“If Putin doesn’t make the calls in high-profile cases, then who will?” ‘Meduza’ talks to lawyer in mother of 7 treason case

At the beginning of March 2015, two high-profile legal cases were dropped in Russia. The first case was that of Svetlana Davydova, who contacted the Ukrainian Embassy about Russian troops in Eastern Ukraine. The second case was against Timofei Kulyabin, producer of the opera Tannhauser in a Novosibirsk theater, which created an uproar in the Orthodox community. In both cases, the accused were represented by lawyer Sergei Badamshin, known for his involvement in almost all prominent political cases. Meduza’s special correspondent Ilya Azar asked Badamshin how he managed to win his cases, about his political allegiances and his criteria for success in a country where verdicts are dictated by the government.

When you first took on the case of Svetlana Davydova, did you expect it to go as well as it did? 



At first I didn’t expect that. I thought it would drag on for a few months, and we were already lining up our appeal to the European Court of Human Rights. But when she was released in February, it became clear that a decision had been made at the top, and that the fate of the case had been sealed. It was clear that after they had studied the evidence, they realized the case didn’t stand a chance, but it wasn’t clear if the FSB (Russian Federal Security Service) was going to hide behind its badge and say “why did we do all this work for nothing?” or if they would find the strength to admit their mistake. Our opponents held up their hands, apologized, and it was a noble gesture on their part.



What was more important in securing success — the public outcry, or the work of the attorney?



In cases like this one, the most important thing is not to f**k it up. The defense was set up brilliantly — we did everything we had to do and didn’t make any mistakes. We did everything so thoroughly that our opponents had only one option — they had to close the case.

And how exactly could you have “f**ked it up?”



Mistakes come in all shapes and sizes: you can miss the appeal deadline, make procedural mistakes in submitting the appeal — there are all sorts of technical things that can go wrong. It’s important to build an air-tight defense — you can’t say too much and you have to avoid turning others against you and against your clients.

As for publicity, it’s obvious that it was unfair to throw a mother of seven in jail just for repeating what she had heard on a bus, and to threaten her with 12 to 20 years in prison. There’s a conflict here between the state and civil society, and this is a real victory for civil society, when it begins to defend itself and to question the public authorities. And it was exactly this kind of public outcry that helped free Davydova.



But wasn’t Davydova’s release ordered by the authorities who would otherwise have had to come clean about Russia’s military presence in eastern Ukraine?



They’re trapped, that’s for sure. But if there hadn’t been a public outcry, Davydova would still be locked up and we wouldn’t have been able to change the basis of her defense, because the state-appointed lawyer said that the charges were justified. Another thorn in their side was the fact that if they had sent the case to court, the verdict would have been classified, so the public outcry might have been even more significant.

But they must have calculated the consequences. Maybe this was an attempt to test the mood in society?



Absolutely not. I’m afraid to say too much, so that we don’t end up having to communicate through a lawyer! But Davydova was chosen as a sacrifice, a scapegoat. This was a big miscalculation made by a couple of specific officials.



After the Pussy Riot case, the number of political trials in Russia skyrocketed. Being a ‘political lawyer’ is practically a new profession. Do you consider yourself to be one?



Not under any circumstances. I don’t even understand what the term “political lawyer” means. There are only lawyers, and they do the job prescribed by the law. It’s a humane profession, kind of like a doctor. Lawyers must help everyone, regardless of their political affiliation. For example, I’m defending my friend Alexander Potkin (a far-right political leader—ed. ‘Meduza’) whose views I understand, but don’t completely agree with.

We don’t need to drag politics into all these cases. For example, in the Korovin case. (Vadim Korovin is an activist of the Russian Federation of car owners; he was accused of aggression towards a traffic policeman officer after he refused to yield a right of way to an official’s car—ed. ‘Meduza’.) On the streets of Moscow’s expensive Rublevka district, he blocked a car which was trying to make use of privileges granted to officials’ cars and was later convicted of running over a traffic policeman. We deliberately avoided using political slogans in this case, with the agreement of the client. The case was political in a broader sense, but Vadim was just driving home, and politics had nothing to do with it. As a result, he got a lot of public support, even from NTV, a channel hated by many liberals.

But most of your cases have been high-profile political cases.



I don’t choose them – the clients choose their lawyers. That’s the rule. For example, I defended Danilov, who was a riot policeman, and I was often approached by Special Forces staff looking to protect their property rights. I don’t run to the police station with a warrant, like some lawyers do. The fact that I work on a lot of high-profile cases is just a coincidence. 



We have this nonsensical term — ‘opposition journalist.’ Don’t you think that you’ll be perceived as an ‘opposition lawyer?’



Checkmate! (Badamshin laughs and pulls out his “United Russia” party membership card. This is the ruling party of Russia.)



Wow! Since when?



Since 2003.

And you’re still a member? Do you keep it so the police doesn’t bother you?



I’m waiting for them to kick me out. It’s a keepsake. I don’t even show my lawyer ID card to the police, I just talk to them.

So you’re a fan of United Russia?


I’m not actively involved in politics. I joined because of their pledge to ‘make Russia strong and mightly.’ It all sounded beautiful at the time, but now I feel like a cheated investor. 

How can I be called an “opposition lawyer?” I’ve got lots of friends both in the opposition and in law enforcement. I don’t distinguish between various people based on their political opinions, but rather based on whether they are decent people or not. If the people in my immediate circle believe the current regime is unacceptable, then perhaps the current regime really does have problems, especially if even law enforcement workers are saying so themselves.



In 2003, Khodorkovsky was arrested. Would you have protected him then?


I wasn’t a lawyer then, but if I had been, absolutely. That case was the first of the political trials. The Pussy Riot trial you mentioned was the first one in which common people were targeted; you can’t just ignore that, or dismiss it by saying it was only a fight among the elites for power.

The worst thing was that reactionary changes to the law followed the Pussy Riot case — they amended article 148 of the Criminal Code, and part 2 of article 256 of the Criminal Code. They attempted to introduce censorship based on religion. What the prosecutors are doing in that theater now is nothing compared to what lies ahead.


You mean the Tannhauser case? Didn’t the defense win?



There are two parts to this case. The first one, led by the prosecutor’s office, initiated administrative proceedings against theater director Boris Mezdrich and producer Timofei Kulyabin, and those proceedings were dropped. They claimed that objects of religious veneration were desecrated; the prosecutor believed that the opera desecrated the image of Jesus Christ, without saying exactly what he meant by that. I asked for a religious studies and art history expert to be brought in, but the prosecutor said he was enough of an expert to judge it himself. Anyway, the prosecution has promised to appeal that decision.



The Investigative Committee is also carrying out a preliminary examination of article 148 of the Criminal Code, concerning insults of religious feelings. It turns out it’s enough for an offended to person simply say that his feelings were hurt, and legal proceedings can be initiated against someone. I think there will soon be a professional class of “offended people,” like we find with “consumer extremism” — when people find a cockroach in their yogurt and start litigation against a supermarket or shop. Now I’m afraid we’ll see the a sort of “extremism of the offended,” when people get offended at the slightest pretext and claim compensation.


And which direction will this case take?



It’s hard to say, because the decision-making official and his rank have to be identified (i.e the state official who decides what the verdict will be—ed.‘Meduza’.) In this administrative case, it’s clear that they wanted to reach a decision quickly behind the scenes, but the media attention made sure this didn’t happen. 

Now every artist will have to think twice about this issue. I joked with Kulyabin that from now on, every theater contract should include not only the director and art director, but a lawyer as well. The European approach is based on the inalienable right to criticize religion. When in Rome, do as the Romans do. If we go into a church we have to follow their rules, but in the same way, if church people go to a theater or use the Internet, they should be prepared to see something that might offend them.



How can you defend a client accused of hurting someone’s feelings? Using just expert testimony?



Of course. The definition of “insult” is so vague that the untrained brain of an individual law enforcer can really take the situation into the realms of absurdity. Someone’s feelings will be given priority over the artist’s right to his vision, freedom of speech and freedom of expression. The state should not interfere in the affairs of society, except for those rare occasions when it’s necessary for security, public safety and welfare.


In 2012-13, several draconian amendments were introduced, which are now enshrined in the law. When amendments concerning offending the feelings of believers were introduced, article 275 of the Criminal Code on High Treason was also changed, allowing for a broader interpretation of “advice to a foreign state,” removing the need for any “actual damage” to have been done. This resulted in the case against Svetlana Davydova.

 In high-profile cases, a “higher power” is usually used to balance the incompetence of the law enforcers. But where is all this going? What if, God forbid, something happens to Putin? If he won’t make the calls in high-profile cases, then who will?



The court should.



Exactly! But to do this, we need to rebuild the entire state system — at this rate our discussion will take an extremist turn. Courts and investigators should make the big decisions, but when they do make use of their powers, they do more harm than good.

People are now being thrown in jail for a month for solitary picketing, and people who repost certain things on social media face large fines. You talk to the investigators and the judges, so what do they have to say about this?



When they’re asked about such things, they just look down and shrug it off and repeat the same phrase all the time: “Well, you understand.”



Understand what, exactly?



They mean to say, you know how it works; you should understand that no decisions are made by the judge, they come down from the top.



Well, it wasn’t Putin who gave an eight-day jail sentence to a cancer patient who attended Nemtsov’s memorial march!


Right, it wasn’t Putin. There’s always someone in between the judge and Putin who makes the decision. So you just need to find that decision-making official. 

I dream of the day when judges will be guided only by their knowledge, their conscience and the law. But all the time I hear things like “Well, you understand.”

 I recently consulted a former classmate who now works as a judge. She told me, “You, of course, must do what you have to do, but you know that the judge will do whatever they are told to do.” Judges can ask for advice at any stage, and are then told what to do. They often ask these “higher authorities” whether the decisions they make on their own will be overturned or not. Judges don’t want their decisions to be revoked, so they try to reach a decision which has the least chance of being rejected higher up in the hierarchy, and each overturned decision causes huge distress in the district court.


It looks like it’s pointless to be a lawyer!



Actually, without a lawyer it’s impossible for the accused to build a defense. We’re not talking about a 100 percent success rate. We’re perfectly aware of the various ways in which the legal system fails people, but without a personal legal adviser it’s very hard for the accused to build their own defense. The lawyer’s job is to take the client by the hand and guide him out of the dark with as little damage as possible. So a lot still depends on the lawyer.

But what depends on the lawyer if the judge issues the sentence he is told to issue?



A lot depends on the tactics we choose when deciding on the category of the crime. It’s important to make sure that you have checked everything the investigator has given your client to sign. It’s the lawyer’s job to make sure the investigator, prosecutor and judge all follow the law. It doesn’t work like in those stupid movies where the lawyer uses all sorts of tricks to pull their client out of a mess.

A person is left on their own to face an entire state system, and only a lawyer is there to give that person advice and console them. Of course, this isn’t in our job description, but a person who’s been yanked out from his everyday life needs at least some basic support. You have to be a psychologist, to make the person see that they are the most important part of their own defense. The lawyer can’t do anything unless the client tries to help him or herself. If a person makes an effort to help in their own defense, they can even point out some nuances and subtleties to the lawyer which they lawyer might have missed. Yes, we understand that the small man is up against Goliath, but this little David can use the lawyer like a stone to knock Goliath down.



Do you consider yourself a successful lawyer?



Just lucky, I guess, knock on wood. When Henry Reznik (a prominent Russian lawyer and a former criminologist—ed.‘Meduza’.) called to say he’s following my cases now — that really blew me away. In general, the spotlight is shining much brighter on me now, after those successful cases.



In American movies, the successful lawyer is the one who never loses a case. What’s the definition of a successful lawyer in Russia?


One who keeps his job and doesn’t have to face disciplinary proceedings (laughs). It’s hard to say. In our situation, a successful lawyer is the one who manages to meet the goals that were set out before the case, before he got involved.

Do we need to expand the use of the jury?



Of course. And Russia should be a parliamentary republic! You see, the jury is an institution which is least influenced by any external decision-makers. Even in the horrible form in which it exists today in Russia, it is the only hope for the majority of defendants, who are hoping for justice and a legitimate decision by the court.


Taking into account the views of the majority of our population, aren’t you afraid that in the case of Tannhauser, a jury would put both the director and art director in jail?



I strongly disagree. Jurors use their own life experiences and views to weigh evidence presented by both the defense and the prosecution. Believe me, the jury would have acquitted Tannhauser by 12 votes to 0.
 The jury often acquits people, but then the Supreme Court overturns the decisions, because they can’t agree with each jury; but the more of these c**k-ups there are, the more discredited their judgments will be.



And would a jury have helped Pussy Riot? I know don’t know a lot of people who would have gone against the two-year sentence they got. In fact, some might have rooted for a life sentence.

I’m sure the people you are talking about didn’t get their information from the court, but through the media, which has so much influence on people. A jury shouldn’t include people who have prior-knowledge of the case. It’s difficult to find them sometimes, and in the case on the Combat Organization of the Russian Nationalists (BORN), it took a long time to find them.

A jury acquitted Budanov (a Russian colonel accused of kidnapping and murder in Chechnya—ed.‘Meduza’.), so maybe even the Combat Organization of the Russian Nationalists will be acquitted.

Anything is possible, but the task of public prosecution is to collect evidence, not just to say “Well, you understand!”

 Then the social role of investigative and law enforcement agencies would have been carried out in full. Until then, they’ll just keep bringing a flash drive with the sentence on it to the judge, to copy and paste the prosecution text into the text of the verdict.