State, society and the individual in the Russian courtroom; One of Russia’s leading human rights lawyers discusses competing realities inside and outside the courtroom.

File Photo of Judge and Clerk in Russian Court, with Russian Flag Behind Bench

(opendemocracy.net – Igor Gukovsky – May 23, 2017)

Igor Gukovsky is a campaigner with the Memorial Human Rights Centre, where he works on its programme supporting individuals prosecuted for political reasons and protecting civil society activists in Russia.

For many, politically motivated criminal cases in Russia may seem like a foregone conclusion. The defendant is always found guilty, and the testimony and evidence presented by Russian law enforcement are always accepted by the court. But step inside the courtroom, and you’ll find that legal teams defending people at all levels of the system are able to achieve results, however meager from they might seem on the outside, and galvanise public opinion against the repressive machine.

I continue oDR’s series of interviews with Russian human rights lawyers by asking Dmitry Sotnikov, who a few questions about substance, style and how “political lawyers” are back in fashion in Russia.

Q: When I read your Facebook posts, I often see you upload scans of complaints or accusations made against you by Russian judges and prosecutors. Is this a general practice of the Russian judicial system, or just your individual style?

I wouldn’t say that I have a particularly confrontational approach to working in court. Whenever I take legal actions, I don’t only try and carry them out as an individual, for the sake of my client, for the sake of uncovering the truth. I also always think of myself as part of a larger group of people, a corporation.

I believe that lawyers should always strive to make themselves respected, including in court. Lawyers in Russia today are all too often people who legitimise the judicial process. In essence, the trial is led and carried out by the judge, who liaises with the prosecutor. The presence of a lawyer simply makes the process formally legal, as though the prosecutor and judge aren’t in cahoots. But I don’t want to play a walk-on role as an extra in some pantomime.

There’s the state, the individual, and society. The individual sits in the dock, the state is represented by the prosecutor, and lawyers and jurors represent society. While society has an expectation and a right to know on which basis judges arrive at their decisions, judges often don’t give care, refusing to offer any explanation whatsoever.

Q: So, as I understand it, working in a Russian courtroom is difficult for lawyers not only in the sense of results, but also because of the process?

Let’s look at the role of the judges. They’re not a witness to any crime themselves, and can only paint a picture of what occurred on the basis of testimonies and evidence. He or she will hear the lawyer’s words and see files relating to the case at hand. In short, the judge will only see the image created by the lawyers, prosecutors and investigators. But these people aren’t direct witnesses to the crime in question either, are they? They also paint a picture based on the evidence and facts available to them.

Effectively, the judge is three times detached from the events themselves. Lawyers, prosecutors, and investigators are twice detached. Witnesses are one stage removed, while only the accused was at the centre of the event itself. Only he or she knows what they felt, what they intended to do, what they tried to do, and what the meaning of it all was. In the course of the judicial process, a picture of reality is constructed that is close to reality, but which isn’t reality itself. At the scene, the events happened differently.

What happens in Russia is that the judge does not create a legally-binding reality on the basis of testimonies from mutually conflicting sides. Instead, the judge introduces a political reality – what he or she is told at various meetings and committees, what they watch on the TV, or the fact that judges are endlessly grateful to Putin for giving them everything they could ask for.

Many judges were once police investigators themselves. They understand the environment investigators must operate in and instinctively try to “help them out”. Lawyers are excluded from this reality of the judicial process, they can’t really influence its outcomes.

Q: Are there many judges who once worked as lawyers?

I know of only one. Her father was a judge, so she was able to get a foot in the door.

Q: What can a lawyer do in this situation?

A lawyer can try and carve out his own niche outside the courtroom – one that conflicts with this pre-determined judicial reality. This is what, say, Mark Feygin does [a prominent Russian human rights lawyer]. He attracts media interest to the case, and is freer to influence how it’s discussed and what aspects of it are highlighted in common knowledge.

In these circumstances, no matter how the court may try to regain control over the narrative – by making court sessions closed, for example – it can’t avoid this new public interest. No matter how much the court tries to legitimise its decisions, there’ll be some discrepancy with other information out there. The public then understands that the case is politically motivated or even fabricated.

Sure, the code of judge’s etiquette may forbid public influence on judges. In the end, the trial can become politically harmful to the state. After all, they know all about politically motivated rulings abroad – just look at the Magnitsky list, after which officials culpable in the lawyer’s death were banned from entering certain countries. Cases that end up like this are simply toxic for the authorities. The story of the activist Ildar Dadin is a striking example of a case that ended up being politically damaging to the state. His beating and torture in jail attracted so much public ire that it became easier to release him than to keep him behind bars.

It’s very hard to for the authorities to succeed in creating a parallel reality. One example, however, might be the case of Vitaly Buntov, a prisoner serving a long sentence for robbery and murder who was tortured horribly in a Perm prison. How were we able to raise his case in Brussels? The Open Dialogue foundation held an event on Ukraine and Ukrainian political prisoners in Russian jails. We pointed out that any prisoner in Russia, including Ukrainian political prisoners, can suffer as a result of a complaint being filed at the European Court of Human Rights, and raised Buntov’s case as a good example of this.

Q: In a sense, this is quite a specific topic that mostly concerns human rights defenders?

I suppose so. The declaration on Buntov’s case made by Memorial Human Rights Center in January was remarkable in this sense – they stressed that even somebody serving a sentence for a violent crime has rights which must be respected behind bars. This a revolutionary step in the consciousness of human rights defenders.

Until then, many rights defenders wouldn’t touch Buntov’s case with a barge-pole, given that he was sentenced for murder (although several journalists and activists stress that the accusation that he committed murder during a robbery has still not been proven).

Q: Do you cooperate only with Memorial, or do you also work with other organisations defending human rights?

We work with Open Dialogue, based in Poland, and the Crimean Field Mission on Human Rights, which as far as I know doesn’t position itself as a separate organisation, but instead as a union of rights defenders. I’ve also worked with Almenda, the Union for Solidarity with Political Prisoners and the Human Rights House Network.

Q: You were once embroiled in a widely publicised conflict with Natalia Poklonskaya former chief prosecutor of Crimea. In 2015, you accused her of humiliating your client Alexander Kostenko, a Ukrainian police officer recently sentenced to four years in prison for harming a police officer during Maidan (there is evidence to suggest he was tortured into confessing). Poklonskaya then tried to remove your right to practice law. How did this conflict end?

I suppose it ended when the Russian government decided to remove her as prosecutor in Crimea.

Q: What would you add to the article we published about the case of Alexander Kostenko? What are the latest developments in his case, and are there any chances for his early release?

I have an agreement with Memorial regarding Alexander Kostenko, and we’re currently corresponding with the courts. I’m working on four approaches to Kostenko’s case.

First, for two months now, my complaint to Russia’s Supreme Court regarding their refusal to launch a criminal case against FSB employees who broke Kostenko’s arm has been sitting in a drawer somewhere. Another document concerns our attempt to have Kostenko released on parole. A third is a complaint to the Supreme Court on their refusal to change the prison sentence to a milder punishment.

The most interesting is the fourth. From my informants in prison, I’ve found out that, in different regions of Russia, several courts have begun to demand that they return notarised copies of court documents concerning criminal cases.

According to Russian legislation, notarised copies of court documents are necessary only when applying for cassation or oversight appeals. But when you apply to change the method of punishment to parole, you don’t need to attach any documents.

The first time I applied for Kostenko to be released on parole, I just printed out copies of the sentence and handed the appeal in – everything was accepted and examined as normal. But when I applied for parole the second time, the clerks just handed the application back because I hadn’t attached notarised copies of the sentence. What’s more, they referred not the law, but an instruction regarding criminal cases in the court archive, which doesn’t apply to me whatsoever.

I sent an appellation appeal to the appropriate court, which replied that the court can return documents if it believes that the materials concerned aren’t in order. I found the Supreme Court decision they used, it concerns a different procedure, not an appeal by a lawyer.

Q: And what’s the problem with receiving a certified copy of the court judgement?

Well, Kostenko is serving a sentence in the city of Kirov and the copies of the judgement are in Simferopol, Crimea. So there are two options. The first is to head to Simferopol and spend time and money on a long journey. In light of recent decisions about Eurovision [the song contest wasn’t broadcast on Russian TV; Russian citizens have been barred from entering Ukraine after traveling to Crimea from the Russian side] and general atmosphere, I don’t want to lose contact with Ukraine, and this situation with Crimea is very alarming.

I don’t want to have to travel there unnecessarily. You can send a letter and await a response. At the same time, a petition for parole can only be filed every six months, and if the court authorities don’t send out copies of court judgements, then these terms are violated, along with the legal rights of the prisoner. [Update: Kirov Regional Court has since approved Sotnikov’s cassation appeal on behalf of Alexander Kostenko.]

Q: You’re planning to file a complaint to the ECHR?

I want to make a complaint, but we need to go through all the courts at the national level first. I want to establish that time limits on applying for parole were broken, to ensure that the Russian representative at the ECHR can’t turn around and say that there was nothing stopping me from writing up another appeal.

Q: How did you get into political cases?

My future client in my first political case, Evgeny Kurakin, who’s a housing activist. He was present at a trial where I was representing the interests of a local resident involved in a never-ending conflict with Reutovo city court outside Moscow, regarding invasive construction and utilities tariffs.

Q: Have you ever seen cases where the defendant is declared innocent?

Not really. I’ve seen cases returned to the prosecutor’s office, parole.

Q: Finally, what do you make of the concept of “political advocacy”? Does it exist? Or is a lawyer first and foremost just that, a lawyer?

That’s a good question. I was recently reading about Nikolai Muraviev, a friend of Lev Tolstoy and a lawyer. He worked on cases for Ukrainian peasants who were flogged by their estate owner, cases on members of various political groups and religious cases. When I found out that at the turn of the century there were a lot of politically minded lawyers in Russia, well, it was a discovery. I didn’t hear anything about this at university, but it has its traditions, which can be resurrected.

The state is starting to resist, and this means that any attempt to create a lawyers’ association that would unite political lawyers in Russia, or some sort of centralised fund, which could finance this work, will be ineffective. A centralised organisation would be shut down very quickly.

Article also appeared at opendemocracy.net/od-russia/igor-gukovsky/state-society-and-individual-in-russian-courtroom bearing the following notice:

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