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### Viewing cable 09MOSCOW3144, RULE OF LAW LIPSTICK ON A POLITICAL PIG:

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Reference ID | Created | Released | Classification | Origin
--- | --- | --- | --- | ---
09MOSCOW3144 | 2009-12-30 14:02 | 2010-12-26 21:09 | CONFIDENTIAL | Embassy Moscow

`

    VZCZCXYZ0003
    RR RUEHWEB

    DE RUEHMO #3144/01 3641427
    ZNY CCCCC ZZH
    R 301427Z DEC 09
    FM AMEMBASSY MOSCOW
    TO RUEHC/SECSTATE WASHDC 5829
    INFO RUCNCIS/CIS COLLECTIVE
    RUEHXD/MOSCOW POLITICAL COLLECTIVE
    RHEHNSC/NSC WASHDC

` `

    C O N F I D E N T I A L MOSCOW 003144

    SIPDIS

    E.O. 12958: DECL: 12/29/2019
    TAGS: PREL PGOV PHUM KDEM RS
    SUBJECT: RULE OF LAW LIPSTICK ON A POLITICAL PIG:
    KHODORKOVSKIY CASE PLODS ALONG

    REF: A) MOSCOW 603 B) MOSCOW 1226

    Classified By: Pol Minister Counselor Susan Elliott for reason 1.4 (d)

    ¶1. (C) Summary: The prosecution in the Khodorkovskiy/Lebedev
    trial has finished reading its 188 volumes of evidence, and
    has moved on to questioning witnesses. An observer for the
    International Bar Association stated his belief that the
    trial is being conducted fairly. Related events outside of
    Russia continue to affect the case. A deposition in a U.S.
    court by Price Waterhouse Coopers (PWC) may show that PWC
    received GOR pressure to disavow its prior Yukos audits; the
    Russian Supreme Court upheld an ECHR ruling that Lebedev's
    initial arrest was illegal; and an arbitration court in the
    Hague found Russia to be bound by the Energy Charter Treaty,
    leaving it open to a large judgment against it and possible
    seizure of GOR assets abroad by Yukos shareholders. Despite
    the case's wide implications, it continues to be a cause
    celebre only for foreigners and a minority of Russians. The
    case also shows the great lengths that the GOR is willing to
    go in order to place a "rule of law" gloss on a politically
    motivated trial. End Summary.

    Recent developments
    -------------------

    ¶2. (C) The trial of former Yukos chief Mikhail Khodorkovskiy
    and his associate Platon Lebedev continues in Moscow's
    Khaminovsky court, having moved from the reading of the
    prosecution's evidence -- which comprised 188 volumes and
    lasted throughout the summer -- to questioning of the
    prosecution's witnesses. Thus far the prosecution has called
    31 of its 250 witnesses, meaning that the trial will probably
    last until 2012.  XXXXXXXXXXXX told us December 23 that he believes the trial is being
    conducted fairly and that Judge Danilkin has been doing
    everything in his power to make sure that the defense gets a
    fair opportunity to present arguments and challenge the
    prosecution's evidence.

    ¶3. (C) Among recent developments in the case, the defense has
    been trying to introduce the testimony of a former Price
    Waterhouse Coopers (PWC) auditor, who was deposed in
    California in August by Khodorkovskiy lawyers. The
    prosecution has objected to the introduction of the
    deposition into the case, complaining that they had not
    received sufficient notice; however, according to Teets, the
    Russian Embassy did not inform the head investigator in
    Russia until recently. The PWC deposition goes to the heart
    of Yukos's guilt or innocence; as Yukos's auditor, it signed
    off on Yukos's financial statements from 1994 to 2003, only
    to disavow this prior approval in 2007. As  XXXXXXXXXXXX noted, if
    the audits were properly withdrawn, this will be a "black
    mark" for the defense; if not, it could help the defense, but
    would greatly tarnish PWC's international reputation. Teets
    said that the content of the deposition had not yet been made
    public, but speculated that the auditor had testified that
    PWC had been pressured by the Russian government into
    withdrawing its prior certifications of Yukos books and
    records.

    Lebedev ruling and other "international" issues
    --------------------------------------------- --

    ¶4. (SBU) The Yukos battle continues simultaneously both on
    domestic and the international fronts, with some concrete
    effects on the case's proceedings in Moscow. On December 23,
    the Russian Supreme Court ruled that the 2003 decision to
    arrest and detain Lebedev was illegal, in keeping with a 2007
    ruling by the European Court of Human Rights (ECHR). (Note:
    The GOR often loses cases at the ECHR, and its common
    practice is to pay the compensation required by the ECHR's
    rulings while ignoring the substantive redress of the
    systemic problem involved. This decision represents a rare
    departure from this practice and signals a potentially
    encouraging trend. End Note.) The Supreme Court's ruling
    indicated only that the first two months of Lebedev's six
    years (to date) of incarceration were illegal, and thus might
    be considered only marginally relevant. However, the defense
    might use this ruling to argue that the entire conviction was
    tainted by the illegal detention and therefore should be
    thrown out. Defense lawyers told Radio Free Europe that they
    have not yet decided how to proceed, but called the ruling a
    "victory," while expressing bewilderment at the Supreme
    Court's two-year delay in ruling on the case.

    ¶5. (SBU) On December 23, Moscow's Basmanny Court issued an
    arrest warrant in absentia for former Yukos treasurer Andrey
    Leonovich, which Khodorkovskiy's lawyers called a ploy to

    pressure witnesses, and which will likely further exacerbate
    tensions with the UK (where Leonovich now resides) over the
    issue of extraditions. This move follows a December 2 ruling
    by an international arbitration tribunal in the Hague that
    Russia is bound by the Energy Charter Treaty (ECT), thus
    requiring the GOR to defend itself against claims from Yukos
    shareholders for an estimated 100 billion USD in damages (ref
    A). This sum would be the largest arbitration award ever,
    representing 10 percent of Russia's GDP, and although
    collecting the entire amount would be difficult, it could
    allow shareholders to seize state assets outside of Russia.
    The ECT ruling could affect, among others, companies such as
    Royal Dutch Shell and BP who were forced to renegotiate
    contracts on terms favorable to the GOR.

    Russians apathetic, but skeptical towards GOR
    ---------------------------------------------

    ¶6. (SBU) Given such significant international implications to
    the case, and given Khodorkovskiy's former stature, one might
    expect a large amount of focus on the Yukos case inside
    Russia. However, most Russians continue to pay scant
    attention (ref B). According to a December poll by the
    Levada Center encompassing 1,600 respondents in 127 cities
    and villages, only a little more than one-third of Russians
    are following the case (a May Levada poll showed the same
    figure for people who were at all aware that the case
    existed). The same poll, however, revealed a notable
    divergence in public opinion from the "party line" maintained
    by Prime Minister Vladimir Putin. In his December 3
    televised question and answer session with the public, Putin
    defended the legitimacy of Khodorkovskiy's incarceration and
    accused Khodorkovskiy of also being a murderer. He also
    claimed that all of the earnings from the sale of Yukos were
    being funneled into the country's Housing and Utilities Fund.
    The Levada poll, however, showed that 65 percent of
    respondents did not believe Putin's claim about the Housing
    Fund, and 50 percent believed that Putin should be summoned
    as a witness in the case.

    Khodorkovskiy starting to lose hope
    -----------------------------------

    ¶7. (SBU) Khodorkovskiy and Lebedev have consistently
    maintained an upbeat demeanor, frequently smiling and
    laughing during the proceedings, and chatting buoyantly with
    supporters. Over the course of his imprisonment,
    Khodorkovskiy has written a series of philosophical articles
    (printed in liberal papers such as Vedomosti) that have
    amounted to shadow policy papers of the type that he might
    write if he were one of the President's advisors. He had
    also expressed faith that the Russian court system would
    exhibit sufficient fairness and rule of law, and Judge
    Danilkin sufficient independence, to acquit him. In recent
    months Khodorkovskiy has made pessimistic statements that he
    does not expect ever to be freed. By all accounts, in 2003
    Khodorkovskiy did not believe he would actually be arrested.
    His thinking here seems to following a similar trajectory,
    from naive refusal to believe what is happening, to the
    gradual sinking in of the reality of his situation.

    Comment
    -------

    ¶8. (C) The fact that legal procedures are apparently being
    meticulously followed in a case whose motivation is clearly
    political may appear paradoxical. It shows the effort that
    the GOR is willing to expend in order to save face, in this
    case by applying a superficial rule-of-law gloss to a cynical
    system where political enemies are eliminated with impunity.
    It is not lost on either elite or mainstream Russians that
    the GOR has applied a double standard to the illegal
    activities of 1990s oligarchs; if it were otherwise,
    virtually every other oligarch would be on trial alongside
    Khodorkovskiy and Lebedev. There is a widespread
    understanding that Khodorkovskiy violated the tacit rules of
    the game: if you keep out of politics, you can line your
    pockets as much as you desire. Most Russians believe the
    Khodorkovskiy trial is politically motivated; they simply do
    not care that it is. Human rights activists in general have
    an uphill battle in overcoming public apathy and cynicism,
    but nowhere more so than in the Khodorkovskiy case. We will
    continue to monitor the case as it unfolds.
    Rubin

`