Article 318: Criminalizing Protest in Russia

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Criminalizing Protest Has Become a Tool for Combating Rallies
Experts Studied Use of Law Criminalizing Violence Against Authorities
Anastasia Kornya
Vedomosti
February 28, 2019

Defending Protest (Apologiya protesta), an organization that provides assistance to people detained at protest rallies, has analyzed the use of Russian Criminal Code Article 318 against people involved in protest events. Article 318 makes violence against authorities a criminal offense. Between 2009 and 2017, a total of 65,046 people were convicted on this charge. Typically, the charge has been filed against people involved in drunken brawls broken up by police units or people involved in roadside altercations with traffic police. But Article 318 has also become the primary tool for charging activists with using violence against the security forces.

Demonstrative Cruelty
There are no separate figures for protesters charged with violating Article 318, but between 2013 and 2015 the number of people convicted on such charges rose annually by 600 to 800 people before decreasing slightly. The authors of Defending Protest’s report argue this increase stemmed from a rise in the number of protests and protesters in 2012: it was on May 6, 2012, that the March of the Millions took place, leading to the show trials of the Bolotnaya Square Case. After the protests peaked in 2015, there was a cooling off period, and the number of convictions nearly returned to their 2009 levels. However, there has been a growing tendency to sentence people convicted under Article 318 to actual prison time.

The experts note that when defendants confess their guilt and are tried in special expedited trials, it should theoretically mitigate their punishments, but in reality it does not increase chances they will be sentenced to probation or other non-carceral penalties. Besides, courts in Moscow have made a point of not invoking the option, stipulated by law, of dismissing cases because the parties have been reconciled or defendants have sincerely apologized for their crimes, since, in the opinion of Moscow judges, cases cannot be dismissed in so-called double-ended crimes, crimes committed not only against the victim as such but also against law and order.

The report notes that customary Russian methods of criminal investigation and judicial procedure have now been applied to the cases of grassroots activists, including double standards in weighing evidence, the presumption that law enforcement officers tell the truth, and giving priority to testimony made by suspects prior to their trials. The experts note the charges in such cases can be trumped up easily. The key evidence in these cases is the testimony of the victim and witnesses, all of them police officers. If necessary, their statements can be coordinated and entered into the court record in literally identical form.

Nonpunishable Violence
The flip side of the process is the inability to hold police officers criminally liable for using violence against demonstrators, says Alexei Glukhov, head of Defending Protest. If justice is served, this happens only if and when the European Court of Human Rights rules on a case, although Russian policemen and security services officers have been dispersing peaceful demonstrations and detaining grassroots activists and random bystanders with ever-greater ferocity. But nearly the only well-known case in which a Russian police officer was held criminally liable for violence against protesters was the case of Vadim Boyko, the so-called Pearl Sergeant, who hit a man over the head with a rubber truncheon at a demonstration in Petersburg in July 2010. In 2011, Sergeant Boyko was sentenced to three and half years of probation.

It is common practice to reject complaints filed by victims of police violence by claiming they are means of self-defense against the counter charges faced by the complainants. Thus, in the formal refusal to open a criminal case based on the complaint filed by lawyer Mikhail Benyash, the police investigator wrote, “M.M. Benyash’s testimony should be treated skeptically because he is thus attempting to build his own defense against criminal charges and thereby avoid prosecution.” In turn, the police officers who denied they had beaten Benyash testified he had beaten his own head against the window, door, and other parts of the car in which they abducted him, and when they dragged him out of the car, he beat his head against the pavement.

No less noteworthy were the reasons police investigators gave for refusing to open a criminal case based on a complaint filed by Danil Bolshakov and Daniil Markelov of Krasnoyarsk. Their testimony was not corroborated since Markelov was a supporter of Alexei Navalny, “who is a well-known opponent of the leadership of the Russian Federation, as headed by President V.V. Putin.”

Crackdown
Generally, the police crackdown has been intensifying. Lawyer Dmitry Agranovsky agreed Article 318 has been used to intimidate people.

“I would encourage everyone to compare the verdicts in the Bolotnaya Square Case, in which a demonstrator brushed away a policeman’s arm and was sentenced to three and a half years in prison, with the sentences handed down in the wake of the recent unrest in France, in which protesters have been fined or sentenced to a few months in jail at most,” he said.

In fact, Agranovsky explained, any physical contact with Russian police would result in the “offender” being charged under Article 318. Ultimately, people have become wary of attending protest rallies, although, formally speaking, Russia has signed all the relevant international conventions encouraging  peaceful protest.

Agranovsky recalled that ex-Russian MP Vladimir Bessonov was stripped of the right to engage in politics after he was charged with using violence against police officers at a protest rally.

Opposition politician Dmitry Gudkov agreed the police crackdown has intensified.

“There is a desire to extinguish protests, and that is something you can only do with a stick. The powers that be have run out of carrots,” he said.

Gudkov argued all the available tools have been brought into play in order to artificially criminalize protest. For example, the so-called Ildar Dadin article in the criminal code had been revived after it was all but outlawed by the Russian Constitutional Court. The article criminalizes repeated involvement in “unauthorized” protest rallies.

Translation and photo by the Russian Reader

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Andrey Loshak: What the Krasnodar Police Did to Lawyer Mikhail Benyash

mikhail benyahsMikhail Benyash. Courtesy of Andrey Loshak’s Facebook page

Andrey Loshak
Facebook
September 24, 2018

Achtung! Uwaga! Attention! Yet another outburst of lawlessness is underway in Krasnodar, an experimental region of Russia where the authorities test ever more repressive techniques and see whether they can get away with them or not. When I was making a film about volunteers in Navalny’s presidential campaign, it was Krasnodar where I encountered the gnarliest fucked-up shit. Provocateurs in hoods and masks attacked young people attending an “unauthorized” protest rally, and the cops, who stood nearby, claimed not to see anybody in masks attacking anyone. It was really frightening. The provocateurs assaulted the activists and assisted the cops in loading them into paddy wagons. I was also detained then for the first time in my life, despite my attempts to prove I was a reporter. I was quickly released, however. They were still afraid of causing a stir in the Moscow liberal media.

Afterwards, my cameraman and I stood outside the gates of the police station until one in the morning filming the activists, who were mainly really young men and woman, as they were let go after they were formally charged and written up. The whole time this was happening, the lawyer Mikhail Benyash was trying to get into the police station, but the police kept him out. He stood by the gate, writing down the names and numbers of the released detainees. He sadly reported that, due to the court hearings of the detainees, whom he would be defending, he would not be making it back to his hometown of Gelendzhik anytime soon, although there he was in the midst of civil court cases involving hoodwinked investors in unbuilt cooperative apartment buildings.

I asked him why he bothered with all of it when no one paid him for his work. His answer stunned me. It transpired he and I had the exact same motives. He also liked the young people who had been detained, and he also saw them as a source of hope. He was the first romantic lawyer I had ever met. (Unfortunately, I did not know Stanislav Markelov personally.) It was no wonder I took a shine to him. Later, in our correspondence, he suggested titling the series The Ugly Swans, after the novel by the Strugatskys, and wrote me a detailed explanation of why I should do it.

Here is an excerpt from his letter.

“These were the kind of young people with whom you spoke on October 7: quite сheerful, cool, and kind. Unspoiled. Clever, a little naive, and free of feigned helplessness. They grew up on the internet, in the chats on VK and Telegram.

“Instead of Tolstoy and Dostoevsky, they imbibed fantasy novels and movies about superheroes, and they fashioned all of it into a model for doing the right thing.

“Instead of Dostoevsky’s subservience, they absorbed the humor of Marvel Comics and a primitive albeit correct sense of right and wrong from movies about Batman, the Flash, and Iron Man. They fire back at priests of all types with quotations from Sheldon Cooper.

“Now I have been watching all these crazy comics serials, but not for entertainment or by way of procrastinating, but in order to understand the young people who grew up on them and so I can speak their language. I’m holding my own for the time being, but the kids are evolving rapidly.”

On September 9, which the Navalny Team had declared a day of protests nationwide, Benyash arrived in Krasnodar as usual to defend activists detained at the march, which, as usual, had not been authorized by the authorities. On the eve of the protest, nearly all Navalny staffers in Krasnodar had been arrested on a ridiculous pretext: all of them were jailed for, allegedly, disobeying police officers. There was not anything like this preventive crackdown in any other city in Russia.

On the way to Krasnodar, Benyash got a telephone call informing him he was under surveillance by the police. The caller also told him his exact location. Mikhail does not scare easily, so he did not turn around. Once he was in Krasnodar, he headed with a female acquaintance to the police station where the detainees would be taken.

Suddenly, a Mazda stopped next to him. Several brutes in plain clothes jumped out of the car, grabbed Mikhail, and tossed him into their car, where they forcibly confiscated his telephone as he was trying to telephone colleagues. The men beat him, choked him, and pressed his eyes with their fingers.

At the police station, he was thrown to the ground, handcuffed, and dragged to the fourth floor. In Krasnodar, experienced opposition activists know the fourth floor is the location of the CID and that if you are taken there, it means the police will put on the pressure and try and beat a confession out of you.

All of these events were witnessed by Mikhail’s female companion, whom the cops also brought to the station.

On the fourth floor, they beat the living daylights out of Benyash. Several blows to his face caused him to fall and hit his head on the corner of a safe.

Meanwhile, the news got out that Benyash had been detained. Lawyer Alexei Avanesyan tried to get into the station to see him, but the police would not let him in. At some point, the cops donned helmets and armor before announcing the station was going into lockdown mode, which happens when a police state is threatened by an armed attack from the outside. In fact, the police in Krasnodar go into lockdown mode every time they don’t want to let lawyers into the station to consult with detained opposition activists. When Avanesyan learned Benyash had been beaten, he summoned an ambulance crew to examine Benyash, who recorded and certified his injuries. By ten p.m., i.e., eight hours after Benyash had been detained, the lockdown was called off and Avanesyan was let into the police station.

There Avanesyan encounted Deputy Chief Papanov, who lied, telling Avanesyan Benyash was not at the station. Avanesyan is not the shy and retiring type, either. He took advantage of the confusion to make a break for the fourth floor, where he found the beaten Benyash in a room and three field agents huddled over him. Avanesyan was then allowed to consult with the detained lawyer Benyash. The police were trying to frame him on two charges: organizing an unauthorized protest rally and resisting the police!

Avanesyan alerted their colleagues via social media, asking them to come to Banyash’s court hearing. Seven lawyers showed up. Although the hearing was scheduled for nine in the morning, it didn’t kick off until ten in the evening. Apparently, none of the local judges wanted to get dirt on their hands.

The court clerk, who was drunk, didnot want to let the lawyers into the hearing, but she was forced to back off, but ordinary members of the public were not admitted into the courtroom.

Judge Buryenko denied all the motions made by the defense. He did not ask police officers to testify. He did not admit the video recordings into evidence, and he even refused to view them. He did not call Benyash’s companion to testify, although she was standing in the hallway.

Benyash was found guilty on all counts and sentenced to forty hours of community service and fourteen days in jail. Although the lawyer had nothing to do with organizing or running the protest rally, he was given the harshest punishment for his non-involvement in it, despite the fact that the number of detainees in Krasnodar also broke all records: around one hundred protesters were hauled in by the police on September 9.

I quote Mediazona, who cite the court’s written verdict.

“According to the police officer’s report, Benyash got into the car voluntarily in order to go to the police station and have charges filed against him, but in the police station parking lot the lawyer banged his head against the car window of his own accord and kicked open the door in an attempt to escape. The police officer claims Benyash refused to stop hitting his head against the wall [sic], which was grounds for charging him with violating Article 19.3 of the Administrative Offenses Code.”

But there is more. Benyash was supposed to be released from jail yesterday. Avanesyan arrived at the special detention facility, seventy kilometers outside of Krasnodar, where Benyash had been jailed, to pick him up. But instead of picking up his released colleague, he was shown a new indictment against Benyash, this time on criminal charges. Benyash was alleged to have violated Article 318 Part 1 of the Russian Federal Criminal Code: “engaging in violence against the authorities.” Medical certificates attesting to the finger bites allegedly suffered by police officers and the enormous suffering they endured as a result have been admitted into evidence.

Benyash has again been detained: for forty-eight hours for the time being. Tomorrow, he will go to court.

Dear colleagues from Novaya Gazeta, TV Rain, and other independent media, please cover this case. Otherwise, the experiment in Krasnodar will very quickly  expand nationwide. Even the Brezhnev-era KGB did not stoop to beating up and imprisoning dissident lawyers.

Thanks to George Losev for the heads-up. Translated by the Russian Reader

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