Capitalism on Trial

April 24, 2013
Alexey Navalny on the courthouse steps

Obviously the government never learned any lessons from Khodorkovsky’s case, and it’s stubbornly looking for more adventures.

Act Three, Scene One: Timber Logging

Russia is getting drawn into the third landmark political trial of the decade. Khodorkovsky, Magnitsky, and now Navalny. What is common among the three trials is some historical logic, and as a consequence, they have many “overlaps”, even in appearance.

The setting for the first act of the Navalny drama is a forest. But, of course, that’s just the beginning. There will be roads – “Russian Postal Service” – and fools – “organizing public unrest”. So the fans of video production of the “political trash” type should get some popcorn, sit down, lay back and enjoy the TV show.

The Story Outline (Criminal-Political Fiction)

Navalny (the main character, a hero) arrives in the Vyatka region “to implement reforms in that particular region”. After becoming the governor’s advisor on a pro-bono basis (the governor himself pretty much stays behind the scenes) he decides to do a favor for one of his friends (who once happened to be in the wrong place at the wrong time) and introduce him to the director of the local FGUP – a state enterprise that controls logging in the region (an “absolute villain”, who sells out timber and his moral principles).

The purpose of the whole scheme was apparently to put a company owned by Navalny on the very limited list of entities to which the FGUP is ready to sell timber directly, bypassing intermediaries. Those who ever have to deal with logging in Russia know that buying timber in this country is much more difficult than selling it. This is because the directors of all these logging enterprises would never sell timber to anyone but “their own”, and would never let anyone come near their forest. That’s why the forestry is decaying while those in charge are “getting fatter”. So, Navalny approached one of these “forest brothers” and “asked” him to open his “feed trough” of pines and spruces.

The director had no choice but to bite the bullet, “make some room”, and accept the company suggested by Navalny as one of his favored customers. It has to be noted, though, that the director didn’t get too generous and let Navalny’s protégé buy directly from him. 2% to 5% of his timber worth an estimated 14 million roubles. That is not surprising, since Navalny was not a local police chief, and the impression of his status of a “volunteer” advisor amounted to exactly the 2-5% that he received. If Navalny was a volunteer advisor for the local office of the FSB (formerly the KGB), he could well be entitled to much more, up to 50% …

One way or another, the company owned by Navalny’s friend started to buy timber directly from the producer, at a wholesale discount, the way it should be (for those who do not know, we can explain that it is a totally normal practice for whatever is traded – from a box of matches in a street newsstand to a Bentley in a luxury car dealership). The same company would then sell the lumber at a small markup, making about 10-20%. That, of course, does not compare with supplying medicine or MRIs under some federal programs, but it’s not a loss-making enterprise, either.

That’s pretty much the whole storyline. Sounds more like an old boring Soviet novel about state enterprise managers than a crime story. However, there are no such tasks that the successors of the Iron Felix (Dzerzhinsky) wouldn’t be able to handle. His statue might be laying in the backyard of the Central Art Exhibition, but his cause lives on, and its metastases of fabricated criminal cases extend all over Russia.

The Navalny saga had all the necessary elements of a thriller. The investigators managed to turn a bleak and unimaginative narrative into a masterpiece – a combination of political comedy, legal farce and social drama.

“Suicide”: A Political Comedy

What distinguishes the “Navalny case” from the “Khodorkovsky case”, or the “Magnitsky case” is that nobody even tries to camouflage the political nature of that judicial lynching. In the case of Khodorkovsky they emphatically denied that the whole thing was politically-motivated (and they continue to deny it). In case of Magnitsky, they mention political implications only within a context of “evil Americans” trying to threaten Russia’s sovereignty with their “Magnitsky Act”. Now, in case of Navalny, it is openly admitted that if it were not for his political activities nobody would really care about him. He could have cut down half of a taiga and nobody would even pay attention. There would be no case against him, that’s for sure. That interview by Mr. Markin, the Investigative Committee spokesman, in which he openly admits that it was Navalny’s overactive anti-corruption campaigning that precipitated the investigation, is totally unprecedented.

However, the ultimate political goals of the Navalny case are still not clear. Theoretically speaking, there could be two such goals: to discredit him politically (although it is not immediately clear in whose eyes) and remove him from active political life – to neutralize him, so to speak. Of course, the first goal seems totally unrealistic, because the only result that the authorities have achieved so far is that Navalny has become a household name. Before that campaign started, very few outside the Garden Ring could tell you who that person was. Now, he is recognized not only in Moscow, but all over the country, courtesy of federal TV channels.

So, most likely the ultimate political goal is not to discredit him, but rather to neutralize him. Which may suggest that in the end they will most likely lock him up, if, of course, they don’t lose their resolve at the last moment. After all, it’s about putting a live lawyer on trial, not a dead one. Another thing is that in the end, such “neutralization” could come at a very high price for the Kremlin – far exceeding the price of all the timber logged in Vyatka. Obviously, the government never learned any lessons from Khodorkovsky case, and is stubbornly looking for more adventures. Somebody is trying very hard to turn Navalny into a new Grand Inquisitor. In any case, if the regime wants to destroy itself, nobody should prevent them from pursuing that noble cause.

However, overall, the political storyline of Navalny’s case is the least interesting. It’s way too straightforward, too shallow. The legal storyline is quite another matter. It’s not even a line, but a maze that you can wander through for ages looking for a way out.

True Crime Buff

The “wimps” from the Vyatka investigative committee who were unable to open a criminal case against Navalny for a year were simply not correctly oriented. They really couldn’t “find” evidence of a crime in his case.

Other skills and knacks were needed, which had to be acquired through long training. So when the case was taken up by specialists in the capital, who had cut their teeth on the cases of Khodorkovsky and Magnitsky, things went better. From the professional perspective, it was extremely interesting to investigate Navalny’s case. Just as an archeologist experienced in tree rings (including from the Kirov timber industry) can calculate the number of dry years, so a lawyer with experience in the indictment of charges against Navalny can determine the techniques tried earlier in the cases of Khodorkovsky and Magnitsky. The structure of the charges filed against Navalny upon the slightest scrutiny turn out to be as simple as a three-fingered trick. In order to understand what is meant here, let us bend these fingers down one by one.

The first finger (thumb): presumption of innocence. You will not find a mention of this principle in the Code of Criminal Procedures; it is not covered in textbooks for law school. But it is the main and essentially only principle around which the Russian criminal justice system is built today.

The written law, which in Russia as we know is like a bridle [which you can turn any which way, as the proverb says], stipulates that only a “culpable act” can be a crime and this “culpability” is the main element that must be proven at first in the investigation, and then in court, with reference to objective facts and circumstances which prove either its presence or its absence. But that’s all in theory.

In practice, guilt is perceived as a given, as something that is self-evident and not requiring any evidence at all. This has all been quite visible in the case of Navalny’s indictment, and before in the charges brought against Khodorkovsky, and which sent Magnitsky to the grave. Today, guilt in Russia is not proven, but proclaimed. You will agree that these are somewhat different things.

Here in the very first paragraph of Navalny’s indictment:  “A.A. Navalny, while located in Kirov and desiring to enrich himself through criminal means, organized the commission of embezzlement from Kirovles, the Kirov regional unitary enterprise.” That is essentially how the indictments of the charges against Khodorkovsky and Magnitsky began.

Yoo-hoo! Is anybody out there in the judicial forest? The indictment should end, and not begin, with a pronouncement of guilt. You are proving that he wanted to enrich himself by criminal means and organized the commission of embezzlement, and didn’t try to buy lumber cheaper in order to sell it for more money. Various members of the government bought up shares in Gazprom in the year before the liberalization of the market in order to later sell them for five times as much and earn about $80 million on that deal. And they got nothing more than a promotion. So if you are writing from the outset that he was a criminal, why have the investigation? Just send the family a notification of which window to visit to bring a parcel for the prisoner, and save the state money.

The investigation is not proving Navalny’s guilt, but with the help of an “a priori establishment” of guilt, is establishing the existence of a crime. This is done with the help of a simple device –throughout the text, at the beginning of every paragraph, the phrase is added: “in carrying out the preparation of the forthcoming embezzlement”; or “continuing to realize his criminal intent”; or “with the purpose of realizing his criminal plan”; or “continuing to provide aid in the commission of a crime.” But between these phrases, there is practically nothing – semantic emptiness, total “blah-blah-blah”. In Russia, a charge against someone is proved by rhetoric, not facts. The purpose of the investigation today is to create a “word cloud,” which from afar resembles a charge. Presuming guilt, in fact, they color the whole life and activity of the accused in a black light, without concern about any real proof. This is circus technology for a farcical justice system. But for now, with the absence of an independent court, everything will come off.

The second finger (index). Incrimination.  Even the semblance of a charge has to rest on something. Something has to connect these paragraphs into a unified whole. The role of the connective tissue, as a rule, is played by the incrimination. This technique worked beautifully in the Magnitsky case and has already been applied like a template to the Navalny case.

First, a crook who has been caught red-handed is put into circulation (as a rule, this is someone exposed by the accused himself during the commission of the crime). In the case of Magnitsky, these were two criminals, Markelov and Khlebnikov, who were later sentenced for embezzlement of company money. In the case of Navalny, it’s Opalev, director of the federal state unitary enterprise which Navalny attacked, and who is now under investigation for theft of company lumber.

Then, the crooks are declared associates of the accused, in order to link them to him in some criminal fiction. So it turns out that Magnitsky now no longer exposes Markelov and Khlebnikov, but is working hand-in-hand with him; and Navalny isn’t attacking Opalev, but has conspired with him about joint crimes.

And then, the finale: the newly-baked accomplice “breaks” and accuses himself and the one joined to him, Magnitsky or Navalny (write in any name, even your own) in the commission of the most fantastic crimes. With these testimonies, the case is fabricated out of whole cloth.

The third finger (middle). Forgery.  This finger already points toward the very end, at the moment of the judicial triumph of the system. When everyone is already confused and intimidated thoroughly, the authorities still have to instill horror and increase the number of charges to amounts enabling them to justify the previously planned punishment. Then the investigators commit elementary forgery and simply announce that what was yesterday absolutely lawful is now entirely unlawful. They can do this because in general, in Russia few understand how the lawful is distinguished from the unlawful.

Thus, Navalny’s simple purchase of lumber for 14 million rubles, for which he paid with his own hard-earned money, is declared an embezzlement scheme. This “little trick” was first tested on Khodorkovsky who, in the opinion of the investigators, stole “all the oil” (for which he paid for some reason); then on Magnitsky and Browder, who, according to the same qualified opinion, stole “all the Gazprom shares”; and finally, applied to Navalny, who, as it turns out stole “all the lumber”.

With the help of this “destructive” trick made up of three actions — the presumption of guilt, incrimination and forgery — as many criminals can be produced as the penitentiary system can hold. Law in Russia has completely lost its objective nature, and the code of criminal procedures turns into a deck of marked cards, which the government plays like a dealer in a casino. Obviously, it is impossible to beat the dealer at his own table. But what can you do when the whole country is handcuffed to this table?

Social Drama: The Lower Depths

Today, the issue in the final analysis isn’t Navalny, just as before it was not Khodorkovsky or Magnitsky. Among the three main political trials of modern Russia, there is something in common, which lies deeper than political expediency and judicial abuse. What they have in common is the social orientation of all three trials: it is not individual persons who are on the defendants’ bench, but capitalism as a social order. That makes the situation hopeless, capitalism should only be tried by history. This problem cannot be resolved within the framework of “Basmanny Justice” [so named for Basmanny District Court where Khodorkovsky’s case was tried, a court that has come to be associated with a number of cases characterized as unjust].

The most popular words in the lexicon of Russian investigators and judges are the words “scheme” and “enrichment”. No matter what the accused does, he is guilty for creating a “scheme” for “enrichment”. The problem is that capitalism, in the precise meaning of the word, in fact, is the creation of a scheme for the purpose of enrichment. The government, with one hand, promotes the development of capitalism in Russia, but with the other is dragging capitalism down to the depths, or to be more precise, to the defendants’ bench. We can see the outcome of this now in the examples of the cases of Khodorkovsky, Magnitsky, and Navalny.