26 August 2020
By Lev Ponomarev, chair of ‘For Human Rights’, a nation-wide NGO, and a member of the Moscow-Helsinki Group
In 2016, criminal cases against civilians being tried for offences under anti-terrorist articles (Articles 205-205.5 of the Russian Criminal Code) were transferred to military courts despite the fact that, up to this point, military courts had only dealt with trials of military personnel and of citizens undergoing military training.
In 2017, the first major politically-motivated terrorism cases arose: first, the case of Artpodgotovka*, and then that of Network*.
In 2018, the military court system was reorganised, and the Military Court of Appeal ended up in the closed village of Vlasikha, which can only be accessed with a special pass.
In 2019, there were high-profile prosecutions for ‘public justification of terrorism’, which stemmed from comments on social networks and newspaper articles. These were also tried in a military court: the Liubshin case, the Prokopyeva case, the Belova case, and others.
The fact that civilians are being tried in a military court is outrageous in itself, although there is an attempt to use the law to cover up this situation. But the fact that people (whether civilian or military) are tried in closed territories with a pass system directly contradicts Article 1, Part 2, of the Federal Constitutional Law ‘On Military Courts’, which states: ‘Military courts should be located in places that are freely accessible.’
On 2 September 2020 an appeal against the verdict in the Network* case will be heard by the Military Court of Appeal in the closed-off village of Vlasikha.
First of all, we demand in the Network* case the implementation of the basic constitutional guarantees of transparency and openness. The trial must take place in a courtroom in the presence of the press and the public. This requirement is legal and enforceable. But it is obvious that the fundamental question is different. The military court of appeal cannot be located in a closed area and the hearing must be rescheduled as soon as possible. This applies not only to the Network* case, and not even only to civilians, but to any courts.
I am publishing an appeal addressed to the Chair of the Supreme Court of the Russian Federation, Vyacheslav Mikhailovich Lebedev.
To the chairman of Russia’s Supreme Court V M Lebedev
I am writing to you concerning the appeal in the Network* case, a so-called terrorist organisation whose activities are prohibited on the territory of the Russian Federation, scheduled for 2 September 2020.
This criminal case has resonated widely with the public. It has been commented on repeatedly by the President of the Russian Federation at open meetings with members of the Presidential Council for Human Rights, as well as by politicians and public figures. At the time of the announcement of the ruling in the court of first instance in Penza, the courtroom was overcrowded with spectators and representatives of the press, the first floor was completely filled by members of the public. Many came to hear the verdict from Moscow, St. Petersburg, and other cities.
In accordance with Article 1, Part 2, of the federal constitutional law (FKZ) of 23.06.1999 N 1-FKZ (amended on 27.12.2019) ‘On the military courts of the Russian Federation,’ military courts are located in places that are openly accessible. However, the Military Court of Appeal, located in the closed village of Vlasikha in the Odintsovo district of Moscow region will hear an appeal against the verdict in the Network* case. The experience of participating in hearings at this court has demonstrated that spectators and journalists, even those with accreditation, have not been allowed into the courthouse. They had to watch proceedings from a checkpoint at the entrance to the village of Vlasikha. The conditions prevented them from being able to follow the hearing (owing to very poor audio and video) and many members of the public were unable to follow the proceedings (owing to the small size of the room).
These circumstances are caused by the presence of a strict access regime to Vlasikha, a closed administrative-territorial unit. An appeal hearing in the gated community of Vlasikha will violate the law and fundamentally violate the constitutional rights of those citizens and media representatives following the Network* case, as well as the rights of the defendants, to openness and transparency of the trial. Essentially, an open court session is turning into a closed one without any legal grounds, in violation of the basic guarantees of openness and publicity of the proceedings, and the court itself is not operating on the basis of the law but in contradiction to it.
The Network* prosecution has not only aroused interest and public attention, but also has given rise to a wave of public outrage. The practice of dealing with civilian cases by military courts in itself understandably raises reasonable questions and doubts about its legality, but, in this case, holding the actual trial in camera will result in young people, realising in advance that they will not be able to attend a public hearing, taking to the streets of Moscow and Penza instead.
Taking into account the number of defendants, lawyers for the defence, relatives, journalists and observers, we believe that a reasonable and natural solution to this case would be to conduct the appeal hearing in accessible court premises in Moscow, for example, the Moscow City Court, or Moscow Regional Court, or the Supreme Court, with the holding of an assizes hearing of the military court of appeal.
Dear Vyacheslav Mikhailovich, please ensure measures are taken, within the framework of your powers and competence, to enable the appeal against the verdict in the Network* case to be heard in such a way that the basic constitutional guarantees of openness and transparency of the proceedings might be observed, namely:
1. To conduct the hearing of the appeal in the Network* case outside the restricted area of Vlasikha, so that the public might be directly afforded a real possibility of access to the courtroom.
2. To ensure that the defendants’ lawyers can be accommodated simultaneously in the courtroom, with the additional provision of opportunities for confidential communication between defence lawyers and their clients.
I believe that this issue is of a procedural nature and could be resolved, for example, by organizing future trials by the Military Court’s appeal panel in any of the courts in Moscow or in the Moscow region which are capable of these necessary procedures. In the future this would demonstrate recognition of the importance of such trials and the level of public attention given to them. It would also be in accord with the provisions of Article 1, Part 2, of the Federal Criminal Code of 23.06.1999 N 1-FK3 ‘On military courts of the Russian Federation.’ Therefore I feel that it is necessary to raise the issue of relocating the Military Court of Appeal from the closed area of Vlasikha to an open public location.
L. A. Ponomarev
Chair of For Human Rights
Member of the Expert Council of the Federal Human Rights Ombudsman
* An association prohibited on the territory of the Russian Federation.