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The third Yukos case: Investigative Committee conducts searches in Kazakhstan sanctioned by Moscow’s Basmanny district court

31 May 2013 

Leonid Nikitinsky

Source: Novaya gazeta

Photo: Echo of Moscow radio

The suspects are the independent experts who produced a report on the second case and "created the illusion of the need to liberalise the criminal law" 

The sad and shocking news which came at the end of the week, the resignation of the rector of the New Economic School Sergei Guriev, is connected to the third "Yukos case." But how? Shining a light on the fantastical storyline of this case, in the spirit of 1937, is a single document which came to light as a result of a recent search conducted by law enforcement officers in Alma-Ata...

How it happened

On the morning of 24 April Elena Novikova, Doctor of Law, head of the NGO the Centre for Legal and Economic Studies, who holds dual Kazakh and Russian citizenship, went to get a doctor for her elderly father, who lived on the same landing as her in the centre of Alma-Ata. Together with the doctor she entered her father's flat about 10 minutes after four men dropped into Novikova's own flat, where around noon Elena's husband Igor Novikov opened the door to them.

The two-room flat is used both as a living space and the office of a law firm. Igor Novikov is a well-known specialist in the field of international trade and maritime law. His legal firm has major foreign partners of the Republic of Kazakhstan as its clients. Before he became involved in private legal practice he worked as an investigator, and was then head of the Public Prosecutor's Office of the Kazakh Soviet Socialist Republic in charge of overseeing the enforcement of sentences. He was frequently involved in negotiations in zones of rebellion. That is why when he heard the words "Financial police!" he had no hesitation in opening the door.

The four men who entered the flat (they brought along two witnesses) introduced themselves as investigators: two from the investigating authorities of the Republic of Kazakhstan, plus Aleksandr Akhtyrsky from the Main Investigation Directorate of the Russian Investigative Committee and Aleksei Maltsev from the Investigation Department of the Russian Investigative Committee for the city of Ukhta. Novikov was told that this was a search, but he was not presented the required papers explaining the grounds for it. Igor phoned his lawyer Aleksandr Rozenzweig, who quickly showed up and produced a warrant, but was thrown out of the flat under threat of force. A second lawyer, Marat Murzin, could only come towards the evening when the investigators were casing up seized evidence (it is not known of what): electronic media, telephones, a pile of documents (not described), a child's iPad and and working copies of Novikov's manuscripts, including one about Kazakh law on merchant shipping written in English.

Simultaneously the Russian investigators banged on the door demanding to be allowed to enter Elena's father's flat (which at that time was where Elena Novikova was too). In order not to upset her father, Novikova agreed to be questioned, and towards evening the investigators took her to the offices of the financial police. She was questioned as a witness (without explaining which case this was in connection with) until midnight 25 April, and then for a further three days.

During the night the investigators made another attempt to break into the father's flat to conduct a new search, but here their Kazakh colleagues did not support them. Novikova's father, General Vladimir Alekhin, now only rarely gets out of bed (at the start of the year Elena had left Moscow to come to Alma-Ata to help look after him) but he used to head the Criminal Investigation Department of the Kazakh Soviet Socialist Republic, one of the regional Departments of Internal Affairs and the Higher School of the Ministry of Internal Affairs of the USSR, and has military medals for capturing armed criminals.

Lawyers Rozenzweig and Murzin filed complaints about these so-called "investigative activities" with the Medeusky District Court of Alma-Ata, citing a whole series of procedural violations (conducting a search without a search warrant, without lawyers, reports, inventories, etc.). Their appeal was rejected on 8 May, after which it transpired that the search had been authorised by the Basmanny Court of Moscow on 16 April 2013. On 19 April the Prosecutor General of Kazakhstan granted the motion by Russian Prosecutor General for Russian investigators to be present at the conducting of procedural actions by investigators of Kazakhstan. This is all that is allowed under the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, signed by the former Soviet republics in January 1993 (the "Minsk Convention"), as well as the Criminal Procedure Code of the Republic of Kazakhstan.

In fact, the exact opposite happened: active investigative measures were carried out exclusively by the Russian investigators, while their Kazakh counterparts stood by and watched, clearly inwardly not really approving of their aims. During the questioning of Novikova she was not asked a single question from their side.

In fact, only the abduction of Leonid Razvozzhaev from Kiev was more brazen, though in terms of ignoring the sovereignty of their former "kid brother" this episode is very similar: you could not imagine something similar happening on the territory of another state with regard to the citizens of another state, there would be an international scandal. 

What happened

The court in Alma-Ata could not summon the inner strength to declare the results of the search and questioning unlawful, though imagining how they could be procedurally applied is not possible either (except perhaps by using the audio recordings for putting together the next series of revelations on NTV). What the defence team for Igor Novikov did succeed in obtaining was the full ruling of the Basmanny Court on the conducting of a search, a copy of which we would have been unlikely to have been shown in Moscow.

According to this document, the supposed guilt of the Novikovs and a number of others lay in the fact that they had "published monographs and articles in the press about the need to introduce changes to the Russian criminal law. In this way the illusion was created of the need to liberalise the criminal law, and in the interests of Mikhail Khodorkovsky amendments were introduced into Russian legislation."

This cannot be shown to anyone, apart from perhaps psychiatric experts, and not even on NTV. Proposals of experts, implemented as amendments to the Criminal Code and the Criminal Procedure Code by none other than the State Duma, cannot in any way objectively be considered as a crime: using the words of the Basmanny Court, this is an "illusion." On the other hand, there is no need to prove any of this activity: in 2010-2011 not only was it not hidden from the Russian authorities, they were in fact widely involved in it. Following the logic of the document obtained from Alma-Ata, the main accomplice in terms of exerting influence over this hideous group of saboteurs was not Khodorkovsky at all, but President Dmitry Medvedev himself.

Such a case in the spirit of the Trotsky-Zinoviev bloc cannot be instigated even in Russia (as yet), and the investigation into the third Khodorkovsky case is being carried out within the framework of its parent Yukos case of 2003, for which the only place by now is in the archives. There was no practical reason for the search in Alma-Ata: similar searches were carried out in September 2012 at the NGO the Centre for Legal and Economic Studies, of which Elena Novikova is head, and in the homes of its employees. Apart from the child's iPad and a book on merchant shipping in Kazakhstan in English, all similar files from electronic media had already been seized. The interrogation in Alma-Ata was also conducted more for show and as a measure of intimidation than for a future court case. Someone simply wanted to impress someone and mess with someone's head. And could that really be Nursultan Nazarbaev? 

Why this was necessary

In 2005 investigator Salavat Karimov, with the support of First Deputy Prosecutor General of the Russian Federation Yury Biryukov, initiated the second criminal case against Khodorkovsky and Lebedev. A repeat accusation of tax evasion seemed to them insufficient, and this would not enable them to use the article of the criminal code on legalizing the profits of crime, that would immediately bring a 15 year prison term. That is why the notorious charges of the theft of oil (on the sale of which no tax was paid) was instigated.

Back in 2005 Karimov and Biryukov could scarcely have imagined that in 2011 President Medvedev would approve a proposal by the Presidential Human Rights Council to conduct a public inquiry into the second sentence handed to Khodorkovsky and Lebedev. The Investigative Committee had no chance of arguing with world-renowned experts (these were no amateur journalists after all) and in April 2011 they announced that they had information that the work of the experts had been paid for from abroad via human rights NGOs. From that moment on they have been looking for this money, destroying everything in their path.

One of the professors who worked with the Moscow-based Centre for Legal and Economic Studies wrote the conclusion of the Human Rights Council independent inquiry into the Yukos case free of charge (those were the conditions), but he did receive royalties from the Centre through a foreign grant for his contribution to one of the monographs it published. Someone advised a foreign expert, someone helped out for nothing with editing the translations and with proofreading. That is all the "guilt" there was. There were evidently no other such coincidences: many Russian (and foreign) experts, who held the same opinion with regard to the second Yukos case, refused to take part in the inquiry simply because of the huge volume of unpaid work.

Proving that the independent inquiry into the Yukos case, the results of which were published after the sentence handed down by the Khamovnichesky Court had come into force, had any influence on the trial is not possible (since it didn't have any). The only thing left for the Investigative Committee to do is to denigrate not the conclusions of the inquiry, but the experts themselves, on the basis that they were allegedly bought by Khodorkovsky. Ideally they would like to find direct bank wires from foreign Yukos lawyers, but that is not realistic, so the argument of the Prosecutor General and the Investigative Committee takes the form that any "foreign money," which they seek to portray as some kind of absolute evil, becomes a bugbear. 

What will come of it

On 5 May, former US Justice Department official Thomas Firestone, who previously represented this agency at the US Embassy in Moscow, was arrested at Sheremetyevo Airport on his way back to Moscow from a trip abroad. According to The Financial Times, before expelling him from Russia as persona non grata, certain official Russian representatives chatted with him for 15 hours, according to foreign publications in order to persuade him to cooperate with them. I know Tom (as do many Russian liberal lawyers and even prosecutors) and cannot rule out the possibility that he was offered a deal (he gave up a diplomatic career to take up a good job in a private law firm in Moscow) on the theme of financing from abroad for the "humanisation of Russian criminal law." As a former public prosecutor he was in fact interested in the reform of the Russian legislation, but I doubt that he was able to tell his former Russian colleagues any more about that.

Certain nameless investigators from the Investigative Committee of Ukhta would no doubt have conducted a search of Tom’s home in the United States, and seized his telephones, but Russia's relations with the US are still somewhat more correct than they are with Kazakhstan. Given the almost paranoid fear they have for their own sovereignty, the Russian authorities take a rather carefree attitude towards the sovereignty of other states. This is not just about smouldering international scandals, this, as they say in official documents, is also about "forming Russia's image." It is hardly a positive one. That is how the image of a country is formed when it has lost the plot.

All this is a result of the lies created during the instigation of the second Yukos case, and the law by which one lie inevitably leads to another, worse, lie. For Russia's domestic policy the ramifications are even worse. This is the paralysis of the active life of civil society as a result of the declared witch hunt against "foreign agents," which grows from the same root. This is the veto on an amnesty for businessmen, which has just been imposed by the President on the grounds that approval must be first obtained from the Prosecutor General, who is busy drawing up the criminal case (in the spirit of Vyshinsky) against the authors of this amnesty.

Incidentally, if Vladimir Putin even in the very slightest believes in the conspiracy to "create the illusion of the need for liberalisation," then his initial goodwill towards the idea of an amnesty (without the co-authorship of people close to the Kremlin there would never have been any talk of it), was simply a KGB confidence trick. The bait has been thrown, let's see who swallows it and now it's time to roll up our sleeves and fish out the "traitors" in the dragnet.