Law and order under lockdown

How the coronavirus quarantine is making it even harder to find justice in Russia’s courts

On March 18, in an effort to curb the spread of coronavirus, Russia’s Supreme Court imposed a moratorium on all hearings across the nation’s judicial system except for particularly “urgent cases.” Individual judges get to decide what qualifies as urgent, and sources in the justice system tell Meduza that they worry Russia’s COVID-19 containment measures are making it even harder for defendants to get a fair trial. Cases are now moving through the courts in the absence of public audiences, defendants, and sometimes even witnesses or defense attorneys.

Presumed guilty in a pandemic

Russian courts are still hearing cases during the national coronavirus shutdown, albeit according to new rules set by the Supreme Court: members of the public are not admitted to courtrooms, all documents are received electronically or through the mail, and judges are required to remain at home “at the slightest sign of illness.”

The Supreme Court’s main recommendation to judges during the epidemic is to hear only “urgent cases,” though the court leaves it to judges to decide what qualifies. At the time of this writing, the Supreme Court’s press office did not respond to Meduza’s request for additional clarification about what types of cases judges can categorize as urgent.

What cases are urgent according to Russia’s Supreme Court?

Cases relating to the imposition, extension, cancelation, or revision of pretrial restrictions, the protection of the interests of a minor or person legally unfit to stand trial, a legal representative’s rejection of life-saving medical intervention, and more.

The court system has kept up with hearings on pretrial restrictions (jail, parole, and so on), but judges haven’t always prioritized cases involving minors. “For some reason, they won’t hear my eviction case, where a family with kids was tossed into the street,” says lawyer Rodion Chasovnikov. “They choose what’s convenient for them and they pick the cases with punitive features.”

Alexey Fedyarov, the head of the “Jailed Russia” human rights organization’s legal department, told the website Advstreet.ru that courts have also tried to use the quarantine as a pretext to postpone an early release hearing for a seriously ill prisoner now getting assistance from Jailed Russia. “They justify the delay by directly citing the decision by the Supreme Court and the Council of Judges, arguing that the case isn’t urgent because it doesn’t concern the revision of pretrial restrictions. In strictly technical terms, they are correct, but what could be more urgent is the issue of a man’s life — a man who simply might not live to see the end of the epidemic,” says Fedyarov.

Investigators under quarantine

Sources told Meduza that Russia’s coronavirus containment measures limit the options available to defense attorneys, but not the powers of investigators and prosecutors, which can lead to procedural violations. “Law-enforcement officers and courts all broadly interpret the Criminal Procedural Code, but only to their own advantage,” says lawyer Ruslan Koblev.

Andrey Pevtsov, a defense attorney in Tyumen, says Russia’s judicial quarantine was cited as grounds to deny him access to key evidence in a case. “My client, a neurologist, is charged with fatally damaging a patient’s intercostal artery during an injection,” Pevtsov explains. “But the autopsy revealed no signs of any damage to the intercostal arteries.” First, the state investigator refused to let Pevtsov question the medical examiner. Now the court is also denying him access, citing Russia’s “quarantine.” “I filed a complaint against the investigator’s refusal, but the judge wouldn't accept it. The judge’s secretary says it’s because ‘sorry but we’re under quarantine and public access is limited,’” Pevtsov explains.

The entire justice system finds itself in a state of legal uncertainty, says Alexander Khurudzhi, Russia’s public commissioner for the protection of the rights of entrepreneurs under investigation. “They don’t know what to do and they prefer to be guided by the principle of ‘being on the safe side,’” he says. “On the other hand, some actually assume more authority. The epidemic and the quarantine will end, but the bad taste of legal violations and distortions will remain.”

Despite the obstacles to conducting police work in the middle of a global pandemic, there continue to be breakthroughs in major cases. For example, Vyacheslav Vishnevsky — the entrepreneur responsible for renovations at the “Winter Cherry” shopping center in Kemerovo and wanted by police after a deadly fire in 2018 — was extradited from Poland as coronavirus cases surged in Eastern Europe. Polish law enforcement escorted him to the border with Kaliningrad and handed him over.

Vishnevsky’s lawyer, Ruslan Zakolyuzhny, says he learned from news reports that his client had already met with investigators and was likely interrogated without legal representation. It happened “about 10 days ago,” says Zakolyuzhny, but he still isn’t sure because he has no direct contact with Kaliningrad. “Without a proper defender, they could pressure Vishnevsky and persuade him to incriminate himself and others,” warns Zakolyuzhny, explaining what can happen when a suspect is denied their right to an attorney.

Not subject to appeal?

Lawyers still don’t know if they’ll be able to appeal the decisions courts and investigators are making now during Russia’s coronavirus quarantine. At the moment, it’s impossible to reach many courts either in person or by mail, and some attorneys have to go to great lengths to break through. When Meduza called Dmitry Grigoriadi, the lawyer had one foot out the door. He was about to violate Moscow’s self-isolation requirements. “I’m talking to you now, but I need to get into a car and drive to one of the police departments and toss a few motions into their inbox. And I don’t really understand if I’m violating the self-isolation law right now at my own risk and peril,” said Grigoriadi.

There are problems with submitting complaints electronically, as well, as some arbitration courts have stopped registering documents through Russia’s “Moi Arbitr” system. “And just before the system stopped working, the judges hammered out a bunch of highly controversial rulings,” says Rodion Chasovnikov. “It was to limit people’s opportunity to file immediate appeals. Now they won’t let you into the courthouse and electronic filing doesn’t work. Why the urgency? Either they’re up to something corrupt or they’re making their own jobs easier by shoving as many cases as they can into this coronavirus abyss.”

Lawyers say they’ve also encountered new obstacles when trying to challenge actions by Russia’s Federal Bailiffs Service (FSSP). “This confiscatory apparatus is still working,” says Chasovnikov. “What this means is that bailiffs are prohibited from speaking with members of the public, but they’re still doing their jobs. Decisions are rendered and sent out, deadlines are monitored, and accounts are seized. Accounts can be blocked remotely, but you’ve got to come in on your own two legs to file an appeal.

Thanks to quarantine measures, however, submitting documents in person has been impossible for several weeks. “If they block your bank account tomorrow, it’s unclear what you’re supposed to do,” says Alexander Khurudzhi. “The Bailiffs Service almost never responds to letters electronically and it’s useless to try getting through over the telephone. Not one of the lawyers who spoke to Meduza says they were able to reach anyone at FSSP in the past two weeks.

FSSP referred Meduza to its official recommendations during Russia’s quarantine. “In connection with the temporary suspension of public admission at each subdivision of all FSSP local offices, special portable boxes have been installed to receive correspondence,” the service’s website explains. “Appeals relating to the release of seized funds from debtors [...] will be reviewed within a day and a procedural decision will be reached.”

Attorneys in self-isolation

Restrictions on movement during the pandemic have also made it harder for defense attorneys to do their jobs, particularly for lawyers over the age of 65.

There are hearings happening now across the country without courtroom audiences, without defendants, and sometimes without even witnesses or the defense attorneys, several lawyers told Meduza. Alexander Strukov, an attorney in Perm, described one case where the judge refused to admit witnesses for the defense, citing Russia’s coronavirus quarantine. “Nothing has changed for law enforcement, but the epidemic significantly complicates lawyers’ work,” agrees defense attorney Maxim Pashkov, whose witness was also stopped by bailiffs when trying to enter a courthouse.

Lawyer Tatyana Starkova says police officers have even started detaining some of her colleagues in the streets on the pretext that they violated self-isolation requirements. According to the Moscow region’s Bar Association, local police have even arrested some judges on their way to work. Meanwhile, in Nizhny Novgorod, one courtroom tried to keep a defense lawyer from a hearing on the grounds that he may have contracted COVID-19 from his client, who tested positive for the disease. (The attorney was finally admitted after explaining that all communication with his client has been remote.)

Russian Federal Bar Association (RFBA) president Yuri Pilipenko told Meduza that his organization is currently collecting evidence of unreasonable obstacles to attorneys’ work and RFBA has already asked the Moscow Mayor’s Office to exempt lawyers from such restrictions. “The association hasn’t received any formal response, so far,” says Pilipenko. “Now we’re working with the Justice Ministry, where we have a mutual understanding that it would be right to allow attorneys to move around in areas under self-isolation on the basis of bar certificates and in accordance with rules approved by regional bar associations.” The Moscow Bar Association has already advised its members to carry their certification with them when moving around in Moscow on business and their written power of attorney, if applicable.

The Moscow Regional Bar Association has asked local officials for help with acquiring 50,000 medical masks now needed by lawyers ready to continue working during the pandemic. Worried about coronavirus, attorney Andrey Sabinin recently wanted to skip a court hearing for the first time in his career. “I’ve asked the Investigative Committee to digitize their criminal case and provide it in electronic form, but I’m told that they will refuse,” says Sabinin. “I honestly have no burning desire to put my hands on documents that have been touched by who knows how many people before me. The case we’re talking about will be heard in Stavropol, but it came from the Kabardino-Balkarian Republic.” “I’ll throw on some gloves,” the lawyer says, reluctantly.

Hearings without defendants

Almost all the lawyers who spoke to Meduza say they’ve witnessed violations in the past two weeks of the principles of transparency, equality of all parties, and adversarial proceedings.

Defendants no longer appear in courtrooms even through video-conferencing, contrary to the Supreme Court’s recommendations. “There are the same massive violations when extending terms of custody,” says Ruslan Koblev. “They simply don’t bring the defendants to the courthouses.” According to attorney Andrey Grivtsov, “The detention center’s infirmary issues a certificate signed by a doctor saying that so and so ‘can’t be delivered to the hearing, reason: quarantine.’ Sometimes the health certificate is sent by email without any authentication.” Today, I had a hearing to extend someone’s detention, and the only people in the courtroom were the investigator, the prosecutor, the judge, the court clerk, and me. Defendants have no means of expressing their views about extending their time in state custody,” says lawyer Dmitry Dinze.

Spokespeople for the Moscow City Court confirmed to Meduza that video-conferencing isn’t used at parole hearings and infirmary certificates are in fact sufficient grounds to hold court without suspects present. “Regarding extensions, as per Part 13, Article 109, of Russia’s Criminal Procedural Code, there is an exception that allows courts to review materials on extending preventative measures in the absence of the accused when there is documentation proving the impossibility of delivering the accused person to the courtroom,” explained the Moscow City Court’s press office.

Video-conferencing in Russian courts

Jailed and incarcerated persons in Russia have the right to participate in their court hearings through video-conferencing, according to Part 2, Article 401.13, of Russia’s Criminal Procedural Code. Despite the fact that Russian courtrooms are generally well equipped to accommodate video-conferencing, lawyers say the hardware is often ignored. Courtrooms are provided with this equipment through the “2013-2020 Russian Judicial System Development” special federal program, which three years ago should have enabled video-conferencing at 95 percent of all federal courts of general jurisdiction. By 2020, video-conferencing should have been available at all arbitration courts.

“Russia’s Criminal Procedural Code stipulates that hearings can proceed without defendants in special cases and the courts are using this,” says attorney Dmitry Sotnikov, who’s recently replaced other defense attorneys who could not appear in court. These conditions limit suspects’ right to a fair trial, he warns: “The defendants also weren’t brought out of detention for their extension hearings and they weren’t provided with video-conferencing. And so what happens is someone hires a defender where there’s clearly some agreed-upon position, but I don’t see the client and I don’t know the position!” says Sotnikov. “And the judge tells me, ‘Read the court transcript and you’ll find out.’ In other words, the judge is denying me the opportunity to speak with my client and telling me to read the minutes, instead. That’s the state’s position here.”

The epidemic will end, but these practices will remain

The quarantine’s first victim was courtroom transparency. On March 31 in Krasnoyarsk, before the city imposed self-isolation measures, a local judge moved forward with the prosecution of an Internet user who wrote an offensive comment on VKontakte, finding that the case was “urgent.” “The guy had some harsh words for the Chinese,” says “Agora” human rights group lawyer Vladimir Vasin. “He just got a little emotional, in our view, but the linguists detected some violations here.”

Nobody was allowed to observe the hearing, says Vasin: “The suspect’s mother wanted to be there, but they told her no way, ‘We’re under quarantine. Special conditions.’ So we had the hearing, we all wore masks, and then we left.”

Throughout the coronavirus epidemic, there have been three hearings in the case against former Serpukhov District head Alexander Shestun — on March 17, 19, and 23. Shestun’s wife says reporters and members of the public have been barred from all proceedings. “The journalists and I show up each time, and each time they won’t let us in, citing quarantine measures,” says Yulia Shestun.

RFBA president Yuri Pilipenko warns that the justice system’s practice of holding court hearings without defendants present, hidden from the public, could outlive Russia’s containment measures against coronavirus. “Let’s be honest: [even without the quarantine] we’ve already got remote legal proceedings. Defendants are rarely brought to appellate hearings in Moscow — they participate from detention centers through video-conferencing,” Pilipenko says. “The quarantine experiment could lead to the expansion of these remote proceedings. You can’t rule it out, unfortunately. [The authorities] might fall in love.”

Story by Liliya Yapparova with assistance from Maxim Solopov

Translation by Kevin Rothrock