A TALE OF TWO DETENTIONS: WikiLeaks founder Julian Assange and Russian oligarch Mikhail Khodorkovsky.
Nina Cross
21st Century Wire
“…this will be decided properly, independently by the British legal system respected throughout the world for its independence and integrity,” said then UK Foreign Secretary Jeremy Hunt immediately following the arrest of Julian Assange, founder of Wikileaks, on 11th April 2019.
The high profile trials of the oligarch Mikhail Khodorkovsky, tried alongside his Yukos business partner Platon Lebedev, were widely criticised in the West, including by Britain, and therefore serve as a tool to compare against the UK’s treatment of Assange. Part 1 of this analysis will attempt to compare the way the British authorities treat Julian Assange to the way they have protected oligarchs fleeing Russia and protested the treatment of oligarchs convicted in Russia. In one case, the British authorities have applied human rights in their courts, while in another, they have removed human rights from their courts.
Mikhail Khodorkovsky – a case study
When Vladimir Putin first came to power in 1999, UK politicians like Tony Blair and David Cameron rode the wave of opportunity that Russia was open to business. Political leaders could be seen enjoying he perks which seemed part and parcel of that time; yachting with oligarchs and taking large party donations from Khodorkovsky, Russia’s richest man at the time, and one of the ‘Gangster capitalists‘ who made a fortune through his newly acquired oil company, Yukos. Oligarchs got rich from Russia’s state assets, bought at basement-bucket prices through Yeltsin’s loans-for-share scheme. They made money by rigging the auctions of state assets, paying a fraction of the value, then passing the proceeds to offshore shell companies. Money made through championed ‘capitalists’ of Russia eventually made its way back into the US, Europe and also Britain. Yukos has been described as “…a darling of the Western financial press until it collapsed.”
Interestingly, Khodorkovsky’s conviction for tax evasion in 2005 was received with outrage from Western leaders who claimed his prosecution was politically motivated. In a second trial in 2010, Khodorkovsky and Lebedev were convicted of embezzlement and money laundering. US Senator John McCain described Khodorkovsky’s prosecution at the time:
“…a creeping coup against the forces of democracy and market capitalism in Russia is threatening the foundation of the U.S.-Russia relationship and raising the specter of a new era of cold peace between Washington and Moscow.”
In 2005, the British courts refused to all the extradition of Alexander Temerko, and other individuals, all of whom had fled to the UK and were wanted by the Russian authorities in connection with the Yukos scandal. Britain’s extradition courts claimed the allegations against individuals sought by Russia were politically motivated and those concerned would not receive a fair trial.
The courtroom of Assange versus the courtrooms of Khodorkovsky
It is not necessary or possible to compare every aspect of these two cases; this comparison concerns only the treatment by the trial courts and the prison authorities. The full findings of the European Court of Human Rights of Khodorkovsky’s case are in their reports. The comparison is made possible because of the reporting by independent writers, including former British ambassador, Craig Murray, whose ‘Your Man in the Public Gallery‘ articles describe Assange’s US extradition hearing in London’s Woolwich Crown Court at HM Belmarsh Prison this past February.
There are several similarities in the way the court of Judge Baraitser treated Assange and the way in which the Russian courts treated Khodorkovsky and Lebedev during their trials. All men were made to sit in a barred dock. In the first trial of Khodorkovsky and Lebedev they sat inside a metal cage. In the second trial they were made to sit in a glass cage, similar to Assange who sat behind a bullet-proof glass at Belmarsh. In Assange’s case, the guards sat inside with him. In the case of Khodorkovsky and Lebedev the guards were armed and stood outside.
One of the defense’s main objections was that it was impossible for each man to converse confidentially with lawyers as the guards beside them could hear everything. Of Khodorkovsky and Lebedev’s second trial the ECHR findings show:
“76. The applicants sought the court’s permission to sit outside the glass dock near their lawyers, but permission was not granted. According to the applicants, while in the glass dock they were unable either to discuss the case with their lawyers confidentially or to review documents. All their conversations during the hearings were within earshot of the guards… (2nd Trial of Khordukovsky and Lebedev, 2010)”
In his first trial, Khodorkovsky, like Assange, appealed to the court to explain that the arrangements were ineffective. Like the Russian judge, Baraitser refused to change the arrangements, even though the prosecution had no objection to Assange sitting with his lawyers. Like the Russian judge, she ruled that if Assange wanted to speak to his lawyers the court would adjourn. In the case of Khodorkovsky, the ECHR report said the following:
“153. On 27 August 2004 the defence lawyers once again complained that it was impossible to communicate effectively with the applicants during the questioning of witnesses, emphasising that if an adjournment was announced every time one or other question had to be discussed with the applicants in the court session, the trial would progress very slowly. The court responded by asserting that the discussion of any questions whatsoever with the applicants was possible only during the adjournments.”
In addition to this, Assange’s defense team did submit psychiatric reports were also provided about his severe clinical depression. Judge Baraitser dismissed such considerations and did not adhere to the UK Department of Justice’s best practice guide for courts that vulnerable people should be released to sit alongside their lawyers.
Baraitser also followed the first trial Russian judge by deferring to the court security (in the case of the UK, this was private contractor, Serco) as having the decision-making power regarding such courtroom arrangements. In the case of Khodorkovsky this related to whether his lawyer could pass him documents (which was agreed provided the judge could see them). In the case of Assange, it was whether he could physically leave the glass cage and sit with his lawyers. In the case of Khodorkovsky, the judge’s deference to the prison authorities was a factor in the final decision that a violation had occurred:
“…. in her words, the question of transmitting documents between the defence lawyers and the applicants did not belong to the competence of the court; the defendants were detained on remand and all questions related to the exchange of documents were within competence of the respective institution, in particular the escort service, and were regulated by the internal rules. If the exchange of the documents was compatible with those rules, the court would not be against it…”
“From the judge’s reaction it was clear that she did not consider herself competent to deal with that issue (see paragraph 151 above), and that the judge deferred to the prison authorities in a matter clearly related to legal assistance…The defence seemingly had no other choice but to accept that new rule.”
In the case of Baraitser she eventually accepted she had authority to decide, and still chose to keep Assange in the glass cage for the remainder of his trial scheduled to resume in May, without giving a reason why she ruled in this way.
It is important to note that the ECHR ruling states that security arrangements in a domestic court should be justified:
- The Court considers that it is incumbent on the domestic courts to choose the most appropriate security arrangement for a given case, taking into account the interests of the administration of justice, the appearance of the proceedings as fair, and the presumption of innocence; they must at the same time secure the rights of the accused to participate effectively in the proceedings and to receive practical and effective legal assistance (see Yaroslav Belousov, cited above, § 152, and Maria Alekhina and Others v. Russia, no. 38004/12, § 171, 17 July 2018).
Here is a brief clip about Khodorkovsky and Lebedev in their 2010 trial. Watch:
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Clear Double Standard
Assange has no violent record and his only conviction is a minor police bail jumping offence which resulted from the UK courts ignoring the UN ruling on his arbitrary detention and right to asylum which he requested from the Ecuadorian government in 2012 after entering its London embassy. He is fighting an extradition case of historic importance that would see him spend the rest of his life in a supermax prison in the US, but due to Baraitser’s ruling must remain flanked by guards in a glass cage for no specific reason. In the case of Khodorkovsky, this arrangement was ruled a violation of Article 6 regarding lawyer-client confidentiality because all of the adjournments took place in the courtroom where guards could still hear. In the case of Assange, adjournments for discussions with his lawyers will take place in a room in the basement below the court. However, it is still possible that his meetings with his lawyers will be listened to, as Belmarsh authorities have a history in listening in on lawyers.
Here it is important to remember that the ECHR considers the accumulative effect of arrangements on a trial when deciding upon fairness. Unlike Khodorkovsky, who, according to the ECHR ruling had no significant health conditions at the time of his first trial, Assange’s psychological and medical conditions have been widely reported and documented by the highest international authority charged with adjudicating such matters. Following his assessment last May, UN Special Rapporteur on Torture, Nils Melzer, warned that Assange could collapse with the sustained pressure of extradition proceedings to the US where it is unlikely he would not be given a fair trial. Fears for his health have also come from a global network of doctors, calling for independent specialist diagnostic assessment and treatment. Psychiatric reports demonstrate that he is very vulnerable, warning of a risk of suicide. All of these pleas have been ignored by the British extradition courts.
All of this begs a number fundamental questions. What effect could Baraitser’s unnecessary planned security arrangements have on the mental state of Assange and on his trial? What will result from the sustained psychological pressure and cognitive demands resulting from inevitable disjointed communication with his lawyers? What’s more, as Assange’s case is followed by the world, his regular trips under guard to and from the glass cage in order to speak to his lawyers will be reported globally and will bring into the question Britain’s ability to apply justice fairly.
We should recognise the ritualistic and symbolic significance of this treatment: to create the public illusion that Julian Assange must be locked away. We see that a journalist whose sole criminal record consists of jumping a police bail eight years ago, and whose time has already been served – is still being detained without charge and effectively treated like the most dangerous of men by the British criminal justice system. We should recognise the significance of Baraitser’s security arrangement for Assange in relation to ‘public mobbing’ by the media and by people in powerful and official positions, as Melzer has warned.
“… there has been a relentless and unrestrained campaign of public mobbing, intimidation and defamation against Mr. Assange, not only in the United States, but also in the United Kingdom, Sweden and, more recently, Ecuador.”
Continued deference to legal assistance by Judge Vanessa Baraitser and the threat of Covid-19
According to reports by observers at Assange’s bail application hearing on March 25th, Baraitser again deferred to unqualified parties for legal assistance. On this occasion, she invited journalists to offer their opinion on how to manage the issue of anonymity of Assange’s partner should his partner’s statement be read to the court in support of his application. Baraitser’s continued reliance upon unqualified assistance in the legal fate of Assange suggests that she does not believe herself to be competent or even responsible for the consequences of court decisions.
His lawyers requested bail on the basis Assange has a chronic lung condition and is in a fragile state, putting him at higher risk of complications and even death if he were to catch the virus Covid-19, which has now reached the prison population. Judge Baraitser’s refusal to allow bail was condemned, particularly as several countries released low security risk prisoners to reduce their risk of infection. This included Iran which temporarily released British-Iranian Nazanin Zaghari-Ratcliffe. Since then the British government has announced that Assange will not be released because he is on remand. However, the criteria for temporary medical release specifically refers to limited opportunity of custodial prisoners:
“…because such care cannot await the patient’s release or cannot be provided within the prison.”
The assumption is therefore that remand prisoners will not be remanded for long and if convicted may be eligible for temporary medical release. It can also be assumed that ‘patient’s release‘ relates to individual and specific cases. It is neither logical nor humane to interpret this as meaning that remanded prisoners should not have the same criteria for release during the spread of a deadly virus that anyone can catch. What’s more, Assange’s legal defence has warned that his case could continue for many years, resulting in his indefinite arbitrary detention, rendering the time-related criteria meaningless. Further, prison rule 21 provides the procedural framework for Assange to be released due to the threat of Covid-19:
Special illnesses and conditions
21.—(1) The medical officer or a medical practitioner such as is mentioned in rule 20(3) shall report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment. The governor shall send the report to the Secretary of State without delay, together with his own recommendations.
This should remind us that the health of each prisoner in British prisons is not simply the responsibility of the Ministry of Justice, which counts itself as just one member of the national partnership for prisoner healthcare in England. Should Assange die in Belmarsh as a result of Covid-19 (or any other condition related to his long-term medical situation), responsibility will be the result of state-sponsored medical neglect.
Comparison of prison authorities: Access to lawyers and documents
The ECHR ruled there were violations to Khodorkovsky’s case, relating to lawyer-client confidentiality, and these included the examination of his legal documents and the permanent presence of guards during discussions with lawyers during trial adjournments. However, it appears he had significantly greater access to lawyers and legal documents than Assange. The ECHR findings show that after the 2003 pre-trial investigation was finished:
“The applicants (Khodorkovsky and Lebedev) studied the materials of their respective case files in the remand prison, with or without their lawyers. As follows from the forms produced by the Government, the applicants’ lawyers and the applicants studied the materials on an almost daily basis.”
The report points out that Lebedev complained because “he had been given only about three hours per day to study the case.”
According to the 2020 ECHR findings, during the first trial:
- “… each day when the applicants were brought to the courthouse they had about an hour and a half to discuss the case with their counsel. After the hearings they also had until 10 p.m. to communicate with their lawyers. Between the hearings the applicants could communicate with their counsel either in the hearing room or in the remand prison.”
In contrast, it was reported at Assange’s case hearing on 13th January 2020, that since 19th December 2019 he had had just 2 hours with his legal team to review case evidence – leading them to declare that they are “on the brink of a judicial review“. It took a full six months before Belmarsh officials allowed Assange, an unconvicted prisoner, to have access to his own legal documents, making it effectively impossible for him to prepare for a what is clearly a landmark case, yet his only conviction is the minor offence of jumping a police bail order.
This denial of access to his lawyers and defense material has been described by Melzer as a form of torture:
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Judge Baraitser has consistently refused to address the violation of Assange’s human and prisoner rights inside Belmarsh prison.
Solitary Confinement
During Khodorkovsky’s almost two year detention in Matrosskaya Tishina he remained in the general population, regularly accessing a fitness room, enabled through private payment. In 2005, he was transferred to another prison where he spent periods totalling twenty-two days in solitary confinement. This appears to be official and was documented as solitary isolation for whatever reasons. In contrast Assange spent seven months in the Belmarsh healthcare wing in solitary confinement and effective lockdown, being segregated without reason or recourse in violation of minimum standards and prison regulations. He had no access to a gym.
Assange was finally removed from healthcare because of a campaign led by prison inmates, and through efforts by his lawyers and supporters. However, reports indicate that he has still been locked-up for most of the time, especially now the Covid-19 virus is affecting prison regimes.
Lawyer-client confidentiality
In the case of Khodorkovsky, legal documents were consistently examined by the authorities when passed to him from his lawyers, which the ECHR ruled as a violation of Article 6 client-lawyer confidentiality. In the case of Assange, his documents were stolen by the Ecuadorian government and passed to the US authorities – the very country which is trying to extradite him. Violation of Assange’s confidentiality with his lawyers has been demonstrated through the widely reported investigation into the Spanish security company US Global, accused of spying on him inside the Ecuadorian embassy, which included recording his meetings with lawyers. The content of the surveillance was then passed to the authorities trying to extradite him. All of this has been ignored by the British extradition courts.
By comparing the cases of Assange and Khodorkovsky we can see a clear double standard being applied by the British authorities. While they have refused extraditions to Russia on human rights grounds, the same authorities have seen fit to strip away the human rights and the dignity of Julian Assange, in full public view, all while boasting of higher moral standards.
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Author Nina Cross is an independent writer and researcher, and contributor to 21WIRE. To see more of her work, visit Nina’s archive.
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