From the Live Journal of Grigory Pasko, 02.08.2012

The in absentia Department of Russian Justice

Yesterday, 1 August, the Zamoskvoretsky Court of Moscow sentenced former co-owner of YUKOS Vladimir Dubov in absentia to eight years of deprivation of liberty.  He was found guilty of theft of funds supposedly allocated from the budget for the construction of housing for military service personnel.  According to the data of the investigation, the damage from his actions comprised around 76 billion pre-currency-reform rubles.

The key words in all this news – “in absentia”.

Russian justice of the Putinite vintage has for a long time already had the habit of trying former Yukosites in absentia:  thus, in 2009, Leonid Nevzlin was sentenced in absentia in Russia to life imprisonment.  Yet another case in relation to Nevzlin is now being examined.  It can not be ruled out that in absentia trials against employees of the YUKOS company will continue.  For as long as Putin remains in power, I think.

Of course, it is good that both Nevzlin and Dubov, and dozens of other potential convicts are found beyond the confines of Russia:  otherwise, the fate of Mikhail Khodorkovsky and Platon Lebedev, and maybe even that of Vasily Aleksanyan, would await them.  It goes without saying that the Russian prosecutor’s office has put all those who are found beyond the confines of the passionately beloved motherland on the international wanted list.  But the courts in other countries have figured out the political undercurrent of the “YUKOS case” long ago, they are therefore in no hurry to hand the demanded persons over to the Russian Themis.  And they are right in doing so:  in all of these so-called cases the evidentiary base is – zero.  That is, in all of the situations, the Russian side is unable to present a sufficient quantity of evidence to the court of the other country in order for that country to hand the suspect over to Russia.

In absentia trials are another matter.  Everybody’s hands are untied here.  The judge can get as crazy as he wants.  The prosecutor need not trouble himself to prove anything.  Even the defence lawyers in such trials have it easier, I think:  they understand perfectly well that all their arguments will be ignored.  Which, in fact, has been demonstrated more than once already at such trials.

But no, the formal features of judicial proceedings are observed, of course.  For example, the judge of the Zamoskvoretsky Court even took positive character references from work, as well as the presence of children, into account yesterday during the issuance of the verdict in relation to Dubov.  And she even did not find circumstances aggravating guilt (although this is strange, inasmuch as, according to the version of the party of the prosecution, Dubov is maliciously hiding from justice beyond the border).

A funny fact:  after the pronouncement of the verdict, the judge issued a judgment about putting Dubov on a wanted list, even though he is already found on an international wanted list.  Another funny fact:  the prosecutor’s office was sending a request for Dubov’s extradition to Lithuania for some reason, although it knows perfectly well that Dubov is found in Israel.

That is, everybody knows everything, but everybody pretends that they are complying with the laws and are dispensing justice.

I am not going to get into the prosecution narrative:  it bears little relation to the real events of years long past.  As Dubov’s lawyer Leonid Saykin has declared, his client does not admit his guilt, inasmuch as he considers that “there was no theft at all”.  He asked the court to issue a verdict of not guilty.  The lawyer was pointing out in the course of the hearings that the given case was investigated in 1998, however then the investigation was called off.  In the words of Saykin, the investigation of the case in relation to Dubov was resumed in 2003.

That is, after the arrest of Khodorkovsky.  And it is understandable with what objective:  in order to exert pressure on Khodorkovsky.

Now it is useless to put pressure on Khodorkovsky.  But once it has been started, there is no way the repressive machine in relation to former YUKOS employees can stop.  Dubov’s trial was certainly not the last.

In the meantime, I would like to say a couple of words about in absentia justice.  It is known that the outstanding jurist of today, that same chairman of the Supreme Court of Russia, Vyacheslav Lebedev, had deemed it expedient to apply the form of in absentia examination of criminal cases already back in 2005.  As Lebedev noted, until 2002, in absentia conviction had been applied only in relation to state criminals.  “Now legislation gives such an opportunity with respect to all other crimes, but judges do not always choose such a form of trial”, noted he with regret.

Few today remember that the introduction of the in absentia form of judicial proceedings in our country was initiated by …the FSB.  Already in 2001 (under Putin the chekists awoke!), the leadership of the FSB turned to the State Duma with an initiative to reinstate in Russia the practice of the in absentia issuance of verdicts with respect to criminal cases.  It was the first deputy director of the department for the protection of the constitutional order and the struggle with terrorism of the FSB RF, Gennady Solovyov, who turned to the deputies of the Duma with the unexpected initiative.  Appearing at parliamentary hearings with respect to the problem of searching for persons who had gone missing and were being forcibly held in Chechnya, he proposed that the legislators examine the question of introducing in criminal legislation the possibility of in absentia conviction of criminals.  This measure, as well as the overall toughening of the approach to kidnappers on the part of the state and individual citizens can, according to the FSB’s intention, put an end to the epidemic of kidnappings that has enveloped the country in the last 7-8 years.  Many deputies boisterously supported the initiative.

Even then, it was noted in an explanatory note to the draft law that it is directed at establishing “the possibility of in absentia conviction of persons involved in terrorism, in the event that such persons are found outside the confines of the territory of Russia and/or are evading appearance in court.  The verdict of the court on the commission by the person of a terrorist act or other grave crime will likewise allow the significance of a request for his handover to be increased, in the event that this person is found outside the confines of the territory of Russia”.

It needs to be noted that even then, human rights advocates were objecting against this.  They discerned in this an attempt by the chekists to reinstate the special conclaves of the NKVD, which in the ’30s, for the first time in the history of Russian judicial legislation, began to issue in absentia verdicts, which were then executed in presentio by special detachments of the NKVD (as a rule, these were either death sentences or sentences with penal servitude at hard labour in camps).  The practice of the mass issuance of such verdicts existed until 1958, after which it was severely restricted to “exceptional situations”; in so doing, each of the republics of the USSR could independently determine the list thereof.

It goes without saying that nobody bothered to listen to the human rights advocates.  No doubt because it was planned to apply the in absentia form of conviction not only to terrorists and abductors of people.  And that is exactly what happened.

Of course, the practice of in absentia examination of cases had existed in civil-procedure legislation even earlier as well – since November 1995, when chapter 16.1 was introduced in the Code of Civil Procedure, allowing examination and issuance of verdicts with respect to civil cases in the absence of the respondent.

But only in the FSB could they have come up with the idea of carrying over such a practice of issuing verdicts to criminal legislation  Because there, they had a perfectly clear idea of WHY specifically they are initiating the changes to the Code of Criminal Procedure.

Factually, it was assumed that:  1) the result of in absentia proceedings is always a guilty verdict (as an increase in the significance of a request for the person’s handover); 2) in absentia proceedings extend to all criminal cases of a certain category, and not only in relation to persons involved in terrorism; 3) the applied technique of wording art. 247 para 5 of the Code of Criminal Procedure of the RF gives rise to ambiguity of understanding of its content, which, unconditionally, may lead to its incorrect interpretation locally.

I ran into such a passage on the net.  “In connection with this, sufficiently interesting is Decree of the Plenum of the Supreme Court of the RF of 22.12.2009 “On the application by courts of the norms of criminal-procedure legislation regulating the preparation of a criminal case for court proceedings”, where the following clarification is given to courts in para 13: “In the sense of art. 247 para 5 CCP RF, a court shall have the right to examine a criminal case in the absence of an accused who is found beyond the confines of Russia, who is evading appearance in court and was not brought to criminal liability on the territory of a foreign state with respect to the given criminal case, as well as in situations when an accused who is found on the territory of Russia is evading appearance in court and his place of location is unknown”.

If we proceed from the message of the Supreme Court of the RF, then a case in relation to any accused found on the territory of the RF, but evading appearance, can be examined in in absentia procedure”.

Certain experts have also noted that under such a treatment, in absentia justice will certainly become a “mass phenomenon, not compatible with the democratic foundations of justice”.  Which is exactly what has happened.

Here is the opinion of Pavel Marasanov, the author of an article dedicated to the problem of in absentia justice:

“Let us imagine a situation when a person who has committed a crime on the territory of the RF that is not connected with the manifestation of terrorism is found beyond the border and has received a certain status there.  A criminal case is initiated in relation to him, an investigation is conducted, certain evidence is gathered, but extradition of this person is denied, and on top of that Russia lacks international treaties or agreements with this state.  The European Convention on Handover (Extradition) of 1957 does not provide for a procedure for the compulsory familiarisation by a person about whom a request for a handover is had with the charge that has been laid and the receipt from him of explanations in respect of the charge that has been laid, all the more so given that the legislation of a series of states allows for the examination of materials on extradition in the absence of the main persons.  Then it turns out that a court satisfying a petition on the examination of a case in the procedure of in absentia proceedings is forced to issue a knowingly unjust verdict, inasmuch as the preliminary investigation in relation to the accused had been conducted in absentia and what we have here is a violation of his rights to a defence”.

As we can see, the situation described by the author of the article almost directly reflects the state of affairs in which Vladimir Dubov ended up.  And not only he.

It remains to also bring attention to the fact that the initiators of the draft law were indicating in the explanatory note as justification for their position that “the verdict of a court on the commission by a person of a terrorist act or other grave crime will allow the significance of the request for his handover to be increased, in the event that this person is found outside the confines of the territory of the RF”.

As a person who has been engaged in recent years in the study of the requests of the Russian side for the extradition of different persons and who has written articles on several such cases, I can say:  the significance of requests even in the presence of verdicts has not increased one bit.  Russia is being denied extradition more and more frequently.  And the matter here is not in bias, but in the bad quality of the documents presented by the Russian side, and in the obvious politicised contract character of such cases.

The cases of the former employees of the YUKOS company, as it seems to me, fit right into this mould.  Therefore, even though the Putinite courts in Putinite Russia can issue as many in absentia verdicts as they please, they’re still not going to be worth the paper they’re printed on in civilised law-based countries.

(Read the original in Russian HERE)