The Role of the Judiciary in the Prosecution of Human Rights Defenders and Non-Governmental Organizations in the Russian Federation

Briefing Paper

Introduction

 

For the purpose of this briefing paper, human rights defenders are those who, individually and in association with others, promote and strive for the protection and realization of human rights and fundamental freedoms, at national and international levels[1]. This also includes environmental activists, individuals and groups, who peacefully volunteer or work for the protection and access to natural resources (e.g., water, air, land, flora and fauna)[2].

 

Human rights defenders often work through non-governmental organizations (“NGOs”) or significantly contribute to the activities of other NGOs. Therefore, criminal proceedings against individual human rights defenders can have a large impact on the work of NGOs. In view of the Russian Federation, this includes human rights defenders who work with NGOs that are labeled as “foreign agents” by the Russian Ministry of Justice[3].

 

This briefing paper will explore the role of the Russian judiciary in the prosecution of human rights defenders at all stages of criminal proceiedings. This includes situations when: judges fail to review the lawfulness of politically sensitive decisions made by investigation bodies against human rights defenders; judges align their decisions with the prosecution and automatically grant arrest and detention as requested by investigation bodies; judges ignore the right to a fair and public hearing of human rights defenders and show unequivocal accusatorial bias while trying human rights defenders and hearing the respective criminal cases on appeal.

 

Failure to exercise effective judicial control over investigation bodies

 

According to the Russian Code of Criminal Procedure (“CCrP”), investigation bodies lack institutional independence, meaning that superior officials have competence to give orders to lower-rank officials (section 39 § 1 CCrP). In practice, this may include to receive and follow instructions to persecute human rights defenders. Only judges who are tasked with overseeing the actions of investigation bodies (section 125 CCrP) can prevent such politically-motivated investigations. In practice, judges, however, fail to tackle such wrongdoings committed during the preliminary stage of criminal proceedings.

 

One of the most important tasks of a judge is to decide whether to initiate criminal proceedings, pursuant to section 125 CCrP. Without this decision, police officers have no authority to conduct intrusive investigative measures. In case of a complaint against their actions, judges, however, limit their ability to examine the case as a whole to reviewing formal procedural rules (e.g., if the case falls within the scope of the correct authority) and fail to determine whether the factual and legal circumstances to initiate proceedings are given.

 

This is especially reflected by the case of Valentina Cherevatenko, a prominent human rights defender, who is chair of the local NGO “Women of the Don” and laureate of the 2016 Franco-German Prize for Human Rights. In June 2016, the senior investigator for particularly important cases, in collaboration with the directorate of the Investigation Committee of the Russian Federation (“InvCom”), based in the city of Rostov-on-Don, decided to initiate criminal proceedings against Ms. Cherevatenko.

 

The investigations against Ms. Cherevatenko were opened for allegedly failing to comply with section 330.1 of the Criminal Code of the Russian Federation (“CC”), “malicious evasion of the duty to file documents required for registering NGOs that carry out the functions of foreign agents”. This new section of the CC entered into force in 2012 and was criticized for being formulated in very general terms[4] . The authorities brought criminal charges against Ms. Cherevatenko because of her work as head of the “Women of the Don”. It was determined that Ms. Cherevatenko had known about and failed to meet the requirements to register the “Women of the Don” as “foreign agent”. The case against Ms. Cherevatenko was the first criminal case opened against a human rights defender under section 330.1 CC[5] and drew international attention. In its report on human rights in Russia, the British Foreign and Commonwealth Office, for example, raised concern about the criminal proceedings against Ms. Cherevatenko in 2016[6] . In line with section 125 CCrP, Ms. Cherevatenko’s lawyer lodged a complaint against the investigator’s decision to initiate criminal proceedings. Her lawyer argued that the investigation bodies’ decision lacks a legal basis, in particular that section 330.1 CC is unconstitutional and that the case is still sub judice. However, the courts failed to address the arguments advanced by Ms. Cherevatenko’s lawyer. Instead, they limited the judicial review to the issue of the formal legality of the decision and did not examine whether the decision complied with the obligations of the Russian Federation under international law, including the European Convention on Human Rights (“Convention”) and other relevant international regulations. Hence, the complaint of Ms. Cherevatenko’s lawyer was rejected by the Leninskiy District Court of Rostov-on-Don and subsequently by the regional court of appeal, the criminal division of the Rostov Regional Court[7].

 

Thus, the fate of human rights defenders during this important stage of criminal proceedings is usually left to investigators and their superiors as courts fail to exercise effective judicial oversight over them. This concerns especially the judicial authorization of surveillance measures (e.g., wiretapping) and other intrusive investigative measures (e.g., conducting house searches that, without reviewing their lawfulness, are automatically granted as requested by investigation bodies).

 

It is worth noting that Russian courts authorized more than 90 per cent of the requests for wiretapping[8]. Home searches are not only used to intimidate criminal suspects but also other regime critics, such as members of opposition parties. In this context, the case of Ms. Natalia Gryaznevich, a member of an opposition party living in St Petersburg, became infamous. Her house was raided in connection with the criminal proceedings against Mr. Mikhail Khodorkovsky[9].

 

Excessive use of arrest and detention

 

The problem of excessive use of arrest and pre-trial detention in the Russian Federation is very well documented. In particular, the European Court of Human Rights repeatedly found a violation of Article 5 § 3 of the Convention on the grounds that Russian courts unlawfully extended a suspect’s arrest and pre-trial detention. Accordingly, authorities cannot extend detention solely on the gravity of charges and using stereotyped formulae, without addressing the suspect’s specific situation and examining whether a sufficient legal basis to justify the detention is given[10].

 

Many criminal proceedings against human rights defenders, including environmental activists, and members of NGOs show that judges usually grant arrest in such cases as requested by investigation bodies.

 

In December 2016, Yuriy Dmitriyev, leader of the Karelian branch of the prominent Russian human rights NGO Memorial, was arrested by the Petrozavodsk City Court. Mr. Dmitriyev was charged with producing child pornography by posting a photo of his minor stepdaughter on a social network[11]. It is reported that the photo in question was posted without 'Mr. Dmitriev's knowledge and consent[12].

 

Notwithstanding whether Mr. Dmitriyev has committed a crime (the investigation is still pending), it must be examined whether his arrest was lawful. In particular, the investigation bodies did not consider to include any circumstances in their investigation that could have supported the position of Mr. Dmitriyev, such as the risk of escape or tampering with evidence. As against the background that Mr. Dmitriyev’s stepdaughter was subsequently taken into care by local authorities, further investigations are urgently needed[13]. Russian media reported that Mr. Dmitriyev’s arrest had been an act of revenge against his research on personal details of officers of the former People's Commissariat for Internal Affairs (“NKVD”) known for its political repressions under Stalin[14].

 

Another recent case deals with the arrest of Igor Nagavkin, a human rights defender based in Volgograd and head of the Volgograd branch of the prominent Russian NGO “For Human Rights”. Mr. Nagavkin was charged with theft and arrested on 1 October 2016[15]. On 15 November 2016, his arrest was extended until January 2017 by the Central District Court of Volgograd[16]. According to Mr. Nagavkin’s lawyer, Mr. Nagavkin remained in custody due to a police report, stating that the suspect could endanger life of other people and commit other crimes, without giving any further explanation[17]. Besides, it was not possible, according to Mr. Nagavkin’s lawyer, to verify the evidence against Mr. Nagavkin, which was collected and put forward by investigation bodies, in a public hearing. The judges in charge of the case, however, based their decision to extend Mr. Nagavkin’s arrest exclusively on the police reports.

 

This particular practice within the Russian judiciary enables investigation bodies to keep human rights defenders in arbitrary and prolonged detention. This does not only violate the right to liberty and the right of security of person but also puts the health of suspects at risk. The inadequate and defective medical assistance in pre-trial detention centers was also repeatedly addressed by complaints of Mr. Nagavkin[18].

 

Accusatorial bias of trial and appellate judges

 

When a criminal case is transferred to a judge, judges routinely side with public prosecutors and find the accused guilty, without reassessing the evidence. It is common practice that evidence obtained by investigation bodies is automatically regarded as true and consistent while evidence presented by the defense is dismissed as unreliable. Equality of arms and the right to adversarial trial, both constitutional guarantees of the Russian Constitution, are barely respected by Russian authorities in practice.

 

Generally, acquittals are rare in criminal trials in the Russian Federation. An official representative of InvCom, interviewed by a Russian newspaper, stated that on average only 0.4 per cent of criminal trials lead to an acquittal[19]. The UN Human Rights Committee, for example, expressed concern “about the low acquittal rate and the high percentage of acquittals overturned on appeal”[20].

 

Environmental activists Suren Gazaryan and Evgeniy Vitishko, for example, were convicted of “intentionally damaging property” by Tuapse Town Court of Krasnodar region and had to serve a suspended prison sentence[21]. Their case illustrates the lack of impartiality of Russian courts when human rights defenders are tried. Ms. Gazaryan and Mr. Vitishko protested against a fence that, according to them, was illegally constructed in a forest and surrounded the residence of Mr. Tkachev, the then governor of Krasnodar Region and now federal minister of agriculture. They spray-painted the phrase “This is our forest” on the fence and were therefore charged with damage to property. Their argument that the fence was constructed illegally was dismissed by the court as not relevant, without any further examination[22]. During the pre-trial stage of the proceedings, the public prosecutor, however, denied, in response to a complaint filed by both Ms. Gazaryan and Mr. Vitishko, the very existence of the fence[23].

 

There is also a growing number of criminal proceedings against civil society leaders for criticizing political authorities online, such as in blogs and social networks. They are frequently charged with extremism. For instance, Ivan Moseyev, director of Pomor Institute for Indigenous Peoples of the Northern Arctic Federal University in Archangelsk, was convicted of extremism for his negative comments on ethnic Russians during a heated live online discussion. Although that Russian word, which Mr. Moseyev used during the discussion and for which he was later convicted, can be interpreted in multiple ways, the court based its verdict exclusively on an expert report written by the Federal Security Service (“FSS”) and dismissed the report presented by the defense[24]. According to Mr. Moseyev, charges were brought against him because the director of the Arkhangelsk regional branch of FSS was offended by Mr. Moseyev’s online remarks[25]. After the trial, Mr. Moseyev lost his job at the university, was removed from various positions that he held in NGOs at that time and his bank account was frozen[26].

 

In other, similar cases, magistrates’ courts and appeal courts also refused to include other expert reports than those submitted by investigation bodies in their case assessment.

 

In the worst case, police officers place drugs and weapons in the home of human rights defenders for which they are later convicted. In July 2014, the Chechen human rights defender Ruslan Kutayev, for example, was found guilty of (fabricated) possession of narcotics by the Urus-Martan Town Court of the Chechen Republic[27]. The Town Court’s judgment was subsequently affirmed by the Supreme Court of the Chechen Republic. In December 2015, the Supreme Court of the Russian Federation dismissed the appeal of Mr. Kutayev’s lawyer. According to his lawyer, police officers tried to arrest Mr. Kutayev several times on the very same day, meaning that the police was searching for him. This fact was ignored by the court that based its judgement solely on the evidence given by the public prosecutor[28]. In particular, both courts, the magistrates’ court as well as later the appeal court, failed to examine Mr. Kutayev’s well-founded allegations of torture by investigation bodies. Instead, judges used short and stereotyped formula for rejecting requests and disregarding evidence from Mr. Kutayev’s defense, thereby violating his right to a fair and public hearing[29].

 

Another practice was used against Professor Mikhail Savva[30], a grant programs director of the Krasnodar-based NGO “Southern Regional Resource Center”. His organization received government funding and Mr. Savva was accused of embezzlement of public money. A fabricated testimony given by one of his co-workers who was forced into confessional evidence by investigators. During that hearing, police officers used her poor state of health against her. As a result, she admitted that the research studies, for which the funding had been granted, were not carried out. This had a chilling effect on NGOs of the Russian Federation that seek and receive government funding.

 

In another case, the prominent anti-fascist Alexei Sutuga was convicted of hooliganism for allegedly taking part in a fight. His statement that he had resisted the fight was not thoroughly examined in court[31].

 

This briefing paper has shown that criminal proceedings within the Russian justice system are often used to keep environmental activists from their human rights work. It is common practice that judges affirm politically-motivated charges and convictions and base their decisions exclusively on the evidence given by the prosecution. Only a truly independent judiciary that respects the right to adversarial trial can overcome this poor and devastating practice.

 

This paper is produced by Sergey Golubok in the framework of the Initiative “Increasing Accountability and Respect for Human Rights by Judicial Authorities" by the Netherlands Helsinki Committee (NHC) and the Helsinki Foundation for Human Rights (HFHR). © NHC, HFHR, 2016

 

Footnotes 

 

[1] UN General Assembly, ‘Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms’, A/RES/53/144 (8 March 1999), art 1

[2] UN General Assembly, ‘Situation of Human Rights Defenders’, A/71/281 (3 August 2016), § 7

[3] UN Human Rights Council, ‘Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association’, A/HRC/23/39 (24 April 2013), § 28

[4] See in particular expert commentary by Dr. Sergei Golubok (in Russian) https://zakon.ru/blog/2016/10/31/ugolovnyj_kodeks_rossii_kak_loskutnoe_odeyalo_kommentarij_k_novoj_state_ 3301 (accessed on 20 January 2017)

[5] Novaya Gazeta, ‘First Criminal Case against “Foreign Agents”’ (in Russian), https://www.novayagazeta.ru/articles/2016/07/06/69176-pervoe-ugolovnoe-delo-v-otnoshenii-inostrannyhagentov (accessed on 20 January 2017)

[6] UK Government, ‘Human Rights Priority Country Update Report: January to June 2016’(updated on 21 July 2016) https://www.gov.uk/government/publications/russia-human-rights-priority-country/human-rights-prioritycountry-update-report-january-to-june-2016 (accessed on 20 January 2017)

[7] Report by the Russian state television (in Russian), http://dontr.ru/vesti/proisshestviya/rostovskij-oblastnoj-sudotklonil-apellyatsiyu-valentiny-cherevatenko/ (accessed on 20 January 2017)

[8] Roman Zakharov v Russia App no 47143/06 (ECHR, 4 December 2015), § 194

[9] Reported (in Russian) at http://www.svoboda.org/a/27442742.html (accessed on 20 January 2017)

[10] See, e.g., Snyatovskiy v Russia App no. 10341/07 (ECHR, 13 December 2016), §§ 52-53

[11] Reported (in Russian) at https://7x7-journal.ru/anewsitem/90125 (accessed on 20 January 2017)

[12] Reported (in Russian) by, https://7x7-journal.ru/item/90170 (accessed on 20 January 2017)

[13] Reported at Novaya Gazeta (in Russian), https://www.novayagazeta.ru/articles/2016/12/21/70964-papa-skazalchto-so-vsem-razberetsya (accessed on 20 January 2017)

[14] Ibid, note 13

[15] Reported (in Russian) at http://www.zashita-zk.org/investigate/1B02DE8C/1478176042.html (accessed on 20 January 2017)

[16] Reported (in Russian) at http://www.zashita-zk.org/investigate/1B02DE8C/1479388797.html (accessed on 20 January 2017)

[17] Ibid, note 16

[18] Reported (in Russian), including a photo of Mr. Nagavkin’s handwritten complaint to the head of the regional department of the Russian Federal Penitentiary Service, at http://www.kavkaz-uzel.eu/articles/291201/ (accessed on 20 January 2017)

[19] BBC Russian Service (in Russian), http://www.bbc.com/russian/russia/2015/01/150120_markin_acquittal_rate_court_russia (accessed
on 20 January 2017)

[20] UN Human Rights Committee, ‘Concluding Observations of the Human Rights Committee on the Seventh Periodic Report of the Russian Federation’, CCPR/C/RUS/CO/7 (28 April 2015), § 17

[21] Reported (in Russian) at http://www.rbc.ru/society/20/06/2012/5703f9499a7947ac81a69342 (accessed on 20 January 2017)

[22] Ibid, note 21

[23] Ibid, note 21

[24] Reported (in Russian) at http://www.bclass.ru/vlast/vlast_i_obshchestvo/ivan_moseev_fsb_vynosit_prigovory_sud_ikh_tolko_obosnovyvae t/?sphrase_id=6168 (accessed on 20 January 2017)

[25] Ibid, note 24

[26] Reported (in Russian) at http://xn--29-jlc9a.xn--p1ai/?p=21929 (accessed on 20 January 2017)

[27] Human Rights Center Memorial, http://memohrc.org/news/chechnya-vynesen-prigovor-politzaklyuchennomuruslanu-kutaevu (accessed
on 20 January 2017)

[28] Ibid, note 27

[29] Committee against Torture, http://protiv-pytok.livejournal.com/109888.html (accessed on 20 January 2017)

[30] Documents on the criminal proceedings against Professor Savva are available (in Russian) at his personal website http://mvsavva.ru/ (accessed on 20 January 2017)

[31] Reported (in Russian) at http://www.mk.ru/social/2014/09/30/izvestnyy-antifashist-aleksey-sutuga-prigovoren-ktrem-godam-tyurmy.html (accessed on 20 January 2017).