Karinna Moskalenko: The truth about judicial protection/repression in politically motivated prosecutions

7 December 2020

By Karinna Moskalenko, lawyer, member of the Moscow Helsinki Group, founder of the International Protection Centre 

Source: Moscow Helsinki Group [original source: Echo of Moscow]

As a practising lawyer, I increasingly have to deal with political prisoners in Russia. I have had such cases before, but they were rather exceptions – Mikhail Khodorkovsky, Grigory Pasko, Garry Kasparov. But in the current era, there are more and more of them every day.

The increase in number and change in nature of these cases has forced me to generalise my observations and identify a pattern of behaviour by the authorities in initiating cases and prosecuting victims in politically motivated cases.

1. So, having identified a victim for political reprisals, law enforcement officers immediately apply to the courts, demanding that a person be taken into custody. And the courts almost always grant such requests, even when evidence has not yet been presented, even against suspects who have no charges against them. There’s no need to call the judges or give any orders in these cases. Our judges are educated, disciplined and quick-witted. The prosecutor will lay out the main objective of the judge. In such prosecutions the rigmarole is completed by the so-called operational support elements of the case: a reinforced escort, handcuffs, dogs in the courtroom and a strict fellow in civilian clothes – only a stupid person would not understand what’s going on here .

2. There is a whole staff of “experts” who are ready to co-sign any so-called expert opinion, any negative assessment of the actions of the accused in political cases. Experts of all kinds – your choice, available to order! 

3. As a rule, procedurally inadmissible evidence is used against the accused in such cases. This is a whole set of methods – we’ve already looked at the issue of expertise – but it is also a rich arsenal of various provocative schemes: the introduction of undercover agents, provocative actions under the guise of operational search measures, illegal and unauthorised searches, the planting of “evidence”, “secret witnesses” – that’s a far from complete list. In the final analysis, it’s direct fabrication of an accusation and the falsification of evidence. 

4. What also distinguishes political prosecutions is the extreme repressiveness and cruelty of punishment in such cases. If we put such a political prisoner in prison, then it’s for a long time. And the less evidence of guilt, the more serious the sentence! A poorly proven accusation earns a huge term, while a completely unproven accusation is a life sentence without the right of amnesty, pardon or early release. In these cases, constitutionally guaranteed jury trials are – thanks to the latest changes in the law – not given to politicals. Military justice often comes to the rescue. A far-fetched point is added to the accusation and right away the “troika” is judging you. Sometimes in a closed court session. Didn’t know about the militarisation of the judicial system in Russia? You’d better find out.

5. Well, onto the last thing. In terms of quality, no, it’s not the “icing on the cake” – we’re tired of such positive comparisons; if you want a metaphor it’s “the final nail in the coffin of justice”: the prosecution of the idiot or idiots who decide to seriously engage in the defence of such political gamblers: the repression of stubborn lawyers. Harassment in the press, disciplinary measures up to deprivation of status via the leading lawyers’ bodies of so-called lawyers’ self-government, and, finally, the entire arsenal of criminal prosecutions: searches, arrests, convictions for alleged crimes. If you haven’t tried it yet – try experimenting…

So, the circle is complete. The entrance is narrow, but it exists. There’s no exit.

What about an appeal to the European Court of Human Rights? – it’s practically futile: the European Court does not get involved in the evaluation of evidence. This can only be done by the national sovereign judiciary. After all, our courts are independent and with each newly passed act they become more and more independent (from the law, from international standards and obligations). It’s lucky that entirely independent judges sometimes allow such gross procedural “blunders” that it is possible to achieve recognition of a violation of the “right to a fair trial” (Article 6 of the European Convention).

So the ice has broken, my fellow  citizens, just keep out of its way. Take care of yourselves – don’t leave home.

Translated by Anna Bowles

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