19 Feb 2011
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).
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.
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.