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The repeat activist The Russian man convicted of protesting too much loses his appeal

Source: Meduza
Photo: Mark Galperin

On Thursday, March 31, a Moscow court shaved six months off opposition activist Ildar Dadin's prison sentence, reducing his time behind bars to 2.5 years. He is the first (and to date, the only) Russian citizen convicted for “repeated violations of the rules on conducting public events” under article 212.1 of Russia’s Criminal Code. The human rights group Memorial considers Dadin a political prisoner, and the Presidential Council on Human Rights has called for the law, which many rights activists and lawyers deem unconstitutional, to be abolished. Though Dadin's legal defense included the well-known lawyer Henri Reznik, all he could manage was a reduced sentence—not exoneration. Meduza's special correspondent Ilya Azar has been following the case.

Here are the basics of Dadin’s case: the oppositionist took part in one-man pickets on August 6, 2014, in support of defendants in the “Bolotnaya Affair” (a string of cases related to unrest at a large anti-government rally in May 2012). On August 23 and September 13, he again joined anti-government solo pickets, and on December 5, 2014, he and seven other activists blocked off Miasnitskaia Street in downtown Moscow with a banner that read, “Yesterday—Kiev, tomorrow—Moscow.” In three of these cases, he was cited and fined, which then served as the basis for criminal proceedings under the newly created Article 212.1 for “repeated violations of the rules on conducting public events.”

The march on Miasnitskaia Street, 5 December 2014
Grani.ru

Dadin was convicted on December 7, 2015, and many were surprised by his three-year prison sentence. “Why was he imprisoned immediately? He could have been sent to do correctional work for six months,” complained one of his lawyers, Ksenia Kostromina, on the day of his appeal.

After Judge Borisova, following formal procedure, confirmed Dadin’s personal data, she asked, “Is everything clear, Dadin?” He responded, “No, not everything. I do not understand why I cannot participate in examination of the evidence, and petition for my presence in person in the courtroom.” And so the court devoted the next two hours to discussing Dadin's petition. “My physical absence from the court restricts my constitutional rights. You could have issued your ruling via videolink, if I'd completely lost faith in the case and asked for it myself. But I still intended to defend myself in court,” Dadin stated.

He spoke for no less than an hour, highlighting in that time some 20 articles in the Constitution and Criminal Code that the court, in his opinion, had violated by not allowing him to appear at his hearing.

According to Dadin, for example, his inability to leave the detention center directly violates the principle of equal standing for the two sides of court proceedings, as well as Article 48 of the Constitution, under which all citizens are guaranteed the right to adequate legal assistance. “My right to confidential consultation with my attorneys is being violated, since I’d consider it rude to kick all those in attendance out of the courtroom every time [we want to talk privately]. It’s awkward for me to make it awkward for other people—at the very least it’s ill-mannered,” said Dadin. He even alluded to a violation of Article 17 of the Constitution, which guarantees that “basic human rights and freedoms are inalienable, and due to everyone from birth.” Dadin spoke for nearly an hour, constantly stumbling, getting confused, and repeating what he’d already said; the prosecutor and lawyer became visibly bored. 

Defense attorney Kostromina later told Meduza that Dadin had apparently composed his remarks at the last moment—immediately after learning, yet again, that he couldn't attend the hearing. 

When the case was finally turned over to the lawyers, they affirmed Dadin’s petition. “The common interpretation of the law supports the conclusion that participation by videoconference may be warranted when there is no possibility of providing the prisoner participation in-person, but we are unaware of any circumstances that would have interfered with the delivery of our client to court,” said defense attorney Henri Reznik. In fact, Dadin's lawyer Ksenia Kostromina later admitted, Russian convicts are rarely brought to court in an appeals hearing, but neither do felons often request to be present. The prosecutor left the question to the discretion of the court, which declined the petition.

“Are there any further motions?” Judge Borisova gloomily asked the prisoner.

“Yes, of course!” Dadin replied enthusiastically.

Dadin insisted that his personal presence in court was imperative, first and foremost so that he would have the chance to file his motions and documents to the court. The judge maintained that it was sufficient to record verbally expressed motions in the hearing's records.

“I don’t see and cannot understand why my [first] motion was not reviewed and entered into evidence. How am I able to take part in the case at all? I have here many more documents,” Dadin inquired nervously.

“What is the content of your present motion?” the judge asked, standing her ground.

“I demand I be granted my right to petition in person, as stated in article 120 of the Criminal Code.”

“It has already been reviewed. Your next motion?” Borisova reiterated.

“Since you are not following due process, I motion to the effect that you should adhere to the law and grant my right to submit petitions.”

“Next motion,” the judge said, refusing to give in. Dadin, for his part, matched her persistence.

“Since you, in my opinion, are at present in direct violation of the law, ruling on my case literally without me, not granting my right to written petition, and clearly have no intention of acting in line with the Constitution, I declare that I will not take part in this circus in a so-called court, which in no way resembles due process,” said Dadin, hammering out the final words syllable by syllable.

His lawyer, Kostromina, then attempted to explain to the judge that Dadin, being not intimately familiar with the legal process, gets anxious—all the more so when he feels his rights are being violated.

“Do you wish to take part in this hearing?” Borisova inquired of the prisoner.

“I am prepared to continue as a spectator, using the opportunity to make statements periodically,” Dadin replied after being first advised by Kostromina not to refuse participation in the proceedings. Borisova rejected all of Dadin’s petitions successively, including his demands that the meeting be recorded. (“The record from the court of first instance proved how easy it is to fabricate,” Dadin said.) The judge also rejected a request that Dadin's wife, Anastasia Zotova, be added to his defense team. (“The lawyers work on a voluntary basis and do not have time to come visit me in detention, which my spouse could do more frequently,” he reasoned.) The judge ruled that she “does not find grounds for admitting Zotova to the defense, as she has only an education in journalism, while Dadin already has professional attorneys.”

Ildar Dadin during his appeal before the Moscow city court on March 31, 2016
Photo: Ilya Azar / Meduza

As Dadin, sitting on a stool, began to grow angry, the judge asked him to stand.

“Or are you comfortable seated?” she asked.

“I am fine sitting,” Dadin said.

“Do you have some sort of illness?” the judge asked disinterestedly.

“No.”

“The court is to be addressed standing!” she reiterated, losing patience.

“I do not consider a place where the Constitution is mocked, and where sentences are carried out against due process, to be a court,” Dadin replied, remaining seated.

“I will remind you that the court is to be addressed while standing,” the judge said, making yet another attempt.

“Where is the court here? Do you see a court? I am sitting and simply looking at a television, what is that?” Dadin said, still seated. After that, Judge Borisova ceased all attempts to cut off Dadin. After two hours, the court finally moved to a discussion of Dadin's actual appeal. Borisova briskly read the defense's petition, which argued that the sentence (and the Criminal Code article under which Dadin was convicted) is a violation of both the Constitution and the European Convention on Human Rights. 

Kostromina was the first to speak for the defense. “I am convinced that, for everyone in attendance here today, the existence of this article is complete nonsense, as it so obviously contradicts the Constitution. In all of the incidents referenced, decisions were made declaring Dadin guilty of administrative offenses, and then they were all included in the indictment…. Dadin was charged with nonviolent acts, and there is not a single victim in this case. He simply went out in the street and expressed his opinion. Moreover, the court gave him three years, even though the prosecutor asked for two years, showing yet again that the court is not impartial,” said Kostromina.

According to her testimony, the court failed to account for this being Dadin’s first criminal offense, and that he had no priors. “Incarceration for exercising constitutional rights is a flagrant violation of human rights,” the lawyer stated.

At that moment, Dadin again loudly expressed his desire to make yet another motion.

“The court is presently hearing the testimony of the sides on the appeal petition,” responded the judge.

“And I would like to make a petition,” insisted Dadin. “I demand that the court append to the case and investigate two documents. They are very important for me to prove my position, yet I see that they are not discernible to you via television. So please, take them and investigate, it will be easier for you to understand,” Dadin said, holding two pages up close to the camera.

His wife Zotova laughed. Throughout the hearing she's fixed on the video image of her husband, smiling at him lovingly, especially when he makes mistakes or stumbles.

“These two pages here, how do I hand them over?” Dadin repeats. The judge remains silent. Then the lawyer Kostromina speaks up: “Refusing to investigate documents violates the rights of my client. Because of the refusal to allow Dadin to appear in person, we will repeatedly get caught up on such violations of our client’s rights,” she says.

“I have still more evidence in hand, which I cannot give the court. They have official stamps and everything. Should I submit them telepathically?” Dadin asks.

It remains unclear why Dadin did not submit the documents in advance through his lawyers. Kostromina told Meduza that he had given her nothing though she had visited him more than once. When the judge ultimately denied the investigation of Dadin’s documents, the oppositionist stopped holding back, turning his prison table into a soapbox for political declarations. “I consider this sentence to be political, criminal, and false as it imputes me with guilt in violation of the unconstitutional and illegal Article 212.1, which expressly repeals citizens’ right to peaceful assembly. From the very start, I declared my actions to be legal, and Judge Natalia Dudar [who ruled against Dadin] to be a criminal and toady of the regime,” said Dadin.

“All of my public activities were peaceful and unarmed. I am a principled advocate of nonviolent resistance to the authoritarian, illegitimate, fascist Putin regime. Judge Dudar did everything she could to imprison me, and I will do everything within my power to bring to justice these werewolves in judges' robes who prey on the innocent! May they never think, that the regime will eternally cover for their lawless rulings,” Dadin said.

He repeats himself often, returning to the same theses, but Judge Borisova stopped cutting him off or calling for him to “speak to the case at hand,” as often happens in such proceedings.

Dadin and his defense team’s main argument is voiced by the prisoner himself, in his own categorical style. “From a legal standpoint, there was no evidence proving my repeated actions. We can see that three actions took legal effect after [the opening of a criminal case], so I cannot be held even under your gangster legislation! This is a direct violation of Article 54 of the Constitution, which states that no one shall be prosecuted for actions that were not considered violations at the time when they occurred,” Dadin said.

As Kostromina would later explain, he was referring to fine points of the codex on administrative violations. At the time of the filing of the criminal case, rulings on Dadin’s three administrative violations had yet to take legal effect. According to Kostromina, this legal conflict arose from the fact that the courts had not registered Dadin’s receipt of the other court rulings.

“We took advantage of this, appealing the three sentences,” explains Kostromina.

No less important, she says, is the fact that Dadin was effectively charged twice for the same action, which is prohibited under Article 50 of the Constitution.

When the judge announced the break for lunch, Dadin called out, “I thank everybody who came! I love you all, especially my girl!”

Zotova, who married Dadin after he had already been sentenced, walked up to the television and blew her husband imaginary kisses (though the sound of the television back at prison was already shut off).

No fewer than a hundred people had come to support Dadin in his appeal hearing. The majority were seated in a room with a remote video transmission from the courtroom. Many held sheets torn from their notepads with the words “Free Dadin!” and one man held a copy of the Russian Constitution aloft above his head for the entire hearing.

Also in attendance were supporters of the Ukrainian servicewoman Nadiya Savchenko, who was recently convicted in a Russian court in Rostov. Her supporters brought their pro-Ukrainian paraphernalia to Dadin's case, as well. Activist Vasilii Nedopekin, for example, who was kicked out of his parents’ home for supporting Savchenko, wore a scarf in the colors of the Ukrainian flag. “Today we occupied the Moscow City Court! The whole heart of the protest movement is here. Even at rallies we don’t get them all,” activists chatter in the smoking lounge. Few well-known politicians turned up to back Dadin: only Maria Baronova, a State Duma hopeful and the coordinator of the civil rights section of Mikhail Khodorkovsky's organization Open Russia, and also Alexey Navalny’s associate, Nikolai Lyaskin. Baronova was optimistic: “I’d give a 70 percent chance that Dadin is released. Our lawyers did very serious work and prepared an appeal in Constitutional Court over Article 212.1. We set them up for a real circus over there, so I think they might let Dadin out to avoid that. In order to file an appeal on a statute, you have to have somebody convicted under it.”

When the court returned to session, defense attorney Reznik took the floor. Dadin's supporters revere the veteran lawyer; when he went to the cafeteria during the recess, he was greeted by a standing ovation. “I would note a certain redundancy in the arguments here. The reason that the decisions of the administrative courts had yet to take effect when the criminal case was opened is, by itself, more than enough to overturn this sentence and dismiss the case,” says Reznik.

In his words, “it is completely obvious that no basis exists for treating actions that the court itself concedes were administrative violations as if they were a criminal offense. No repetition or multiplicity can change the nature of the rule. Profanity in a public place, however frequently repeated, remains an administrative violation. The deputies who made this rule were catering to the political winds blowing at the time, and they entered into a contradiction of canons in criminal law classification,” Reznik said calmly and very confidently.

Compared to all other participants in the proceedings, the prosecutor was very brief: “Not one of the complaints on behalf of the defense contests the factual basis of the case, and it is hard to call the incident of December 5 a peaceful protest. The court took into consideration the nature and degree of public danger, and I see no grounds for overturning the ruling.”

After that came the debate stage, in which the two sides again restated their arguments. Henri Reznik made the most compelling remarks. (Even the judge treated Reznik with respect, addressing him with his name and patronymic).

“The essence of the matter is quite simple: a peaceful demonstrator gets put away not for months, but for years. This situation is a blow to the prestige of the state which considers itself lawful. [Judge] Dudar’s sentence is a stain on the mantle of Russian justice. Imprisoning a peaceful demonstrator flagrantly contradicts the Constitution of Russia and the European Convention on Human Rights. In the latter, it is stated that ‘wherever demonstrators do not engage in violent acts, it is important for the state to demonstrate the necessary level of tolerance,’” Reznik said.

Dadin, Reznik says, “belongs to a not-so-numerous category of our fellow countrymen who take lofty, abstract principles to be their own convictions. [These individuals] live by their beliefs. Dadin is also among those who are not impartial, who stand up for the law and for justice. They may not always be pleasant to interact with, but it is the existence of these very people that keeps civil society strong. Your honor, you can see that all his activities are not mass actions but one-man demonstrations, in which he protests against various injustices…. This case has colossal importance, for it shows if the state will tolerate peaceful forms of asserting one’s convictions. Though [people like Dadin] may be extreme or misguided, it's exactly this sort of thing that makes a regime democratic,” Reznik added.

Reznik concludes his statement with the phrase, “Your honor, a peaceful demonstrator has no place behind bars; it is an insult to our rights.” 

The speech might have been an effective finish for the defense, but Dadin had the final word. 

Reznik himself asked his client not to repeat the same thing multiple times and to stay on topic, but his admonitions went unheeded. “He’s already said it all. Now he’ll spoil the impression left from Reznik’s statement,” admitted even Dadin's supporters in the remote viewing hall.

“I want to address the Putinist inquisitors. I am often called an idealist. But I am also a pragmatist and I know how to weigh the facts. I have witnessed how people who express their position against wars are imprisoned. Savchenko, one of the worthiest daughters of Ukraine, was given 22 years. Even my convinced “rashist” [a slang term for Russian chauvinists] cellmate doesn’t believe she is a killer. I understand that you’re under orders—that my sentence will remain unchanged. But I am not afraid. They ask me, what have you accomplished, [if] you’re in prison? But even now I am a person, and that is most important. I am here because I live by my conscience,” Dadin said.

In conclusion, he addresses his associates and says he doesn’t fear serving out his entire sentence. “Even if you disapprove of Putin, without telling the executioners in public that they’re executioners, whispering in your kitchens, you bear responsibility for everything. So long as you do not go out and declare your position, you are an accomplice to fascism. If we don’t take our servants in hand, allowing the executioners to kill people, we are responsible. Friends, do not worry about me; I am ready for these three years. How could that compare to what our authorities do to people? Do not be accomplices to fascism. Stand up for your rights,” the prisoner said.

“His statement simply killed everything his lawyers said. We all need to recall the story of Pontius Pilate and the truth. What's true for Christ is truth,” human rights advocate Sergei Sharov-Delone explained to Meduza, raising his finger skyward, “but for the Roman Pontius Pilate, the truth is the verdict. In court, you have to play to the court’s truth, saving other truths for another place. You may be cool, you may be a knight that’s used to battle with the sword, but if you come out onto a soccer field, you have to put down the sword and play with the ball, and play by the rules of the game. I know Ildar well, and he understands this poorly.” 

The lawyer Kostromina told Meduza prior to the reading of the court’s ruling that the inconsistency between the defense and Dadin’s positions is due to him being a “complicated guy.” “If he had conducted himself less aggressively, then there probably would have been a greater chance at a favorable ruling. But we follow the interests of our client, and for him it is more important to convey his stance. He uses the hearing exclusively for a tribune, to convey his ideas to the public. He is indifferent to what his punishment will be,” Kostromina says.

Kostromina says she considers it her job to get the best possible verdict for her clients, but “Ildar does not pursue the same objective.” “He is sure that it is better to sit out his three years while saying what he considers necessary. I warned him that if he was going to talk about the ‘Putinist-fascist outrage,’ then he could count on keeping his sentence. He accuses the judge even though she has yet to deliver her ruling! [Judge] Dudar tacked a year onto the sentence requested by the prosecutor because Dadin, sticking his finger out at her, said he’d throw her in jail,” Kostromina explained.

She didn't expect Dadin to be exonerated. “If they lower the sentence to two years, that can already be considered fortunate,” she said. 

And she turned out to be right. When the judge read her verdict (reducing the sentence from 3 years to 2.5 years, the hall exploded in sarcastic laughter.

“Shame on you! If there is still sound, you are Putin’s shameful fascists. Shame on you, shame and disgrace!” Dadin shouted from the detention facility.

“Shame on the Russian justice system! Shame!” the 80 sympathizers in the remote viewing hall started chanting.

When the hearing was over, the lawyers promised to appeal the sentence in the Supreme Court, but Reznik added sadly that there is greater hope in the European Court of Human Rights.

This text was translated from Russian by Nicholas Levy.

Ilya Azar

Moscow