A Rare Moment in Basmanny Justice

A number of journalists have been calling me today about the release on bail (for 50 million rubles, mind you) of former Yukos general counsel Vasily Alexanyan.  Although I’m unreservedly pleased for Vasily and his family, I think we still need to curb our enthusiasm over whether this move symbolizes larger changes in Russia’s justice system.  Should we not expect a little more than just the release on bail of an innocent man  – whom the prosecutors have come within inches of murdering – for us to give a standing ovation for the court’s return to rule of law?  Sometimes it seems that the world has collectively resigned to the psychology of a battered spouse before Russia’s abuse of the law.

But, on the other hand, there is another decision which has been handed down this week which I believe symbolizes a much clearer break with the past – a genuinely rare moment in Basmanny justice.  It appears that the court, which became internationally famous during the first of the new show trials against Mikhail Khodorkovsky, has acquitted the political commentator Andrei Piontkovsky of the ridiculous charges of extremism he was facing for having published books and articles critical of the regime.  Dare we feel optimism for a growing independence of the judiciary?

I’m not sure we should take it that far.  Both the decision togrant parole to Alexanyan and the acquittal of Piontkovsky are positivetrends, but we still have the visible farce of the AnnaPolitkovskaya trial, and these two cases still represent individual politicaldecisions being made by certain elements within the Kremlin above andbeyond the judiciary. 

It’s possible that certain positive things wouldbe happening in the justice system following President Medvedev’srecent comments (he said, “The justice system must be effective enough to bring appeals to international courts to a minimum“), perhaps with the aim that good news from the courtscould help close the startling gap between the country’s fundamentalsand its credit ratings and CDS rates.  We are likely not witnessing thetriumph of crusading judges and lawyers, who have put forward greatpersonal risk to defy the preferences from the state, but rather agentscarrying out the political choices of the executive – and even thoughwe agree with these choices in these cases, this is still a dependentsystem. 

The only person we should be congratulating is the juror who spoke out in the Politkovskaya trial, basically forcing the court to re-open to the media.

Piontkovsky himself, who is defended in court by Yuri Schmidt, haswritten about this manner of collective decision making within theKremlin, which often has the deceptive appearance of being a seachange in policy.  Back when Dmitry Medvedev was anointed thesuccessor, Piontkovsky arguedthat the leadership had decided that a period of cooperation, notconfrontation, would yield better results in the short-term – not thatRussia had actually undergone any substantive changes.  Although thisapproach was knocked off course by the war in Georgia, it is aconvincing line of argument.

But today the persecuted commentator welcomed the judicial decision asa sign that Russia is getting back on track – and at least with regardto the shaky foundations of the new vague extremism legislation, we areclearly observing an important precedent being set:  if one is allowedto say and write things similar to what Piontkovsky has done withoutfear of persecution under this law, then this is a small but positivestep forward for all journalists and public figures in Russia.

As regular readers of this blog are aware, we have been followingthe extremism case against Piontkovsky from the beginning, as itrepresents a remarkable indicator of the legal methodology used by theKremlin in its criminalization of dissent and free speech.  Many othermodern totalitarian states have used extra-legal means to suppresstheir political opponents and incrementally erase them from contentionin the media and the electoral process, often ignoring the courts andconstitution, and implementing their rule with raw power.  Russia,however, has in some cases been a leading innovator of creatinga-la-carte legalism to accompany these efforts – a process which I call”the weaponization of law.”

The courts, much like the state-owned media, have become a centralinstrument for the survival and entrenchment of the powers.  Aside fromthe manipulation of tax, environmental, and regulatory authorities toreign in the private sector and seize certain properties, there havealso been numerous changes to the criminal code which allow for a widerinterpretation as the executive sees fit. 

One such change was made in July, 2007, when then President VladimirPutin approved changes to the extremism legislation, allowing thegovernment to imprison any individual or entire groups for up to fiveyears for displaying “hatred or hostility” toward any other group.  Thewording of the amendment was so arbitrary that Andrei Richter, directorof theMoscow-based Media Law and Policy Institute, remarkedThe effect of the new amendments could be compared to a cold shower onpolitical journalism.

So the fact that the Basmanny Court has rejected the charges brought bythe prosecutors (probably the first case lost by the procuracy inyears) against Piontkovsky is significant.  He was singled out forabuse by this law, and his case has become a test of how far the statecould stretch the “doppelgänger theory“of accusing the opposition of everything they are guilty of.  However,with public and international trust in the state at a new low in theeconomic crisis – S&P has cut sovereign ratings to nearly junkstatus – it was high time for the Kremlin to produce some good newsfrom its courts.