The following commentary ran in the Feb. 25, 2013, edition of the New York Times. Law professor Jeffrey Kahn is the author.
February 27, 2013
By JEFFREY D. KAHN
WHAT is the difference between Dmitri A. Medvedev and Vladimir V. Putin, Russia’s tag-teaming presidents? It’s the difference between officially asking experts for unvarnished advice, and punishing those experts for giving it.
In early 2011, when Mr. Medvedev (now prime minister) was still president, the Kremlin’s human rights council selected nine experts to scrutinize the 2010 conviction of Mikhail Khodorkovsky, who was once one of Russia’s richest men but is now its best-known political prisoner. I was invited to serve, the one American in a group with six experts from Russia, one from Germany and one from the Netherlands. We did not mince our words criticizing the Khodorkovsky trial.
That December, Russian television showed the council’s chairman delivering our findings to Mr. Medvedev, with a recommendation that Mr. Khodorkovsky’s conviction be annulled. But then Mr. Putin, who was president from 2000 to 2008 and then bided his time as prime minister, returned to the presidency in May 2012. Since then, for their willingness to speak truth to power, at least four of my Russian counterparts have been questioned in connection with a criminal investigation. The court order used to harass them refers to their “deliberately false conclusions.” Talk about killing the messenger.
You may be surprised to learn that the Kremlin has a human rights agency. Not only has one existed since 1993, but the human rights council, as it is currently known, was active and respected under Mr. Medvedev’s presidency. Its membership was a who’s who of leading Russian human rights personalities, including Lyudmila M. Alexeyeva, the leader of the Moscow Helsinki Group and a former Soviet dissident.
In the Medvedev years, the council’s work had impact. For example, its study of the death in custody of the Russian anti-corruption lawyer Sergei Magnitsky forced the state to reopen its own investigation of the event. The United States Congress cited the council’s findings in an act named for Mr. Magnitsky that was passed late last year. That law, which was linked to a lifting of trade restrictions, restricted the ability of the officials responsible for Mr. Magnitsky’s death to move themselves or their assets to American shores. Even more remarkably, the council scrutinized the case of Mr. Khodorkovsky, who is still paying the price for daring to finance Mr. Putin’s political opponents a decade ago. He was arrested in 2003 and was convicted in 2005 of evading taxes on oil sold by his Yukos oil company. He was dropped into the Russian prison archipelago, and Yukos was lost to a state-owned company. In 2010, as he approached eligibility for parole, he was convicted again, this time for embezzling the oil he was previously convicted of selling on the sly; he remains in prison today. Many have questioned the validity of these charges, their sequential filing, and the fairness of his trials.
My involvement began in April 2011, when I received an e-mail from Tamara Morshchakova, a retired justice of the Russian Constitutional Court; she was heading the council’s working group on the case. She asked me to write a report evaluating this second conviction. At the time, I thought this might be a chance to shine sunlight on this shadowy case, and that Mr. Medvedev would be more open to reconsideration than Mr. Putin.
Ms. Morshchakova had written to me: “The expert analysis is to be conducted on a voluntary basis and on the condition of confidentiality.” That meant I worked without pay, and without contact with the council, through that spring and summer, before submitting my report.
I now realize that this isolation was a safety precaution, intended to avoid false accusations of expertise-for-hire or collusion. Only when the work of all the experts was personally given to President Medvedev did I learn who else had written reports and what they had said. The six Russians included leaders in the country’s top academic institutions and prominent professors with expertise in legal scholarship, economics or both.
But once Mr. Putin switched places last year with Mr. Medvedev, my Russian counterparts began to pay for their too-public public service. Just weeks after Mr. Putin’s election last March, a Russian official smeared the council’s impartiality, citing charitable donations Yukos made over a decade ago to nongovernmental organizations whose leaders now sit on the council.
Then, shortly after Mr. Putin’s inauguration in May, search warrants were issued under the pretext of investigating whether Mr. Khodorkovsky had financed the “deliberately false conclusions of specialists under the guise of independent public expertise by paying those who organized their production as well as the experts.” I’m told that, one by one, these experts and people they work with are finding their homes and workplaces searched, their papers and computers seized. They are also being subjected to aggressive questioning.
Meanwhile, many council members, including Ms. Alexeyeva, have resigned in protest of Mr. Putin’s return. Their ranks have been restocked and enlarged, but the council now seems a shadow of its former independent-minded self.
Of course, as an American working outside of Russia, I am insulated from the full force of Mr. Putin’s wrath. Not so these Russian experts. Their work showed true courage, particularly because they must have known the risks.
Punishing the leaders to quiet the herd is an old practice for authoritarian regimes, and this message was intended for news editors, television reporters, bloggers and others who would speak their minds to the public. With Mr. Putin back in the Kremlin, it is no longer safe to express an opinion on public affairs, even if that opinion was requested by the state itself.
Jeffrey D. Kahn is an associate professor of law at Southern Methodist University.