Leonid Nikitinsky: A Fake Verdict. What Investigative Committee chair Aleksandr Bastrykin said in support of those prosecuted under Article 207.3 of the Russian Criminal Code [Novaya gazeta]

9 July 2022

by Leonid Nikitinsky, journalist, PhD in law, laureate of the Moscow Helsinki Group’s prize for human rights

Source: Moscow Helsinki Group [original source: Новая газета. Европа]

The first real term in prison on charges of disseminating ‘false information about the actions of the Russian military’ has been handed down by Judge Olesya Mendeleeva to Aleksei Gorinov who pleaded not guilty. The sentence has set the bar for what is known in legal scholarship as the principle of ‘economy of punishment.’ In the course of the ‘special operation’ the courts will not be economising: seven years’ imprisonment under Article 207.3, Part 2, of the Russian Criminal Code taking into account the use of a person’s official position (Gorinov was speaking as a council member at a meeting of the municipal council), by prior collusion (allegedly with another councillor) and ‘for reasons of political hatred.’

But Gorinov’s appeal is yet to come and the judges of Moscow City Court should be reminded of what the nine investigators of the Investigative Committee and Judge Mendeleeva might not know: what the chair of the Investigative Committee Aleksandr Bastrykin has said on the matter of objective truth in the justice sytem. It is most fully reflected in his work Objective Truth in Criminal Proceedings which Bastrykin published in 2015 on the website Proza.ru. Here is what Doctor of Law Bastrykin thought about this matter at the time:

“The requirement to search for objective truth is a guarantee of fairness in the justice system. In general, the justness of evidence in criminal procedures is ensured by such principles as completeness, comprehensiveness and objectivity of the investigation of all circumstances relevant to a case … The idea of the impossibility of achieving objective truth refers to the philosophical trend called agnosticism, which is alien to modern science. The doctrine of legal truth, the roots of which go back to the Anglo-American model of criminal procedure, does not fully correspond to the traditions of the Russian criminal justice system either …”.

Professor Bastrykin’s pointing out the abomination of agnosticism and the subversive nature of alien doctrines requires investigators and judges to be more careful in their work, including in understanding the objective picture of what is being called a ‘special operation.’

District councillor Gorinov, discussing a proposal for a children’s drawing competition to mark Victory Day observed that holding such an event in Moscow’s Krasnoselsky municipal district would be inappropriate when children are also dying under fire in Ukraine.

This assertion has not been questioned even by the leadership of the Russian armed forces: even though no one is aiming at them, but ‘in war as in war,’ and children die. This fact cannot be ignored in the framework of what the head of the Russian Investigative Committee characterises as ‘completeness, comprehensiveness and objectivity of the investigation of all circumstances relevant to a case.’

The statement by council member Gorinov about the inappropriateness of the celebration is only his private opinion, and even if it were shared by many others it cannot be considered either as true or as false.

It may be that Professor Bastrykin does not want to recall the discussion he insisted on conducting a few years ago, including lobbying members of the State Duma to include amendments on ‘objective truth’ in the Russian Criminal Procedural Code (though unsuccessful, it’s true).

We can disagree with Professor Bastrykin philosophically, on the grounds, for example, that the truth in general is transcendental, while judicial investigation, like the preliminary investigation (in the Investigative Committee), can only evaluate evidence in a case. But if we come down to earth and talk about facts, either they are or they are not. Both constitute the objective side of any crime and all the facts, including the context of the ‘act’ and its consequences, must be taken into account in the verdict. It would be good if they were also taken into account in the law, but that is another discussion.

The rejection of undeniable facts is also ‘information known to be false,’ and the logic of the verdict cannot contradict the logic of common sense. Otherwise the court’s decision will itself prove to be ‘fake.’

Afterall, the state isn’t saving money on the ‘special operation,’ is it? And the Investigative Committee doesn’t save money either: Gorinov’s prosecution was conducted by a team of nine investigators and forensic expertise was provided by five linguists and psychologists. There are 55 more such cases on the way, including those of Vladimir Kara-Murza (who has also been designated in Russia as a ‘foreign agent’) and Dmitry Talantov, chair of the Udmurtia Bar Association. Arithmetic suggests that 495 more investigators alone will be needed for these cases.

Translated by Simon Cosgrove

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