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Stanislav Markelov: Defending the Victim in Russia

Stanislav Markelov is one of Russia’s most talented and brave human rights lawyers, and we’ve been pleased to share some of his material in translation on this blog in the past. (Download his bio here). Over the years he has been involved in some of the most contentious and dangerous cases against Russian Army and security forces individuals for crimes committed in Chechnya, including the now famous “Case of the Cadet” – representing the family of the victim Zelimkhan Murdalov against officer Sergei Lapin in the torture trials. Below we have a new translation of one of Markelov’s closing arguments to the judge during the retrial of Lapin (date unknown), which is an impressively stunning illustration of what its like to defend victims of state abuses in high stakes political trials in today’s Russia. But first, a little background.

The case of OMON officer Sergey Lapin (call sign/nickname «Kadet») was particularly significant in the Republic of Chechnya and for Russian justice overall. The OMON employee was accused of abducting a peaceful inhabitant, namely Zelimkhan Murdalov, in the city of Grozny in January of the year 2001. Despite a multitude of such events during the time of the Chechen war, this case is the only one where it was possible to find a concrete perpetrator, bring the case to trial, conduct the trial in the place where the crime had been committed (that is right in the city of Grozny), and sentence the perpetrator to a lengthy term of imprisonment. Lapin was convicted to 9 years of deprivation of liberty for exceeding official authority and causing grave bodily injury with aggravating circumstances.Based on the results of the court decision, a criminal case was initiated in relation to Lapin’s superiors – lieutenant-colonel Minin and major Prilepin. At the present moment, they have both resigned from the organs of the police and are found on an international wanted list.To this day, there have been no other cases heard in relation to employees of the federal forces in the courts of the Chechen Republic with such a result.Speech of the defense of the victimBy Stanislav MarkelovYour honors, the trial is indeed strange. We know of few trials concerning serious crimes that last seven years, but even now there is an understanding that no matter what the decision of the court, this is far from the end. The attitudes of the parties towards one another have not softened; on the contrary, they are even more principled. It is obvious that no matter what the decision of the court, one or the other side will not be pleased with it.Usually, it is considered that a defense lawyer must always defend the interests of the accused, although in reality this is far from true. This applies especially to those trials where the number of victims is very large. In the given instance, nearly all the citizens of the republic turn out to have been victims, first and foremost those who did not take actual part in military operations. Those who had weapons could protect themselves, and those who did not were the first to suffer, precisely from those who were supposed to have been protecting them. In the given instance, the citizens found themselves between the hammer and the anvil, between those from whom they were supposed to be protected and those who were supposed to be protecting them. Both in the one and the other place, they felt themselves in the position of a potential target.Using a professional technique, I tried to imagine myself in the position of Kadet-Lapin’s lawyer and to work out all the variants of his defense. During the course of the investigation, he contrived to change his position five times. Of course, one could change it forty times too, but since all the stories have been heard, I will repeat all the arguments that he advanced, starting with the first days of questioning.First story: Zelimkhan Murdalov was beaten not by employees of the Khanty-Mansiysk OMON, but by the federals who had detained him. On the other hand, it is true, witness Ibakhiyeva, who was found in very bad relations with those same federals (according to her words, they had beaten her mother), testifies directly that Murdalov was indeed detained, but that there had not been any beating. Two other witnesses, Doshukayev and Suleymanov, say exactly the same thing: at the moment when they were summoned in the capacity of official witnesses, Zelimkhan Murdalov was clean, that is without traces of beatings. Investigator Zhuravlev clarifies yet again that there were no traces of beatings. I do not think that four people could have colluded, including investigator Zhuravlev.The second story is the one that arose during the course of the investigation: the cause of everything turned out to be a staircase. I understand full well that a staircase is the most dangerous place in all police stations. If injuries, homicides occur, it is always the fault of the staircase. But please note that I asked everybody who came here in the capacity of witnesses who had been found in the cell of the isolator if anybody had fallen that evening down the staircase. They looked at me with some kind of astonishment. I am sure you will agree that if a person of tall stature, such as Zelimkhan Murdalov was, falls down a staircase, it is simply impossible not to hear this fall. Probably the doctor Malyukin was also found in collusion with us, already as far back as that horrible night, if he wrote right from the start that these injuries are impossible from falling down a staircase. And I do not believe that from falling down a staircase an ear can be torn off, internal organs injured, the perineum beaten off, and so forth. What kind of staircase is this, anyway?After this at the stage of the investigation there suddenly appears one of the slain employees of the police Mr. Taimaskhanov, as the official supposedly involved in the given crime. It should be noted that by an amazing confluence of events, he makes his appearance after his death. We know that the simplest and most widespread way to take the blame off of oneself throughout the criminal world is to throw it onto those who have disappeared or those who have died. The question is in something else: why then did Lapin forge documents concerning the release of Murdalov from this building for some other person. Is this some kind of strange friendly help, or are people unknown to us turning out to be in collusion with us: Stavropol health professionals, handwriting analysts and other experts? Moreover, please note, these expert studies were even conducted not at the request of the procuracy of Chechnya; they were conducted at the request of the administration of the Procuracy-General in the North Caucasus in Yessentuki. All of them probably also entered into a single circle of conspiracy in order to convict Lapin.Lapin asserts that on the 3rd he was resting and precisely for this reason could not have caused bodily injury to Zelimkhan Murdalov. Then why is it that all the cellmates of the victim point at him? It was very easy to identify him: by the shaved inscription on the back of the head. How is it that chief of the IVS (temporary holding isolator) Gulnov also find himself in the circle of persons distinctly indicating that it was specifically Lapin who had led Murdalov out that morning?And finally, the last story that we heard. It had been voiced at previous sessions as well: “The investigators confused me, they deceived me, I did not think I was an accused, I was a witness, they made me a suspect, they concealed something on the first page of the interrogation and did all kinds of other nasty things, they threatened me with arrest.” If it were a fourteen-year-old juvenile sitting in front of us, I might even believe him. If it were a peasant from a remote village sitting in the place of the suspect, I would believe him. But when we hear these words coming from a person who has a degree in law and who works full-time in the criminal justice system, complaints that the investigators had deceived even him, then what kind of operative worker is he anyway? Or did he not know the law, that even as a witness he could have come in for questioning with a lawyer? And why should not the investigators have believed him; after all, a person with a degree in law and working in the spheres of criminal law can defend himself, and oftentimes better than even some other lawyer? Either the person did work as an operative and does have experience working in such cases, or you should not be saying they deceived me many times and it is precisely for this reason that I kept changing my testimony.The testimony that was given by Lapin at ORB-2 (operative-detective bureau) interests me least of all. I had already spoken about this back at the previous session. One can not imagine a clearer body of evidence of the crime even without Kadet’s testimony at ORB-2. His involvement is corroborated by two expert opinions, moreover, both are supplementary; the witness testimony of persons who had no departmental subordination and who were not even residents of the republic, such as, for example, the doctor Malyukin. What other body of evidence is needed?Lapin asserts that there are no persons concretely pointing at him. This is not so. Please note that I clarified with everybody who was here under oath whether there were any grounds to defame the accused. The defense of the accused suspects witness Katsiyev of the desire to slander the former operative. However, no matter what Katsiyev says – whether he exculpates him or no, slanders him or no – this will not affect Katsiyev’s fate in any way; he is doing time in another case. And that is why he has no grounds not to tell the truth. Lapin himself has admitted that Khadayev, who spoke here about torture and cruelty, simply did not work with Lapin; therefore, he has no grounds to defame him. Furthermore, Khadayev said directly that he feels sorry for Lapin, who is found here alone. Witness Israilov, directly pointing to the use of torture by Lapin, including in relation to the victims, in the same way according to the assertions of Lapin himself did not work with him. The same thing concerns the Dalayev and Dashukayev witnesses as well. What kind of conspiracy is this, surely also including Deputy Procurator-General Fridinsky, fiddling around with documents for the sake of one person, in order to accuse him?Or is there perhaps a simple explanation, clearly slipping through at the first interrogations of the accused himself. He did not anticipate that this would lead to those consequences that are happening now. He never thought that he would be put on trial. He considered that there would be that same situation as the one procurator Batalov told about. When, in response to attempts to summon policemen to the procuracy, there appears instead of the policemen or together with them a swarm of armed persons, literally taking the procuracy building by storm, conducting a pogrom there, aiming the barrels of armored vehicles at the procuracy, bullying the procuratorial workers. Naturally, in such a situation it is impossible to speak of any kind of accountability.This case is particularly significant because it raises a question not about one person. The significance lies in the fact that in any place, in any region, all the more so in the one where such dreadful dramatic events took place, it raises a question that is above all else. Either the power of the person with the gun, or the confidence of any citizen that he can come for protection to the police and not end up missing the next morning, that they will at least try to protect him. The confidence that he will be able to come into the procuracy, and the procuracy will deal with his case, and not say that we ourselves are afraid of them. And, most importantly, this is not a question of Lapin alone; Lapin – this is simply a small cog in the machine. But I am not in agreement with the witnesses who felt sorry for him; like, it was only because of that shaved inscription “Kadet” that he alone ended up being put on trial. But the witnesses do not know Russian laws and are very much mistaken.Lapin was lucky. The fact is that more than five years have passed since this incident took place. And under our laws, if a person is missing without a trace during the course of five years, he can be declared dead. If the criminal prosecution of Lapin had begun not then, but, let us say, now, they could have applied not art. 111 part 3 of the CC RF (causing grave bodily injury with aggravating circumstances) to him, but a much more serious article. Because of the fact that today Zelimkhan Murdalov can be regarded as a deceased person. And you understand yourselves that this is already the article “murder” or art. 111 part 4 (causing gave bodily injury leading to the death of a person), which in practice does not differ in the gravity of punishment from murder. Legislation does not allow upgrading to a more serious article in comparison with the initial charge given in the preliminary investigation. Therefore, Lapin is very lucky in terms of the lodging of the charge.Yes, he ended up being the actual perpetrator, moreover the most zealous perpetrator, since everybody remembered him so clearly. There was a much larger number of persons found in the department of the Khanty-Mansiysk OMON at that moment, but please note that the same surnames kept on being repeated here. Lapin, Kadet, Alex, Alex-Lapin, Minin. That is, the same people kept distinguishing themselves by elevated cruelty. I understand, in that situation, the real power was had only by those who had force and cruelty. But if this tendency is not stopped, if the strength of the law is not restored, then it will keep on spreading further and further. I understand full well that the strength of the law is established by only one very simple criterion: a person must be held accountable for what has been committed, where he committed what has been committed, irrespective of where he lives, of what nationality he is, what kind of official he is. Only on this does the strength of the law rest.One more thing. This question, no doubt, was asked here by every participant in the trial: why I got involved in this case. I too asked myself this question. Before this case I had never once been in Chechnya and did not know Chechnya at all. When I arrived, I wished for very simple things so that I could work here in the same way as I do in any other region. I am always traveling in various regions.It is very important that any person here, including Lapin as well, have a defense lawyer, continuously defending him. A lawyer, and not electrical wires tied to the ears, so that Lapin would spin the dial, the current would flow, and this would be called “Telephoning a lawyer”. That the accused Lapin too have elementary medical care, at least at the level of analgin tablets, and not a truncheon with the inscription “Analgin” that is applied when a person has asked for medical care. So that staircases not be instruments of torture in police stations.That relatives know where a detainee is found, can come to him for a visitation and transfer necessary things to him. That it not be reported to them the next morning that their kindred person is released, is simultaneously found in a hospital, has flown off into space, anywhere at all, just stop coming to us. So that one can turn to the procuracy and the procuratorial workers themselves are not afraid of the criminals. It would seem that this is elementary. If we do not establish the authority and the law that should be in every region, right here and right now, we will never achieve this. This is a question of principle, a question that is bigger than one trial: either the strength of the law is established, or this strength is surrendered to the assault rifle and to bribes.In this case we have managed to gather a very serious body of evidence in extreme conditions, moreover a much greater one than is necessary for the establishment of guilt. The case that is being heard today can be classified under more serious articles than the existing charges, the body of evidence is corroborated by expert opinions, the testimony of witnesses, the testimony of fellow servicemen, the testimony of specialists. While Lapin’s defense, and Lapin himself, gave a multitude of mutually exclusive stories. Therefore I ask you to find him guilty of all charges, designate the maximum punishment that is prescribed by Russian legislation with respect to the given lodged articles.