A month before the Arkhangelsk Court is scheduled to hear the supervisory appeal against the refusal of parole for Platon Lebedev his lawyer, Vladimir Krasnov, has written to prosecutor Viktor Nasedkin. The defence wants Arkhangelsk prosecutors, who now report to Mr Nasedkin, to stop ignoring decisions of the Constitutional Court. (Order of the Prosecutor General of the Russian Federation No. 122-K of 13.02.2013 appointed Viktor Anatoliyevich Nasedkin the Arkhangelsk Oblast Prosecutor).

A previous report on Lebedev’s ongoing appeal hearing can be read here

The letter from Vladimir Krasnov to the Prosecutor can be read in Russian here

To the Arkhangelsk Oblast Prosecutor

V.A. Nasedkin

(163002 Arkhangelsk pr. Novgorodsky 15)

Outgoing No. 7 of 19.02.2013

Dear Viktor Anatoliyevich,

About a week ago, you were appointed the Arkhangelsk Oblast Prosecutor. Among the multitude of cases and issues you are getting familiar with please pay the closest attention to the following one.

P.L. Lebedev, whom I have the honour to defend, is serving his sentence in correctional facility FKU IK-14 of the UFSIN of Russian for Arkhangelsk Oblast under unjust verdicts which we continue to appeal through the statutory procedure.

On 27 July 2011, a judgment of the Velsk District Court denied an application for P.L. Lebedev’s conditional early release from serving his sentence. The Judicial Collegium for Criminal Cases of the Arkhangelsk Oblast Court by its ruling of 16 September 2011 upheld this judgment. The interests of the state in the court of the first instance were represented by the Velsky District Prosecutor S.P. Semenov and his assistant M.Yu. Kozlov, and in the cassation instance by prosecutors of a department of the Oblast Prosecutor’s Office M.N. Zvorykina and V.I. Lvov. The court’s decisions were based, among other things, on allegations of the procuracy officials that the parole application should be dismissed because P.L. Lebedev had not admitted his guilt, had no remorse for what he had done, and had not taken measures on the voluntary repayment of the civil award. The prosecutors actively maintained that position pointing out that, in their opinion, it was consistent with the provision of Art. 175 para. 1 CorC RF. At the same time they gave no reasons for their disagreement with the arguments of P.L. Lebedev and his lawyers, who explained that such an application of the said provision of the CorC RF was at odds with its constitutional-law interpretation confirmed by decisions of the RF Constitutional Court more than once.

P.L. Lebedev appealed to the RF Constitutional Court asking it to find the provision of Art. 175 para 1 CorC RF not to be in compliance with the RF Constitution and its application in the specific case to violate his constitutional rights. On 01 March 2012, the Court issued Ruling No. 274-O-O upon this appeal (a copy is attached). I’m sure that upon reading it it will be obvious to you that the RF Constitutional Court found the position of your subordinates not to be in compliance with the RF Constitution and law in force and, correspondingly, P.L. Lebedev’s rights to be violated.

On 18 March 2012, I appealed to the RF Prosecutor General. In that application I asked him, in view of RF Constitutional Court Ruling No. 274-O-O of 01 March 2012, to take measures of prosecutorial reaction toward the officials of the Velsk District Prosecutor’s Office and Arkhangelsk Oblast Prosecutor’s Office who took an anti-constitutional position during the hearing by the courts of the application for P.L. Lebedev’s conditional early release and to lodge a protest against the court decisions that denied his parole application. I received a response to this application from the Arkhangelsk Oblast Prosecutor’s Office dated 27 April 2012 (outgoing No. 12-971-2011, a copy is attached).

The subject-matter of this appeal is the demand for a legal assessment to be given to the entire aggregate of the circumstances surrounding the actions of your now subordinates during the consideration of the matter of P.L. Lebedev’s parole and their reaction to the questions raised by me in this regard.

The response notes that while making its decision, the court “correctly took into account all the circumstances … including … the opinion of the prosecutor”. It was the anti-constitutional nature of the “opinion” of prosecutors S.P. Semenov, M.Yu. Kozlov, M.N. Zvorykina and V.I. Lvov taken into account by the court that was the ground for me to raise in my application the issue of bringing them to liability. The refusal to carry out an agency check was substantiated by saying that “there is no information about any violations on their part”.

Therefore, the official position of the Arkhangelsk Oblast Prosecutor’s Office is that the “opinion” of the prosecutors that is blatantly at odds with the binding legal position of the RF Constitutional Court does not constitute “any” violation; thus, it’s confirmed that the I-couldn’t-care-less attitude of Arkhangelsk prosecutors toward decisions of the highest judicial body of constitutional control was, is and will continue to be the norm.

And it is not an accident that the response underscores that what we are talking about is an opinion. However, the appeal raised the question of actions of officials of the state supervisory body that ran counter to constitutional adjudications. The publicly dangerous consequences of such actions lie in the violation of P.L. Lebedev’s rights. The fact that the RF Constitutional Court, including upon P.L. Lebedev’s appeal, has to explain time and again that the non-admission of guilt and refusal to show remorse and voluntarily repay the awarded damages cannot be regarded as a ground to deny parole demonstrates that law is ignored by those whose duty is to curb its violations irrespective of whoever commits them. Consequently, the above actions of the officials have malicious and intentional nature, and the liability for this should be unavoidable and unconditional. So far, the official opinion of the Arkhangelsk Oblast Prosecutor’s Office is different.

Malicious non-compliance with a judicial act (and decisions of the RF Constitutional Court have this exact status) constitutes a crime under Art. 315 CrimC RF.

The response alleges that “the denial of the application for conditional early release, despite your arguments, was not reasoned by the non-admission of his guilt by the convict. This circumstance is reflected in the court judgment in the part explaining the content of P.L. Lebedev’s character reference, which is not against the law.” In fact, the concluding inference of the court (page 6, paragraph 2) reads as follows: “P.L. Lebedev is serving his sentence for the commission of gross crimes, he has no remorse for what he has done.” Obviously, here we are not talking about “explaining the content of P.L. Lebedev’s character reference”; these are judge N.M. Raspopov’s own words. It’s demonstrative that the cassation ruling made only one change to this exact sentence: it removed (as non-complying with the law) the reference to the category of the crimes allegedly committed (grave), but the court of the second instance also found P.L. Lebedev’s refusal to show remorse to be a “lawful” ground not to apply parole to him.

Thus, the official response contains allegations that are, to put it mildly, at odds with the factual circumstances on the basis of which the conclusion about the refusal to grant the issues raised was made. The law (Art. 369 para. 1 (1) CCrimP RF) regards this as a ground for a repeal of even a judicial act. And the criminal code regards inclusion of knowingly false information into official documents by an official as a crime under Art. 292 CrimC RF.

The reasonableness of exactly such, extremely tough, attitude is corroborated by RF Supreme Court Decree No. 1-d13-1 of 25 January 2013 concerning opening supervisory proceedings for the review of the Velsk District Court judgment of 27.07.2011 and the cassation ruling of the Judicial Collegium for Criminal Cases of the Arkhangelsk Oblast Court of 16.09.2011 (a copy is attached). Thus, now the RF Supreme Court has also recognised that the judicial acts issued with active participation of your subordinates run counter to “the requirements of the law and the legal position of the Constitutional Court of the Russian Federation”.

Non-compliance with decisions of the Constitutional Court of the Russian Federation “objectively creates obstacles for ensuring the supremacy and direct action of the Constitution of the Russian Federation on the entire territory of the Russian Federation and for implementation of the fundamentals of the constitutional system enshrined in the Constitution of the Russian Federation” (Ruling of the RF Constitutional Court No. 65-O of 19 April 2001). Taking into account that the prosecutor’s office is obligated to oversee, in the name of the Russian Federation, observance of the RF Constitution and compliance with laws and taking into consideration that actions running counter to decisions of the RF Constitutional Court are incompatible with holding a position in the prosecutorial bodies, we expect from you substantiated conclusions about the adequacy of prosecutors S.P. Semenov, M.Yu. Kozlov, M.N. Zvorykina, V.I. Lvov and D.V. Smirnov for their positions.

In fulfilment of the Decree of the RF Supreme Court of 25.01.2013, a hearing of the supervisory appeal of P.L. Lebedev’s defence by the Presidium of the Arkhangelsk Oblast Court has been scheduled for 20 March 2013. Pursuant to the procedure set by an order of the RF Prosecutor-General, the interests of the state in that hearing should be represented by you or your deputy. I hope that this time the position of the Arkhangelsk Oblast Prosecutor’s Office will be in full compliance with the law and the decisions of the RF Constitutional and Supreme Courts and will facilitate the repeal of the aforementioned judicial acts and the granting of parole to P.L. Lebedev.

Annexes as set out in the text on 14 sheets.

Defender – lawyer V.I. Krasnov