Pardon My Past: Khodorkovsky & Clemency
19 Feb 2011
What will we be thankful for if this day ever comes?
On December 6, 2000, American businessman Edmond Pope was convicted by a Moscow court of espionage and sentenced to twenty years in prison. Even after the verdict, Pope did not confess to being a spy, and he refused to appeal to the Russian President for clemency. Nevertheless, a young President Vladimir Putin pardoned Mr. Pope eight days later and stuffed him onto a chartered plane back to the United States.
Roughly a year later, Putin issued Presidential Decree No. 1500, reforming the legal structure of pardon-review committees. The single Committee on Pardons that existed since 1992 (created by Yeltsin’s No. 17 Decree) was replaced by a system of regional committees scattered throughout Russia. Aside from laying the framework for these new review boards, Putin’s executive order also articulated a “procedure for submission of applications of clemency.” Article 3 of the executive order states bluntly: “A convicted person [must] petition the President in writing.” Just yesterday, Mikhail Barshchevskii (plenipotentiary representative of the Russian Federation in the Constitutional Court, the Supreme Court, and the Higher Arbitration Court of the Russian Federation) made the following statement on this subject:
“…it follows that, in the absence of a petition from the convicted person [...], there are no legal grounds for the President to issue a pardon.”
The President’s power to pardon is codified in the Russian Constitution, in a clause of Article 89 that reads simply: “the President of the Russian Federation grants pardons.” This short declaration of authority says nothing about petitioning for clemency, the need for a confession and repentance, or anything else along those lines. It is, however, the President’s right to establish whatever legal procedures he deems necessary for regulating the pardons process — so long as they do not interfere with citizens’ rights under Article 50 of the Constitution (which reads that anyone convicted of a crime is entitled to seek a pardon or commutation of his or her sentence).
Mikhail Barshchevskii
So, when Barshchevskii says that a person who refuses to petition for clemency has no legal grounds to receive it, we might understand it to mean this: ‘the President has declared that he will review pardons according to these specific rules. If you don’t obey the rules, you won’t be considered for a pardon.’
The Russian Constitutional Court, in refusing to hear several cases from people who were rejected by the pardons committees, has supported the constitutionality of Putin’s Decree No. 1500. Last September, it ruled that it was legal to reject Vladimir Demin’s petition for clemency on the grounds that he hadn’t yet served a year of his prison sentence. The right to request a pardon does not amount to the right to receive a pardon, the Court explained. What the ruling means, in effect, is that the right to request a pardon does not even guarantee the right to be considered for a pardon. In April 2008, the Constitutional Court refused to hear the case of Aleksandr Andriukov, whose request for a pardon was denied because he had been convicted of parole violations — a crime the committees categorically refuse to consider pardonable.
The constitutional precedent is pretty consistent: Presidential Decree No. 1500 is legal because the President can accept or reject clemency petitions as he pleases, thanks to the very open-ended 89th Article of the Constitution.
There is an irony here to be appreciated, however. While the President is free to deny any and all pardon requests on whatever grounds he chooses (indeed, Vladimir Putin issued exactly zero pardons in 2007), he can just as easily pardon someone for no reason at all. The consensus among Russian legal scholars is that “convicted individuals’ petitions for clemency are but an optional basis for a pardon.” If the President wants to free someone from prison and it doesn’t fit the clemency rules laid out in Decree No. 1500, all he has to do is issue a new executive order.
The most contentious element of the “can he get pardoned?” controversy as it concerns Mikhail Khodorkovsky is the assumption that he’d not only have to author the petition himself, but that he’d have to confess to having committed all those crimes for which the state put him away. This is something he’s unequivocally and repeatedly promised never to do. However, it is unclear that Khodorkovsky would actually have to admit guilt. Nothing in the Constitution, the Presidential Decree, or any of the various federal penal statutes specifies that convicted felons need to acknowledge guilt when they petition the President for a pardon. Barshchevskii’s recent comments entirely ignored this issue, instead emphasizing that a convict — not his relatives or any human rights groups — must himself address the President for clemency consideration.
And yet these are mere formalities — all ultimately meaningless because of the President’s unchecked power to pardon. Even if Decree No. 1500 blatantly stated that anyone seeking a pardon must admit full guilt (which it doesn’t), the President would always be free to belay his own order and do whatever he wanted.
Yuri Shmidt
Given all this, one wonders why Khodorkovsky’s lawyers are only twiddling their thumbs on the question of clemency. As recently as last week, Yuri Shmidt addressed the issue of who would be allowed to petition for Khodorkovsky’s pardon. Schmidt, in effect, has decided to debate the nitty gritty of Decree No. 1500, asserting the right of anyone to appeal for clemency for Khodorkovsky on his behalf. What he and the rest of the legal team have seemingly decided not to do is initiate a petition themselves. Indeed, Khodorkovsky himself could write Medvedev today and ask to have his sentence reduced or lifted. He could make this request without confessing guilt — perhaps even making it clear in the text that he considers himself innocent. The law doesn’t forbid this, and — even if it did — we already know that the President is free to pardon whomever for whatever.
Why do Shmidt and others prefer to stump for an open definition of petition rights, when they could simply initiate a petition at any minute — either through a third party or through Khodorkovsky himself? Ostensibly, the only cost would be a rejection — which would leave the defendant no better or worse.
There are others risks Khodorkovsky must be considering. The most likely is that he probably worries that the simple act of asking to be pardoned would be viewed as tantamount to admitting guilt. Better, of course, to win on an appeal in court, where evidence (not a politician’s mercy) carries the day. (And still preferable would be languishing in a prison, with body and mind degenerating, but dignity and willpower intact.) It’s even possible that Khodorkovsky is avoiding a pardon request because he knows it would put Dmitri Medvedev in an impossible position. Is it something he might try later, if Medvedev is reelected in 2012?
Whatever Khodorkovsky’s calculations, the standoff between his attorneys and the Kremlin on this subject is a bizarre reminder that, while it self-admitedly suffers from a culture of “legal nihilism,” Russia is a nation of laws and rules. As mutable and arcane as it is, the Russian legal system shapes the contours of the country’s biggest political battles and forces its combatants to navigate its serpentine channels.
Feb 22, 2011 @ 14:51:19
I think application for a pardon devolving from a conviction would carry at least the impression that the applicant was acknowledging guilt to some extent. Being Khodorkovsky, he would likely proclaim to the cardinal points of the compass that he had not admitted anything upon being granted a pardon, but there would be a substantial group of minds who would never be changed on that score.
I could be wrong, but my impression is that the Khodorkovsky conviction was broadly popular in Russia despite the very vocal protestations of a minority that it was horribly unfair. I think most thought he got what he deserved. I haven’t been able to find any statistics on popular opinion regarding the Pope conviction, but I’d submit it would be a lot easier to swing a deal if the public really disdn’t care one way or another, and it might put a favour in the bank for later. No such conditions exist for Khodorkovsky – efforts to whip up popular support for his cause haven’t attracted a great deal of foreign government committment: although government figures mention him regularly, I haven’t seen any evidence of committment to arguing for a deal. Other businessmen who approve of his ethics and believe making a huge fortune provides its own justification could probably raise a lot of money for getting him sprung – but who’s going to do the advocating?
You’re right that the law doesn’t appear to spell out anything like what Barshchevskii is suggesting it does, and the hope might well be that people will just take his word for it – he should know what the law says, right? But the rules surrounding the pardon process seem pretty loose in every government, probably to provide the head of government the greatest possible latitude. Such a decision might well be influenced by an expression of satisfaction on the part of the voting public that the culprit had gotten what he deserved.
Feb 22, 2011 @ 22:42:17
Levada has at least three public polls over the last couple of years directly addressing Khodorkovsky’s case.
http://www.levada.ru/press/2009102602.html
http://www.levada.ru/press/2010060704.html
http://www.levada.ru/press/2010121409.html
Only 9% of respondents in December 2010 expected his sentence to exceed seven years. Only 38% of respondents in mid-2010 reacted negatively to Khodorkovsky’s last hunger strike. In late 2009, almost twice as many respondents agreed with very positive statements about MBK’s “talents as a manager” and “record providing good salaries to employees in his companies.” More than half agreed that the case against MBK was just a cover for other oligarchs’ campaign to remain in power.
I’m not saying the majority of people are clamoring in the streets for Khodorkovsky’s release, but there is widespread public ambiguity about this case, and most folks clearly aren’t calling for MBK’s head.
As for international support and so on, all that is neither here nor there, when it comes to the legal questions involving a presidential pardon. It wouldn’t hurt if Khodorkovsky was an American spy who might be traded for the next Anna Chapman – but sadly that is as useless as it is entertaining a hypothetical.
Feb 23, 2011 @ 00:02:49
Perhaps I misunderstood the original alleged stare-down between Putin and the oligarchs, but I thought it to have been (and I’m probably oversimplifying) that they could keep their ill-gotten gains already in pocket, but that they must stay out of politics, and effective immediately must reinvest a portion of profits locally as well as paying taxes on income. I further understood Khodorkovsky to be the only one who did not obey. Disobeying the order to stay out of politics is hardly a crime, and I doubt the people would react with horror if they knew of it. But I thought the trial substantiated that Khodorkovsky and Lebedev had demonstrably committed fraud by selling tax-free oil to shell companies set up as subsidiaries of their own companies, and then reselling it at the higher rate to get around the tax. That’s where the charge supposedly originated that has Russophobes contemptuously suggesting Khodorkovsky was sent down the river for “stealing his own oil”. Then there was the forced privatization of Apatit. There seems little doubt there was actual criminal activity. I don’t doubt there was an element of political payback there as well. But I believe the Russians who think Khodorkovsky was a good guy who just happened to be in the wrong place at the wrong time don’t really know much about the verdict. Either that, or they’re perfectly OK for an oligarch to buy one of Russia’s biggest companies for pennies on the dollar and parlay himself into one of the richest men in the world. Maybe they think it could happen for them too, like the American Dream.
The poll that struck me was this one,
http://www.america-russia.net/eng/news/88136794?page=124&user_session=9b840f2d417a07492c9a571eb660e962
on the occasion of Khodorkovsky’s original sentencing. According to it, only 4% of Russians thought he was innocent. Another 8% thought he was guilty, but the sentence was disproportionately harsh.
But a whopping 53% had no clear opinion. Of those, 28% said they had not been following the trial.
I wonder now how many Russians who think Khodorkovsky was basically a good manager who paid his workers well and had a flair for modernization – which he supposedly did – but made one little mistake, are influenced in their thinking by the chorus of western disapproval. It seems hard to believe so many paid no attention to the first trial, but Russians were on tenterhooks for the second, years later.
If Khodorkovsky were an American spy, or in fact anything but a fabulously wealthy businessman, I doubt he’d tug at western heartstrings the way he does. People seem to have this notion that because he was himself fabulously wealthy, that he established a little capitalist utopia in the heart of Vladimir Putin’s heartless communist state, and that that’s what he’s really being punished for. In fact, I’m pretty sure the only really wealthy guy in Khodorkovsky and Co. was Khodorkovsky.
Feb 24, 2011 @ 17:55:20
The big problem with Russian public opinion polls about MBK is that the segment of the population that closely follows the proceedings and thus has an opinion is small and, by and large, liberal.
Feb 24, 2011 @ 20:36:51
Public disinterest is certainly a major facet of the MBK case, but apathy (or ignorance, depending on how you look at it) doesn’t exactly support Mark’s argument that “the Khodorkovsky conviction was broadly popular.”
This notion that the Russian people broadly want to see Khodorkovsky’s head on a pike is simply bunk. I can only explain it as some kind of knee-jerk reaction to the pro-MBK public relations efforts to conflate his fate with the course of all of Russian history. That is clearly an absurd hyperbole, but two wrongs don’t make a right.
Feb 27, 2011 @ 01:09:47
I don’t believe I actually said (and this time I checked to be sure) that “the Russian people broadly want to see Khodorkovsky’s head on a pike”. What I meant to suggest is that while the liberal opposition shrieked loudly about the injustice of the verdict, the majority of Russians were quietly satisfied that he deserved what he got.
The statistics you cite are interesting, and do indeed suggest a degree of ambiguity where opinion of Khodorkovsky is concerned. They do not, however, address the verdict. Opinion on what the man in the street thought he might draw for a sentence, or if they thought he was being a prat by going on his abbreviated hunger strike might imply people felt sorry for him when the decision on his fate was still somewhere off on the horizon. I’d like to think Russians are no different than anyone else in their perception that financial crime is not in the same league as, say, murder. But it has little to do with what people thought regarding the justice of the verdict.
A poll by the Levada Center in the short strokes of the trial found 65% of Russians claimed not to be following it. Indeed, that’s not suggestive of broad support for the verdict, but it’s not supportive of a potential pardon, either. In fact, we don’t really know what the Russians think about it, and I don’t see how a majority could make an informed decision in any case, since they weren’t paying attention. I chose to favour support for the verdict based mostly on news reports, such as this from Voice of America, certainly no ally of the Kremlin.
http://www.voanews.com/english/news/europe/Kremlin-Critics-Claim-Khodorkovsky-Sentence-Politically-Motivated-112680069.html
The Editor-in Chief of Slovo Magazine is quoted as saying “99% of the Russian public would tell you it’s deserved” and says there is little support for Khodorkovsky in the country. Of course 99% is more than a little high, and even if it showed up in a poll it would have to be discounted for those who paid no attention to the trial. But it certainly suggests most of the public feels Khodorkovsky got what he deserved.
Similarly, the Council on Foreign Relations found in an interview with Professor Emeritus of Russian Economics Marshall Goldman that he was of the opinion Khodorkovsky “decided that with all of that money he could do anything he wanted”. In response to the question, “In Russia today, Khodorkovsky is not considered a martyr by most people. They’re happy to see him in jail?”, he replies, “You’re right. I don’t remember meeting anyone who feels sympathy for Khodorkovsky, because he had all that money. It’s very hard to feel sympathy for somebody who really is the equivalent of a billionaire.”
http://www.cfr.org/democracy-and-human-rights/s-spelled-out-khodorkovskys-sentence/p23724
So, respectfully, I suggest the notion that the Russian people are satisfied with the Khodorkovsky verdict and would not be supportive of a pardon if their opinion were solicited is not simply bunk; not necessarily. We don’t know what they think, but those who think they know what they think think not.
Feb 27, 2011 @ 07:42:35
As we’ve ended up pursuing something of a tangent, I want to point out that “popular opinion” is entirely irrelevant to the presidential pardons process. As is often the case in the American political system, presidents often doll out a last minute glut of pardons that are specifically unpopular and based sometimes entirely on personal initiative.
The anecdotal assumptions of Mr. Linnik and Professor Goldman are just that: unsubstantiated private impressions.
You use phrases like “the majority of Russians were quietly satisfied that he deserved what he got” and “the Khodorkovsky conviction was broadly popular.” The numbers don’t reflect this, unless you’re set on interpreting disinterest as “quiet approval.” It could just as easily be chalked up to public apathy or even some apolitical difficulty understanding the Russian legal system.
Sure, Russians widely dislike corrupt oligarchs, but plenty of people are perfectly aware that Putin has his own squad of loyal New Russians. If certain palace rumors are true, Putin could be the biggest oligarch of them all.
At any rate, none of this has any impact on the facts I laid out in my original post. The law on this matter is clear: the President can pardon Khodorkovsky today, if he wants, with or without a petition of any kind — and certainly without public approval.
Feb 27, 2011 @ 19:48:28
Yes, that’s correct – the President can pardon Khodorkovsky without anyone’s approval, as you would expect in the autocratic society Russia is supposed to be. However, if we imagine just for a moment that Russia is a democracy, where people’s votes actually count, then making an unpopular decision will cost you. Which brings us back to whether or not the electorate approves of Khodorkovsky staying in jail. If yes, then a pardon would cost the president votes, although it would likely make the liberal opposition ecstatic at the thought of Khodorkovsky money flowing to Putin’s opposition once more. If no, then a presidential pardon would appear as an act of mercy which might actually work in the president’s favour.
Putin can’t be the biggest oligarch of them all, or the west would like him. And it doesn’t.
Mar 01, 2011 @ 04:15:58
Of possible interest – a Levada poll directly about opinions on pardoning MBK.
25% – Yes
34% – No
41% – No opinion
Personally, I find the success of Khodorkovsky’s PR machine exploiting the people’s false consciousness to be rather depressing.