(Un)Civil Societies Report: October 29, 2003

IS KHODORKOVSKII A POLITICAL PRISONER? The arrest this week of Russian oil tycoon Mikhail Khodorkovskii, six weeks before parliamentary elections, on charges of fraud and tax evasion, has fueled the anxious debate in Russia about the future of democracy and the rule of law as well as economic justice. With some incitement from government-controlled media, many have come to blame the ravages of market reforms on Russian society on those who have made a killing in buying and selling Russia's natural resources. Their perception of which economic model is acceptable for Russia colors their take on this controversial case.

Did Khodorkovskii sense the noose was tightening and back opposition parties and a liberal newspaper in order to cloak his financial misdeeds in the mantle of democracy? Or did his backing of anti-Kremlin forces -- and his own potential bid for political power as a candidate -- provoke the desire in authorities to find something to try him for? Even those who directly benefited from his political and philanthropic support are uneasy with his business profile, aware that a major reason businessmen go into politics is that the social system to date has not secured them an easy existence, so they seek the reins of power to be able to control the rules of the game in their favor.

Khodorkovskii, described as the richest man in Russia and among the wealthiest in Europe, arrested on his private jet in Novosibirsk, did not cut a sympathetic figure for many Russians. As one newspaper quipped, its hard for people whose salaries are identical to the citizens of Zimbabwe to feel anything but irritation about a billionaire. He was far from the image of a political prisoner created in the struggles of the dissident movement in the 1960s-80s, whose victims were mainly poor intellectuals uninvolved in business. Khodorkovskii, 40, was the first to apply the term to himself -- announcing last summer that he would "rather be a political prisoner than a political emigre" (a reference to those like Boris Berezovskii who fled abroad) and was therefore intending to remain in Russia and face possible prosecution. The heavy-handed arrest, following weeks of investigation of Yukos, Khodorkovskii's oil company, as well as the Kremlin's failure to compel Western governments to turn over two other oligarchs wanted for alleged economic crimes, Berezovskii and Vladimir Gusinskii, seemed to bolster his case. No Western human rights groups have commented on his case, and the U.S. government has only cautiously referred to the affair as a possible problem of selective prosecution, rather than calling for his immediate release.

In the Soviet era, human rights activists first used the term "prisoner of conscience," originally coined by Amnesty International, to denote people arrested for peaceful expression of their beliefs, either under the explicitly political articles of the Criminal Code or under trumped-up criminal charges. Second, they reserved the term "political prisoner" to distinguish those who may have committed violent crimes for the sake of a political cause, or had committed such criminal offense recognized by any civilized Criminal Code, but whose arrest was politically motivated to retaliate against their specifically political activities. A third category could also be denoted of those who were selectively prosecuted, singled out despite a climate of impunity for many people engaged in the same activities, for reasons having to do with their rivals' or the government's misuse of the criminal justice system. Khodorkovskii's case appears to fit into the third category, the largest in post-Soviet Russia, and therefore the least easy to define clearly as political in the old sense. In all of these categories a person can become a victim of human rights abuse -- although not necessarily a "political prisoner" -- due to violations of due process.

Other than his lawyers, no human rights advocates are really claiming that Khodorkovskii is guilt-free. But they do believe he has been targeted by a hostile government using a pliable prosecutor's office; moreover, they say the case is tainted with violations of due process and intimidation tactics. As proof, they cite the unnecessarily dramatic arrest, and even take issue with pretrial arrest in the first place, saying that nonviolent economic crimes do not require placing a suspect in custody, especially since he is not perceived as a flight risk. They also cite as unnecessarily rough tactics the ransacking of his office, and a visit by Federal Security Service (FSB) agents to his daughter's school on the flimsy pretext that antiterrorist precautions had to be inspected. Aleksei Melnikov, a State Duma deputy for Yabloko, claimed to gazeta.ru on 28 October that lawyers in Khodorkovskii's case had suffered searches of their offices, attempts had been made to summon a priest he knew for questioning, and the prosecutor had refused to answer any Duma inquiries, all contributing to that sense of arbitrariness and misuse of power.

"Give us the man, and we'll find the case against him," was the slogan of Andrei Vyshinskii, Stalin's prosecutor-general, in suiting the application of the Criminal Code to the state's whim. Mindful of that history, Grigorii Yavlinskii, head of the Yabloko party in part financed by Khodorkovskii, has called his patron's arrest an example of "the formation of capitalism with a Stalinist face," implying that it is the government, not businessmen who are engaging in brutal forms of capitalism by arbitrarily arresting their competitors.

One of the few figures among Russia's respected human rights community apparently willing to use the term "political prisoner" forthrightly is Yelena Bonner, widow of Andrei Sakharov. She was quoted on a program broadcast on Ekho Moskvy this week as saying, "I think that any person, whoever he or she may be, becomes a political prisoner if the law is applied to him selectively, and this is an absolutely clear case to me." By contrast, Oleg Mironov, Russia's human rights ombudsman, taking the term "political prisoner" literally, said Khodorkovskii is not one because he is not accused of political crimes but economic offenses. There are no longer political articles in the Criminal Code, like anti-Soviet agitation and propaganda, reasons Mironov, so the term cannot be used. Nevertheless, he conceded that pretrial detention in this case appeared unnecessary and could have been substituted with a pledge not to flee.

The liberal flagship "Moskovskie novosti," in a statement from its advisory board -- which includes historian Yurii Afanasev, human rights activist Ludmila Alekseeva, sociologist Yurii Levada, and founding editor and Chairman Yegor Yakovlev -- summarized their reasoning behind calling Khodorkovskii's case a politicized one with serious ramifications for the rule of law. They cut to the heart of the matter by affirming the constitution's guarantee of "equality for all forms of property," i.e. privately and state-owned, thereby characterizing the dispute that led to his arrest as primarily one about private property and the long-standing battle in Russia over whether society will be organized on the principle of state-owned or privately owned property, and in what proportions. They also cited the constitutional principle of equality of all citizens before the law, and claimed that justice was being misused as a tool of those with vested interests to resolve their political and property disputes. Lack of media freedom and poor separation of powers in the branches of government were also factors in this case and similar ones. "Putin is essentially making a choice in favor of the arbitrariness of the power ministries," they wrote of the prominence of security officials in the investigation. "Only civic resistance can withstand the arbitrary rule," they said.

"There will be no meetings and no bargaining over the activities of the law enforcement agencies," Putin replied to his critics in a statement on 27 October, gazeta.ru reported the next day. Putin's refusal to discuss the case and call to refrain from criticizing the prosecutor's choice of targets prompted even those close to the Kremlin, such as adviser Gleb Pavlovskii, to note that the prosecutor himself should not be above the law or above criticism. "It's clear that a political show trial is being prepared," Pavlovskii said, Reuters reported on 27 October, citing "Izvestiya." "This is a Stalin phenomenon."

The failure of Russian officials to convince Western authorities with more democratic legal systems to help them arrest two other Russian oligarchs has bolstered the case of those who say that justice is being miscarried now in the Khodorkovskii case. Nevertheless, the affair does not lend itself to a strictly legal or political analysis because it is essentially about a politically tinged grand business bargain gone awry. When Putin came to power, the understanding was basically that he would allow oligarchs to keep their wealth as long as they did not challenge him politically. As Unified Energy Systems head Anatolii Chubais explained, while saying Khodorkovskii should not be "idealized" and that he had plenty of "complications," the government should have kept its word. "The government signed a conciliatory agreement," Chubais said, after he himself filed a lawsuit over the manner in which Yukos was privatized, but then reneged on its promise. Can businesses fairly be charged with tax evasion when the government has unfair and cumbersome tax regulations and has backtracked on its original valuation of property, given away at fire-sale prices?

Also at issue is not only selectivity, but the very real problems in the criminal justice system, notorious for its use of torture in getting confessions and for its prolonged terms of pretrial detention. To ensure the case was not politicized, Khodorkovskii's lawyers would have to be free to build his case without pressure, secure in the confidentiality of the attorney-client relationship, immune to government searches, and free to conduct their own independent fact gathering and interviewing of witnesses, all principles only weakly protected and even discouraged in the Russian system.

Many inmates of Russia's prison cells have suffered a violation of their rights in contrast to democratic countries, yet not every victim of the lack of due process whose rights may be violated is a political prisoner. With good lawyers and a better judicial system, Khodorkovskii might have avoided his fate. The real test for whether his case is a political one will come with the conduct of the investigation and the trial. Under domestic and foreign scrutiny, the government will have to prove its case about the economic charges, and also prove that it is not being selective and vindictive. Many would find a demonstration of its good faith in this regard a release of Khodorkovskii upon a signed pledge not to leave the country.

With such a crude form of political pressure and arrest, the human rights group Memorial Society said in a statement published on polit.ru on 25 October, the government had implied "intimidation not only for Khodorkovskii, but virtually any Russian citizen." The group provided no legal analysis, but treated the case as indicative of a breakdown in a dialogue between government and society that had begun at the Civic Forum in November 2001, and concluded that henceforth, independent businesses, organizations, unions, and parties would have to dialogue among themselves and that Russia had become reminiscent of the Soviet Union.

While more such sentiments may be expressed as the detention wears on, Khodorkovskii is not likely to become a major human rights cause celebre, not only because of his enormous wealth but because he is now described as failing the liberals as a politician. Commentator Bulat Nureev wrote on polit.ru on 28 October that Khodorkovskii's entrance into politics was "clumsy" in challenging Putin in February in Berlin so demonstratively when he signaled an intent to run in the 2008 presidential elections. His charitable support of programs like psychological counseling for troubled Siberian youth is admirable, but could not make up for the amount of taxes he withheld from state coffers, another polit.ru columnist, Vitalii Leybin concluded. When such large amounts of capital are acquired, he writes, there is never a question of innocence or transparency, so that Khodorkovskii's calls for transparency from the government ring hollow. Ultimately, his failure to explain his program for the public's interest, as distinct from his own business interests, meant he did not have broad social support.

In the Soviet era, people counted the number of political prisoners as an indication of the degree of freedom and the sincerity of claims to be moving toward democratic reform. While no campaign to designate Khodorkovskii purely as a "political prisoner" is likely to gather steam, his case will nevertheless be watched closely as a symbol of Russia's prospects for democracy, perhaps for lack of a better one.

77 REMAIN IN JAIL FOLLOWING ELECTION CRACKDOWN. Human rights groups and political opposition parties in Azerbaijan continue to provide evidence of a massive crackdown related to elections on 15-16 October, and at least 77 people remain in jail, Azerbaijani authorities said. Under pressure of events, the leading opposition party, Musavat, whose leader, Isa Qambar, has been under virtual house arrest, has been in disarray and split over the issue of tactics to deal with what they view as a stolen election. Qambar's rivals in fellow democratic parties who stepped down from the role of lead contender before the presidential elections are now positioning themselves to capture his constituents, zerkalo.az reported this week. The opposition is exchanging recriminations over the failure to find a solid united candidate and to prevent violence in opposing Ilham Aliyev, son of outgoing President Heidar Aliyev.

This week, the Constitutional Court, not surprisingly given the degree of influence the executive has over the judicial branch in Azerbaijan, ruled that the outcome of the election, with nearly 80 percent in favor of Ilham Aliyev, was legitimate. That rapid decision prevents the losers from attempting to contest what they see as fraudulent elections in court.

The opposition is still reeling from the numerous detentions and beatings. In statements to the press reported by zerkalo.az on 28 October, Interior Minister Ramil Usubov accused the Musavat and Umid parties of instigating violent disturbances on 15-16 October. Opposition groups say the government itself is to blame for refusing to give protesters a march permit, and for blocking, detaining, and beating demonstrators who nonetheless convened in public squares. Usubov said that numerous police and auxiliary forces attempting to control the crowds were injured and store windows were broken and kiosks overturned. More than 60 people who were not direct participants in the demonstrations were wounded, he said.

Immediately following the elections, 625 persons were detained throughout the country, he said, but most were released, with 77 currently remaining in custody. He indicated that police had already identified at least 300 activists who took part in demonstrations, said to number 3,000, and more arrests might be made. The minister deflected persistent questions from reporters about the high number of detentions, saying "only" 625 were arrested, and denied that pressure was put on election commissions. Western observers say many of the detainees were officials of election commissions who protested blatant fraud they witnessed.

The minister did concede that 60-70 local and regional election-commission members had been detained, but claimed that they were involved in the street unrest, not seized in their official capacity while protesting fraud. He slammed journalists who he said had demonstrated rather than impartially covering events, but in a telling nod to the power of public pressure, said, "After appeals from representatives of the intelligentsia and human rights activists, the issue was reviewed." Reporters will not be charged and have been released, although they have been warned that they could face trial if they persist in such protests.

Pro-government Lider TV, citing law-enforcement sources, said on 27 October that Qambar could face arrest. "Yeni Musavat" Editor in Chief Rauf Arifoglu was arrested not as a journalist, said the minister, but allegedly as an "organizer of the unrest." Arifoglu has denied the charges. In a move designed to further discourage the opposition, police also told zerkalo.az that they had also obtained testimony against Qambar from his fellow party members in detention. Human Rights Watch and local human rights groups have raised questions about reports of torture of detainees in facilities that have been notorious for mistreatment in the past.

The Federation of Human Rights Organizations in Baku has created a "crisis center" to deal with the overwhelming volume of cases in the aftermath of the post-election crackdown, the Institute for Peace and Democracy reported on 23 October. The institute says the authorities have cast the net even wider, saying they have a list of 336 persons still in custody or facing hearings, and deny the government's claim that all journalists had been freed. They have also gathered testimony about the use of torture, for example in the interrogation of Safar Gumbatov, a reporter for "Yeni Musavat," whose lawyer witnessed signs of beating on his client during a 22 October visit, and who subsequently obtained his release pending a court hearing.

Many detainees have been sentenced in summary proceedings to 7-10 days in prison and have been denied access to counsel. The majority have been charged with "resisting police," not merely taking part in an unauthorized rally, and sentenced in proceedings where neither lawyers or witnesses were present. They were thrown in overcrowded cells without mattresses and denied food in some instances. The center has a list of 13 people who have not been accounted for.

The Musavat Party has been formally notified by the mayor of Baku that it must vacate its premises by 1 November, humanrights-az.org reported on 24 October, in a move that party members believe was compelled by the authorities. The letter cited the need to prevent the rental of space in historic landmark buildings and implied that authorities would help the party to relocate.

In its own post-election report released on 23 October, the Musavat Party found a positive development in the midst of the crushing loss. Unlike the 1993 and 1998 elections, the opposition parties did not boycott the elections, but participated in them. Yet that demonstration of good faith and the willingness to follow the advice of Western advisers that they should take part in the political process rather than be sidelined has now led them to an impasse. The report's authors highlighted the failure to grant freedom of assembly for meetings with voters in the run-up to elections in regions throughout Azerbaijan. Police interfered with party rallies and efforts to reach out to constituents -- interested people were hauled off to police and forced to give testimony about their dealings with the party.

Without access to television, there was little opportunity for the party to seriously reach the public. Five government-controlled channels not only denied access, they castigated the opposition in pro-government electioneering. Some private cable-television stations were willing to run election ads for a price that was significantly higher than in previous elections, and in any case, were reluctant to conclude contracts with opposition candidates being pilloried by state television as their own existence was precarious. The government was in charge of distributing basic voter information in billboards, pamphlets, and an election website, but failed to include opposition candidates they did not like. Candidates and their drivers and bodyguards were repeatedly stopped and question by police as they attempted to move around Baku and other cities on the eve of the elections.

The Central Election Commission rules gave the government a two-thirds majority on the commission, meaning that a significant presence of opposition members to scrutinize ballot counting was absent. On election day, multiple voting by government loyalists who were bused from district to district took place, and some people were disenfranchised when their registration was not recognized.

The government's pressure on the opposition appears to have angered many ordinary people and thus had an unanticipated effect. For the first time in election history, say the report's authors, voters appealed to the courts to include their names on voters' lists, and when they were denied, thousands gathered in front of court buildings throughout the country to protest. These and many other procedural violations documented by Western observers from official bodies such as the Organization for Security and Cooperation in Europe (OSCE) and nongovernmental groups such as the Institute for Democracy in Eastern Europe and the U.S.-sponsored National Democratic Institute have caused the opposition to contest the election.

In this, they have little company, as Western governments have conceded Ilham Aliyev's overwhelming victory and some elements of the opposition have already begun to seek a dialogue with the new government, or at least take a step back. A protest rally scheduled for 22 October was cancelled, the Institute for War and Peace Reporting (IWPR) said on 24 October. "Now is not the time to hold mass rallies, as that is fraught with dangerous consequences. Society has to calm down," IWPR quoted opposition leader Etibar Mammedov as saying.

AZERBAIJAN. A special section titled "Choice 2003" covers elections in Azerbaijan and Georgia. Articles include testimony from East European election observers who witnessed fraud and police violence and dissented from OSCE's official account of the elections. http://www.eurasianet.org/election2003/index.shtml

"Unrest in Azerbaijan." Breaking news and special features on the elections in Azerbaijan and aftermath. http://www.rferl.org/specials/azerbaijan/

"Rights Group Says Post-Election Detainees Are Tortured." Azerbaijani rights groups say opposition leaders arrested in the wake of last week's post-election unrest are being abused, both physically and psychologically, and have documented many cases of torture. Despite assurances by the authorities that the arrests are not politically motivated, human rights campaigners say Azerbaijan has entered a period of rare repression. http://www.rferl.org/nca/features/2003/10/24102003165107.asp

KAZAKHSTAN. "Former KGB Headquarters Reopened As a Museum." A museum dedicated to the victims of Soviet-era oppression has opened in Kazakhstan's former KGB headquarters in Almaty, offering visitors a firsthand look at a dark chapter in the Central Asian republic's past. Two former Kazakh detainees recently shared their feelings with RFE/RL about the museum. http://www.rferl.org/nca/features/2003/10/28102003154728.asp

RUSSIA. "The Moscow Hostage Taking: One Year Later." One year after the Moscow hostage-taking incident of 23-26 October 2002, key questions remain concerning what took place. The murky events that occurred in and around the Dubrovka Theater seem to resemble the equally tenebrous events of August-September 1999 -- two armed incursions into Daghestan; the terrorist bombings in Moscow and other Russian cities -- that precipitated President Vladimir Putin's rise to power and provided a rationale for the current second war in Chechnya. http://www.regionalanalysis.org/homepages/en/2003/10/20031029.asp

TAJIKISTAN. "Islamic Renaissance Party Facing Serious Problems." Tajikistan's Islamic Renaissance Party is coping with serious problems. Two leading officials face charges of having committed grave crimes, and a mysterious rumor spread by state media has undermined the reputation of the party's leader. With a little more than a year until parliamentary elections, Central Asia's only legally registered Islamic party can ill afford to lose support. http://www.rferl.org/nca/features/2003/10/24102003171635.asp

UZBEKISTAN. "Opposition Congress Held in Tashkent." In another example of a Central Asian state confounding its critics, the Erk (Freedom) Democratic Party, a banned opposition group in Uzbekistan, succeeded in holding its planned congress on 22 October in the Uzbek capital Tashkent with the permission of the government. This breakthrough was all the more extraordinary since, over the last month, Uzbekistan's security forces had been working actively and brutally to prevent the congress from taking place. http://www.rferl.org/centralasia/2003/10/36-241003.asp