Politics
The Mechanics of Political Persecution in Russia
July 15, 2023
- Kirill TitaevVisiting Scholar at Cornell Law School
Kirill Titaev describes mechanism that the Russian law enforcement system has recently been using to criminally prosecute political opponents. Previously, these tools were used by predatory law-enforcers in frameup cases against business entrepreneurs.
Since mid-2022, hundreds of criminal cases have appeared in Russia against activists (at the end of May, OVD-Info reported 581 cases just for anti-war protests), who are accused of various crimes, from “discrediting the army” to “high treason.”
From a legal and organizational point of view, the prosecution in political cases is following a model similar to the one used for many years to prosecute businesspeople. In each district or city department of the Ministry of Internal Affairs (there is such a department in every administrative unit with a population of 10,000-100,000 people) there are employees who are ready to work by this model. This means that from a technical point of view, repression can be significantly expanded: from the current dozens of cases a month up to several hundred.
The obvious absurdity of political cases (for “fake news,” for “discrediting the army” and the like) can hardly be surprising. In past years, law enforcement has initiated no less absurd cases against small, marginalized groups (Islamic activists, Jehovah’s Witnesses, etc.), or against Alexei Navalny, whom the regime considered its political opponent (for example, the Kirovles case).
In political cases, other “evidence” usually turned up – relatively convincing on the surface but actually very dubious.
Now, the amount of absurdity in “political” persecution has increased dramatically. Among recent examples is the case against the Russian director Yevgenia Berkovich and playwright Svetlana Petriychuk over their performance of Finist, the Brave Falcon. Both are being held in pretrial detention as part of the case over “justifying terrorism,” even though we are talking about a theatrical performance whose meaning is totally opposite, and besides, the play had been staged in Russian chamber theaters for several years.
New repressive practices
There have been three key changes in political persecution in the past year and a half:
- A sharp quantitative increase (from dozens of cases to hundreds);
- A shift in the qualification of “crimes” from administrative to criminal offenses. Whereas the punishment does not exceed 30 days of jail for the former, for the latter it can be many years (at least two months) of imprisonment (in cases where a fine is imposed as a punishment the amount is comparable for these two types of offenses: in certain cases, it can go up to the equivalent of hundreds of thousands of dollars);
- The use of “special” offenses in the criminal code for political crimes. Previously, mainly general offenses were used – for example, charges of fraud were brought against “politicals.” An exception was violations at rallies, for which a special punishment was introduced in 2001 that began to be applied widely only after 2012. Recently, oppositionists have been accused of spreading false information about the Russian army.
At first glance, these changes boil down to the regime becoming more repressive, pursuing a policy of zero tolerance with regard to protest and public dissent. Against this backdrop, law enforcement agencies are increasingly identifying and prosecuting “political criminals.”
However, a more repressive regime does not necessarily imply a corresponding change in the law enforcement system. It is a big and inert system, with about a hundred thousand people involved only just at the level of investigation, not to mention those who stand watch at rallies, escort suspects, and so on. All of them have to be explained the new rules of the game. In other words,
From a legal and organizational point of view, the prosecution in political cases is following a model similar to the one used for many years to prosecute businesspeople. In each district or city department of the Ministry of Internal Affairs (there is such a department in every administrative unit with a population of 10,000-100,000 people) there are employees who are ready to work by this model. This means that from a technical point of view, repression can be significantly expanded: from the current dozens of cases a month up to several hundred.
The obvious absurdity of political cases (for “fake news,” for “discrediting the army” and the like) can hardly be surprising. In past years, law enforcement has initiated no less absurd cases against small, marginalized groups (Islamic activists, Jehovah’s Witnesses, etc.), or against Alexei Navalny, whom the regime considered its political opponent (for example, the Kirovles case).
In political cases, other “evidence” usually turned up – relatively convincing on the surface but actually very dubious.
Now, the amount of absurdity in “political” persecution has increased dramatically. Among recent examples is the case against the Russian director Yevgenia Berkovich and playwright Svetlana Petriychuk over their performance of Finist, the Brave Falcon. Both are being held in pretrial detention as part of the case over “justifying terrorism,” even though we are talking about a theatrical performance whose meaning is totally opposite, and besides, the play had been staged in Russian chamber theaters for several years.
New repressive practices
There have been three key changes in political persecution in the past year and a half:
- A sharp quantitative increase (from dozens of cases to hundreds);
- A shift in the qualification of “crimes” from administrative to criminal offenses. Whereas the punishment does not exceed 30 days of jail for the former, for the latter it can be many years (at least two months) of imprisonment (in cases where a fine is imposed as a punishment the amount is comparable for these two types of offenses: in certain cases, it can go up to the equivalent of hundreds of thousands of dollars);
- The use of “special” offenses in the criminal code for political crimes. Previously, mainly general offenses were used – for example, charges of fraud were brought against “politicals.” An exception was violations at rallies, for which a special punishment was introduced in 2001 that began to be applied widely only after 2012. Recently, oppositionists have been accused of spreading false information about the Russian army.
At first glance, these changes boil down to the regime becoming more repressive, pursuing a policy of zero tolerance with regard to protest and public dissent. Against this backdrop, law enforcement agencies are increasingly identifying and prosecuting “political criminals.”
However, a more repressive regime does not necessarily imply a corresponding change in the law enforcement system. It is a big and inert system, with about a hundred thousand people involved only just at the level of investigation, not to mention those who stand watch at rallies, escort suspects, and so on. All of them have to be explained the new rules of the game. In other words,
“The desire of the political leadership for ‘more repression’ is not so easy to translate into action.”
In world practice, there are various examples of ramping-up repression, including the transfer of punitive functions to other structures (for example, the army). This was the case, for example, in Chile in the early stages of the reign of Augusto Pinochet; other South American juntas acted in much the same way. Another option is the creation of special (simplified) legal mechanisms. Such attempts were made, for example, by Great Britain at the height of the struggle with the Irish Republican Army.
Judge Alexei Krivoruchko is infamous for handing down guilty verdicts in political cases, such as the case against Sergei Magnitsky, a lawyer who died in prison, and many political oppositionists.
Source: Twitter
Source: Twitter
Russian specifics
The currently increasing repression in Russia does not look like that. The changes are happening quickly, and there are very few officials who are prepared and know how to work on criminal prosecution for political reasons. It was no coincidence that in many political cases before the start of the war, we saw the same investigators, judges and prosecutors. Only a few teams at the federal level dealt with these cases: for example, Judge Krivoruchko, who condemned Sergei Magnitsky and many political oppositionists, and investigator Roman Nesterov, who handled the cases of Alexei Navalny, former Minister of Economic Development Alexei Ulyukaev, among others, have become household names).
The Russian law enforcement apparatus is not only big but also – and very importantly – intimidated. Any new type of case for an investigator carries the risk of doing something wrong and getting punished for it. Any official in these conditions will try to avoid working on such a case, and having been handed one, he will delay it as much as possible.
In other words, ramping-up repression is not a trivial task, and if you pretend that everything is the same as before (in particular, collect thick volumes of criminal cases) and extraordinary legal methods are not applied, the existing bureaucratic machine will greatly hinder that task.
Nevertheless, the transition from dozens to hundreds of cases was relatively painless for the punitive authorities. How were qualified personnel found and a model developed that practically all political cases are now following?
For example, Navalny, the most prominent Russian non-systemic-opposition figure, was convicted on several charges, two of them “economic”. In the 2013 Kirovles case mentioned above he was accused of arranging the sale of timber at a higher price than the one at which the timber was bought – basically of making a business deal. In the 2012-2014 Yves Rocher case, under which Navalny was also found guilty, there were even documents indicating that the “victim” believed that no harm had been done to her.
It seems that in the past such “techniques” were used only against selected and particularly “dangerous” oppositionists, whereas now they are being used on a larger scale (unfortunately, high-quality data for such cases have not yet been published).
Raiding business as a law enforcement model
In fact,
The currently increasing repression in Russia does not look like that. The changes are happening quickly, and there are very few officials who are prepared and know how to work on criminal prosecution for political reasons. It was no coincidence that in many political cases before the start of the war, we saw the same investigators, judges and prosecutors. Only a few teams at the federal level dealt with these cases: for example, Judge Krivoruchko, who condemned Sergei Magnitsky and many political oppositionists, and investigator Roman Nesterov, who handled the cases of Alexei Navalny, former Minister of Economic Development Alexei Ulyukaev, among others, have become household names).
The Russian law enforcement apparatus is not only big but also – and very importantly – intimidated. Any new type of case for an investigator carries the risk of doing something wrong and getting punished for it. Any official in these conditions will try to avoid working on such a case, and having been handed one, he will delay it as much as possible.
In other words, ramping-up repression is not a trivial task, and if you pretend that everything is the same as before (in particular, collect thick volumes of criminal cases) and extraordinary legal methods are not applied, the existing bureaucratic machine will greatly hinder that task.
Nevertheless, the transition from dozens to hundreds of cases was relatively painless for the punitive authorities. How were qualified personnel found and a model developed that practically all political cases are now following?
For example, Navalny, the most prominent Russian non-systemic-opposition figure, was convicted on several charges, two of them “economic”. In the 2013 Kirovles case mentioned above he was accused of arranging the sale of timber at a higher price than the one at which the timber was bought – basically of making a business deal. In the 2012-2014 Yves Rocher case, under which Navalny was also found guilty, there were even documents indicating that the “victim” believed that no harm had been done to her.
It seems that in the past such “techniques” were used only against selected and particularly “dangerous” oppositionists, whereas now they are being used on a larger scale (unfortunately, high-quality data for such cases have not yet been published).
Raiding business as a law enforcement model
In fact,
“The technique, which makes it possible to interpret as a ‘crime’ virtually any everyday activity, has been widely used in the past.”
Playwright Svetlana Petriychuk is charged with “justifying terrorism." The case is based on a theatrical performance of her play. She has been held in pretrial detention since early May. Source: Twitter
Just not against “politicals” – but rather unwanted business competitors, or political opponents involved in business. Importantly, such cases were to formally look like ordinary white-collar crimes.
Let’s look at an example. Businessman A owns a small company that provides housing and communal services. He is also the company’s director, i.e. he runs the business himself. The company, among other things, owns a 1971 Zhiguli car. The director, who is also the owner of the company, sells this car to his employee for the equivalent of $220.
Subsequently, investigators establish that the real cost was $350. On this basis, the accusation is made that A, as the director, committed embezzlement in favor of a third party (his employee) to damage the owner-businessman A, i.e. himself. Since the embezzlement was committed while he was doing his official duties (he works as the hiring manager in the company that he owns), this becomes a serious crime (punishment of up to six years in prison, Part 3 Article 160 of the Criminal Code).
The above is a specific case known to the author. The businessman was sentenced to three years of probation. It is estimated that such cases number around at least 10,000 per year. Nevertheless, the courts almost always treat these cases liberally and impose relatively light sentences, though in Russia a criminal record is a serious obstacle to any professional activity.
It is almost impossible to understand what drives such cases; however, it can be assumed that, for example, someone paid a bribe to law enforcement to take away the business from businessman A, or to make him pay a bribe for being left alone.
Another explanation could be reporting (accounting) issues. Every year, law enforcement agencies need to show that they have brought to court at least as many cases under certain categories as in the past. To meet these requirements, law enforcement officers often create absurd cases like the one described above. There are enough officers in the law enforcement system who know how to make up a criminal case “out of nothing” and thus can be used to cook up similar cases for political crimes.
How to prove criminal intent?
The law enforcement system first has to prove the criminality of an act. To do that, an expert examination must be conducted that will show that some act (selling a car, staging a performance, etc.) has elements of a crime (selling a car is embezzlement, staging a performance is justifying terrorism). The next step is to apply the mechanism of “strict liability,” where criminal intent does not need to be proven, as it can be deduced from specific actions.
The businessman sold the car at a lower price because he wanted to damage the company. Other motives are not considered in principle. Yevgenia Berkovich staged the play because she wanted to justify terrorism. And here, too, law enforcement will not consider any other possible motives for putting on such a theatrical production.
These two techniques together make a universal tool: law enforcement officials take on a person whom the political authorities have fingered (or who is convenient for their own books), then they look for the appropriate act and order an expert examination. Reliable “experts“ write that there was a crime in the act.
In the indictment the act will be described as premeditated, aimed at breaking the law. All objections from the defense regarding the dubious expert examination will be dismissed by the court with the phrase “there is no reason not to trust the expert.” Meanwhile,
Let’s look at an example. Businessman A owns a small company that provides housing and communal services. He is also the company’s director, i.e. he runs the business himself. The company, among other things, owns a 1971 Zhiguli car. The director, who is also the owner of the company, sells this car to his employee for the equivalent of $220.
Subsequently, investigators establish that the real cost was $350. On this basis, the accusation is made that A, as the director, committed embezzlement in favor of a third party (his employee) to damage the owner-businessman A, i.e. himself. Since the embezzlement was committed while he was doing his official duties (he works as the hiring manager in the company that he owns), this becomes a serious crime (punishment of up to six years in prison, Part 3 Article 160 of the Criminal Code).
The above is a specific case known to the author. The businessman was sentenced to three years of probation. It is estimated that such cases number around at least 10,000 per year. Nevertheless, the courts almost always treat these cases liberally and impose relatively light sentences, though in Russia a criminal record is a serious obstacle to any professional activity.
It is almost impossible to understand what drives such cases; however, it can be assumed that, for example, someone paid a bribe to law enforcement to take away the business from businessman A, or to make him pay a bribe for being left alone.
Another explanation could be reporting (accounting) issues. Every year, law enforcement agencies need to show that they have brought to court at least as many cases under certain categories as in the past. To meet these requirements, law enforcement officers often create absurd cases like the one described above. There are enough officers in the law enforcement system who know how to make up a criminal case “out of nothing” and thus can be used to cook up similar cases for political crimes.
How to prove criminal intent?
The law enforcement system first has to prove the criminality of an act. To do that, an expert examination must be conducted that will show that some act (selling a car, staging a performance, etc.) has elements of a crime (selling a car is embezzlement, staging a performance is justifying terrorism). The next step is to apply the mechanism of “strict liability,” where criminal intent does not need to be proven, as it can be deduced from specific actions.
The businessman sold the car at a lower price because he wanted to damage the company. Other motives are not considered in principle. Yevgenia Berkovich staged the play because she wanted to justify terrorism. And here, too, law enforcement will not consider any other possible motives for putting on such a theatrical production.
These two techniques together make a universal tool: law enforcement officials take on a person whom the political authorities have fingered (or who is convenient for their own books), then they look for the appropriate act and order an expert examination. Reliable “experts“ write that there was a crime in the act.
In the indictment the act will be described as premeditated, aimed at breaking the law. All objections from the defense regarding the dubious expert examination will be dismissed by the court with the phrase “there is no reason not to trust the expert.” Meanwhile,
“Only experts of the prosecution have the ‘privilege’ of always being trusted. It is practically guaranteed that any expertise that a lawyer offers to the court will be rejected.”
All objections that the real reason for the act is being misrepresented are routinely rejected by the court with the wording “the court considers objections to lack of intent as an attempt to avoid punishment.”
Over the past decade and a half, from several thousand to several tens of thousands of cases have been brought each year against businesspeople and bureaucrats built on this exact model: (a) on the basis of “expertise” the criminality of some act is proven; (b) on the basis of an investigator’s assessment intent is attributed to the accused.
Thus, in each district there is a certain number of law enforcement officials who know how to work by this model. If there is a decision “from above” to launch political persecution against a person, there will always be an experienced official who can be entrusted with the case or asked (most often it is a her) to pass on the experience to colleagues.
The “good” news is that bureaucratic standards in Russian law enforcement remain high, and the preparation of each case is a labor-intensive and lengthy undertaking. The system could tomorrow go to hundreds of cases a month without much difficulty, assuming such a demand from the state, though apparently it cannot handle thousands at this point.
Over the past decade and a half, from several thousand to several tens of thousands of cases have been brought each year against businesspeople and bureaucrats built on this exact model: (a) on the basis of “expertise” the criminality of some act is proven; (b) on the basis of an investigator’s assessment intent is attributed to the accused.
Thus, in each district there is a certain number of law enforcement officials who know how to work by this model. If there is a decision “from above” to launch political persecution against a person, there will always be an experienced official who can be entrusted with the case or asked (most often it is a her) to pass on the experience to colleagues.
The “good” news is that bureaucratic standards in Russian law enforcement remain high, and the preparation of each case is a labor-intensive and lengthy undertaking. The system could tomorrow go to hundreds of cases a month without much difficulty, assuming such a demand from the state, though apparently it cannot handle thousands at this point.
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