7 March 2014
Source: HRO.org (info)
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Now that the Sochi Olympics are over, sentencing has finally taken place for the eight defendants found guilty in connection with the events on Bolotnaya Square in May 2012. The judge presiding over the Moscow district court, Natalya Viktorovna Nikishina, agreed with the prosecution’s arguments and found all of the defendants guilty of criminal offences.
I cannot comment on the fairness of the guilty verdict pronounced by the judge, as I have not had the opportunity to familiarise myself with all the evidence presented during the criminal case. I would have been able to do so if audio recordings of the entire trial had been made available on the Internet.
This opportunity is still not available to us, unfortunately, and a full evaluation of the circumstances of a case is impossible using only digests and reviews, regardless of their nature. I am still hopeful that one day we will have access via the Internet to full audio recordings of trials, and not just for high-profile cases – for all cases, without exception.
The information we do have is, however, sufficient for me to draw a well-reasoned conclusion regarding the unfairness of the custodial sentence handed down to seven of the defendants.
The law states that judges must hand down sentences which take account of the character of defendants.
What has happened in this case, however, is that Judge Nikishina has handed down custodial sentences to seven defendants, to be served in standard regime prison colonies. In line with Article 78 of the Criminal Procedural Code of the Russian Federation, however, convicts should be transferred from a standard regime penal colony to a colony settlement after serving one quarter of their sentence.
Given that all seven of the defendants spent over one year in a pre-trial detention centre during the preliminary investigation and trial, and given they have been given sentences of less than four years, the judge should not under any circumstances have specified that they should serve custodial penitential sentences in a standard regime penal colony.
The only sentence which would take account of the character of the defendants would be a sentence to be served in an open colony.
The fact is that the defendants have already served the sentence prescribed by law in a standard regime penal colony; at one point there was even talk of counting one day in a pre-trial detention centre as two days in a general regime penal colony since the conditions are stricter.
In view of the above, I believe that the sentence imposed by Judge Nikishina is unjust and unlawful. I would like to suggest a possible reason behind this miscarriage of justice.
Judge Nikishina completed her legal studies in 1992, or in other words prior to the adoption of the Constitution of the Russian Federation (1993), the Criminal Code of the Russian Federation (1997), the Criminal Procedural Code of the Russian Federation (2002) and the Criminal Executive Code of the Russian Federation (2003). There are therefore grounds for believing that she has handed down a sentence on the basis of the old Soviet laws which she studied and which she would have had to have known well enough to pass the examinations laid down by law.
It goes without saying that the old (Soviet) laws differ from the new laws not just in terms of details but also by their very principle.
If I were one of the defence team, I would be alerting a higher court to the injustice of the penitentiary sentence imposed. At the same time, given that the parole deadline would expire before the appeals had been examined, I would request that all the defendants receive non-custodial sentences, or in other words suspended sentences.
The defendants could not be granted parole as a matter of principle, since this is formally impossible once a sentence has entered into effect; they would be granted suspended sentences taking into account the character of the defendants, i.e. they will already have served the custodial sentences handed down to them.
One day our judges will master the new legislation and adjudicate fairly under the public’s scrutiny. I have not yet lost hope of that happening.
Translated by Joanne Reynolds
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