‘Some things are more important than justice’

Trial lawyer Ivan Pavlov talks about the state of Russia’s judiciary and how treason cases are tried in the country

Ivan Pavlov is a defense attorney specializing in crimes against the state. Since the 1990s, he has defended Russians charged with treason, espionage, and disclosing state secrets. In 2015, he founded Team29, an advocacy group for the right to access government information. The state’s resistance to Pavlov’s initiative eventually forced the group to close. Next, Ivan Pavlov and his colleagues established a new advocacy organization, Department One, this time with the mission of helping defendants in non-public trials, where secrecy enables all kinds of manipulations by the prosecution. While representing Ivan Safronov in a recent high-profile treason case, Pavlov himself was arrested and charged with violating the investigation’s secrecy. In September 2021, he emigrated to the Republic of Georgia. Deutsche Welle columnist Konstantin Eggert spoke with Pavlov in Tbilisi, asking him about Russia’s judiciary, his client’s 22-year prison sentence, the people who work in the FSB, and the lustration that could come to Russia, should the Putin regime collapse. With DW’s and Konstantin Eggert’s permission, Anna Razumnaya summarizes Ivan Pavlov’s remarks from an interview that originally appeared on Deutsche Welle’s Russian-language YouTube channel.

Once, Ivan Pavlov recalls, Russia was a country whose courts tried to serve justice.

That period of “Romantic democracy” in the judiciary lasted from mid-1990s to just after the turn of the millennium. But around 2005–2010, Vladimir Putin set out to reform the courts, apparently dissatisfied with the reigning climate of idealism. His strategy was to promote former clerks and other people in relatively low, service positions. The calculation was that, as new judges, these people would bring with them a habitual lack of initiative and a sense of indebtedness to the regime that propelled them to positions of power.

The expected result has since become apparent. Russia’s judiciary is now less of an independent branch of the government than an organ that responds to signals from the president’s administration by making the desired motions. “As soon as a judge receives a case,” Pavlov says, “he already knows what kind of a decision he has to make.” The percentage of acquittals in Russian criminal justice is currently about 0.17 percent — lower, that is, than the margin of error.

What does it mean to defend someone in court under these adversarial conditions? And how do attorneys go about defending their clients?

The ‘three whales’ of legal defense

Ivan Pavlov explains that, until recently, when he and his associates stopped working in Russia, their approach to defending people charged with crimes against the state had rested, like the ancients’ universe, on “three whales”:

The first one was the law, that is, a thorough familiarity with judicial practice and comprehensive command of the legal defense instruments. But an attorney must defend his client not only by means supplied by the law, but also by all means that aren’t illegal. One of those means is publicity.

This is a tactic of telling the public what goes on behind the closed doors of FSB-initiated trials. In Pavlov’s experience, exposing the absurdities and violations involved in a political trial, and dispelling the “atmosphere of secrecy,” was sometimes enough to change the outcome. Other times, the authorities would respond to criticism with a brazen “might is right” argument. Admitting arbitrariness and even abuse of power, they would insist on prosecuting an unlawful case “just because they can.”

What sometimes came to the rescue in those instances was the third “whale,” nicknamed “Irony.” On occasion, putting the authorities on the spot (and showing that “the emperor has no clothes”) resulted in a cardinal change of outcome.

Here’s a case study from Pavlov’s defense practice. In April 2008, several women living in Sochi saw a cargo train loaded with military equipment passing through town. The women who spotted the train text-messaged their acquaintances about what they saw. Six years later, in 2014, all of them were arrested, charged with treason, and sentenced to 14 years in prison for divulging state secrets.

The one thing that helped save Pavlov’s client was, paradoxically, the draconian absurdity of her sentence. The facts of the case — that several housewives all saw something that was happening in plain view and sent a text of 70 characters or less about what they saw — made clear that the defendants could not have possibly “divulged” anything of importance to the state.

The legal team’s publicity efforts got the media to talk about the case. What made the real difference, though, was Vladimir Putin’s 2016 year-end press conference. Footage of the press conference shows that Putin could not have been more on the spot, down to the huge screens that magnified his every facial expression as he took questions from the journalists. When asked about the Sochi case, Putin shrugged and said that it didn’t make sense. If a woman saw something that anyone else could see, it couldn’t have been a state secret. “To be honest, I don’t quite understand,” he said, adding, “I’ll try to look into this.”

As he followed the press conference, Pavlov realized that the verdict was going to be reversed.

Two days later, he received a telegram from the Supreme Court. His client was being summoned back to Moscow from a penitentiary in Ivanovo. But when she arrived back in Lefortovo, the FSB prison refused to let the legal team see her.

When they finally met in court, a month later, it turned out that the prison officials had pressured Pavlov’s client into appealing to the president for clemency. Without waiting for the trial to conclude, Putin pardoned her, preventing the defendant’s formal acquittal. Instead of the justice that was due to her, she only got to go home free, like a bona fide criminal pardoned by the magnanimous head of state. This was galling.

As if to turn the tables on his interviewer, Ivan Pavlov asks him: “What do you think matters more to an attorney, especially today? What do you think a lawyer should care about? Is it justice? Or is it that his client should go home free?”

Without waiting for an answer, he goes on:

Of course, justice is important. But some things are even more important than this Russian justice, as we have it today. (Some would say that we don’t have it, that it’s a fiction…) A person’s freedom is more important than Russian justice.

‘One claw in the tar’

When all else fails, as seemingly it did when Pavlov’s client Ivan Safronov was sentenced to 22 years on treason charges, what remains is time. Pavlov is convinced that Safronov will be released much sooner than in 22 years, simply because Putin and his “junta,” as Pavlov calls it, are not immortal.

“Ivan is, of course, a singular person,” Pavlov says. The entire case, according to the attorney, was empty: even the investigator knew full well that Safronov had not committed any “treason.” What the prosecution wanted, though, was access to the journalist’s sources, whose confidentiality Safronov was determined to protect to the end.

The plea bargain proposed to Safronov was to reveal just one or two informants, in exchange for a minimal sentence. What Pavlov and his client both understood, though, was that the offer was entirely disingenuous. Pavlov quotes a Russian proverb: “With one claw in the tar, the whole bird will perish.” Once the defendant agrees to collaborate a little, the investigators will treat any attempt to withhold information as a breach of the plea bargain. In the worst case, a defendant who already testified against others may still wind up with a maximum sentence afforded by the charges.

No one among the prosecution, Pavlov recalls, was prepared for Safronov’s absolute refusal to disclose his journalistic sources. As he stood his ground, committed to protecting the confidentiality of people who’d trusted him, the prosecutors themselves were, in effect, trapped. They knew Safronov was innocent, but, having pressed charges, they couldn’t simply give up and let him go. His rejection of the plea bargain obliged them to press for the maximum sentence. This made everyone uneasy. The prosecution urged him to plead guilty, promising a “trifling” seven-year sentence. But he wouldn’t.

In the end, his 22-year sentence rested its full weight on their conscience and no one else’s. Ivan Safronov, meanwhile, went to prison with his sterling reputation intact.

In the jaws of ‘Leviathan’

The seemingly powerful players inside the Russian state security apparatus are, as Pavlov explains, motivated by a system of incentives and rewards triggered by “solving a case.”

A case is considered solved when someone gets arrested. The chain of events that starts with detaining a suspect, searching the premises, and delivering a defendant to the court typically leads to a court order for arrest. The Russian courts, Pavlov points out, simply don’t know any other way of dealing with the FSB, whose investigators report all the way up to the president.

The intellectuals who often become the FSB’s victims rarely help their own case. Naively convinced that, if they only clarify everything to the investigator, they will be released, they confide in the detectives without thinking once to ask for an attorney. The detectives take full advantage of their confessional fervor, while intimidating family members and loved ones, who often sign non-disclosure agreements in the belief that it should help their loved ones escape from the system’s jaws.

In reality, their trust in the detectives’ integrity and benevolence is completely misplaced. Pavlov compares their behavior to the Soviet intelligentsia’s appeals to Stalin, that regularly opened with the phrase: “Comrade Stalin, a grave error has been committed!” But to the FSB, solving a treason case is not an error but a success. Exploiting the victims’ trust is integral to its investigative practice.

If this Leviathan ever does release one of its victims, it’s not because of some hidden capacity to be humane. An FSB operative’s sense of right and wrong, Pavlov reflects, is usually a highly warped one: they identify the good with state security, understood in their own highly specific sense. Having few contacts and few interests outside of their own secretive bubble, they rarely sympathize with other kinds of people. “They’re products of a self-contained, self-replicating system,” Pavlov says. “Even the fact that they work in the FSB is a secret.” And that secrecy fosters ruthlessness within the system.

The rare surprise acquittals — like Svetlana Davydova’s, who had been charged with espionage for Ukraine in 2015 but had her charges dropped — have to do with what’s better for “Leviathan” itself. In Davydova’s case, insisting that she had passed a state secret to Ukraine would have amounted to acknowledging Russia’s military involvement in the Donbas back in 2015. Leviathan reasoned this was too much and let her go.

Looking forward to the Hague

But a different trial must take place one day. Pavlov says this is necessary, whether it’s at the Hague (as many of the regime’s critics now hope) or in Russia itself, even if Putin himself is long gone when Russia’s current system of security and law enforcement finally goes on trial. It’s unlikely, Pavlov thinks, that Russia could bootstrap itself out of its current judicial morass without any appeal or reference to international institutions. An international tribunal followed by lustration is what’s needed, Pavlov believes.

He has trouble imagining a comprehensive lustration of the Russian government. Still, a thorough purge of the state security cadres must rid Russia of the people who brought it to its current point. Pavlov thinks that this apparatus will have to be rebuilt from the ground up: no state, after all, exists today without a security apparatus. As for the rest of society, change will be slow, painstaking work: there’s no other way to bring up a new generation with a different set of attitudes.

Reflecting on the cornerstones of the rule of law in the new Russian state, Pavlov names them one by one. Lustration is necessary. So is transparency, and sound legislation. There’s good reason to expect the judiciary to change, if succession is assured in public office, particularly the presidency. Not only judges, Pavlov explains, but people in general take their cues from what they see as their best source of guarantees. In today’s Russia, a judge must decide whether his or her first concern should be the rule of law (which changes every day, thanks to the efforts of legislators in the State Duma) or the man who has been in the country’s highest office for the past 20 years.

Given Putin’s longevity in power, it’s rational to cater to him first and to the law only second. But when recurrent succession is guaranteed, the courts will revise their priorities. That’s the way it works in other countries, Pavlov points out. And although Russia has long had the reputation of “a country beyond reason,” it’s time to leave that reputation behind — and become a country where reason prevails.

Original interview by Konstantin Eggert for Deutsche Welle. Digest by Anna Razumnaya.