‘Not guilty’ not option in Russia

MOSCOW – In Russia’s courts, even the laws of physics sometimes can be overridden.

Attorney Stanislav Y. Markelov sat in Moscow City Court, listening as a defen- dant was charged with two drug deals made within minutes of each other in neighborhoods many miles apart.

The defense attorney wondered if the judge was dozing until the jurist raised his head and marveled at the defendant’s ability to be in two different places at nearly the same time. “How quick he is,” the judge said.

He let both charges stand, convicted the defendant and sentenced him to at least six years in prison.

The judge’s casual approach to the facts symbolizes the Russian criminal justice system. Despite efforts at reforming the system, Markelov and other trial attorneys say, the odds remain overwhelmingly against defendants.

Few things for defendants are more certain than conviction. In 2001, just 0.4 percent of the defendants in criminal cases were acquitted. In 2002, after reform of the criminal code, that figure rose slightly, to 0.8 percent. (In the United States, the figure is about 17 percent.)

But acquittals here don’t always deter prosecutors. Four out of 10 “not guilty” verdicts are overturned on appeal by prosecutors. Only one in 2,000 convictions is overturned, according to the U.S. State Department’s latest human rights report.

“There are a lot of cases where the prosecutor’s office makes appeals for years on the same case, until they get what they want, and that is the verdict of guilty,” said Sergei Lukashevsky, director of the Center for Research of Civil Society in Moscow.

Russia’s Parliament adopted a new criminal code in June 2002 that sought to make the system fairer by encouraging jury trials, giving more power to judges and weakening the traditional dominance of prosecutors.

In testimony before Congress last fall, U.S. Assistant Secretary of State Steven Pifer said the new code cut the number of new criminal cases by one-quarter and reduced the number of people held in pretrial detention by a third.

Defense lawyers agree that there have been improvements. But, they say, police still beat suspects, prosecutors still pressure judges, businessmen buy influence – and almost everyone brought to trial is still convicted. “The principals of the activities of the system here have not changed,” Markelov said.

Russian courts again will come under global scrutiny Wednesday, when the trial of the former Yukos Oil chief Mikhail B. Khodorkovsky on charges of bilking the state out of billions of dollars is scheduled to begin.

Critics have worried that Khodorkovsky, a foe of President Vladimir Putin, was arrested for political reasons, but prosecutors will finally lay out their case against the billionaire this week at his trial, seen as a test of Russia’s commitment to an independent judiciary and the rule of law.

Markelov clients are more typical of the defendants in criminal court: They include accused thieves, drug dealers and embezzlers, as well as trade union activists and environmentalists. And the system, he says, treats none of them fairly.

“Sometimes the law reminds me of a rope strung across the road,” Markelov said, sitting in a Moscow coffee shop. “High-ranking officials, or those with a lot of money, can just step over it. Petty criminals can crawl under it. Only common citizens are caught by this rope.”

The most significant recent reform is the re-introduction of jury trials. About 15 percent of the defendants tried by juries are found innocent – nearly 20 times the percentage found innocent when tried by judges alone. Juries also have shown themselves willing to deliver guilty verdicts in politically charged cases, including that of Col. Yuri Budanov, convicted last year of murdering an 18-year-old Chechen .

But rights groups say that prosecutors appear to be learning how to deal with juries, just as they learned to deal with judges. “Even the jury system seems to be corrupted,” said Vesselin Popovski, an attorney with the Moscow office of the International Helsinki Federation for Human Rights.

He noted the acquittal last month of four special forces officers charged with murder for the deaths of six Chechen civilians in 2002. The officers admitted that they mistakenly opened fire on a van, killing the driver and wounding some passengers – including a school principal and pregnant mother of seven. There was evidence showing they had tried to cover up their blunder by killing the survivors, burning the bus and claiming it had hit a landmine.

But a jury in the southern Russian city of Rostov-on-Don accepted the defense’s argument that the soldiers couldn’t be held responsible because they were following orders.

“When I read the verdict, it was horrific,” Popovski said. “Russian law says an unlawful command should not be executed.”

Some reforms might have just backfired. Judges who felt they couldn’t convict on the evidence used to suspend the trial and send the case back to the prosecutor for further investigation. That practice was abolished, to the applause of human rights advocates and the dismay of some attorneys.

Under that system, cases were sometimes dropped quietly. Now, badly flawed trials proceed uninterrupted, some lawyers say, to the all-but-inevitable conviction.

The reforms have had little effect on one of the biggest problems faced by criminal defendants, that of prosecutors and police steering clients to so-called dark attorneys, who will make no trouble in court.

“Such an attorney would advise his defendant to plead guilty to anything,” said Sergei Pashin, a former Moscow City Court judge, now professor at the Moscow Institute of Economics, Politics and Law. “And the investigator gives them jobs.”

Human rights advocates also note that little effort has been made to raise judges’ paltry salaries. Moscow City Court judges earn about $700 a month and depend on the chairman of the court for raises and affordable housing.

Leery of angering higher-ranking officials, judges often rely on shadowy political advisers to help steer them through sensitive cases. Markelov sat through one such case.

“It was a ridiculous situation,” he said. “As soon as some arguments surfaced – and they surfaced every 15 minutes – the judge would announce a break. He would rush to his chambers, and call someone for advice. He spoke so loudly, you could hear him talking in the corridor.”

Few Russians have had more experience as a defendant than lawyer Sergei V. Brovchenko.

Brovchenko was hired in 1996 to represent a former KGB agent who found himself at odds with his former colleagues. The defendant was accused of murder.

His first two lawyers had quit: One had been beaten badly, the other threatened. But Brovchenko won the case – and, he says, angered officials with the FSB, the successor agency to the KGB.

In May 1997 police arrested Brovchenko in front of a Moscow gas station and found a plastic shopping bag containing cocaine in his car. Brovchenko said the bag was planted. Witnesses said it bore part of a police evidence label.

Brovchenko said in an interview that he was beaten twice by authorities, once at the scene and then in his jail cell. FSB officers “wanted to recruit me as an agent,” he said. “They wanted me to inform on my own clients.”

Brovchenko has twice been convicted and sentenced to nine years of hard labor for the cocaine. Twice, Russia’s Supreme Court overturned the verdicts. Now he is in the middle of a third trial on the same charges, proceedings that have dragged on for a year and a half. He was freed on bail in January after a campaign by human rights groups.

By time he was released, he had served about 2,400 days – more than 6 1/2 years – in jail cells and prison camps while attending trials, or serving sentences for convictions that were later overturned.