U.W.: Mr. Shmidt, in many former Soviet countries the government often uses the justice system for political purposes. How can the independence of the judiciary be secured in these states? What should be the first step? Abolishing Prosecutor General’s Offices, a vestige of the Soviet system? Raising judges’ salaries? What judicial reforms should be carried out to make laws truly protect the weak against the powerful?
An independent judiciary is only possible if the power vertical into which courts have been embedded is destroyed. This requires having a free press, including the freedom to set up independent TV channels, no restrictions on opposition activity, the real possibility to form parties and other associations, free elections on all levels and keeping the judiciary independent of presidential power. In general, this would be enough to free courts from political dependence. For courts to fully perform their mission, a major cleaning of staff will be needed, because the law enforcement systems in the former Soviet republics are totally corrupt. Additional reforms may also be necessary. Of course, the process will be neither easy nor rapid.
U.W.: Are you following developments in Ukraine? What is your opinion of its internal political dynamics? Do you agree that an authoritarian regime is taking hold in Ukraine?
I do keep track of events in Ukraine. People in my circle of acquaintance were embittered and disappointed at the renunciation of the ideals proclaimed by the Orange Revolution. At the same time, as I look from the sidelines, I don’t feel the same pessimism that I have about the situation in Russia. It seems to me that Ukraine has not yet passed the point of no return or lost opportunities to get back on the democratic track.
U.W.: What is your opinion of the Yulia Tymoshenko court cases?
I stick to the opinion that the legally untenable trial is being fuelled primarily by personal revenge and that the persecution is feeding on an entire array of associated political circumstances.
U.W.: On your father’s side you are a second-generation Russian dissident. Do you believe that the Khodorkovsky case and the frequent brief arrests of Russian opposition politicians are gradually helping a new generation of dissidents to take shape?
The word ‘dissident’ of the 1960s and the 1980s has no meaningful or even verbal equivalent today. Active dissidents of the times could be called, strictly speaking, human rights advocates, but this designation was almost never used back then. I attribute its contemporary commonplace and often times inapt use to the lack of a more exact definition. The reality today is a wide spectrum of opposition members who operate quite legally: from moderate liberals, who advocate the system’s evolution within the framework of the current Constitution, to irreconcilable opponents to the governing administration. They cover the political spectrum and come in different colors. Also counted among human rights advocates are environmentalists, champions of historical and cultural heritage and many others.
The many years of Mikhail Khodorkovsky’s presence in Russia’s political and public life should be viewed as a unique phenomenon. Neither his dramatic life, nor courageous resistance against the regime caused any new generation of Russian opposition members to emerge. However, this unprecedented phenomenon has no doubt great importance in Russian history. This topic is worth a separate and more detailed discussion, but it is not perhaps too early to open it.
U.W.: How did the prospect of obtaining an acquittal for Khodorkovsky change after Russian President Dmitry Medvedev refused to run for a second term, while the current Prime Minister Vladimir Putin is set to restore his absolute power in Russia?
I believe that the prospects for Khodorkovsky’s release in any legal way have not changed a bit. I am convinced that the non-interference of the presidential incumbent was part of the “package” deal through which Putin handed over the presidential office to Medvedev.
U.W.: The European Court of Human Rights ruled in May 2001 that certain rights of Khodorkovsky as a businessman were violated but refused to label the case as political. Why? There are parliamentary resolutions in democratic countries that recognize the political motives behind his persecution. Is his defense preparing new appeals to Strasbourg?
In November at the latest, Khodorkovsky’s defense will file a complaint with the European Court against the second verdict in his case. In addition to the resolutions you have mentioned there are many other pieces of direct evidence implicating that top Russian officials had an interest in persecuting Khodorkovsky, ruining YUKOS and, later, embezzling its property. There is evidence of the government’s strong interference with the proceedings. The judges in Strasbourg simply lacked the courage to recognize the cases as political on the first complaint. I do not rule out that other circumstances not linked to the judiciary are at play. This topic can be developed at length, but I cannot find any other explanation for the surprising blindness and deafness of the court.
U.W.: You also represent the family of ex-Duma Member Sergei Yushenkov who was murdered. Considering that the person who contracted the killing was a candidate for leadership in Russia’s Liberal Party and enjoyed the personal support of Boris Berezovsky, does it make sense to surmise that the latter is in some way linked to the assassination?
I must acknowledge that I have a deep dislike for Berezovsky. Before combing through the case file I assumed that he could be involved. But later I completely rejected this version. I have no doubt about the guilt of the convicted and of the two people who were acquitted by court, but I cannot get rid of the thought that the FSB, above any other players, had a hand in this game. Unlike Berezovsky, this special service had real and understandable reasons to eliminate Yushenkov and, incidentally, another Duma member, Yuriy Shchekochikhin. Unfortunately, I cannot offer anything to support this version except logical constructions and questions that were left unanswered.
U.W.: Besides Khodorkovsky and Yushenkov’s family, you also represent the relatives of Duma Member Galina Starovoytova who was gunned down in the entrance to her apartment building in 1998. The person who contracted the killing was arrested and convicted as late as this year, even though he was mentioned among the suspects in the early days of the investigation. How hard was it to finally get Sergei Glushchenko, also a Duma member, arrested?
I represented Starovoytova’s family only during the investigation in the cases of Kolchin, Akishyn and other perpetrators of the murder. Leonid Saikin, a partner from our law firm, represented the family in court. At the time, I worked on the cases of Yushenkov, Samodurov (director of the Andrei Sakharov Museum) and Khodorkovsky. I am not generally inclined to heap praise on the FSB and particularly its investigative service, but in this case I cannot help but emphasize how persistent and highly professional the investigators were. Those were different days.
Glushchenko was in hiding all the time. The documents that we received in the first years after the assassination had virtually no evidence implicating him. Later, in 2007, Saikin also joined Khodorkovsky’s defense. We received information about Glushchenko’s arrest and indictment only in a piecemeal fashion.
U.W.: In the 1970s, dissidents demanded that the Soviet government act in keeping with the principles it declared. Now many former Ukrainian dissidents claim that even back then the question should have been framed differently: the system and the foundation of communist ideology should have been negated as such. Was it possible to act differently in those circumstances?
Unlike the political opposition of my father’s time, the dissidents of the 1960s through the 1980s did not run the risk of proclaiming themselves open opponents to the regime. Their (our) position was best reflected in the demand: “Abide by your own Constitution.”
Selective imprisonment was sufficient to fight off the dissidents. The Brezhnev establishment had neither the forces, nor temperament, nor objective circumstances to launch a “great terror.” There was no need for it, either. The struggle was largely carried out under the slogans of freedom of speech, information, artistic activity, conscientiousness and limited emigration.
Virtually no dissidents demanded freedom of association or a multiparty system. Free elections, abolition of economic coercion and freedom of entrepreneurship were not on the agenda back then. There were, of course, exceptions that only proved the rule. If these exceptions had taken on a more massive scale, they could have perhaps brought about the demise of the USSR earlier.
BIOGRAPHICAL NOTE
1937 – born in Leningrad as his father served a 26-year sentence for participation in the social-democratic youth movement in Stalin’s camps
1960 – degree in law from Leningrad University
1964 – father returned from exile in Vorkuta. Joined the dissident movement, distributed samizdat publications and was friends with poet Joseph Brodsky
1986 – disbarred over a complaint filed by a client who wrote it under pressure from the authorities
1987 – restored to the bar
1988-89 – defense of Arkadi Manucharov, Armenian leader in Nagorno-Karabakh
1991 – set up the Russian Attorney Committee for Human Rights
1992 – defense of Uzbek journalist Abdumannob Pulatov who was charged with offending President Islam Karimov
1996 – defense of Afghan officer Abdul Gafar whom Russian migration services were attempting to illegally expel to Afghanistan where the war was raging and people who cooperated with the USSR were being persecuted
1998 – defending the interests of the family of murdered Russian Duma Member Galina Starovoytova
1999 – defense of Russian environmentalist Alexander Nikitin who was charged with high treason and cooperating with Norway
2003 – defense of two Perm-based journalists charged with high treason
2004 – defending the interests of the family of murdered Russian Duma Member Sergei Yushenkov
2005 – present – chief defense attorney for Mikhail Khodorkovsky
