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Finding the innocent guilty: part II

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A lowly researcher finds himself subject to the forces of the Russian security service and a flawed justice system. oDR is pleased to present the second part of exclusive extracts from Zoya Svetova's "Finding the innocent guilty". Read Part I here

Zoya Svetova
20 May 2011

Foreward from the editors 

In 2004, the academic Igor Sutyagin was imprisoned for 15 years for alleged espionage. He was released last summer as part of a deal that saw Russian intelligence officers detained in the US returned to Moscow. Huge doubts remain about the fairness of his original trial: about the jury that was dismissed half way through the original process; about the original judge who was sent away on “annual leave” and replaced by one renowned for government loyalty; and about the coincidence of former intelligence officers appearing in jury of the second trial. On 3 May 2011, the European Court of Human Rights in Strasbourg ruled that the trial was conducted in breach of Sutyagin’s rights, in particular the rights to a fair trial, and to liberty and security of person (articles 6 and 5 of the European Convention on Human Rights respectively).

Campaigning journalist Zoya Svetova followed Sutyagin’s case over many years, frequently for the oppostionist magazine “The New Times”. Her article “Jury duty is a nasty business” (in Russian) was quoted at length in the ECHR ruling. Struck by the fantastical absurdity and injustice of the process, she turned her trial notes into a novel, “Finding the innocent guilty”, which was recently published in Russian by publishers Vremya. Although the main characters appear under pseudonyms, they are instantly recognisable to anyone familiar with the process, and with the carefully calibrated machine of Russian “justice” in general. In this second passage, we are introduced to Judge Galina Vikentyevna Mukhina, whose real life parallel in the trial was Judge Marina Komarova. As Komarova, our heroine Mukhina is an ultra-reliable worker, ready to return only the most convenient of verdicts...

Part I: Judge Filippova's Empire 


A special judge

Galina Vikentyevna read the printout carefully. It was a letter written from prison by Alexei Letuchy, to his parents. In it he recounted how the first jury had been selected – that same jury that had subsequently been disbanded because the Chair of the City Court feared these jurors would acquit.

‘The candidates were all essentially older people: there only four under 50. There were 31 individuals in total. Not one of them was under 40. The ‘youngest’ of the candidates – a 40 year old female railway track inspector – became jury member no.6 (for some reason they number them, even hanging a badge with their number on their chests).

The selection of candidates took a long time – five hours. Each side – that is, me and my lawyers and the prosecution – had the right to ask jurors questions in order to find out whether they suited us or not. We asked questions of the jury candidates. The prosecutors didn’t have any questions, but they listened carefully and made use of the results of our interrogation. We asked: ‘Do you believe that a representative of the law enforcement agencies attending court speaks the truth, simply because he is an employee of the agencies?’

‘The Court concluded that Mr Sutyagin’s doubts as to the independence and impartiality of the trial court in his case could have been said to be objectively justified given that the presiding judge had been replaced for unknown reasons and without procedural safeguards ‘[and] that the first jury to consider the case of Igor Sutyagin was dissolved under extremely crude pretexts.’

Ruling of the European Court of Human Rights, 3 May 2011

A 56 year old female pensioner answered that ‘in order to come to a conclusion about truthfulness, I would need to have all available information’. The prosecutors swiftly issued her a peremptory challenge. Both sides have the right to a peremptory challenge, but the rejection of a candidate on the grounds that to take a decision she requests all available evidence, is merely not prepared to believe unreservedly the word of a prosecutor alone, is illustrative.

We rejected two pensioners – lovely people, but one was from the FSB department for Moscow and the Moscow region, and the second from the FSB Academy. As if they had wandered in to participate in the proceedings by chance. And so we ended up with 12 jurors: three of working age, nine pensioners. Amongst the reserves there was one 42 year old female librarian and three pensioners: a 56 year old designer-constructor, a 68 year old leading specialist of unknown specialism and a 66 year old hospital orderly.

After the election the chosen jury representatives were moved from the benches in the hall to the soft easy chairs on a sort of raised area behind a small barrier, changing their badges from ‘candidate for jury service no…’ to ‘juror no…’ They now sit opposite my cosy cage, literally three to four metres away.

The jurors swore an oath, as – given the name – one might pretty well expect them to [the Russian for juror is prisyazhnyi zasedatel’ – literally, a sworn assessor] and the first day was thus concluded.’

‘What was done wrong, Nikolai Vasilyevich? Why did these people want to acquit the researcher?’ Judge Galina Vikentyevna asked Nikolai Vasilyevich Vedrashku, the FSB social psychologist sitting in her office. She asked in a gentle voice, with the special intonation which she always used in court when she wanted to extract from a witness something especially important. Witnesses were often taken in by this intonation and, not expecting a dirty trick, said things they later regretted.

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The character of Judge Mukhina is based on
the discredited Judge Marina Komarova 

Nikolai Vasilyevich asked Galina Vikentyevna for permission to smoke a cigar. Inhaling and spreading the scent of expensive tobacco around himself, Verdrashku began to slowly analyse the problem. ‘Perhaps the jurors were charmed by the accused and his lawyers. Another, no less important aspect is that the overwhelming majority of these people are pensioners. They have loads of spare time, and for them court sittings are a kind of theatre, and they are happily prepared to go there. And the third, and most important, factor is that these people have nothing to lose. They have no career to build, and they have no business. It follows that for the success of our enterprise’, Nikolai Vasilyevich smiled, revealing crooked teeth, ‘we need to choose a jury the absolute inverse of the first.  I already have a rough draft of sorts.’ 

Nikolai Vasilyevich drew a small piece of paper from the inside pocket of his jacket, and passed it to Galina Vikentyevna.

On the list were six surnames.

‘These people will form the core of our future jury. It will depend on you, respected Galina Vikentyevna, to make absolutely sure that they get onto that panel of jurors. We’ll position two at the beginning of the list, and four we’ll distribute towards the end of the list. The remaining eight people, who will be selected from amongst all candidates, are already less important. I say eight, because we need to make provision for two reserves. In the worst case scenario, if we don’t get unanimous support for a verdict, then we can work on two of the remaining six jurors and persuade them to deliver the verdict we need.’

‘Wait a minute – but if one or two of these six fall ill, or withdraw, and the reserves take their places? What then?’ Galina Vikentyevna suspected that the psychologist wasn’t very good at maths.

‘Don’t worry. You will conduct proceedings within two weeks. I’ll attend every sitting and as soon as I notice a problem in the perception and behaviour of the clients, I’ll leap in immediately and settle things. That’s what they pay me for.'

‘And who will summon these people to court?’ asked Galina Vikentyevna.

‘Here are their addresses and home telephone numbers. Your secretary will summon them, you know, as the law says. We’ll send cards out later. 25-30 people must come to the selection. This is important, so that precisely our six ‘clients’ get on to the final list. Here’s another eight surnames for you – include these people on the list of candidates for jury service as well. They will decline any nomination – I’ve already agreed this with them. That’s it for now. If there are any questions, call me. I’m always reachable. Let me know when you fix the selection date. I’ll attend. Introduce me as an assistant to the judge. And I’ll try to ensure that the lawyers don’t suspect anything.’

Nikolai Vasilyevich took his leave, and Galina Vikentyevna remained sitting behind the desk. When the door closed behind the psychologist, she stared intensely at one spot for a few minutes. Then it occurred to her that she had a temperature.  She rushed to the mirror hanging in the small room attached to her office: her cheeks were burning, her eyes glittering. That always happened when she was gripped by strong emotion. Judge Mukhina understood that higher management had thrown her once again into the firing line. The chairperson of the court had passed her a pre-ordered case which another judge could not cope with. And that means that the press would start to bandy her name about, and the defence lawyers would begin to act out a farce, continually raising distractions for her. She would have to deflect these distractions and, during course of the proceedings, correct the mistakes of the investigation, control and direct the public prosecutors onto the necessary track.

'The rejection of a candidate on the grounds that to take a decision she requests all available evidence, is merely not prepared to believe unreservedly the word of a prosecutor alone, is illustrative.'

Zoya Svetova, 'Finding the innocent guilty'

Galina Vikentyevna loved power. And she really liked her work. She felt herself part of the authorities. She understood perfectly that they, those who stood higher than her, were using her, compelling the delivery of judicial rulings which were, as a rule, unjust. But Galina Vikentyevna was gratified by the fact that these rulings, on which hung the lives of people she did not know but for whom she already did not care, were delivered in her name.

She experienced an incomparable – almost sexual – pleasure when she pronounced the words ‘the Court sentences … to … years imprisonment.’

To be fair, however, she experienced no less, and perhaps even more, pleasure in those rare cases when she acquitted the accused and released them from the cage.

But every year there were fewer and fewer such cases, and Galina Vikentyeva preferred not to ponder why. Weekly work meetings conducted in the office of the Chair of the Criminal Bar freed her from the pangs of conscience. At these ‘sittings’ the judges made presentations about cases in which they were involved, and they received precise and unambiguous instructions about what decision must be reached in this or that case.

In recent years Mukhina had begun to be entrusted exclusively with cases of national importance. She knew very well that in such cases there could be no question of acquittal.

Opening the case file for Alexei Letuchy, Galina Vikentyevna sighed: she had run into a similar sort of evidence base in the case of another ‘spy’ – an employee of the Russian Ministry of Foreign Affairs. Three judges before her had considered the case, and had been unable to manage it. The Chair of the Moscow City Court had then come kow-towing to Judge Mukhina. The evidence, she remembered, had not been particularly convincing, but she’d come to their aid, concealed the shoddy work of the investigators. The ‘template’ sentence had already been sent from the FSB on a flash drive, and it had not been a great deal of work to drive the examination of the witnesses towards a guilty verdict.

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Sutyagin (Letuchy) understood that this was a political
trial, and expected the judge to  side with the prosecution

In contrast to another case she’d been dealing with, where a diplomat had been arrested after a meeting with a Korean colleague-intelligence officer, in Letuchy’s case there was no evidence of treason (aside, perhaps, from his own admissions about links with supposed spies). The expert evaluations of the supposedly “secret” nature of the newspaper cuttings, represented in abundance in the text of the bill of indictment, contradicted one another. The investigation itself had cut back one charge after another: if at the start the researcher had been accused of 30 incidents, now there were only four under discussion.

But Judge Mukhina rejoiced: after all, all this showed she was needed by the authorities. As her husband – a retired FSB colonel – would say: ‘You, Galya, have the luck of the devil. The Motherland is entrusting you with a struggle against the regime’s enemies. And it’s not important whether these are terrorists or spies. It doesn’t matter that enquiries aren’t always up to scratch. Enemies operate skilfully and insidiously. Their guilt isn’t so easy to prove. But you know yourself: the law enforcement bodies don’t make mistakes. If they’ve been arrested, they must have done something wrong. You must use your judicial wisdom to smooth over the mistakes of the prosecutors.’

It was important to Galina that she had the support of her family. One could not share one’s doubts at work. It wasn’t usual to discuss cases. God forbid that the blunders of the investigations, or the shakiness of the prosecution’s position, should be so much as hinted at – there and then word would reach the Filippova’s ears. She could call you into her office and – in the best case scenario – give you a telling off, and in the worst case, send you down a floor – to the place where appeals were considered. The Chair of the Moscow City Court adored giving her subordinates a dressing down. She especially loved emotional declarations. ‘Don’t forget that we are judges. We are the arbiters’ she would say with an important air, pacing around her enormous office.  Carried away, she would usually approach the portrait of the president, and as if inviting him to back her up, announce to the judges: ‘We always remain above the fray. We do not have the right before proceedings, or even in court, to take a particular side.  Study the case, investigate thoroughly, and remember that you were appointed judges by the president of Russia, Vladimir Vladimirovich Putin. We do not have the right to betray his trust.’

Judge Mukhina never forgot this point. She liked the president, his manner of dress, of speech. His legal education, his attention to the justice system appealed to her. Under him the courts and prosecutors had attained the status they had always lacked. They had begun to be discussed in the press and in society. Judge Mukhina felt herself needed and called upon. She was respected and feared. What could be nicer? It is true that in the eyes of defendants and defence lawyers she often discerned annoyance and even a deep hatred. But she tried not to pay attention to this, telling herself that she was working for her country. And carrying out her duty, as she understood it.

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Read Part I here. Part III will be published tomorrow

Zoya Svetova's novel, Finding the innocent guilty, is published in the Russian by Vremya

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