Uh Oh

Little chance of acquittal in Russia

In Russia's courts, even the laws of physics can sometimes be overridden.

Attorney Stanislav Markelov sat in Moscow City Court, listening as a defendant was charged with two drug deals made within minutes of each other in neighborhoods many miles apart.

The defense attorney wondered if the judge was dozing until the jurist raised his head and marveled at the defendant's ability to be in two places at nearly the same time. "How quick he is," the judge said. He let both charges stand, convicted the defendant and sentenced him to at least six years in prison.

The judge's casual approach to the facts symbolizes the Russian criminal-justice system. Despite efforts at reforming the system, Markelov and other trial attorneys say, the odds remain overwhelmingly against defendants.

Few things for defendants are more certain than conviction. In 2001, just 0.4 percent of the defendants in criminal cases were acquitted. In 2002, after reform of the criminal code, that figure rose slightly, to 0.8 percent. In the United States, the figure is about 17 percent.

But acquittals here don't always deter prosecutors. Four out of 10 not-guilty verdicts are overturned on appeal, but only one in 2,000 convictions is overturned, according to the U.S. State Department's latest human-rights report.

"There are a lot of cases where the prosecutor's office makes appeals for years on the same case, until they get what they want, and that is the verdict of guilty," said Sergei Lukashevsky, director of the Center for Research of Civil Society in Moscow.

Russia's Parliament adopted a new criminal code in June 2002 that sought to make the system fairer by encouraging jury trials, giving more power to judges and weakening the traditional dominance of prosecutors. As a result, the number of new criminal cases has dropped by 25 percent and the number of people held in pretrial detention has been reduced by a third.

While acknowledging these improvements, defense lawyers allege that police still beat suspects, prosecutors still pressure judges, businessmen buy influence — and almost everyone brought to trial is still convicted.

"The principals of the activities of the system here have not changed," Markelov said.

Russian courts again will come under global scrutiny tomorrow, with the opening of former Yukos Oil chief Mikhail Khodorkovsky's trial on charges of bilking the state out of billions of dollars. Critics say Khodorkovsky, a foe of President Vladimir Putin's, was arrested for political reasons, so the case is seen as a test of Russia's commitment to an independent judiciary and the rule of law.




Markelov's clients, however, are not being watched by the outside world. They include people accused of theft, drug dealing and embezzlement, as well as trade-union activists and environmentalists. And the system, he says, treats none of them fairly.

"Sometimes the law reminds me of a rope strung across the road," Markelov said, sitting in a Moscow coffee shop. "High-ranking officials, or those with a lot of money, can just step over it. Petty criminals can crawl under it. Only common citizens are caught by this rope."

The most significant recent reform is the reintroduction of jury trials. About 15 percent of the defendants tried by juries are found not guilty, nearly 20 times the percentage found not guilty when tried by judges alone. Juries also have shown themselves willing to deliver guilty verdicts in politically charged cases, including that of Col. Yuri Budanov, convicted last year of murdering an 18-year-old Chechen woman.

Some reforms might have backfired. Judges who thought they couldn't convict on the evidence used to suspend the trial and send the case back to the prosecutor for further investigation. That practice was abolished, to the applause of human-rights advocates and the dismay of some attorneys.

Under that system, cases were sometimes dropped quietly. Now, badly flawed trials proceed uninterrupted, some lawyers say, to the all-but-inevitable conviction.

The reforms have had little effect on one of the biggest problems criminal defendants face, that of prosecutors and police steering clients to so-called "dark attorneys," who will make no trouble in court.

"Such an attorney would advise his defendant to plead guilty to anything," said Sergei Pashin, a professor at the Moscow Institute of Economics and a former Moscow City Court judge. "And the investigator gives them jobs (cases)."

Human-rights advocates also note that little effort has been made to raise judges' paltry salaries. Moscow City Court judges earn about $700 a month and depend on the chairman of the court for raises and affordable housing.

Leery of angering higher-ranking officials, judges often rely on shadowy political advisers to help steer them through sensitive cases. Markelov sat through one such case.

"It was a ridiculous situation," he said. "As soon as some arguments surfaced — and they surfaced every 15 minutes — the judge would announce a break. He would rush to his chambers, and call someone for advice. He spoke so loudly, you could hear him talking in the corridor."

Some attorneys are leery of accepting cases that involve the security services because of experiences such as Markelov's.

He unsuccessfully has tried for months to persuade authorities to prosecute a former soldier in Chechnya accused of threatening the life of a prominent Russian journalist, Anna Politkovskaya. On the night of April 16, the lawyer was riding home on the subway when five young men surrounded him. "You asked for this," he recalled one of the men shouting. "No more speeches for you, then."

Markelov was beaten unconscious. When he awoke, his cellphone, lawyer's identification card and papers related to the Politkovskaya case were missing. The attackers ignored his Swiss watch, leather briefcase and 1,500 rubles — about $50 — in cash.

Markelov is convinced the attack was connected with his work. When he tried to report the crime to police and produced his medical records, police accused him of faking his injuries, he said.

Few Russians have had more experience as a defendant than lawyer Sergei Brovchenko.

Brovchenko was hired in 1996 to represent a former KGB agent who found himself at odds with his former colleagues. The defendant was accused of murder.

His first two lawyers had quit — one had been beaten badly, the other threatened.

But Brovchenko won the case, and, he says, angered officials with the FSB, the successor agency to the infamous KGB secret police of Soviet days.

In May 1997 police arrested Brovchenko in front of a Moscow gas station and found a plastic shopping bag containing cocaine in his car. Brovchenko said the bag was planted. Witnesses said it bore part of a police-evidence label.

Brovchenko claims authorities beat him twice, once at the scene and then in his jail cell. FSB officers "wanted to recruit me as an agent," he said. "They wanted me to inform on my own clients."

Brovchenko has twice been convicted and sentenced to nine years of hard labor for the cocaine. Twice, Russia's Supreme Court has overturned the verdicts. Now he is in the middle of a third trial on the same charges.

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