Galina Arapova on the investigation into the Proekt journalists: ‘A new interpretation of the statute of limitations’.

29 June 2021

An interview with Galina Arapova, director of the Mass Media Defence Centre

Source: Moscow Helsinki Group [original source: МБХ медиа]

The searches of staff of Proekt Media carried out on the morning of 29 June were part of investigative actions by the authorities – this in spite of the fact that the statute of limitations regarding the case itself has officially expired. Moscow Helsinki Group prize-recipient Galina Arapova is director of the Mass Media Defence Centre, whose lawyers represent the interests of Proekt editor-in-chief Roman Badanin. She spoke to us about the extent to which the law enforcement officers’ actions are justified.

How legal were the investigative actions given the case’s expired statute of limitations?

We are just guessing right now. Criminal lawyers say that if the 2017 publication is considered, then the crime event occurred at the same time. And at that moment, the wording of Article 128.1 of the Criminal Code on slander was in effect, which was less severe. There was no imprisonment. And it, accordingly, pertained to low severity crimes, and as a result, the time frame for criminal prosecution was two years. For this reason, everyone says that the criminal prosecution time frame for this publication expired in 2019. 

In December 2020, changes were made to this article – this was on the wave of the ‘slandering the veteran’ case (a reference to a criminal case against Aleksei Navalny on charges of defaming the Great Patriotic War veteran, Ignat Artemenko. – MBKh Media). The changes, among other things, related to sanctions – they added a punishment in the form of five years in prison. And once it reached five years, the article immediately spilled over from low severity into the medium severity category. And in cases of medium severity, the time frame for criminal prosecution is six years.

But since the article was made more severe only in February 2021, and the publication was in 2017, experts in criminal law say that this more severe article should not apply to events and crimes that occurred before that. This is the very case when criminal law, which toughens punishment, has no retroactive effect.

In theory, it should be exactly as what we are arguing right now. Even if there was something wrong with this article, which is about Traber, the statute of limitations had already expired in 2019. But we see that many things are not happening in a logical way right now. I cannot even always call it lawlessness – sometimes it can be some kind of absurdity – sometimes they simply say: ‘Now we are interpreting this law like this’. The constitution was changed, and now the constitutionalists do not understand what constitutional law is. And I do not exclude the possibility that they will now propose some new interpretation of the statute of limitations. Who knows, maybe they will? Suddenly they will say that this is exactly the same as it is in administrative cases, that is to say, publications on the Internet are an ‘ongoing’ offence.

But in reality, it shouldn’t be like this. Regarding the legality of conducting a search outside the time frame for criminal prosecution – lawyers will of course say that it is illegal. It always has been that way. And how it will now be part of our new reality – I don’t even know, it’s scary to even think about.

It is clear that the trigger, most likely, was the announcement of the publication of the journalistic investigation into Kolokoltsev. Even if the investigators were told: “I don’t care about the statute of limitations, go and conduct searches, confiscate materials, and then we’ll dig something up. Okay, so they, for example, conducted a search incorrectly – what will happen to them for that? Well, the search will be found to have been unlawful and they will have to pay compensation to Raman Badanin and his journalists for the illegally conducted search. But they got access to phones and computers, and now they are going to dig something new. So we are waiting to see what happens next. At this stage journalists have the status of witnesses in the case, so they will probably be interrogated more, and then we should expect some new investigative actions, because there is a criminal case. It is difficult to say how often this will happen.

Were there any other violations on the part of the security forces? For example, how lawful was the search of the apartment belonging to Mikhail Rubin’s parents?

An investigator can conduct searches in all premises where they believe there may be information useful for the investigation. It can be an apartment of the witness, of other people, even of neighbors, if there are suspicions that something may be hidden there. Therefore, in principle, it is within the limits of what is permissible and the law itself provides for the possibility of such a search.

It’s another matter that the search was conducted without a court decision. That is possible only if there is an urgent need, a very exceptional case. For example, if there is a suspicion that the person will abscond or destroy evidence. But in this case, four years have passed, they have not conducted any investigation until now and suddenly, unexpectedly, the day after the announcement of the publication about the Minister of Internal Affairs, an exceptional need arose. They quite often conduct searches which are authorised after the fact. However, the European Court of Human Rights views this very negatively because any search without prior judicial permission is a serious violation. And a search of journalists is a double violation, because all journalists possess information that they are legally obliged to keep confidential. And as soon as law enforcement bodies get access to this information, not only the journalists are at risk, but all their sources too.

Is the defence going to appeal to the ECtHR?

In any event, all these searches will be challenged in the domestic courts by our lawyers. We “believe” in justice, the Russian courts and the law. If the Russian courts do not recognize the illegality of the searches and do not reinstate the rights of the three journalists, then we will definitely appeal to the European Court of Human Rights. Just as we did in the case of Svetlana Prokopyeva, Igor Rudnikov, and several other journalists whose premises were searched without a prior court order and whose equipment was seized.

Translated by Tyler Langendorfer and Simon Cosgrove

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