one of the arguments in the Tax Assessment proceedings, and that it had then contested any refusal by the tax authorities before the competent domestic courts (see paragraphs 49 and 171, 196, 196 and 216). The Court concludes that the applicant company did not receive any adverse treatment in this respect.

603. As regards the company’s argument that Articles 20 and 40 of the Tax Code should have been applied by the domestic courts in their case and that the Ministry’s claims were inconsistent with the above provisions, the Court notes that the Ministry and the domestic courts never relied on these provisions and there is nothing in the applicable domestic law to suggest that they had been under a legal obligation to apply these provisions to the applicant company’s case. Thus, it cannot be said that the authorities’ failure to rely on these provisions rendered the Tax Assessments 2000-2001 unlawful.

604. Finally and in so far as the company disagreed with the interpretation of Article 75 (3) of the Tax Code by the domestic courts and also alleged to have been subjected to double taxation, the Court would again reiterate that it is not its task to take the place of the domestic courts, which are in the best position to assess the evidence before them, establish the facts and to interpret the domestic law. On the facts, the former provision only applied to cases where the taxpayer was unable to pay the tax debt solely due to the seizure of its assets and cash funds (see paragraph 402). The domestic courts established that the company had been unable to pay because of the lack of funds and not because of the injunctions and refused to apply Article 75 (3) of the Tax Code in the applicant’s case (see paragraph 216). The Court does not find this conclusion arbitrary or unreasonable. Likewise, the Court finds nothing in the parties’ submissions or the case file materials to cast doubt on the findings of the domestic courts, which specifically established that the Ministry took account of the sham entities’ profits in calculating their claims so as to avoid double taxation (see paragraph 49).

605. Overall, the Court finds that, in so far as the applicant company’s argument about the allegedly unreasonable and unforeseeable interpretation of the domestic law in the Tax Assessments 2000-2003 is concerned, the Tax Assessments 2000-2003 complied with the requirement of lawfulness of Article 1 of Protocol No. 1.

(b) Whether the Tax Assessments 2000-2003 pursued a legitimate aim and were proportionate

606. The Court is satisfied that, subject to its findings in respect of the lawfulness of fines for the years 2000 and 2001 made earlier, each of the Tax Assessments 2000-2003 pursued a legitimate aim of securing the payment of taxes and constituted a proportionate measure in pursuance of this aim. The tax rates as such were not particularly high and given the gravity of the applicant company’s actions there is nothing in the case file to suggest that the rates of the fines or interest payments can be viewed as having imposed an individual and disproportionate burden, as such, on the applicant company (see Dukmedjian v. France, no. 60495/00, §§ 55-59, 31 January 2006).

(c) Conclusion concerning the compliance with Article 1 of Protocol No. 1 as regards the Tax Assessments 2000-2003

607. Overall, the Court finds that there has been a violation of Article 1 of Protocol No. 1 on account of the 2000-2001 Tax Assessments in the part relating to the imposition and calculation of penalties. Furthermore, the Court finds that there has been no violation of Article 1 of Protocol No. 1 as regards the rest of the 2000-2003 Tax Assessments.
2. Compliance with Article 14, taken in conjunction with Article 1 of Protocol No. 1

(a) The applicant company’s submissions

608. The applicant company argued that the courts’ interpretation of the relevant laws had been selective and unique, since many other Russian companies such as Sibneft and TNK International Ltd. had also used domestic tax havens.

609. The company also submitted that the authorities had tolerated and even endorsed the tax optimisation techniques used by the applicant company in that they had accepted the applicant company’s and its trading companies’ tax returns and payments on a regular basis, and the company’s rate of tax payment had been comparable to or even higher than that of its competitors. In this connection, the applicant company relied on statistical data contained in a report by the Centre for Development, a report of the Financial Research Institute and reports of the Accounts Chamber of Russia. The company also under this heading argued that the legislative framework had permitted the company to use such techniques and that the interpretation of the domestic law in its case had been unique, selective and unforeseeable.

(b) The Government’s submissions

610. The Government responded that the allegations that other taxpayers may have used similar schemes could not be interpreted as justifying the applicant company’s failure to abide by the law. They further contended that the occurrence of illegal tax schemes at a certain stage of Russia’s historical development was not due to failures or drawbacks in the legislation, but rather due to “bad-faith” actions by economic actors and weakened governmental control over compliance with the Russian tax legislation on account of objective criteria, such as the 1998 economic crisis and the difficulties of the transition period.

611. At present, the Government was constantly combating tax evasion and strengthening its control in this sphere. They also referred to statistical data by AK&M and some other news agencies in 2002, which had reported that OAO LUKOIL and OAO Surgutneftegas, two other large Russian oil producers, had posted sales proceeds of RUB 434.92 billion and RUB 163.652 billion and paid RUB 21.190 billion and RUB 13.885 billion in profit tax respectively, whilst the applicant company had posted sales proceeds of RUB 295.729 billion and paid only RUB 3.193 billion in profit tax. The Government submitted that at least two Russian oil majors, OAO Surgutneftegaz and OAO Rosneft, had never engaged in such practices, whilst some, in particular OAO Lukoil, had ceased using them in 2002.

(c) The Court’s assessment

612. The Court will examine this grievance under Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1. This former provision reads:
Article 14 of the Convention

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

613. Before considering the complaints made by the applicant company, the Court would reiterate that Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised by the Convention (see, for example, Lithgow and Others, cited above, § 117). It safeguards persons (including legal persons) who are “placed in analogous situations” against discriminatory differences of treatment; and, for the purposes of Article 14, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, amongst many authorities, Rasmussen v. Denmark, 28 November 1984, §§ 35 and 38, Series A no. 87). Furthermore, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law; the scope of this margin will vary according to the circumstances, the subject-matter and its background (ibid., § 40).

614. The Court would reiterate that nothing in the case file suggests that the applicant company’s tax arrangements during the years 2000-2003, taken in their entirety, including the use of fraudulently registered trading companies, were known to the tax authorities or the domestic courts and that they had previously upheld them as lawful (see paragraphs 592-594). It thus cannot be said that the authorities passively tolerated or actively endorsed them.

615. As regards the applicant company’s allegation that other domestic taxpayers used or continue to use exactly the same or similar tax arrangements as the applicant company and that the applicant company was the only one to have been singled out, the Court finds that the applicant company failed to demonstrate that any other companies were in a relevantly similar position. The Court notes that the applicant company was found to have employed a tax arrangement of considerable complexity, involving, among other things, the fraudulent use of trading companies registered in domestic tax havens. This was not simply the use of domestic tax havens, which, depending on the exact details of an arrangement, may have been legal or may have had some other legal consequences for the companies allegedly using them. The Court notes that the applicant company had failed to submit any specific and reliable evidence concerning such details. It further notes that it cannot be called upon to speculate on the merits of the tax arrangements of third parties on the basis of data contained in non-binding research and information reports and that therefore it cannot be said that the situation of these third parties was relevantly similar to the situation of the applicant company in this respect.

616. The Court concludes that, in so far as the complaint about discriminatory treatment is concerned, there has been no violation of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1.

Comments

  1. Brilliant Anatoly! At last! Finally someone has set out the truth of what the ECHR actually said. This post needs to be properly circulated. Inosmi should publish it.

  2. Moscow Exile says:

    The extremely annoying thing about this matter is that the ECHR judgement has long been
    available on line for all to read but, as Anatoly, points out, journalists and the Khodorkovsky propaganda machine assume that few will attempt to read and digest that judgement. It seems that their assumption is a sound one.

    Furthermore, as soon as the findings of the ECHR were published, the Khodorkovsky propaganda machine went into full gear to counter the judgement, with Robert Amsterdam on June 1, 2011 claiming a legal victory for his client Khodorkovsky:

    “The judgment handed down on Tuesday by the European Court of Human Rights (ECHR) on the case of Khodorkovsky vs. Russia (Application 5829/04) represents a clear victory for the plaintiff, as the court ruled in their favor on 8 out of 15 claims, most critically declaring that Russia had violated Khodorkovsky’s rights under the European Convention on Human Rights in several instances”.

    Amsterdam even has the temerity to provide a link to the published judgement whilst making this claim. He then closes with:

    “The ECHR judgment is an impressive and hard-won victory by the legal team headed up by lawyer Karinna Moskalenko and all the others working for so many years in Strasbourg, and I send my heartfelt congratulations to them.

    It is nevertheless a great disappointment to see how so many journalists couldn’t be bothered to take the time to read the decision and consider its meaning”.

    What irony in view of the fact that Amsterdam and his ilk seem to rely on the very fact that few will read the judgement , let alone analyse it.

    See: http://www.eurasiareview.com/01062011-khodorkovsky-wins-at-echr-press-loses-oped/

    • Dear Moscow Exile,

      Interesting to see Amsterdam in action. I have never before bothered to read his blog. Having seen his description of the Judgment I strongly suspect that Masha Gessen & Co are getting their version of the Judgment from him.

      Anyway Amsterdam’s arguments can be quickly disposed of:

      1. The ECHR threw out the claim Khodorkovsky brought under Article 18 that the case against him was politically motivated. This was not a technical decision. Nowhere in the Judgment does the ECHR say that this is a matter that is capable of being re opened. The ECHR does not ask for more evidence. The Judgment is most definitely not a request for the filing of more documents. Instead what the Judgment very clearly says is that Khodorkovsky came nowhere close to meeting the very high standard of proof required to justify the claim he was making.

      2. The points Khodorkovsky won were procedural as shown by the small amount of compensation he was awarded. To say that he won more points than he lost is fatuous when the point he lost was the key one.

      3. On the question of goodwill Amsterdam is confusing the entirely different issue of the goodwill that is presumed to exist in international law between states that are in treaty relations with each other and the totally different presumption of integrity in a court process. The presumption of integrity in a court process is rebuttable but Khodorkovsky failed to rebut it. For the record Khodorkovsky’s case falls into the category of human rights law not international law as Amsterdam claims. Human rights law is not a branch of international law as Amsterdam implies.

      All of Amsterdam’s comments pertain to the first Judgment, which admittedly is the key one. I had previously read this Judgment, which if read carefully all but says that Khodorkovsky is guilty. I had not read until Anatoly posted extracts from it the second Judgment in Yukos v Russia case. This Judgment goes far beyond the first Judgment in discussing the facts of the case and straightforwardly says after an examination of the facts that Yukos was engaged in a massive tax fraud. I would be curious to see what sort of spin Amsterdam puts on this Judgment.

      • Just one further short comment on Amsterdam’s post.

        Amsterdam implies that because Khodorkovsky took his case to the ECHR in 2004 the ECHR was only looking evidence up to 2004. Amsterdam says that in any future application the ECHR will be presented with the mountain of evidence that has supposedly come to light since 2004.

        Again I have seen this statement made elsewhere and I strongly suspect that the others who make it first saw it on Amsterdam’s post whence it originates. The point anyway is nonsense. In deciding its case the ECHR will have looked at any evidence that was relevant regardless of whether that evidence came to light before or after 2004. It is absolutely routine in court proceedings for the court to be provided with evidence that the parties have discovered after the start of the case. If Khodorkovsky’s lawyers only presented to the ECHR evidence that they obtained before 2004 when they started the case then I would advise Khodorkovsky to fire his lawyers and get new lawyers and to sue his existening lawyers in negligence. In reality as a glance at the extracts from the two Judgments that Anatoly has posted shows Khodorkovsky’s lawyers did present to the ECHR evidence that they obtained after 2004 and the ECHR considered that evidence when it made its Judgment.

  3. Hector Williams says:

    I agree with you anatoli but here is one interesting tidbit that people in the west ignore although it has been spoken about millions of times by journalists in the same anti putin publications like the Guardian,WSJ,FT and Washington post and even Khodorkovsky supporters like Lilia Shevtsova in her books “Putin’s Russia” and “Russia lost in transition”. Khodorkovsky was in the process of buying up duma slates so that he could put his people into parliament. He did this with the intention of getting his people into the parliament so that he could gain enough influence to transform Russia into a parliamentary republic installing himself as an all powerful prime minister and leaving Putin as a figurehead.According to a “Falling Tsar” by Chrystia Freeland (you can find it by googling it), according to “one of the exiled oligarchs” (she mentions Gusinsky and Berezovsky) he went so far as to tell this to Putin. In 1997 he actually said “politics is the most lucrative business in Russia”. You can also find accounts of this scheme in Kremlin Rising,WSJ and Putin’s Oil. The fact is that the Western media makes Khodorkovsky to be a “Russian Mandela” when in fact he is more like a “Pablo Escobar”. Putin’s crushing of Khodorkovsky was a great deed because if you read a lot of accounts in the same western media Khodorkovsky’s actions lead to ordinary pensioners and state employees being deprivd of wages.I should also mention that he was making a play for Gazprom and Transneft and western officials accused him of the crimes that he was jailed for in his second trial. However, the second trial was indeed a rigged trial.

    • Dear Hector,

      1. Khodorkovsky was definitely seeking to influence the parliament through a systematic campaign of bribery of Russian deputies. His objective was not I think to transform Russia into a parliamentary republic or to take power for himself but simply to protect his own interests. This is similar to the way Al Capone used to protect his interests in Chicago in the 1920s through systematic bribery of local politicians and police and city officials. In my opinion the starting point of the Khodorkovsky affair was his use of bribery of parliamentary deputies to defeat tax changes that Kudrin and Gref supported by Putin were trying to carry out. This incident, which I think I am right in saying happened in 2002, was what in my opinion alerted Putin to the danger that Khodorkovsky represented to the effective governance of Russia. Khodorkovsky with typical overconfidence then compounded the trouble when he publicly threatened Putin at a televised meeting by accusing the state oil company Rosneft of corruption and evasion of taxes. This is the characteristic fraudster’s ploy (I strongly suspect also on display in the Magnitsky case) of the fraudster accusing others of the very fraud in which he is engaged. Khodorkovsky’s liberal fan club and his western admirers typically ignore the incident in the parliament in 2002 and misrepresent the nature of his televised confrontation with Putin.

      2. I have seen nothing that suggests to me that the second trial was rigged. We know from the Wikileaks cable that the representative of the International Bar Association who was present at the trial advised the US Embassy that the judge was conducting the case properly and that the trial was fair. Khodorkovsky was not convicted twice of the same offence as is commonly alleged. The first case was brought on charges of tax evasion. The second case was brought on charges of fraud of minority Yukos shareholders. It is absolutely normal in complex fraud cases for charges to be dealt with separately in separate trials, which because of the amount of evidence involved are often separated in time from each other. Enron related litigation is for example still ongoing in the US. That there is some overlap in the facts between the two cases should make one more inclined to trust the Judgment in the second case than to doubt it. The fact that the court found in the second case that Khodorkovsky was systematically stealing oil to deprive Yukos shareholders of their share of in its profits seems to me entirely consistent with the findings made by the court (and upheld by the ECHR) in the first case. I am aware that Medvedev’s Human Rights Council has delivered a report that seeks to cast doubt on the court’s judgment in Khodorkovsky’s second case but as I have previously said in an earlier comment on another post on Anatoly’s blog, that tells us more about the sort of people Medvedev has appointed to his Human Rights Council than it does about the case itself.

      • Dear Alexander,
        I agree with you but I think that you are missing out some details.Khodorkovsky was seeking to take power for himself so that he could further enrich himself. If you look at all the interviews he has had over the years he has basically admitted that control of the state or close relationships with state officials was key to gaining state access. His attorney admits that he was trying to gain control of Gazprom and it is known that he was planning to build pipelines to ship oil to the US and China.Making himself the most powerful man in the land was key to success in these efforts. You have to remember that the sources that described this plot were anti putin elements such as “people close to khodorkovsky” and either Gusinsky or Berezovsky. Also, please bear in mind that I agree that he did steal from yukos subsidaries (eg Kenneth Dart) . This is documented in the western press. It is just that he bought Mr Dart’s silence. The government’s case in the second trial was just so weak. This I think is what Putin meant when he quoted “A Thief belongs in jail” , Khodorkovsky was obviously guilty, they just did not have the evidence to prove it. It does not mean that I think that he is a Nelson mandela or an Andrei Sakharov like other idiots in the western media. It does however raise similar issues to the treatment of Al Qaeda members . How do you deal with somebody who is a danger to your country? I think we all agree that Khodorkovsky’s actions (even he admits that they were not ethical) were key to causing the near collapse of Russia in the 90s.

        • Dear Hector,

          I note what you say. I have to say though that I am puzzled when you say that the second case against Khodorkovsky was weak. What grounds are there for saying that? In these sort of fraud cases the key evidence is not provided by witnesses but by the paper trail. From what I have been able to learn about it far from being weak the case looks to have been very strong. Bear in mind that much of the evidence for the fraud on the shareholders would have been the same as the evidence for the tax evasion, which as we can see was conclusively proved to the complete satisfaction of the ECHR.

          Generally speaking I would make two further comments:

          1. If Khodorkovsky did pose a threat to the Russian state, which like you I think he did, then Putin & co should be congratulated for going after him in a completely legal way, properly using the law, giving him a proper trial and taking the trouble to prove the case against him in court in a legal way after properly and painstakingly assembling the evidence against him. As we have seen the government has even allowed him to take his case to a foreign based court whose jurisdiction it has accepted. No other government in Russian history has dealt with people who it saw as a threat to the state in this way. The Khodorkovsky case does not represent a defeat for the rule of law in Russia. On the contrary it was a major victory for it.

          2. Which brings me to my main point. Western politicians and media endlessly complain about the absence in Russia of the rule of law and about Russia’s corruption. In reality by lending weight to the campaign of a criminal and fraudster like Khodorkovsky they are doing everything to undermine in Russia the rule of law whilst making it more difficult for the Russian government to get a grip on Russia’s corruption problem.

          • You are missing out one more point . In all of the articles I have read US figures were in close discuessions with Khodorkovsky. Condoleeza Rice in her memoir confirms that she had conversations with him about changing the nature of politics in Russia. The US stood to gain from Khodorkovsky’s success. In iraq, a false pretext was used to get rid of a government. In the colored revolutions, false pretexts were used to put western friendly governments in power. In Syria, the US is pushing to get rid of Assad using the “crimes against civilians” excuse whilst ignoring “crimes against civilians ” committed by Bahrain,Yemen and Syria. Rice also mentions in her book that Putin was scared of colored revolutions and this is what changed him from a leader friendly to US interests to a more hostile one. The point I am making is that the Khodorkovsky case is the main reason that relations between Washington and Moscow are so cold. The US backed a criminal (whether because of good or deliberately hostile intentions is still debatable) in a putsch against Putin. The second thing is that whilst I agree that he is guilty in the first case and that he did commit the crimes in the second. I have not seen any evidence to convince me that they presented a strong case . I have read lots of articles stating that he used transfer pricing mechanisms to embezzle money from Dart and others in the Yukos subsidaries and then to launder the money into his accounts which is what he was tried for (google and read “russian privatization and corporate governance :what went wrong ?” which was posted by Gordon Hahn in his discussion “The Khodorkovskii case” on Russia Other Points Of View). I just think that Khodorkovsky had bought off Dart as demonstrated by Ben Aris in “Making of a Myth”, that the Government just charged him with a crime he committed and rigged the trial to get rid of a dangerous individual. One more thing , I think Khodorkovsky demonstrates the strength of Putin’s character. Imagine dealing with threats from monsters like Shamil Basayev and thugs like Khodorkovsky who had the backing from the most powerful people on the planet at the same time. Whilst , I think that Russian TV sometimes exaggerates Putin to make him seem larger than life there is some truth

          • Re point 2. It is quite clear that the western governments have complete malice towards Russia. Remember all the chirping in the western media about “Russians nostalgic for the days of the USSR”? So Russians vote for centrist “capitalist” Putin but McFaul meets with dinosaur commie Zyuganov to pump up the opposition to the Russian government. Looks like it is the American government that is truly nostalgic for the days of the USSR.

            Russians should not put up with this sh*t from the west.

  4. Moscow Exile says:

    As regards the ECHR judgement and Amsterdam’s proud claim that the judgement was a victory for his client, in that the court had found in favour for “8 out of 15 claims, most critically declaring
    that Russia had violated Khodorkovsky’s rights under the European Convention on Human Rights in several instances”, I should like to addd that one of those “violations” was the fact that Khodorkovsky had to appear in court in a cage.

    Well, I have a little information for the learned gentlemen at Strasbourg: the dock in all Russian criminal courts is “behind bars”. That cage which the ECHR strongly condemned is normal practice in Russia. No doubt it is shocking to Western eyes, but the fact is that all defendants in Russian criminal trials stand in an encaged dock; St. MIkhail of the Gulag was no exception.

    Another violation of khodorkovsky’s human rights – according to the Strasbourg judgement at least – was the fact that he was incarcerated for a while in a tiny cell in which only a bucket served as a receptacle for his body waste. How sad!

    As a former convicted criminal, I can definitely state that just over 25 years ago I had to share a bucket with three other men in a cell that measured some fifteen feet by nine feet, out of which confined area we were allowed to exercise once daily for 30 minutes. That was in Her Majesty’s Prison, Strangeways, Manchester in 1986. Furthermore, unlike Khodorkovsky, I was not allowed to give lengthy interviews to journalists whilst serving time in Her Majesty’s prisons; nor was I , unlike Khodorkovsky, allowed to write lengthy articles for the press.

    In addition, when an appeal was made against my conviction, I was transported from Manchester to Her Majesty’s Prison Brixton, London. During the whole of my journey I remained handcuffed in full public view to a prison officer. On the day following my arrival at HMP Brixton, I was taken in manacles to the Royal Court of Criminal Appeal on the Strand in London. I and other appellants were manacled in groups of three, rather after the fashion that one sees in prints of Negro slaves in the early 19th century.

    I well remember how, after our arrival in the courtyard of the court of criminal appeal, we appellants were led across the yard, our chains rattling as though we were collectively some latter-day Marley’s ghost, whilst office girls giggled and laughed at us from adjacent office windows. I thought at the time that such a sight as we manacled prisoners presented to the eyes of these silly young women was something of a daily show.

    I wonder if Mr. Amsterdam and friends, together with the learned gentlemen at the European Court of Human Rights, would consider the treatment that I endured during my legal processing and incarceration in the UK a quarter of a century ago to have been an infringement of my human rights?

    I should hardly think so, for I was a convicted criminal and rightly suffered the consequences of my nefarious activities; unlike Mikhail Khodorkovsky, who is, of course, an honourable man, a defender of freedom and democracy and a victim of the Evil Empire and its despotic overlord.

    • All I can say Moscow Exile about your treatment is that it was disgraceful. For what it’s worth I suspect that things are better now almost certainly because since 2001 the European Convention of Human Rights has become part of British domestic law. Having said this there is a relentless campaign in the British and amongst some sections of the British political class to withdraw from the Convention presumably so that we can return to the sort of disgraceful practices that were practised upon you. In the Evil Empire by contrast no one is suggesting that Russia withdraw from the Convention.

      As for the Shining City on the Hill otherwise known as the United States of America, it of course does not accept the jurisdiction of any foreign based court much less a human rights court such as the ECHR. Indeed there is even a school of thought within the US led by “jurists” such as Bybee, Choo and Feith who argue that the US Constitution places the US above such international human rights treaties and conventions as the Convention on Torture even when it has ratified them. As a result the US can practice extraordinary rendition, hold people indefinitely in Guantanamo and has recently passed laws which allow the US authorities to detain US citizens indefinitely on suspicion of terrorism and which allow the US President to have US citizens summarily executed abroad without trial, all of which in Russia the country’s commitment to the European Convention of Human Rights render impossible.

  5. Let us not forget that, political ambitions of controlling the government aside – and I have always believed Khodorkovsky had a financier’s contempt for the smutty workings of government and the ass-kissing of foreign policy except inasmuch and insofar as they could make him richer – he was steadily controlling more and more of Russian GDP. People are astonished to learn that some 70% of Ukraine’s GDP is vested in its oligarchy and that the oligarchy alone could probably (based on estimates) run the country unassisted for two years, but Khodokovsky was pushing toward an endstate where pretty much everybody in Russia would be working for Khodorkovsky. His China pipeline was manifestly a great idea – the government, after all, paid him the compliment of completing it after his incarceration – but the fact remains he intended to complete it as a private investor and cut the state out of the deal altogether. At some point, and it probably wasn’t far away, his wealth would have become an irresistable force of nature and the government would not have been able to stand against it.

    This is a fabulous post, Anatoly, and one in the eye for liberal-lapping charlatans like Masha Gessen, who obviously is of the school which believes you are perfectly justified in lying to people provided it is for their own good. The reaction of this crowd to the ECHR decision was what it would have been like to hear Muhammad Ali claim, after the Fight of the Century, that he had beaten Joe Frazier by hitting him with his face until he couldn’t swing any more.

    • I think another group of people for whom this post ought to be a slap in the eye are the guys at Amnesty International. What is Amnesty doing declaring such a brazen crook a “prisoner of conscience”? They made this decision before the first ECHR Judgment last year, which ought to have woken them up. Of course it hasn’t. If/when the ECHR upholds Khodorkovsky’s second conviction what will they do then? Own up to their mistake and apologise? I am not holding my breath.

  6. Well to answer SWP and his fellow Twitterati’s questions, since I know they lurk here…

    Yes Senor Equis Twitter account was shut down so fast it made my head spin. I don’t actually think it was a single ‘block’ from R aka the lady who uses some random veiled’ hot’ chick’s photo, since that’s silly. If you block someone then you both go along your merry ways.

    No what probably did it (to the point that Twitter is now saying my account has been deleted) is that I sent a single solitary Tweet to Max Boot at the Council on Foreign Relations, saying I thank God every time this American is flying into SVO or DME that his advice to arm the Saakashvili regime with Stinger missiles after the 08/08/08 war went unheeded.

    Congratulations, Twitter. If you wanted to justify every tin foil hat wearer’s assumption that the CFR members are ‘made men’, to put it in Jersey mob parlance, who cannot even be mildly criticized, you couldn’t have hardly done better.

    I’ve yet to receive a single email from an actual human being explaining the yanking. Meantime, I see SWP, catfitz et al insulting other folks with Tweets as a matter of routine. No wonder they behave so arrogantly, they think Twitter is on their side.

    I know this post off topic, but certainly relevant to AK’s thesis that West getting into censorship if not more so than Russia. Lotsa people saying f- Putin all over the Ru net and nothing happens.

    • Mr. X,

      I VERY much doubt its intentional on Twitter’s part. Certainly not political, I mean they held off as long as possible on releasing private comms data on Wikileaks staffers to DoJ for starters. I suspect that when a new account is set up, and has no followers / few tweets, their automatic rules on how many “Mark as Spam” / Blocks are needed before closing it as a spam account are MUCH laxer than for established accounts. I don’t blame them, the system would otherwise deluged with spam. Even regardless of their efforts, I still get spam @’s from new Twitter-blogs every now and again. Every time that happens I do the Twitter community a service and report them for spam.

      What I would suggest, if you’re still interested, is to set up a new Twitter account, and avoid confrontations with authoritarian pricks like SWP/Bootman who abuse the Report Spam button until you can build up a few tweet and followers so that Twitter doesn’t regard you as a probable spam account.

      • Thanks Anatoly. Will do. And also avoid titling my account “Contra Cointelpro”. Why tempt the No Such Agency Utah data collection hounds by getting flagged?

  7. SOPA, who needs SOPA? Just shut em’ down.

  8. https://twitter.com/#!/EquisMr

    Senor Equis lives on Twitter again! pls feel free to send follow requests so spam filters don’t attack me again.

  9. donnyess says:

    Apparently somebody thinks Shuvalov had a major hand in the Yukos bust-up. He was attacked by Browder at Davos, and now by the US media. The US and the friends of Yukos are desperate for Russian oil supply. Maybe Shuvalov should be PM under Putin?

    http://www.time.com/time/world/article/0,8599,2111708,00.html?xid=gonewsedit
    http://imrussia.org/

    ?

    • The Shuvalov affair is the most ridiculous thing ever.

      His financial dealings might be questionable in some idealistic bizarroworld of absolute integrity and business/politics separation, but is par for the course for any politician in the US. His money is about 1000x cleaner than any of the oligarchs’ (including MBK of course).

      PS. I have a post half-done on Shuvalov. Might be up by tomorrow.

  10. Simon Shuster’s latest is about Khodorkovsky/Shuvalov.
    (NOTE: I tried to post this yesterday, but didn’t work, maybe got eaten in spam filter, maybe because of links? So I am re-posting with embeds. Sorry if duplication.)
    Here is English :
    Here is Russian translation :
    Major points of interest:
    Once upon a time there was a group of 3 musketeers (Igor Shuvalov, Pavel Ivlev, and Vasily Aleksanyan) who were friends from Law School and all came to power around the same time, Shuvalov serving in the Yeltsin government, the other two in Yukos.
    In 2003 Yukos Affair, the group split up: Shuvalov went over to side of Putin, whereas Ivlev and Aleksanyan stayed loyal to Khodorkovsky.
    When Khodorkovsky was arrested in 2003, Ivlev had to flee to USA, where he now holds American citizenship.
    Shuvalov stayed in Russia and went to work for Putin. His job is to attract foreign investments.
    Aleksanyan was arrested in 2006 as part of Yukos affair, and spent 3 years in prison, where he contracted AIDS, of which he died later, in 2011.
    It seems to be Aleksanyan’s death that fully embittered Ivlev to go after Putin again (and Shuvalov, whom he considers a traitor to the Musketeers) from the safety of his New Jersey exile.
    Ivlev stalked Shuvalov when the latter attended a Chicago forum (trying to jimmy up foreign investments in Russia), and, in a Dostoevskian scene of “grand scandal” confronted him in full public view with the horror of Aleksanyan’s death.

    When the conference was over, Ivlev went up to Shuvalov’s room at the Swissôtel, where the conference was held, and informed his friend that he was joining the opposition to Putin’s regime. “I let him know that I had made my choice,” Ivlev tells TIME. “Maybe he felt some threat there, but I never threatened him.”

    Two months later, Shuvalov found himself in the middle of a massive corruption scandal. Citing his family’s financial documents, Barron’s reported he had earned a fortune of $119 million through questionable loans and stock trades, including deals he had made with some of Russia’s richest oligarchs while he was serving in senior government posts. Shuvalov denied the allegations, but the Wall Street Journal and the Financial Times published similar reports on March 28 apparently citing the same documents

    In other words, when an embittered Ivlev teamed up with Pavel Khodorkovsky (Kh’s son) and Aleksei Navalny, this new team of 3 musketeers decided to really go medieval on Putin’s ass by attacking his ally Shuvalov:

    A lawyer by training, Navalny has since agreed to work as Ivlev’s attorney in Russia, and on March 30, he posted the Shuvalov family documents on his blog, which has a monthly readership of roughly a million people. He called on this army of followers to “declare a holy war” against Shuvalov for alleged corruption.
    This week, Navalny says he will formally request that the U.S. Department of Justice open an investigation, which would be based on the fact that at least one U.S. citizen is implicated in the Shuvalov documents. He also plans to raise the issue with the U.S. ambassador in Moscow. (The embassy declined to comment on the case.) “This is the most effective campaign,” Navalny tells TIME. “These crooks couldn’t care less about complaints to the Russian prosecutors, but they are terrified of being banned from traveling to the West.”

    And thus begins the next phase of American propaganda war against Putin. It still involves Khodorkovsky, just like the earlier one. It’s always about Khodorkovsky. Plus ca change, plus c’est la meme chose.

    • Rescued from Akismet. Sorry about that yalensis.

      I’ve read the @shustry piece above. It’s better than most coverage, despite the biased tone, in that it actually (1) grudgingly acknowledges there does not seem to be anything patently illegal in Shuvalov’s affairs, and that it is an ethical issue; (2) also acknowledges that some parties are interested in making Shuvalov look bad for personal reasons.

      • That’s okay, Anatoly.
        I also thought that Shuster’s piece was surprisingly factual. Most of my comment was actually just repeating and summarizing what he reported, but trying to put in chronological order and give a certain narrative flare.

  11. There are many negative opinions about Khodorkovsky posted on this website and that is fine. We want all viewpoints represented in the feature film about Khodorkovsky entitled “Mikhail:good or evil”, not just those of his supporters, that we are currently shooting in Riga, Latvia. You are invited to participate in the film project via our official website http://mikhail.org. The project is funded through very small donations from those who wish to take part in this crowdfunding effort to move a bit closer to establishing the truth.

    • Thank you.

      This is my Twitter comment on the matter: “Only relevant comment: Read ECHR judgment: http://t.co/t22ep83T Don’t know/care whether “good” or “evil”, but tax evader – YES. #mikhailevil”

      • Thank you for your comment. What about the King and his inner circle who pocket the money from oil and gaz exports? Do you also consider them tax evaders or bribes are tax-deductable? Have you ever wondered why there is not a single commodities exhange in Russia to determine the price of crude though basic supply and demand? The oil gets a price ONLY after it is exported outside the country. Do you know that the King has a habit of giving oil rigs as a present to people he likes, including his mistress?

        • The “King’s” alleged fortune goes back to an unsourced, unevidenced claim by the liberal political scientist Belkovsky. Being repeated endlessly in the echo chamber that is the Western media doesn’t make it true. MBK’s tax evasion and expropriation of minority shareholders are well-documented and proven in courts of law.

          The price of Russian oil is tied to the Urals blend and futures on it can be traded at the RTS. Oil rigs as presents to mistresses? You are going off the deep end. Do you realize how ridiculous you sound? I suppose you’re also now going to go off on how Putin locked up his wife in a monastery?

          Or to be more accurate, It looks like you’ve already established the truth you want, so why solicit further opinions? Why bother with your MBK propaganda film when the market for them is already so saturated?

          I hope for your own sake that Goldfarb/Menatep group are paying you, because shilling for free really is a bit pathetic.

  12. “The US and the friends of Yukos are desperate for Russian oil supply.” Not so much desperate for the actual supplies/more supply to be brought online as to keep Russia in the OPEC/cartel club, since Rus can always go renegade and open the spigots if elites decide higher prices/artificial scarcity in their interests.

    Anyway, I’m having some fun w/Debka in my Twitter account today, pointedly asking them if they think Israelis can use Azeri air space w/out Moscow’s tacit consent. I love driving the Anti-Russia Lobby nuts and embrassing them with their pro-Israel friends.

  13. Also think if Rus law that actually limits travel in certain cases (don’t know where to find this Rus legal language online) were compared to Sen. Barbara Boxer’s legislation on THOMAS.gov side by side, would prove a major embarassment to Establishment constantly tutting about moral superiority to Putin’s ‘fascist state’. They need to face the music.

  14. The news today is that Medvedev has rejected calls that he pardon Khodorkovsky without a request from Khodorkovsky for a pardon saying that to do so would be unconstitutional. In saying this Medvedev is going against the advice of his Human Rights Council, which has said that he can give such a pardon even without Khodorkovsky’s request for one. Shortly after Medvedev’s announcement Khodorkovsky said that he would ask for such a pardon.

    To my mind what all this points to is that the latest manoeuvres by the Human Rights Council and Khodorkovsky’s supporters to secure his release from Medvedev before Putin is inaugurated have ended in failure. The Russian judicial authorities still have to pronounce formally on the report of the Human Rights Council that the case against Khodorkovsky was a politicised travesty but as the arguments in this report are as I have said completely wrong and at times absurd there is no realistic possibility that they will accept the report. With hindsight it seems to me that the report was most probably prepared to give Medvedev a pretext to pardon Khodorkovsky, which he has today refused to do.

    • I would add that I read yesterday that the Left Alliance or whatever the new grouping that Mironov and Just Russia are trying to form will be called has said that Khodorkovsky will contribute to the drafting of its platform.

      This rush to embrace Khodorkovsky by the liberal opposition and even it seems by the party and leader of what claims to be the country’s moderate Left shows their complete lack of judgement and their total failure to understand what in a democracy political opposition is actually about. The mere fact that Khodorkovsky and Putin are enemies is not a reason to support Khodorkovksy if Khodorkovsky is a criminal, which is what he is. In a democracy a responsible opposition never operates on the principle that “my enemy’s enemy is my friend”. It if does then it forfeits the right to be taken seriously.

      Instead of embracing Khodorkovsky the opposition ought to be distancing themselves from him. As a supposed socialist Mironov in particular has no reason to support Khodorkovsky and should be the first person to understand this. The proper line for a left wing opposition movement to take over the Khodorkovksy affair is not to campaign on Khodorkovsky’s behalf much less to invite him to draft the movement’s programme but to criticise Putin for being too soft and for being hypocritical by failing to prosecute other oligarchs in a similar way.

      • The recent hunger strike and now this has convinced me that Mironov is yet another anti-Putin loser. Too bad, I thought that a real opposition party was forming in Russia. Not the fossil KPRF or the 5th column Yabloko, et al. I don’t understand why these politicians are such transparent opportunists. They don’t even try to adhere to the principles they claim to espouse.

Trackbacks

  1. [...] - or in Guantanamo). But they shouldn’t count on victory there. After all, Khodorkovsky failed to prove his prosecution was politically motivated several times in the ECHR – and he had a lot more [...]

  2. […] In Russian poll after Russian poll, Khodorkovsky can never crack the 10% mark (link credit goes to Anatoly Karlin) when it comes to percentage of Russians who view him as a political prisoner.  Don’t forget […]

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