Russia and Eurasia PP 2014/01 Khodorkovsky’s Release: Why Now and What Next?
Richard Sakwa University of Kent
January 2014
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Khodorkovsky’s Release: Why Now and What Next?
INTRODUCTION Mikhail Khodorkovsky’s sudden release from a correctional colony in Karelia after ten years of imprisonment on 20 December 2013 raises a whole series of questions. First, why was he released at this time? After all, his sentence was due to end in August 2014. Second, what were the conditions attached to his release? Was some sort of deal made with President Vladimir Putin in which Khodorkovsky was given his freedom in exchange for a promise to keep out of politics and to soft-pedal the claims of shareholders in Yukos, the oil company he headed before his arrest? Third, what would Khodorkovsky do now? Would he go into business, or engage in public life in some capacity. Would he become the symbolic, and possibly the practical, leader of the Russian opposition? Finally, while in jail Khodorkovsky had become one of the most perceptive analysts of contemporary Russia. Now that he was free to speak without prison censorship, what would be his analysis of Russian politics?
Khodorkovsky was arrested on 25 October 2003. 1 This was accompanied by an attack on Yukos, which under his leadership had been transformed from a ramshackle conglomeration of Soviet oil production, refining and distribution units into a vertically integrated company that had become Russia’s second larger producer. If plans to merge with Sibneft had been completed, it would have become the biggest. Instead, Yukos was bankrupted by a series of increasingly punitive tax demands, with the bulk of its assets going to Rosneft, which thereby began its ascent to becoming the world’s largest oil company. In May 2005 Khodorkovsky was sentenced to nine years in jail (reduced to eight on appeal), and in December 2010 he and his leading colleague, Platon Lebedev, were given another long sentence, to be served concurrently with the first, that would have seen them in jail until early 2017. In December 2012 the Moscow City Court reduced their sentences by two years, and on 6 August 2013 the Supreme Court cut them by a further two months, bringing forward their anticipated release to 23 August and 2 May 2014, respectively. However, on 19 December 2013 Putin pardoned Khodorkovsky, and the following day he was released and flew to Berlin.
1 For a full discussion, see Richard Sakwa, Putin and the Oligarch: The Khodorkovsky–Yukos Affair (London & New York: I. B. Tauris, forthcoming 2014), from which this account draws. www.chathamhouse.org 2 Khodorkovsky’s Release: Why Now and What Next?
WHY NOW? Khodorkovsky’s release took place at a time of intense speculation that a third case against him would soon be launched. In early December it was revealed that, only two weeks after Khodorkovsky and Lebedev had been sentenced for the second time in early 2011, evidence began to be collected for a third case, and the investigations had intensified from February 2013 with new searches and interviews.2 On 6 December the deputy prosecutor general, Alexander Zvyagintsev, raised the prospect of new criminal charges. A third trial appeared imminent, focusing on an episode related to the main case launched in 2003 regarding the alleged laundering of $10 billion outside Russia. There were fears that Khodorkovsky could also be accused of sponsoring experts and scholars to promote ‘liberalization of the criminal law in 2008–11’ with money obtained from selling oil embezzled from Yukos subsidiaries.3
During his four-hour press conference on 19 December, however, President Putin noted: ‘As to the third case, I do not want to go into details but honestly speaking I, as a person watching this from the outside, do not see great prospects for this.’ Barely an hour later, after the formal press conference had ended, when asked again about Khodorkovsky, Putin unexpectedly announced that he would ‘in the nearest future’ pardon him. Asked about the various amnesties, including the one announced the previous day that would see Greenpeace activists and others freed, the president said:
As for Khodorkovsky, you know that I have already spoken of this. Mikhail Borisovich should in line with the law have written the necessary document, which he did not do, but just recently he did write this document and addressed me with an appeal for clemency. He has already spent 10 years in jail, which is a serious punishment. He bases his appeal on humanitarian grounds – his mother is ill. I think that taking into account all these circumstances, we can take the appropriate decision and in the nearest future a decree on his pardon will be signed.4
2 ‘Evidence collection for third Yukos case started directly after 2nd conviction – source’, Interfax, 18 December 2013. 3 ‘Russia mulls new case against Khodorkovsky – paper’, RIA Novosti, 9 December 2013. http://en.ria.ru/russia/20131209/185392877/Russia-Mulls-New-Case-Against-Khodorkovsky-- Paper.html. 4 ‘Press-konferentsiya Vladimira Putina’ [Vladimir Putin’s Press Conference], 19 December 2013, http://kremlin.ru/news/19859. www.chathamhouse.org 3 Khodorkovsky’s Release: Why Now and What Next?
Putin signed the pardon shortly afterwards, and already at 2.30 am on 20 December Khodorkovsky was woken in his prison cell in the Segezha camp in Karelia and driven to Petrozavodsk. A short flight took him to Pulkovo airport in St Petersburg and a chartered German plane then flew him to Berlin. In his first statement that evening with the New Times, the Russian magazine that had published his sketches of prison life, Khodorkovsky said:
After 10 years, I now have an unbelievable feeling of freedom. I am grateful to you and to everyone who supported me all this time […] I love everyone, I am happy. The most important thing now is freedom, freedom, freedom.5
Khodorkovsky said that on 12 November 2013 he had written to the president for a pardon ‘due to my family situation, and I am glad that his decision was positive’. He stressed that ‘The issue of admission of guilt was not raised’. It soon became known that he had written another letter to Putin stating that he had no current intention of entering politics and that he would not fight for the return of Yukos assets expropriated by the Kremlin.6 His statement gave special thanks to Hans-Dietrich Genscher, the former German foreign minister, for ‘his personal participation in my fate’, and looked forward to celebrating the holidays with his family.7
Putin’s pardon indicated his confidence that Khodorkovsky no longer represented a threat. The protest movement provoked by Putin’s return to power had fizzled out, accompanied by some political reforms that would not change the tutelary powers of the regime but allowed a mild degree of greater pluralism and electoral competitiveness. The model of state–business relations in operation since the Yukos affair, with business largely absent from open politics, was still operating satisfactorily from the regime’s perspective. With the Sochi Winter Olympics due to start on 7 February, the amnesty for most political prisoners and Khodorkovsky’s release removed some of the major human rights issues poisoning relations with the West. The release, however, comes too late to make much of a difference to which political leaders will be attending the opening ceremony. Russian economic performance, moreover, is deteriorating, with only 1.4 per cent growth registered in 2013. Nevertheless, the manner in which Putin made the announcement suggested that there remained powerful forces in the regime
5 Shaun Walker and Philip Oltermann, ‘Mikhail Khodorkovsky “exhausted but happy to be free” after Putin’s pardon’, The Guardian, 20 December 2013, http://www.theguardian.com/world/2013/dec/20/mikhail-khodorkovsky-free-putin-pardon-berlin. 6 ‘Mikhail Khodorkovsky: in from the cold’, Economist.com, 23 December 2013. 7 ‘Khodorkovsky’s first message in freedom’, 20 December 2013, http://www.khodorkovsky.com/featured-articles/khodorkovskys-first-message-in-freedom/. www.chathamhouse.org 4 Khodorkovsky’s Release: Why Now and What Next? opposed to Khodorkovsky’s release. A pardon, unlike an amnesty, does not require the State Duma’s approval but is a presidential prerogative.
In his first major interview, with the New Times, on 21 December in the Adlon Hotel in Berlin, Khodorkovsky speculated that his departure for Berlin, in connection with his mother’s illness, made Putin’s decision rather easier. He said there had been no deal of any sort, that he did not consider himself in exile and wished to return to Moscow, but only on condition that he would be able to leave again. He insisted that the Yukos affair could not be over until the last of the Yukos prisoners was free. As to why Putin allowed his release, Khodorkovsky considered that it was intended above all to send a signal to his own entourage – i.e. to limit its fractiousness and greed. To impose order in Putin’s own group, Khodorkovsky argued, required either a 10-year sentence on the former minister of defence, Anatoly Serdyukov (accused of major corruption) or Khodorkovsky’s release. Khodorkovsky said it was also a signal to Russian society and the wider world that Putin felt himself back on top. More personally, when asked about why he had not been killed in jail, Khodorkovsky asserted that Putin had given orders that neither he nor his family should be harmed: ‘This was absolutely forbidden.’8
In his extended press conference on 20 December 2012, Putin had already signalled a more benign stance towards his long-standing adversary. Insisting that the courts worked independently and that he had had no hand in the prosecutions, he noted:
there is no personal persecution here. Nothing that some try to present as a political case. Did Mikhail Borisovich go into politics? Was he a deputy? Did he lead a political party? There was nothing of the sort. The case is entirely economic. These questions should not be politicized. I am sure that when in accordance with the law everything will be sorted, Mikhail Borisovich will walk free. God give him health.9
This indicated the beginning of a change of heart, and perhaps reflected the secret negotiations with the German authorities for Khodorkovsky’s release that had started a year earlier. It would be another whole year before they bore fruit.
8 Evgeniya Al’bats, ‘Mikhail Khodorkovskii, “Ya vernus’ v Rossiyu”’ [Mikhail Khodorkovsky, I will return to Russia], New Times, No. 43–44, 25 December 2013, http://newtimes.ru/articles/detail/76393 9 ‘Press-konferentsiya Vladimira Putina’ [Vladimir Putin’s Press Conference], 20 December 2012, http://kremlin.ru/news/17173. www.chathamhouse.org 5 Khodorkovsky’s Release: Why Now and What Next?
In his first press conference, held in Berlin on 22 December, Khodorkovsky thanked all those who had supported him, including the media, the German authorities and Chancellor Angela Merkel, who had ‘made it possible for me to be free today’. He stressed that many victims of the Yukos affair still remained in jail, notably Lebedev and Alexei Pichugin. He was not planning an immediate return to Russia, since there was no guarantee for his immunity from further prosecution, owing to a court order to pay $550 million in damages dating back to his first conviction in 2005. If he returned, ‘Russia law has the power of not allowing me to leave for abroad’. He opposed a boycott of the Sochi Olympics, arguing that ‘a festival of sport should not be spoilt’. As for his appeal for clemency, Khodorkovsky explained that Genscher had informed him on 12 November that Putin, unlike Medvedev, was not insisting that a pardon could only be granted if he accepted guilt. Khodorkovsky explained that since his release in any case depended on Putin personally, whether through clemency or the end of his term, a pardon became a mere formality.
WHAT NEXT? As for the question of what he would do with his new-found liberty, Khodorkovsky was clearer on what he would not do than on concrete plans. He has insisted that he had has no intention of funding the Russian opposition, and stressed that his involvement in politics was over:
There is no question of politics, if politics is understood as a struggle for power, for me either. I am not interested or willing to take the way politicians in Russia have to a stance that is not quite frank. I believe that I have won for myself one right which is worth much – the right not to say what I don’t think.10
Neither is he planning to go back into business:
The question of business is closed to me, including from the point of view of fighting for my previous assets. I will not take part in it for the simple reason that I don’t want to waste my time on that.11
He said that he would get involved in unspecified public activities instead.
10 Zakrytaya press-konferentsiya Mikhaila Khodorkovskogo [Mikhail Khodorkovsky’s press conference behind closed doors], Ekho Moskvy, 22 December 2013 http://echo.msk.ru/programs/beseda/1223277-echo/ 11 Mikhail Khodorkovskii, ‘Esli by ne usiliya ochen’ mnogikh lyudei i u nas v strane, i vo vsem mire, ya by segodnya byl ne zdes’’, Presstsentr Mikhail Khodokovskogo i Platona Lebedeva [If it www.chathamhouse.org 6 Khodorkovsky’s Release: Why Now and What Next?
Earlier this month, Khodorkovsky visited one of the leading Yukos exiles, his former business partner, Leonid Nevzlin, who fled to Israel in 2003. Soon after the attack on Yukos began, Khodorkovsky had transferred his stake of over 60 per cent of Group Menatep (which owned about 40 per cent of Yukos) to Nevzlin, in an attempt to save Yukos by separating his personal fate from that of the company. Khodorkovsky’s remaining personal wealth is unknown. The visit to Nevzlin was a private one, but it comes against the background of an imminent judgment at the Permanent Court of Arbitration in The Hague, where Yukos shareholders are claiming damages of some $100 billion based on an estimate of what Yukos would be worth if it had survived. The lawsuit was filed under the Energy Charter Treaty, which provides the legal framework for investors to enforce their rights. Russia had signed the treaty but never ratified it, but in 2009 the court ruled that Russia was bound by the treaty. There were also other claims. In late 2013 the Samara regional administration received an order from a New York court requiring Rosneft to pay $186 million to Yukos shareholders, based on a loan inherited by Rosneft from a Yukos subsidiary. Lebedev, Pichugin and the other Yukos officials still in jail effectively acted as hostages. Nevzlin soon after insisted that he would continue to pursue the battle with the Russian government over Yukos assets.
Khodorkovsky’s career has been marked by his restless quest for something beyond the given. This meant that, even in the 1990s, he was more than an ‘oligarch’, but someone deeply concerned about the fate of Russia. This is why he became so actively engaged in the 1996 presidential election, proposing a deal whereby the head of the Communist Party, Gennady Zyuganov, would become prime minister while Boris Yeltsin would remain president as ‘guarantor’ of the constitution. Later, Khodorkovsky actively sought to shape energy politics, tax policy and even foreign policy, which brought him into confrontation with the revived state in the form of Putin’s regime. In jail Khodorkovsky’s liberal views were not repudiated but were tempered into a distinctive type of democratic statism. On a whole range of issues he has supported the goals of the Putin regime, while decrying the methods.
Has Khodorkovsky given up? Did the request for a clemency pardon automatically imply recognition of the lawfulness of all the court rulings against him? Formally, there is no legal relation between pardon and
had not been for the effort of many people in our country and in the whole world, I would not be here today], 22 December 2013, http://khodorkovsky.ru/news/2013/12/22/18545.html. www.chathamhouse.org 7 Khodorkovsky’s Release: Why Now and What Next? admission of guilt, but politically the circumstances attending his release undermined the case for his exoneration domestically, while impeding attempts to regain Yukos property abroad. It is not clear what precise conditions were attached to his release. He noted in his 22 December press conference that was not in a position to give advice to Western politicians on how to deal ‘with such a complex person’ as Putin.
More paradoxically, Khodorkovsky’s stream of letters and interviews from jail revealed that he was what in an earlier era had been called a ‘national liberal’, with statist ideas on Russia’s development that were far from alien from Putin’s own views. It is for this reason that Khodorkovsky cannot be a hero for Russia’s neo-liberal opposition, and would be an uncomfortable interlocutor for those in the West who would have liked him to become an instrument in their struggle against Putin.
The circumstances attending Khodorkovsky’s release do not represent a ‘betrayal’ of his supporters. He has insisted that he will continue to fight for the release of the remaining political prisoners, including Yukos officials. However, his political stature has been somewhat diminished by the circumstances attending his release, allowing Putin to pose as the moral victor and supreme arbiter. Nevertheless, Khodorkovsky’s personal prestige is unaffected. Abroad and at home, he remains one of the moral leaders of post-communist Russia. After 10 years of imprisonment he has maintained his balance and composure, avoiding anti-Putin demagoguery while advancing piercing analyses of the problems facing his country. His commitment to the peaceful but resolute improvement of Russia appears to remain undimmed.
A FORMULA FOR RUSSIA’S FUTURE? Khodorkovsky, as a free man, could potentially provide a liberating formula for the developmental impasse in which Russia finds itself. This would reconcile the aims of the democratic opposition – free and fair elections, autonomy for the institutions of the constitutional state (above all, parliament and the courts), defensible property rights and a civil society freed from the suffocating tutelage of the regime – with a strong state committed to the defence of Russia’s national interests and territorial integrity. A civic nation would finally be born that would defuse the gathering storm of ethnic nationalism. This is an agenda that is neither anti-Putin nor pro-Putin but represents a return to the idealism which shaped the birth of the contemporary Russian state in 1991. It is a vision that Putinism itself has www.chathamhouse.org 8 Khodorkovsky’s Release: Why Now and What Next? never repudiated, however mired it became in factional conflict, venal concerns and resentment against the West.
There are three immediate elements to the formula for change, building on Khodorkovsky’s thinking during his decade in jail. First, the solution to Russian problems lies in Russia. In other words, the attempt to use political or other forceful leverage against Russia, including sanctions and boycotts, will only strengthen the defensiveness of the regime, and thus inhibit change. Second, the gulf between the democratic opposition in Russia and the regime is not as wide as sometimes supposed, in the sense that both appeal to the strengthening of the constitutional state and the creation of a civic nation, although the gulf between promise and practices in the case of the regime is wide. Thus the third point builds on this: to stress the need for a genuine evolutionary perspective for change, and to use the electoral opportunities that exist to exploit the desire of many members of the regime itself for greater pluralism and political competitiveness.
In short, Khodorkovsky has the unique authority to position himself as a force for both reconciliation and dynamic change. He could help shape a path for the regime to become constitutionalized (i.e. to subordinate itself to the impartial rules which it claims to defend), and thus to help overcome Russia’s age-old gulf between the state and society in an evolutionary manner. By giving the resistance movement to the arbitrariness of the administrative regime a positive and patriotic form, Khodorkovsky could apply his moral authority and undoubted managerial abilities to building a strong and democratic Russia at peace with itself and the world. It is only a question now of finding the appropriate path to achieve this through dialogue and reconciliation.
ABOUT THE AUTHOR Richard Sakwa is Professor of Russian and European Politics and Head of the School of Politics and International Relations at the University of Kent. He is also an Associate Fellow of the Russia and Eurasia Programme at Chatham House, and a member of the Academy of Social Sciences.
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