Friday, June 14, 2024

    Robert Amsterdam White Paper. Russia. The Yukos Case

    Actually, Robert Amsterdam’s stellar career kicked off with the Yukos case, where he defended Mikhail Khodorkovsky. And it is on this case that Amsterdam is building his anti-Putin image today. More precisely, not even on his participation in the case, but on the conflict with Russian authorities and deportation from Russia.

    Disclaimer. The report shares the author’s own impressions and judgments based on the analysis of the two dozen cases on which Robert Amsterdam worked, as well as over a hundred open sources from around the world, including Ukraine, the US, Canada, the UK, France, Russia, Bulgaria, Serbia, Czechia, Thailand, Singapore, China, Uganda, Zimbabwe, Tanzania, Nigeria, Cameroon, and South Sudan. The author also sifted through hundreds of comments under dozens of social media posts, as well as numerous interviews and comments by Mr Amsterdam himself.

    See also: Robert Amsterdam White Paper. A Traveling Circus Show

    I will note right away that this was a very complex and multi-faceted politically driven case, and therefore it’s not the author’s task today to dig into every detail of it or draw own conclusions regarding the quality of the verdict.

    As Amsterdam himself mentioned in one of the interviews, he met Mikhail Khodorkovsky in 2003 in Washington, DC, shortly before Putin decided to declare war on Yukos. Later, the lawyer received an offer for potential cooperation. When it came to Khodorkovsky’s arrest, Amsterdam became his defense lawyer. Or rather, as it turned out, his international adviser, who had the authority to be responsible only for the foreign domain of the defense effort, as an observer at the trial. Looking back at the case, it can be concluded that Amsterdam, having great empathy for its clients, misjudged the situation (or rather, overestimated his power) by choosing a counterproductive defense tactic.

    What functions did Amsterdam perform in the Yukos case? And why was he deported?

    What happened in that hotel room?

    Let’s start with deportation. On September 22, 2005, the Moscow City Court sentenced Mikhail Khodorkovsky to a prison term. On the night of September 23, 2005, after the final court hearing, five law enforcers broke into Amsterdam’s hotel room and seized his passport, later returning it with a canceled visa and announcing his deportation. The scene initially seemed really stormy.

    Amsterdam himself eventually began to “forget” the details of that night. One day Amsterdam claims he was arrested and the other day – that he was only threatened short of being nabbed, and sometimes he refers to that story as the “night arrest”. The latest reference was made during Amsterdam’s visit to Kyiv in February 2024 for a meeting with the leadership of the Ukrainian Orthodox Church (Moscow Patriarchate). Amsterdam said there was no arrest in 2005. “I asked them if I was under arrest, to which they replied that I was not under arrest.”

    Describing that meeting, Amsterdam said he told law enforcers he was perfectly aware that it was all about politics, and that they all laughed together. They allegedly drank some coffee as he waited until his passport was returned. A rather extravagant ending to the story, isn’t it?

    In fact, the Amsterdam visa was canceled for a reason. At that time, he was in Russia at the invitation of another sponsor (as he himself says), the Globalconsulting consultancy. By law, its representatives had to accompany his stay. However, upon arrival in Russia, Amsterdam never even contacted the company. Then the storyline goes different ways as per different parties. According to Andrey Goncharov, CEO Globalconsulting, it was as follows: “We came to the conclusion that he may have misled us. We appealed to the passport and visa office with a request to cancel the invitation issued to him by the Russian Ministry of Foreign Affairs.” According to Russian officials, Amsterdam practiced law without a work visa. According to Khodorkovsky’s press office, law enforcers came to Globalconsulting earlier to inspect and check the details of Amsterdam’s paperwork – and they actually found something to stick to. At the same time, the Ministry of Foreign Affairs of the Russian Federation stated that it had nothing to do with the deportation. Amsterdam himself said in an interview that he still failed to understand what his visa violation was about.

    There is no doubt that the deportation is directly related to the Mikhail Khodorkovsky case, but it is surprising how such an experienced lawyer could make such a mistake – almost out of the blue. Working on such a high-profile case requires a very thorough approach to paperwork, including routine such as permits and visas, which, as Amsterdam’s opponents say, isn’t exactly his edge. Why would he even start dealing with the Yukos case if he had been invited to the country by an unrelated firm? Although the question keeps hanging in the air, the answer is no longer relevant.

    Playing it tough with Russian government

    Robert Amsterdam so often waves the YUKOS flag that a logical question arises: were his clients actually left satisfied with his work? Surprisingly, there are certain grounds for doubting that. Amsterdam usually protects himself from public criticism by former clients by a non-disclosure agreement. However, multiple media reports posted during that period hold some rather eloquent comments from other parties to the case, drawing a picture as to Amsterdam’s effectiveness.

    The key claim of Russian lawyers in the Mikhail Khodorkovsky case to Robert Amsterdam, as far as can be judged from those developments, is that he chose an overly radical and exalted line of defense (or rather, a media campaign), naively hoping to play it tough with the Russian government, focusing on the political component and ignoring the actual reaction to the accusations. With that harsh information campaign, he overshadowed Khodorkovsky’s Russian-based lawyers, regularly shifting the attention of international press to his own self. According to Russian law, Amsterdam could only act as an international observer at the trial without access to the case file, or as a representative of his client’s interests abroad. And so he did, navigating the situation in line with his own ideas about the style of defense, without coordinating his work with Khodorkovsky’s Russian lawyers.

    However, the problem was not only about Amsterdam’s choice of an inappropriate and counterproductive defense style, which, judging by how things turned out, only embittered Russia’s authorities. There are certain questions regarding the quality of his efforts in the ECHR, to which the targets of the Yukos case have repeatedly appealed.

    According to Anton Drel, one of YUKOS’s lawyers, Amsterdam was exclusively involved in working with international institutions, in particular, with the ECHR: “The filing of any lawsuits outside of Russia is coordinated and performed by Mykhail Khodorkovsky’s foreign lawyer, Robert Amsterdam. He and Khodorkovsky signed an agreement to represent Mykhail Borisovich’s interests abroad. Khodorkovsky’s lawyers have a clear division of duties, and Robert Amsterdam protects his interests exclusively outside of Russia.” Yevgeniy Baru explained: ‘Robert Amsterdam does not discuss his action plan with Russian lawyers. He is completely independent,’” (Dmitry Simakin, Nezavisimaya Gazeta, December 16, 2003, No. 270).

    In numerous interviews Amsterdam gave shortly after the verdict was handed down, he said he would be appealing to the ECHR. The documents had to be submitted by the end of December – the deadline for Khodorkovsky’s custody remand. On December 7, 2003, The Observer quoted Amsterdam a saying that the relevant appeal had had already been tabled in the ECHR. But the already mentioned YUKOS lawyer Anton Drel told Russia’s Novaya Gazeta newspaper he was not aware of the appeal: “I learned about the filing of the appeal from the news. I haven’t seen it. And I cannot comment on anything yet. First, I’d need to familiarize myself with the text of that document.” Accordingly, Amsterdam, which was responsible for speeding things up at the ECHR, had to “clarify” that so far it was only about preparing paperwork for submission to various types of courts (not only the ECHR, but also to the UN working group).

    A similar story unfolded a few months later. On March 22, 2004, Amsterdam told the Financial Times that the ECHR agreed to consider the complaint of Yukos lawyers against the Russian Prosecutor General’s Office. In fact, it turned out a little differently (and the Financial Times decided to quietly retract the relevant report). The application submitted on February 9, 2004 was only registered by the ECHR, and it was only in May 2009 that the complaint was recognized as admissible for consideration. At that time, Khodorkovsky was represented at the ECHR by other lawyers.

    As a result, in 2011, the ECHR refused to recognize the violation that Amsterdam had placed a bet on on from the very launch of that information campaign targeting foreign audiences – the political nature of the Mykhail Khodorkovsky case. This put in an awkward position all those international organizations that picked up the “political persecution” line claimed by Amsterdam. Although I personally do see the political pretext behind Russia’s moves in the Yukos case, international courts need clear evidence to find this claim valid, which the defense ultimately failed to produce. In the struggle between Western bureaucracy and demagoguery, bureaucracy often wins.

    As we can see, Amsterdam’s carelessness in analyzing documents also applies to loose handling of facts. That, however, did not prevent him from turning the Yukos case into a valuable PR asset, to be able to get more jobs in the future.

    “Asymmetric” Advocacy

    Already after the termination of his legal participation in the Khodorkovsky case, Amsterdam said that he had already worked out a protocol he began to apply to his other cases, starting with those in Latin America.

    When asked by the correspondent how customers find him, Amsterdam sincerely admitted in a rather childish way: “I would have to say that in Thailand and Kyrgyzstan it was by word of mouth. As for Khodorkovsky, we did this major case that is still going on in Guatemala and that got a lot of attention over the years because it involved us representing a group who was prepared to take on the whole oligarchy, which we were prepared to do. That case has been something of a template case for what we did for Khodorkovsky, in Nigeria or for the Red Shirts in Thailand, in Kyrgyzstan and for other cases – we’ve been involved for the last year in a major dispute in the Czech Republic. So, it is really an amalgam of various roles that are not just legal in nature, but that also very much involve understanding politics.”

    *In Guatemala, Robert Amsterdam was involved in the Gutierrez family’s internal corporate dispute over the family business, attempting to move the case from Guatemalan jurisdiction to the U.S., claiming there was no rule of law in his clients’ home country.

    Having been defeated in Russia, Amsterdam sticks to his “line of defense” in countries where, in his opinion, there is no rule of law and “criminals are in power”. Amid the lack of rule of law, Amsterdam believes things must be done differently in those jurisdictions, and speed is key. A lawyer must not only tackle charges pressed against their client by government but also every comment that goes along with those accusations. If the defense team waits until the trial is over, even if their client is acquitted, by then his business reputation will have been in ruins, Amsterdam explains.

    Is it necessary to underline the fact that the Guatemala template didn’t work in Russia, and neither will it work Ukraine? But Amsterdam apparently believes he has accomplished his mission. He often refers to what he does as “asymmetric” advocacy. It’s not only about defending a case, but – in the age of the Internet – protecting a reputation, he believes. Amsterdam explained that from Day 1, Khodorkovsky was clear that he was an honest and straightforward businessman and that he wanted to not allow the Kremlin to take away everything he had fought for. And Robert Amsterdam claims the team has achieved that as the only thing the Kremlin hasn’t done is destroy his client’s reputation.

    To be fair, I have a feel that Robert Amsterdam did try really hard to help his client and made extensive efforts to make sure the international community is widely aware of the trial. But along the way, he made a series of mistakes that not only cost him the case but could also harm his client even more (I suspect that the target of this inquiry will categorically disagree with these conclusions). He promised a lot, making loud statements, but the KPI of these vows and efforts wasn’t too impressive. Amsterdam grew to loathe Putin’s Russia, but this case as such eventually worked to hype up his professional reputation. However, plenty of ethical questions remain as to the latter.