25 November 2021
by Leonid Nikitinsky, Novaya gazeta columnist, member of Russia’s Presidential Council for Human Rights, and winner of the Moscow Helsinki Group prize
The Public Prosecutor’s Office lost the first round of Supreme Court hearings in the Memorial case by quite some margin. However, this won’t have any bearing whatsoever on what happens to Memorial.
The judgment on whether to liquidate Memorial or to dismiss the suit brought by the Prosecutor General’s Office will now only be delivered on the merits on 14 December, once the parties have presented their cases. If it were only a judgment based on law, it would have been possible to say of the outcome today, with some certainty, that in discussing the admissible evidence, the plaintiffs had failed to answer a number of the respondents’ questions. In particular, what harm was done and continues to be done (insofar as the suit was drawn up in the present day), and to whom, by the small percentage of Memorial’s content that went unmarked. That’s to say nothing of the fact that all 10 violations, which have formed the basis of 20 proceedings (against the organisation and its chair severally), were committed back in 2019.
The representatives for the Public Prosecutor’s Office focused on the fact that the defendant had ‘concealed’ its status. In Prosecutor General Igor Krasnov’s lawsuit, it had not been put so drastically, and this new emphasis was intended to make a negative impression on judge Anna Nazarova. ‘Concealment’ implies specific intent, when in fact all the evidence presented by the Public Prosecutor’s Office demonstrates negligence by Memorial at worst.
Representatives for the organisation explained it has 35 websites, amongst which the main one has 1,715 webpages, and that it runs 21 social media accounts, not to mention pamphlets and books, which since the claims were filed against the organisation in 2019 have all been marked, without exception. Executive Director of Memorial Elena Zhemkova showed her business card which was marked with the ‘foreign agent’ status, and the judge even agreed to append it to the case file. However, neither the Public Prosecutor’s Office, nor Roskomnadzor, nor the Ministry of Justice could explain what kind of content it was, how it should be labelled, and whether business cards even fall into the category of ‘content’, and so on.
Until 2019, neither the Ministry of Justice nor Roskomnadzor, whose representatives took part in the hearings, had ever brought such claims against Memorial.
All 10 violations were recorded within a three-month time period. As to how that had come about, a Roskomnadzor spokesperson explained that they investigate markings as and when reports of their omission are communicated by citizens or organisations. In 2020-2021, however, no such warnings reached them regarding Memorial.
Memorial’s representatives presented documents proving that fines of 4.5 million roubles were paid on time, and asked the court to hear the testimony of witnesses who were waiting in the corridor outside the courtroom and would be able to tell the court a great deal about Memorial’s activities, including:
- Vladimir Lukin, former Russian Federation Human Rights Ombudsman;
- The priest Aleksei Uminsky;
- Film director and human rights defender Aleksei Simonov.
Their information would have made it possible to answer the question of the proportionality of Memorial’s formal violations and the demands to dissolve the organisation, which has been helping people and preserving historical memory in Russia for 30 years. The judge, however, shared the view of the plaintiffs that only the question of the presence or lack of the “foreign agent” label on the organisation’s materials is subject to discussion in this trial.
The legal team representing Memorial, including the advocates Maria Eismont and Mikhail Biryukov and the lawyers Grigory Vaipan, Tatyana Glushkova and others argued that almost all of the organisation’s fines had been paid more than a year ago. This would mean that under the law, eight of the ten violations for which the fines were paid have been wiped from Memorial’s record, and therefore taking these fines into account when considering whether the organisation should be dissolved or not would amount to double jeopardy.
Genri Reznik, head of Memorial’s legal team, saved his energy at the first hearing, simply stating from time to time: “Hm, hm!” This, however, does not guarantee the prosecutor’s office an easy victory in the adversarial debates on 14 December.
The events of the first day of the hearing can be summarised thus: in 2019, when Roskomnadzor and the Ministry of Justice strangely received ten “reports” over the course of three months, a similar attack on Memorial was already being planned, but was apparently stopped at the political level. In November 2021, it was decided to resume this attack at a different level, and once the “signal” had been given, general prosecutor Igor Krasnov was simply presented with the same old rubbish, without anything new having been successfully uncovered.
Between this first hearing in the Supreme Court and the next, an additional event which could influence the course of events in the case is due to take place. A meeting of the president with the Presidential Council for Civil Society and Human Rights is planned for 9 December, where the question of Memorial’s case will be raised one way or another.
* The Ministry of Justice of the Russian Federation has designated Memorial as an organisation fulfilling the function of a “foreign agent”.