Let them stay in jail. Leonid Nikitinsky: Chanysheva, Orlov, Kagarlitsky – on what the practice of reviewing sentences in political cases with a view to harsher punishment means

4 March 2024

By Leonid Nikitinsky

Source: Novaya gazeta

On 4 March, three days after Aleksei Navalny’s funeral, based on a complaint from the Bashkortostan Prosecutor’s Office at what they felt was an “excessively light” sentence for Lilia Chanysheva,* the former chief of Navalny’s staff,** Samara’s Sixth Court of Appeals of general jurisdiction sent her case to Bashkortostan’s Supreme Court. This is also a warning to everyone who was not too afraid to go to Navalny’s funeral. The hearing had been scheduled earlier, but after the impressive farewell in Moscow, the court’s decision in Samara could not have been otherwise.

This is the third instance in less than a month of a harsher punishment being issued at the prosecutorial organs’ demand at the stage of the case’s review in court. On 13 February, the Military Court of Appeal changed the fine against the leftist philosopher Professor Boris Kagarlitsky* to actual incarceration; on 27 February, Moscow’s Golovinsky district court did the same thing with regard to human rights activist Oleg Orlov*; and there is very little doubt that in Chanysheva’s case the Ufa court will heed the prosecutorial office’s demands.

The possibility of reviewing a sentence with a view to a worse situation for the defendant is a not new and highly disputed issue.

In many legal systems, a “change for the worse” at this stage is not allowed in general; in others, including Russia, such a change is complicated and up until now rarely applied. Article 389.15 of the Russian Criminal Procedural Code lists “unjust sentence” among the grounds for vacating or changing a legal decision on appeal, and Article 389.24 clarifies that it can be changed for the worse based on a complaint from the victim or a petition from the prosecutor. At the appeals level, procedure by no means permits the review of a sentence for the worse; therefore the Samara Court of Appeals returned the case to Ufa. None of the above-listed cases involved actual victims; in theory, the “victim” here is considered to be the state and society.

Lilia Chanysheva, who, like the majority of activists from “Navalny headquarters,” refused to leave Russia, was the first to be convicted for organizing an extremist community—even two months before he himself was. She was detained in November 2021, and on 14 June 2023, she was sentenced by Ufa’s Kirovsky district court to 7.5 years of incarceration. The sentence was let stand on appeal, although the Ufa Prosecutor’s Office demanded 12 years, but today in Samara (where there definitely should have been no discussion of specific sentences) it magnanimously lowered the bar to 10.

Three instances in a row—that constitutes a pattern. What kind of conclusions can we draw from this? First, in the current conditions of an undeclared state of emergency, courts “let stand” and in individual instances—with consideration for the “criminals” as individuals and the “danger” of their acts—attempt to issue verdicts at a lower bar. But the prosecutorial and investigative organs “correct” them—more than likely in doing so engaging some “administrative resource” they are closer to.

Our second conclusion is more of a question. In a situation when no one knows what awaits us all in a month, isn’t it all one whether it’s 7.5 (in reality 5, counting time served in the remand centre), 12, or 10 years? 

Is the Prosecutor’s Office really so certain that nothing is going to happen in those five years that might make these verdicts irrelevant, shall we say?

Yes, they are counting on that and trying to persuade themselves of this prospect first and foremost. The entire machinery of justice, now turned completely upside down (the police on top, the court, below), is also functioning like the media. “The medium is the message,” Marshall McLuhan explained. Today’s message from Samara means: “Don’t hope. It’s always going to be like this.” But history doesn’t know the word “always.”

*Added to the Justice Ministry’s list of “foreign agents.”

**Recognized as an extremist organization by the court, their activity is banned in Russia.

Translated by Marian Schwartz

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