5 April 2021
An extract from ‘Zhizn bez pravosudiya,’ Polny Albats, Ekho Moskvy, 5 April 2021
E. Albats: I have a question for the lawyers. What laws apply to Navalny? Or is he outside the limits of any Russian laws? Because they even sent him to the prison camp without waiting for his second-case appeal. And they linked the two cases, and one was linked with his transfer from a suspended sentence to a real term in the Yves Rocher case, and the second to the case of the veteran. They linked them. But at the same, the appeal in one case has not yet been held, yet he was quickly sent from Matrosskaya Tishina 99/11 to Penal Colony No. 2. And when you start digging, as I dig into all the stories related to Aleksei Anatolevich Navalny, I am simply amazed. What laws apply to him? Who can say?
I. Pavlov: Come on, Pash, you speak.
P. Chikov: That’s a good question, because in many respects everything is formalised in the form of decisions with references to legislation. More questions are raised by the reasons for his detention at the airport. This procedure in general has not been provided for by law. In the form which it took. But even if we rewind, then such a selective application of legislation has quite often provoked doubt. On the other hand, the selectivity of the application of legislation as such a period arose long before Navalny. We remember M.B. Khodorkovsky, the Yukos-1 case, the Yukos-2 case. And the wording about selective application and about Basmanny justice and everything else did not just appear yesterday. That is, our authorities know how to selectively apply legislation. And in the case of Navalny, the problem is that then this selective application leads to all stories of the same type. Or many stories of the same type. That is, the situation when people are sent to labour camps without waiting for an appeal – it’s actually widespread. People leave for the colony, they are kept there in special places, which are called premises, functioning as pre-trial detention centres. And from there, via videoconferencing, that is, on the Internet, they actually conduct these formal appeal hearings. Now, against the backdrop of coronavirus, courts are increasingly resorting to, and will continue to resort even more to, remote hearings. In this case there is certainly such a practice. And in general, let’s put it this way, it’s nothing unusual for an owl to be pulled onto the globe [Translator’s note: this means juggling the facts] in Navalny’s cases.
E. Albats: What did you just say? Owls into the globe?
P. Chikov: Well, yes.
E. Albats: This is the first time I’ve heard that expression.
P. Chikov: It’s a legal expression, isn’t it Ivan…
I. Pavlov: I agree with Pasha that in Russia the law is really very selective. And in two completely different cases the same law can be tried on in completely different ways. And in the case of Navalny, it seems to me that any law will be applied to the detriment of his rights and interests. This is the task given to all law enforcement officers, coming from the very top. And this task will be carried out. Let me remind you that lawyers are a profession that can explain anything. They are even worse than political scientists. That is, we can interpret legislation in any way. In universities, of course. this is not taught. They come to this in the course of long practice, long contact with how the authorities work, which have been subject to the influence of the same person for more than 20 years. And they are already guided not so much by the letter of the law as by the signals that come from this person. And if a signal is received from this person to prosecute some person, then this person will be subject to all kinds of persecution from the outside, be it the Investigative Committee, the Ministry of Internal Affairs, then when the matter is already in the hands of the Federal Penitentiary Service (FSIN), the FSIN will be connected accordingly. Here, a whole system of state bodies will destroy a person. Unfortunately, we have created such a system, and lawyers can explain any decision in this case. Absolutely any.
E. Albats: Ivan Yurievich…
I. Pavlov: Except probably for the death penalty, which they haven’t decided yet to return. But we see that there are some discussions of it.
E. Albats: Today I read on your Team 29 site—I congratulate you—that the European Court of Human Rights handed down a decision that justice was not done in the case of your defendant, who was accused, I believe, of espionage because he sent his resume to Sweden. Maybe it didn’t happen today, but I read it today. And your colleagues write that now the Russian courts must accept the decision of the ECtHR. But the ECtHR also handed down a decision on Navalny in the Yves Rocher case and the Russian state paid around 20,000 Euros to Navalny. And because of that very case he has, in fact, been sent to a penal colony. But I am concerned about something else. After all, the deinstitutionalization of justice is dangerous not only for you and for me and for Navalny. It is dangerous for them. Right now, they are prosecuting the FSB colonel Cherkalin. They are prosecuting the case in a closed court. A military court. But none of those who are in power today — it makes no difference whether in the executive branch, the presidential administration, the legislature — can be sure that they themselves will be tried in accordance with the law. True? Because they have taken the law out of the realm of the courts.
I. Pavlov: Totally right. But they think that it will never happen to them. And when they themselves get caught in the grinding wheels of the system that they helped make — in that case they, like Cherkalin, make a deal. They proposed a deal that he couldn’t refuse. And he understood what it means to play the game in a fair court in his situation, since he is well informed how it all works, and he said no, I won’t play the game in court, I’ll make a deal. And there will be a so-called special court procedure in his case. Where there won’t be any investigation. And the court will just hand down a sentence after listening to his admission of guilt. It will determine a punishment taking into account his previous services.
E. Albats: Our Chekists need to be reminded that 20,000 of their colleagues were shot in the 30’s, 40’s, and 50’s without any trial, without any lawyers. Without any prosecutors who made any sense. And very often based on the decision of extrajudicial two- and three-man commissions and other outrages. I’ll now return to our topic. I want to ask the two of you, as advocates and lawyers, if a person is in a lot of pain, and a prison doctor gives him medicine from the last century, what rights does that prisoner have? Pavel.
P. Chikov: A convicted person has the right to medical care just as much as you and I have at liberty. Except for some high-tech treatment available only in the private sector. But it’s more complicated than that. In this regard, the convicted person has the right to consult a doctor. With a certain specialization. But our Federal Penitentiary Service maintains an entire medical directorate, and in each region, there are prison hospitals, and in each colony, there is, respectively, a clinic and doctors with different specializations. There are specialized colonies for patients with specific illnesses. There are cases where a special order is jointly issued by the Ministry of Justice and the Ministry of Health which states that if the FSIN cannot provide medical care that falls under a specific specialization, then the colony is obligated to ensure the involvement of a civilian doctor. Or to send the patient to a civilian hospital. Or to call up a civilian doctor. In practice, this is quite common. Especially with rare illnesses. As far as I understand, Navalny’s initial consultation should be provided by a prison doctor, because he has some sort of neurological issue, at least judging by the description. Then a diagnosis is needed and, accordingly, the convicted person has the right to verify this diagnosis, the suitability of the prescribed treatment, and so on. As for the latest and more traditional medicines, this is more complicated. That is because if these drugs are permitted in the treatment protocols for a specific illness, then they are therefore legal and the kind that can be prescribed. But as far as I understand, we do not know what Aleksei has for a diagnosis. And we do not know what treatment he was prescribed, nor what he feels about this treatment. At least, this information is not public. And here one should keep in mind that the degree to which this information is made public is determined only by Aleksei himself. Because this is a matter of medical confidentiality. That is to say, it will only be discussed to the extent that he wants it to be discussed. That is to say, the information that is publicly known is not enough to draw a conclusion about what kind of treatment he is entitled to.
E. Albats: I have serious suspicions, Pavel, that Aleksei Anatolevich also has far from complete information. This is because the data for the MRI performed in the Vladimir hospital was never provided to him. But there is Federal Law 323, Article 26, Paragraph 3, which says – if my memory serves me correctly – that the convicted person has the right to be examined by a doctor whom he trusts. Do I understand that correctly?
P. Chikov: I’m afraid not. Neither in practice, not law. Unfortunately, we have this system of prison healthcare whereby it is impossible to provide a convict with a doctor of their choosing.
E. Albats: Nevertheless, this is directly set down in federal law, which I just quoted to you. Based on this, I sent a telegram to Mr Kalashnikov, the head of the FSIN. It’s in the law, I’m not able to go online right now, but it’s clearly written. This was written by Mikhail Khodorkovsky, an experienced convict. Still, he served 10 years. He did his time. He wrote that it is the prisoner’s right to receive the medical assistance he asks for. This is his right, no? Ivan Pavlov, what do you say.
I. Pavlov: I am on the side of humanism here. Even if the law does not directly mention permitting access to independent healthcare, the convicted person should nevertheless be able to. This comes from a whole bunch of laws. Including the law on the fundamentals of health care. This is in the Constitution, after all, in which human rights and freedoms are valued first and foremost.
E. Albats: Well, now you say that Putin is the guarantor of our rights and freedoms. This is some kind of fantasy, Ivan Yurievich. But you’re not talking about science fiction.
I. Pavlov: Why? We still practice in Russia, and we have not given up on this case, and we go to court to defend the accused, knowing the courts are neither fair nor independent in Russia. And they don’t work as they should. This means we must be a bit like people who believe in fantasy.
E. Albats: May I read to you this very Federal Law No. 323, Article 26, Paragraph 3: “If it is impossible to provide medical care in the institutions of the penal system, the persons imprisoned have the right to medical assistance in medical organisations of the state and municipal health care system, as well as an invitation for consultations of specialist doctors of these medical organisations in the manner prescribed by the Government of the Russian Federation, at the expense of federal budget allocations … ” That is the law, as far as I can see …
I. Pavlov: The law explains: if it is impossible to provide medical care in a penal colony…. And who will decide if it is possible or not?
E. Albats: There are no specialists in Vladimir Oblast who would be able to deal with the effects on the nervous system of poisoning with a chemical weapon.
I. Pavlov: The penal colony claims all this is within its capabilities. And that help is being properly administered. We read these reports. Do we believe them? No, probably not. All of these things should be decided by a court. Lawyers should be able to pursue legal action in court, which will really determine whether help is being provided or not, and whether or not he has the right to invite his own independent medical specialist in this case.
E. Albats: I have one more question for you. […] Last week we saw the propaganda channel RT send a correspondent into Penal Colony No. 2 in Pokrov, Vladimir Oblast, where the prisoner Aleksei Anatolevich Navalny is being held. A certain former inmate in a Florida jail showed up in the barracks, completely unexpectedly for Aleksei Navalny, judging by the footage. If you’ve seen the clip, then you will probably have noticed that the camera first shows us a shaven man similar to Navalny, lying on a bed. Butina and the camera go closer to the bed, and we hear Aleksey Navalny’s voice saying: “Wait, let me just get up, otherwise I’ll be uncomfortable.” That’s what Navalny says. I understand that he saw Butina, remembered how he had defended her when the Russian government abandoned her in jail and her parents were literally begging for money for lawyers. And then Aleksei Navalny defended her in a broadcast. […]
E. Albats: … In this incidence, we’ll take this as an astounding story, as an example of what’s going on around Navalny, because it is particularly indicative. And so I want to ask you all. You have probably seen how RT went into the barracks and started filming? Life.ru subsequently showed us footage from a surveillance camera. The camera had been inside the barracks, and they managed to buy it – I don’t know how that was even possible. In this footage, Navalny is walking through the barracks, apparently with a glass of water. Explain to me, please, how this is regulated. Why will I, a journalist, if I file a request, most likely not be allowed in? I wasn’t allowed into the colony to visit Khodorkovsky back in his day either. Although he was a columnist for the New Times. But meanwhile these propaganda channels should be allowed to do this? Navalny as a convict, and in fact convicts in general have some rights to their own personal space – or this doesn’t exist in the colony at all. Please explain this to me.
P. Chikov: Let me answer from the point of view of the law, the Penal Execution Code directly deals with both of these situations. Firstly, media representatives have the right to visit penal institutions by special permission from the administration. Roughly speaking, the head of the penal colony has to give his permission. Accordingly, it is entirely at his discretion. That is, he won’t allow you, Evgeniya Markovna, but he will allow the Russisa Today TV channel. This is the answer to the first question. The second question is also answered in the Code and it is much more interesting here. Because it is written literally as follows: filming and videotaping of convicts and interviewing them is carried out with the written consent of the convicts themselves. That is, in order for Mariya Butina to be able to talk with Navalny, not just film him, but even talk with him, there must have been written permission from Navalny himself. I doubt that there was such written permission. What’s more, there is even interesting judicial practice. Five years ago, six years ago, Moscow City Court ordered the NTV television company to pay compensation to Aleksandr Belov-Potkin, who had been shown on video in a prison cell without his consent. And he actually filed a lawsuit about this and won. And he was awarded financial compensation of 10,000 roubles. In other words, there is judicial practice and direct legal regulation of this issue.
Е. Albats: That is, once again, a convict has the right over what happens to his own face, to his own voice. They do not have the right to take that right away from him.
П. Chikov: That’s correct. […]
Е. Albats: Ivan Pavlov, here’s another question for you. Your Team 29 does a lot of work on all sorts of espionage cases. I want to ask about the case of our colleague Ivan Safronov, who has been in prison for how long already. Almost a year.
И. Pavlov: Since 7 July last year.
Е. Albats: So in July he will have been in prison for a year. We can’t say that Ivan Safronov belonged to the protest group among the population. He was quite comfortable with how things are, he used to write about the situation in the military-industrial complex for Kommersant magazine. Often these were quite sympathetic pieces for this military-industrial complex. Then he went to work as an assistant for the head of Roskosmos, Rogozin. That is, a person who goes to work for the head of Roskosmos obviously finds it possible to work for those in power in this country. But nonetheless he was arrested and is now in prison. And I think this is not the only such case. Why doesn’t the Russian elite feel, doesn’t understand, above all it is they who are under threat? That tomorrow they will come for any of them. It doesn’t matter what they call themselves, the head of a bank or an assistant to some agency head. We saw how Cherkalin was arrested. An FSB colonel who oversaw a great part of matters in the realm of economic counterintelligence. And so on. Do you have an explanation for this, Ivan? At least on the basis of the cases you have worked on.
Ivan Pavlov: If history teaches us anything, it’s that it teaches us nothing. And those people who should, as you say, somehow remember their history, simply do not know about it. That’s because our archives are closed.
Evgenia Albats: Much as has been written about the repressions – we journalists at Moskovskiye novosti started researching them in 1986 – we still have not yet finished, though we have moved on to various other topics as well. So much has been written. Solzhenitsyn’s Gulag Archipelago was published. All of Solzhenitsyn’s novels were published. How can people say they don’t know? They do know.
Ivan Pavlov: Perceiving history through the prism of works of art is completely different than seeing facts through open archives or published research. And that is what we do not have. The archives remain closed. And the people who are now working for this system do not think that it can affect them. They are completely unaware that…
Evgenia Albats: I don’t believe that. I do think the level of fear is high.
Ivan Pavlov: How many clients have I had who have got into a situation where the system began to hunt them down? Until then, they were part of the system. First, none of them suspected that this could affect them personally and second, they did not even know that there was a persecution problem in Russia. Well yes, they thought, there are criminal cases that are being investigated. And people are guilty of doing something or other wrong, and they should be punished for it. That’s what law-enforcement is for. That’s what the courts are for. But when they themselves run into this – then they are caught unawares. And therefore I consider that ignorance about our history is at the root of their failure to understand what may happen.
Evgenia Albats: Thank you, Ivan. Pavel, now let me put the same question to you.
Pavel Chikov: Yes, we often hear it argued that high-ranking officials are unsuspecting. But actually the problem lies elsewhere. The problem is that objectively they themselves could not influence anything, even if they were ministers. Even when Aleksandr Reimer was director of the Federal Penitentiary Service, he was sent to prison himself. His two former deputies, including [Valery] Maksimenko, are now in pre-trial detention awaiting trial. These are people who could not objectively influence the court or the conditions of their detention in penal colonies and pre-trial detention centres. That indicates that there is another problem. Even someone like [Aleksei] Ulyukaev [former Minister of Economic Development] could not influence this judicial system that we have. This cannot be quickly resolved. The only thing an individual can do is simply leave. That is the only way he or she can avoid a clash with the Russian judicial and prison systems. […]
Evgenia Albats: Thank you very much. We have to end our broadcast. I thank the participants. We will meet again tomorrow on my programme on Ekho Moskvy and again in a week – as long as everything remains in order, and we stay alive, healthy and out of prison. All the best until then.