April 2, 2009 | Commentary on Russia, Democracy and Human Rights

Reversing Habit of 'Legal Nihilism'

President Obama and Russian President Dmitry Medvedev will meet Wednesday on the sidelines at the Group of 20 summit. Ironically, that's one day after the trial of former Russian oilman Mikhail Khodorkovsky opens in Moscow. This trial symbolizes the deterioration of the rule of law in Russia.

While the two leaders - both former law professors - will have their hands full with economic and security matters, the rule of law also should figure prominently on their bilateral agenda. A healthy legal system is necessary to protect the rights of foreign and domestic investors and to facilitate the development of civil society and human rights.

Russia's track record under communism was abysmal, and even before that it was problematic. Under Mr. Medvedev, who is attempting to turn the fight against corruption into a personal crusade, there may be changes for the better.

During the Boris Yeltsin presidency, the Russian courts, despite their corrupt practices and lack of judicial sophistication, slowly inched toward more independence. In 2002-03, however, a reversal began. The rulers increasingly use "telephone justice" - senior state officials call upon judges and tell them how to decide cases under the guise of protecting "paramount state interests."

The "siloviki" - bosses of security services - increasingly have been involved in hostile takeovers, including of intellectual property such as lucrative trademarks like Stoli vodka. Most of all, they have been going after oil, metals and minerals.

The 2003-05 Yukos case was a watershed. The most successful and transparent Russian oil company was taken over under the pretext of multibillion-ruble tax arrears. Yet many government officials clearly stated that its owner, Mr. Khodorkovsky, was perceived as a political threat because of his support of liberal political parties and civil society.

The persecution of Yukos undermined the notion of justice being universal because it selectively targeted a politically inconvenient opponent. Loyal Russian oligarchs - though involved in unsavory business practices - were not prosecuted. The oligarchs and politicians quickly got the message that, in the words of the Borg in "Star Trek," "Resistance is futile."

After the Yukos affair, Russian and Western oil companies came under tremendous pressure from the Russian government, which used the state bureaucracy to renegotiate earlier contracts or to boot competitors out of the country. The victims included Exxon, Shell, British Petroleum, Hermitage Capital and the Russian companies Rusneft and Mechel.

Mr. Khodorkovsky was sentenced in 2005 and was eligible for parole last year. Instead, on Tuesday, he and his partner Platon Lebedev will face a new trial - and a new rap sheet. The trial is widely believed to be a political vendetta.

This may be a chance for Mr. Medvedev, who spoke with concern about Russia's "legal nihilism," to act. As the kangaroo court gets under way, some Russian experts hope Mr. Medvedev may order an impartial trial or pardon Mr. Khodorkovsky. If, however, the West fails to save Mr. Khodorkovsky and Mr. Lebedev from life sentences, it would also surrender the chance for a more law-abiding state to the "siloviki" power brokers.

At the summit, Mr. Obama also should bring up the October 2006 murder of crusading journalist Anna Politkovskaya, whose likely killers were acquitted by a Moscow jury in February. The prosecutors never even presented the court the names of those suspected of ordering her murder or the suspected gunman.

The police also haven't made arrests in the murder of human rights lawyer Stanislav Markelov, who was gunned down a stone's throw from the Kremlin along with journalist Anastasia Baburova in February. The murders of others, including the defenestration of Kommersant Daily's military correspondent Ivan Safronov, the poisoning of Novaya Gazeta's deputy editor Yuri Shchekochikhin and the fatal 2004 shooting of Paul Klebnikov, an American of Russian descent who was editor in chief of Russian Forbes, all remain unresolved.

Without fundamental legal reform, a fight against corruption and a return to judicial independence, Russia will continue to linger at the bottom of the Transparency International Corruption Index and the Heritage Foundation's Index of Economic Freedom. If Russia doesn't return to internationally recognized legal practices, investments are likely to slow, and capital will continue to flee.

The administration should appeal to Mr. Medvedev to stop what he himself has called law enforcement's "nightmarish practices," start reforming the legal system, ban the secret police and law enforcement bosses from engaging in expropriations and extortion, and fight corruption.

Mr. Obama also should ask that Mr. Medvedev order renewed investigations of the Politkovskaya and Markelov cases and ask for the release of Mr. Khodorkovsky. These measures would be a strong signal to the United States, to the Western business community and to the Russian people that a clean break with the lawless past is under way and that Russia may be joining the community of civilized nations.

Ariel Cohen, Ph.D., is Senior Research Fellow in Russian and Eurasian Studies and International Energy Security at the Allison Center of the Katherine and Shelby Cullom Davis Institute at The Heritage Foundation.

About the Author

Ariel Cohen, Ph.D. Visiting Fellow in Russian and Eurasian Studies and International Energy Policy in the Douglas and Sarah Allison Center for Foreign and National Security Policy, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation
Douglas and Sarah Allison Center for Foreign and National Security Policy

First  appeared in the Washington Times