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The Politics of Parole

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(Editor’s note: RA drafted this piece on Friday, before the murder of Stanislav Markelov, the lawyer representing the family of Budanov’s victim)

To describe the Russian justice system as flawed and dysfunctional would be an extremely generous understatement, yet however arcane and unfair the system has become, judicial decisions are still made. Charges are filed, hearings held, trials convened, and convictions and even the occasional acquittals are parsed out. And as we have seen lately, certain individuals are even granted parole once in a while – though the process by which these small acts of compassion are distributed is quite far from clear.

The latest news makes the parole issue even more confusing. Last Thursday, the former army colonel Yury Budanov, who was convicted in 2005 for the brutal murder by strangling of eighteen-year-old Elza Kungayeva, walked out of prison after being granted a swift parole. The fact that Budanov was even convicted and spent some time behind bars represented a major victory for human rights in Russia at the time, as he attained a martyr status for extreme nationalists. Lawyer Stanislav Markelov, who has written for this blog, represents the family of Kungayeva and was instrumental in bringing the case to prosecution. Markelov’s appeals against Budanov’s parole have been essentially ignored by the Russian courts.

A detailed history of Budanov’s violent crimes could fill anencyclopedia, so I’ll just cite two paragraphs from Peter Baker andSusan Glasser’s book Kremlin Rising, describing the murder of Elza, whowas abducted by Budanov for “questioning” after a full day of drinking:

“For two hours, Budanov and Elza were alone in his tent. Budanovlater claimed that he was questioning her about her rebel ties and thatshe insulted him, threatened to kill his family, and lunged for hisgun. Yet Elza could hardly speak Russian, relatives said later, and wasincapable of such elaborate conversation in what was to her a foreignlanguage.

Sometime after 3 a.m., Budanov emerged from the tent. Inside, Elzawas dead. She had been beaten, stripped naked, and strangled. (…)

The examination by a military forensics laboratory foundblack-and-blue marks all over Elza’s face, neck, and body,strangulation marks on her neck, and severe damage to a “plethora ofinternal organs” that appeared to be the result of repeated blows by aheavy object. The experts reported finding injuries to her hymen andrectum along with bleeding proving “those injuries were inflictedapproximately one hour before death.”

Yet it is this individual, whose case became an accidentalreferendum on the war in Chechnya, who was granted parole this week, asthe authorities cite the five years of pre-trial detention and goodbehavior in prison.

The Yukos prisoners however, the best-known beingMikhail Khodorkovsky and Platon Lebedev, who stand accused ofnon-violent offenses, imprisoned on convictions that would not stand inany rule of law court (the Swiss Federal Tribunal, for example, hasdeclared their cases politically motivated), are wholly unable toobtain parole or early conditional release. Many of the Yukos prisonershave also spent more than five years in pre-trial detention withexemplary behavior, and Svetlana Bakhmina, who recently gave birthwhile still serving her sentence, had her appeal hearing for earlyconditional discharge delayed yet again on the same day the Budanovdecision was handed down.

So what is it about the politics of parole that lets aself-confessed murderer walk while innocent people are not given theluxury of even arguing their case for release? Firstly, it isinstructive to take a close look at how one parole came about.

It was the one notable development in the Yukos-related cases nearthe end of 2008, when former general counsel Vasily Alexanyan, who wassubjected to medical blackmail after contracting AIDS and tuberculosiswhile in custody, was granted “parole” on an absurdly high $1.8 millionbond. Before we all raise our arms and rejoice that the Russian courtshave returned to justice and sanity, we need to understand that thisjudicial decision was too little too late. Anyone who believesAlexanyan’s release had more to do with justice, rather than politicalexpediency, is seriously misled.

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First there is the issue of the timing of this judicial decision,one that is inextricably linked to the Bakhmina parole hearing on thesame day, which was delayed without justification. This is somethingthat appears to have gotten lost in the press coverage. On Dec. 8, thecourt ruled to grant Alexanyan parole, whereas only six weeks earlierthey had ruled to extend his detention, despite the fact that he wasterminally ill with lymphatic cancer due to his untreated immunedeficiency. There was a reason for this sudden reversal, and it was notjust an inspired moment of altruism.

On Monday, Dec. 22, the EuropeanCourt of Human Rights in Strasbourg ruled that Russia had violatedAlexanyan’s constitutional and basic human rights in denying him urgentmedical care, and called for his immediate release. According to mysources, Russian authorities allegedly caught wind of the ECHR decisionearly, and preempted any obligation to observe the ruling by arrangingfor a release of Alexanyan, and buying them impunity on the Bakhminacase, whose online petition has already garnered more than 90,000signatures in support of her release. If Russia had not granted theparole and bail decision before the ECHR, they would have beenobligated to release him unconditionally with no bail.

Secondly, there is the issue of the bail bond itself. The purpose ofa bail bond is to secure an individual’s attendance at a set upcomingtrial. However the proceedings in Alexanyan’s case were stayed, and assuch, there was no trial date set for the future. Thus, it iscompletely illogical to demand a bail, and no one can say for certainexactly what this money is for or what it secures. Alexanyan himselfhas described the bail as “cynical.” Alexander Arkhangelsky ofstate-run media RIA Novosti wrote that it was set at “an outrageouslyhigh sum,” while I would go further to describe the bond as what it is:another criminal extortion and a forced bribe by the authorities. It ismy suspicion that the bail was set at such a high amount as part of aneffort to taint Alexanyan’s reputation with the guilt of wealth, andtry to make him look like the prototypical white collar criminal thatthey were never able to prove that he was in court. The fact is, andthis was again downplayed in the media coverage, that the family andlawyers for Alexanyan struggled very hard to raise these funds throughdonations (I personally received numerous emails from readers offeringto donate to the cause, despite the fact that I do not represent thisparty).

Lastly, it is a complete illusion that Alexanyan has been “released”in the same capacity as Budanov. He has been bed-ridden with fatalillness for months now, and all that this $1.8 million paid for was theremoval of the guards at the same clinic, and the ability of his familyto visit for what may become his final days alive. The parole imposessevere restrictions on him (he is prevented from traveling abroad, andthey are attempting to restrict him to residing at just one address -meaning it would be a violation, for example, for him to switchhospitals).

Under Russian law, a prisoner becomes eligible for early conditionalrelease when they have served half of their term and exhibit a recordof good behavior in the penal facility. Both of these requirements hadbeen met in surplus by Mikhail Khodorkovsky, yet in August his filingfor release was rejected by the authorities after numerous delays,citing that the prisoner had failed to attend a sewing class. In otherwords, the decision was a complete farce.

In today’s court system in Russia, meeting the legal requirementsfor early release has extremely little to do with whether or not thecourt grants the decision. This has been demonstrated repeatedly in allthe high-profile releases of political prisoners such as MikhailTrepashkin, and, to a lesser extent, Sergei Storchak (who was betterdescribed as a prisoner of the clan wars). These release decisions werethe result of complex political negotiating and bargaining, followed byan order handed down from above to the judge to take the appropriatedecision. When there is no clear order coming down, such as in the caseof Bakhmina, the issue is indefinitely delayed while the judges awaitinstructions – there are few independently-minded judges left that arewilling to act on evidence and risk angering the executive.

It is beyond my role to predict whether or not we will see anypositive political developments within the Kremlin with regard to theYukos prisoners and the release of Mikhail Khodorkovsky, but it isclear that the case has become the definitive referendum on theleadership’s expressed dedication to eliminating legal nihilism andcracking down on corruption. Like so many other pressing issues inRussia, from the natural gas dispute to the confrontations withbordering nations, all will depend upon what value they assign to theissue of reputation. For as much as we hear Russian officials clamoringfor “respect” abroad, we don’t see it backed up by much action.

Upper photo: Chechens hold posters reading “Where is a justice?” and “A murderershould be in a prison!” during a rally against former colonel YuriBudanov discharged in Grozny on December 25, 2008.  (AFP/Getty Images)