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Elena Ryabinina: "Once again on the Russian courts"

10 June 2013 

Elena Ryabinina

No, I'm not going to talk about Zamoskvoretsky district court, which is now holding its hearings on the ‘Bolotnaya case’ on the premises of Moscow City Court (well, goodness me, it turns out to be a case of ‘two for one’…). Although I plan to attend the hearings more than once, others can write about that, and no worse than me. This time I want to write about a quite different court: Chelyabinsk Regional Court.

For several months now a trial has been going on there of five people accused of nothing less than preparing the violent seizure of power. How did they prepare for it? Elementary, Dr. Watson: by talking about the meaning of life and searching for it in the ideology of the Hizb ut-Tahrir party, which has been banned in our country. Ten years ago the Supreme Court ruled that Hizb ut-Tahrir was a terrorist organization on the basis of its quite utopian (thankfully!) fantasy of the caliphate. According to supporters of Hizb ut-Tahrir, the universal caliphate will arise first in each separate country, when the entire population of each country all together come to believe in the same thing that they do.

Does it remind you of anything, dear reader? Yes, indeed, it looks like something that is extremely familiar to us, and in a bad way, beginning with the course on the history of the CPSU, which in those days was mandatory for first-year students, and ending with the state exam in the fifth year of any Soviet institution of higher education on, excuse the expression, "scientific communism." But there is also a difference: unlike the communist nightmare, which seems to often forgotten these days, those dreaming of a future caliphate believe they will achieve their goal without any weapons, and solely through "ideas that have mastered the masses." And consequently they take their ideas to those who want to listen to them. And how dangerous that is!

But joking aside, the punishment under Article 278 of the Criminal Code - "forcible seizure of power or forcible retention of power" - is neither more nor less than from 12 to 20 years in prison. For preparation of an act under this Article - that is, on a charge of an unfinished crime – the sentence will be smaller, but it will still be considerable. At least in 2009 - during years when the authorities acted much more mildly than they do today – at a similar trial in Kazan at which 12 people were convicted, the maximum sentence was 8 years. The defendants were also convicted of crimes under Article 205-1 (facilitating terrorist activities) for which punishments range from 5 to 10 years in prison, and Article 282-2 (organization of an extremist organization) – which, by comparison with the previous two Articles, one can say, is a minor matter, and brings no more than a three-year term in prison. So, for all that the aforesaid ideas are unsympathetic, it is worth every time sorting out what in reality is the thing that the prosecution presents as being so bad to the court, and how the court measures up in terms of the fundamental principles of independence, impartiality and the equality of arms, without which a court would hardly be worth the name.

So for three days, from 22 to 24 May 2013, I was at Chelyabinsk Regional Court.

To begin with, the court bailiff collects personal identification documents from the people who had come to watch the trial while they were still in the hallway outside the courtroom, and hands them to the court secretary, despite the fact that at the entrance to the courthouse, as usual, security had checked everyone and written their names into the journal. The servant of Justice explains the apparently excessive vigilance by the need to ensure that none of the witnesses to be questioned appeared in the courtroom before time. Okay, let's allow that to be the case. After 10 minutes, while waiting for the judges to appear, I wondered whether the bailiff had already made sure of everything he wanted, and it was time to return the documents. Hearing, instead of a clear answer, something like "all in good time, everything is written in the Criminal Procedure Code," I begin to demonstratively rummage in this very CPC. As expected, this works. My documents are immediately returned to me and the others present. Was this an example of the conditioned reflex with which Professor Pavlov’s name is associated? But then, neither on the next day nor the day after were any documents taken from members of the public. Apparently they decided to wait for the “guest from Moscow” to leave.

The “cages” for the defendants are empty. Back in late April they had been removed from the courtroom until additional hearings were to be arranged. According to the defence, there were two reasons why the defendants were not in court. First, the defendants said they did not know of what they were accused, since copies of the charges were given to them in unreadable form. On every page of A4 were up to four whole pages of text. In a detention centre, where, of course, there is no a magnifying glass, let alone a microscope, in the cells, this makes reading impossible. Secondly, the accused persistently refused to accept the counsel who had been appointed to defend them, who, in their opinion, in practice did not nothing at the trial but just sat silen and bored at their desks. By that time, two lawyers had already taken on their roles by agreement (a little later a third also appeared), who, as is known, are sometimes engaged in other trials. And if the court permitted the refusal of assigned counsel, the dates of the court hearings would have had to be agreed with the lawyers who had been chosen by the defendants. And did the court really need this? So, starting from April 29, the case has been heard in court in the manner of “Without me, the court convicted me.”

Finally, the judges enter the court room - chair Violetta Mosin, and judges Nadezhda Kurganova and Konstantin Kuchin - and the trial begins. The defence submits applications for the return of the defendants to the courtroom; that one of the court-appointed lawyers should be stood down, again; and that the judges and the prosecutor should be recused. And then comes one of the most vivid impressions of the day, which is then repeated several times over. You won’t believe it: no matter how many trials I have been involved in in various capacities - from member of the public to counsel for the defence - but I have never seen judges trying to outshout each other down in their desire to express their extreme outrage, an indignation torn from the very depths of their judge’s soul, constrained only by the regulations of the Criminal Procedure Code. So as you might expect, the court dismissed the applications of the defence.

At this point the questioning of the witnesses for the prosecution begins. In the course of three days, three witnesses were questioned, including one in secret with a changed voice and out of sight of those in the courtroom. The questioning examined what the defendants had said when they had met to drink tea together and with other invited Muslims, whether they had talked about politics, whether participants had exchanged literature or videos, and if so, what, and, of course, whether calls for the violent overthrow of the government in Russia had been made.

The responses of the witnesses revealed something interesting: the two who were questioned openly said that there had been no incitement to violence, but according to the 'secret' witness the talk that arose from time to time about jihad was suppressed by the defendants themselves, from which he concluded that they were afraid to talk about it ... in his presence. Everything else that was discussed over these three days of court hearings concerned the subtleties of understanding and interpretation of Islamic norms and the discussion of how "traditional" Islam differs from "non-traditional" Islam. Moreover, where else could these theological problems be resolved, if not in the framework of criminal proceedings under the auspices of a secular state? In a word, this was the "evidential base" for the alleged preparations to seize power by force.

I must immediately disappoint the reader: the prosecution’s case contained nothing that would indicate the actual preparation of acts of violence. There was no mention of weapons or ammunition or other related equipment, nor any schemes of locations, movements or actions of all five alleged participants (the defendants and the alleged organizers) in the future coup d’état. In short, the defendants showed none of the attributes of a revolutionary of any sort. There were only the texts about the caliphate in various forms, and the results of wiretaps of conversations at the above tea parties about the same caliphate, and also about the meaning of life and the imperfection of its current organization.

So maybe the court will come to grips with and re-classify all this chatter? Or, at least, if it deems the involvement of the accused in a banned organization to have been proved, then the conviction and sentencing will be limited to Article 282-2, which provides for liability for such acts?

Well, of course, but how could it be otherwise, given the impartiality of the court and its observance of the principle of equality of arms, that especially was evident on the third day, when the defense questioned the 'secret' witness? The phrase of the presiding judge that "the question cannot be asked" was repeated with the frequency of a jammed gramophone record, and once sounded this way: "The question cannot be asked, and I'm already tired of explaining why." In short, in full compliance with the Code of Criminal Procedure. At the same time, the judge altered some of the questions asked by the defence (wording of which really were far from ideal), quite changing their meaning as a result. And consequently the witness either did not quite answer the question set by the defence, or answered it not at all. And their next questions, paraphrased more clearly, the court did not permit on the grounds that "the witness has already answered this." And moreover, strange to say, not once in the course of the three days was a question asked by the prosecutor ruled to be out of order, although some of them clearly contained within them an assumed answer.

As regards the independence of the judiciary - I don't want to provoke fate (we shall have to wait for the sentence), but it's hard to believe that we can expect anything new. In any case, the above-described "impartiality" gives little grounds for optimism. At the same time, I have to remind you that under Article 278 the defendants, if convicted, may face from 12 to 20 years in a strict regime penal colony – perhaps with a reduction in the light of the fact that the actions of which they stand accused were not completed.

And to conclude, one question: if my pessimism is justified, would it be possible to doubt that these five individuals will be political prisoners?

Elena Ryabinina
Director of the programme ‘Right of asylum’ at the Institute of Human Rights 

A shortened version of this article was first published on