Author: Vladimir Krasnov, lawyer
“Honest” has been the word of the day lately. The call “For honest elections” has resulted in major shifts in the political coordinate system. This slogan is uniting all those whose sense of dignity dominates, all those who have not lost their civic consciousness.
Among the principal civil and human rights, the right to justice in general and judicial justice in particular is among other rights whose recognition, honouring and protection are proclaimed to be an obligation of the state (Article 2 of the Constitution). It is precisely these inalienable and direct-action rights that determine the sense, content and application of laws and are supported by judicial justice (Article 18); it is from there that general equality before law and court, proclaimed in the Constitution, stems (Article 19).
It would seem that everything is fine: the citizen has his rights and all the state, represented by its plenipotentiaries, does is thinking about honouring them. I am sure that participants in any of the latest rallies, both the Bolotnaya one and the Poklonnaya one, have good grounds to believe that this, regrettably, is far from being that way.
Journalists justifiably believe that their best “article” is Article 29 of the Constitution: “The freedom of mass communication shall be guaranteed. Censorship shall be banned.”
Being a lawyer, I would like to consider Articles 45-54, dealing with judicial justice guarantees, to be “my” best ones. And although there are 10 times more articles which meet my professional preferences, I am afraid that both journalists and I and, most importantly, citizens are firmly convinced that none of them ensures what it guarantees.
For almost nine years I have had the honour to defend Platon Lebedev, whose politically motivated criminal prosecution as part of the well-known “”Yukos case” allows me to state the above. Since mid-2011 I have been a defence lawyer for Andrei Borodin, founder and former head of the Bank of Moscow, which only makes me even more convinced that “something is rotten in the state of Denmark.”
When I doubted that it was appropriate for her to congratulate me in connexion with the Fatherland Defender’s Day, celebrated on 23 February, a much-respected lady explained: “You defend Citizens from the fatherland and thus defend the Fatherland; therefore this is your holiday, too.” I had no arguments against that.
Some may think that this “emotion” is dictated exclusively by my membership in the profession that has given rise to quite a few proverbs and sayings. I will not argue with that. But the reason for this yet another attempt to call attention to the lack of honest relations between the Citizen and government, including in the sphere of justice, a field attended for many years by respected human-rights activists, is fairly commonplace and habitual for Russia: every law has a loophole; a whip cannot stand up to an axe; if you go to court, you will find no truth there… True, there are other maxims in the Russian language, too: A just judge sits behind a stone wall. Unfortunately, this last aphorism has nothing to do with the cases that I am talking about.
All this has a direct bearing on the so-called “Borodin case.”
On the one hand, the case reflects the freedom of mass communication: the investigators, usually anonymously and on rare occasions officially, speak about more and more charges, and the media carry the information to the general public. The dishonesty of such information consists in that (a) the first persons to be informed about the charges are Mr Borodin and his defence team and (b) such information needs to be reliable and well-founded. In our case, however, it is usually the other way around. Of course, we try to make the general public hear our voice as well, and I cannot say that the media refuse to hear us, but, for understandable reasons, the ratio of publications is at least 10 to 1 against us. And what happens next is very much like that joke about a “fur coat”: it’s either he stole it, or someone stole it from him, but there was something of that sort.
On the other hand, bringing charges against someone is not the same as “leaking” it to the press; it is a totally formalised action, where it is inadmissible to violate the legal procedures through which it should be carried out. And it is here that the principal “dishonesty” occurs.
Do law-enforcement agencies have to check on information about possible crimes, and do they have the right to inform the general public about their work? No doubt, they do. Do they have to abide by law while doing so? Absolutely!
Does Mr Borodin, when libelled, have the right to take the case to court to seek protection of his honour and dignity? He can seek it, but you have to go back to the proverbs above to decide if he can achieve it.
The decision to prosecute Mr Borodin as the defendant, dated 29 September 2011, charged him of fraud. In the theory of the investigators, Mr Borodin has committed theft of money received from the Bank of Moscow Open Joint-Stock Company in the amount of 12,598,090,234.32 roubles, which entered personal accounts of Mr O.M. Soloshchansky and Mr K.Y. Edel, who are employees of the Inteko Closed Joint-Stock Company, as well as a personal account of Ms. Yelena N. Baturina, who is a majority shareholder of the Inteko Company, thus, in favour of third parties. The Bank of Moscow Open Joint-Stock Company is the victim in this case.
From publicly available media information the following is known.
— On 16 February 2012 the Moscow City Commercial Court allowed the Bank of Moscow claim seeking collection of 13.54 billion roubles from the Premier Estate Closed Joint-Stock Company and the TD Ramenskoye LLC in connection with failure to honour commitments on loan contracts.
— The Bank of Moscow Open Joint-Stock Company has announced that an auction will be held on 16 March 2012 to sell the rights of claim on the credits issued to the Premier Estate Company and TD Ramenskoye. The principal potion of those credits is made up of the funds received from the Bank of Moscow by the Premier Estate Company and later, in the theory of the investigators, allegedly stolen by Mr Borodin in favour of the third parties named above.
— Yelena Baturina, whose personal account received 90 per cent of the funds allegedly stolen by Mr Borodin, is treated by the investigators as a witness and, according to official information, enjoys immunity, including immunity from being charged under said criminal case. The procedural status of the other two individuals in whose favour Mr Borodin has allegedly committed fraud is unknown.
Those facts allow us to state the following.
The decision of the Commercial Court and the announcement by the Bank of Moscow of said auction mean that the alleged victim in the case recognises de jure and de facto the legitimate nature of the provision of funds to the Premier Estate Company as credit. The same actions cannot at the same time constitute the content of lawful civil-law relations and form part of the objective components of elements of crime.
Because the investigators bring no criminal charges against the individuals in whose favour Mr Borodin has allegedly committed theft, his charge of fraud becomes even more groundless legally. If the individuals are united by a single criminal intent with fraudsters, then this amounts to criminal involvement. If not, then this is a “disinterested theft” or “gift” of stolen property, which is legally nonsensical.
Under such circumstances a criminal case must be dismissed due to the lack of the event of crime. However, after this whole hullabaloo, to do that would have been too honest for the investigators. That means they need to play it safe.
On 22 February the investigators informed, as usual, first the public through the press and only then the defence team by fax, about the opening of a new case against Mr Borodin – again fraud and again as part of the operation of the Bank of Moscow. Now this is about certain “fictitious” loan contracts with “controlled” Cypriot companies, which allegedly “traditionally” never did business but were only meant to steal the bulk of the credits received from the bank and “use [them] for own needs,” including those of Mr Borodin. The amount of the funds “stolen” is only half as high as the previous one but is still impressive: 6.7 billion roubles.
The decision on the opening of a new criminal case that I saw at the Investigations Department of the Interior Ministry on 24 February left me with more questions than answers: Why would Cypriot companies need rouble loans? Are local law-enforcement agencies conducting criminal prosecution of the managers of those companies, or is everything okay in keeping with Cypriot laws? And why did Borodin not steal all the money? It also turned out that the decision said nothing about “fictitious” contracts or “own needs” and so forth – I will not torture potential readers with legalese. It is important to note that again public information differs from the official one (although, generally speaking, they are both official).
According to media information, Investigator Y. Mikhaylova, who opened this new case against Mr Borodin, before she came to work to the Investigations Department of the Interior Ministry, had worked in the Internal Affairs Main Administration for the Central Federal District under the supervision of the present chief of the Investigations Department, Mr V. Kozhkar, known, among other things, as a course mate of Dmitry Medvedev. Mr Borodin (among others) states that the take-over of the Bank of Moscow by the VneshTorgBank (VTB) shows looming in the background the figure of the very same Dmitry Medvedev, who at one time stopped trusting Yuri Luzhkov, former mayor of Moscow and now witness in the case. Is it that the political vector is changing and the case that “highlighted” the family of the latter needs to be closed but the prosecution of Mr Borodin, as a “justification for a non-arm’s length transaction” to change the owner of the Bank of Moscow needs to be continued no matter what?
Thus, one way or the other, a veritable conspiracy theory is coming to light, which does not augur well for my client. And we are talking about honesty!