21 November 2024
The security services’ victory over “traitors” has resulted in the law enforcement system’s complete degeneration into a punitive system
by Leonid Nikitinsky
Source: Novaya gazeta
A system of political repressions has been taking shape in present-day Russia since at least 2012, but, like all the others, it was unprepared for the president’s sudden decision to start the special military operation (SVO). The SVO immediately found itself quite a few opponents, and convenient instruments for shutting them up were not at the ready.
Ten days later, on 4 March 2022, when after the first few days it became clear that the SVO would not be a lightning operation, the Duma immediately, in three readings, passed the amendments the “law enforcement organs” and courts expected of it—in the form of Articles 207.3 of the Criminal Code of the Russian Federation (CC RF) and 20.3.3 of the Code of Administrative Offences of the Russian Federation (CAO RF). Later, with the same haste, they fleshed out and clarified the general meaning without making any changes.
However, the Duma had hurriedly passed Article 207.3 CC RF—a carbon copy taken of Article 207.1, which in turn had been passed in connection with the Covid pandemic in April 2020. As a result, the disposition of Article 207.3 on “fake news” was constructed as follows:
“The public dissemination of knowingly false information in the guise of accurate reports (my emphasis. — L. N.) containing information about the use of the Russian Armed Forces for the purposes of defending the interests of the Russian Federation and its citizens…” and so on.
From the example of one of the very first prosecutions brought under this article, the case against the artist Sasha Skochilenko, we came to understand that this disposition to her actions was no stretch: price tags in a store, which under other circumstances we would simply have called a joke, obviously did not match the formulation “in the guise of accurate reports.”
In most of the other analogous cases (as in this one), there was no sign of “knowingly (to the disseminator. — L. N.) false information.” Most often, as also, for example, in one of the first cases against Moscow municipal deputy Aleksei Gorinov, no information was disseminated at all. General antiwar opinions were merely expressed.
The margin, which consists of only official Defense Ministry information being accepted as the truth (and in a criminal trial this is not an empty phrase), does not stem from the disposition of Article 207.3 CC RF, which still attempts to mimic justice. It is a practice sanctified by verdicts that have gone into “legal force.” Its creator is the judicial system.
Article 207.3, Part 2, CC RF, the one standardly applied, in which motives of various kinds of “hatred” (political, ideological, racial, ethnic, or religious) can figure as extenuating circumstances, provides for punishment in the form of incarceration for from five to ten years. This sanction just for words, especially in the absence of a declaration of a wartime situation, in and of itself looks unlawful, but we are interested in the wiggle room and the practice connected to it.
The “standard” seven-to-eight-year term was hardly dictated to the judges “from the Kremlin.” The temperature range was set by the offices of appeals and cassation and ultimately by the Supreme Court, although it has not said a word in its reviews about this, given the Constitutional Court’s recusal. The latter, actually, deemed that the practice of charging people under Article 20.3.3 CAO RF does not contradict citizens’ constitutional right to free speech, indicating that they do not have the right to cast doubt on decisions and measures taken by the authorities “on the basis of subjective assessment” (but how else can they?).
The wave of preprogrammed and cruel verdicts has shifted the judicial system away from the position of legalism (“the law is the law”), on which it has hitherto stood adamantly, turning a deaf ear to arguments about the selective application of the law.
Now judges—like policemen and investigators—could ground their actions only in what Lenin called “the revolutionary sense of justice,” that is, ideology instead of law.
Judges have been forced to apply the standards of the Criminal Code to circumstances they do not cover at all, simply by calling white black. To do this, they have to leave the field of law for the field of ideology: Evgenia Berkovich and Svetlana Petriichuk deserve punishment not for the fleeting propaganda of terrorism but as “traitors”; in their turn, the judges who applied the law would be traitors to their “own”—the investigators, prosecutors, judicial leadership, and colleagues obediently doing the same thing to the “country.”
Application of the Criminal Code’s “terrorist” and “extremist” articles has expanded noticeably, but on the level of practice more than legislation. Thus, the practice of opening and examining cases of arson at military recruitment offices and railroad relay boxes at first hovered at the level of articles on vandalism and the intentional destruction of property, but law enforcement was put in its place and these actions, which were not that dangerous to society, began to be qualified as terrorist acts, for which the defendants were threatened with much more serious punishments.
“Extremist” formulations began to be widely applied retroactively (for an “ongoing crime”) for quoting materials and in general for any connection to the FBK (Anti-Corruption Foundation) and other “extremist organizations.” The know-how was opening a criminal case under these articles against Aleksei Navalny’s lawyers. Cases like this are being heard more and more often in closed session, which keeps anyone outside from understanding the essence of the accusation generally.
The role of judicial and investigative expert analysis—as well as entire institutes of well-paid experts who “prove” the signs of “hatred,” “extremism,” and even terrorism, as in the case of Berkovich and Petriichuk—has expanded significantly. In this way, judges seem to be shedding responsibility and legal experts are being appointed on issues demanding specialized knowledge, while for assessments of “fake news,” “hatred,” and especially the propaganda of terrorism in the case of Berkovich and Petriichuk, all it takes is knowledge of the Russian language and common sense.
We will understand far from everything about the judicial system if we examine it (as it itself insists we do) in isolation from the FSIN (Federal Penitentiary System): the same sentence in a general barracks in the Ryazan penal colony is not at all the same thing as a disciplinary cell above the Arctic Circle.
We call this trick “linking”—elements that seemingly have no connection to formal law are linked to it: conditions and torture in penal colonies, paramilitary violence against dissenters, seizure of the accounts of people who have not yet been convicted but are merely suspected of “terrorism and extremism.” To this category we can add the refusal to substitute punishments with punishments not involving incarceration in the case of “politicals” suffering from serious illnesses.
Since the SVO began, less harsh coercion has been made harsher, too. Thus, a law providing for the status of “foreign agent” to be awarded without any argument about financing but merely on the basis of “influence” was passed on 14 July and went into effect as of 1 December 2022. Simultaneously, the pressure on these “agents” increased, their fees began to be seized and their property confiscated, “foreign agents” and individuals considered simply politically unreliable began to be forbidden to participate in performances, concerts, and exhibitions, and their books began being removed from libraries and stores. Here, too, unlawful laws are being combined with anti-legal practices.
Translated by Marian Schwartz
