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‘Thе fog of war spreads over daily life’ Human rights lawyer Pavel Chikov explains how arbitrary and cruel law enforcement is reducing Russian society to paranoia and paralysis
Last month, attorney Pavel Chikov joined Meduza’s Russian-language podcast “What Happened” to discuss Russia’s main legal trend in 2022: the strengthening of the police state inside the country against a backdrop of the war in Ukraine. The show’s host, Vladislav Gorin, premised the interview on the thought that Russia’s increasingly repressive regulation of society is both the domestic equivalent of the Kremlin’s fear-based foreign policy and an instrument of achieving Putin’s military goals by forcing the population to power the invasion. Pavel Chikov described Russia’s changing legal landscape from his perspective as a practicing attorney and the head of the Agora human rights organization. The interview addressed major changes in Russia’s repressive machinery since the start of the invasion and assessed this system’s capabilities now, a year into the war. Anna Razumnaya distills the show’s key highlights.
Meduza continues to extract expert insights from our original Russian podcasts to present perspectives that may not be readily available to our audience in English.
From a legal point of view, admits human rights lawyer Pavel Chikov, 2022 didn’t just “surprise” him — it startled him and other practicing lawyers by the starkness of changes to Russia’s legal landscape. “Lots of things we didn’t have before,” he says, referring to legislation and law enforcement. “Things we used to be wary of, or couldn’t imagine happening, did happen.”
It’s been a fairly revealing year, when all kinds of things that the authorities used to cover up, with a certain bashfulness, were suddenly unveiled, and everything became as transparent as can be.
One of the starkest legal novelties — and the one that Chikov names first — is the state monopoly on truth, written into the law against “war fakes” — that is, military disinformation.
The state monopoly on truth
For the first time in the history of contemporary Russia, the authorities have begun to arrest, prosecute, and imprison people simply for having a position that runs against the official grain. Where we see this trend at work is in the run of so-called “war fake” cases initiated under the new criminal law about disinformation. This is how the opposition politician Ilya Yashin got sentenced to 8.5 years in a penal colony. Chikov explains how easy it is to violate this law:
Although the appeal has not yet taken place, I personally have no doubt that the sentence will be upheld. Maybe they’ll reduce it slightly, but the law on “fakes” didn’t appear this year — it came about in the pandemic year 2020. And its first application was actually quite surprising, since, in effect, if you happen to be an eyewitness to some event, and you write about it, should these events contradict the official position — say, the position of the Healthcare Ministry — you are spreading “fakes,” and this constitutes a felony.
During the pandemic, Russians could have been prosecuted for disinformation under two different articles of the law, leading to either felony or misdemeanor charges. The two types of violation as specified by those two separate laws, Chikov explains, were very difficult to distinguish. As a result, what the courts actually saw were a couple of hundred misdemeanor cases and a few felony trials, but nobody went to prison when tried for felonies. This year, “war fake” cases made a huge leap in the direction of longer, more severe sentences:
You can very well see for yourself what’s happening in the war and who is doing what; you can read the documents and the official statements by international authorities like the UN; you can read the materials of the International Criminal Court and its investigations. And if you publicize them, contradicting the Defense Ministry’s official position, which is to say “we didn’t go there and didn’t do it,” you may get seven or eight years in prison.
According to Chikov, what makes this new is specifically the state’s claim to a monopoly on truth.
“This is a fairly brazen thing, and a real event” in Russian legal history, Chikov sums up.
Apart from monopolizing the facts, the authorities have moved to criminalize the expression of personal opinion. This too has been going on for a while, but it often played out differently before. In the past, the justice system targeted hate speech and expressions that could be construed as insulting or violating someone’s dignity. This was still within the bounds of free speech. This year has shown, hundreds of times, that a person who says, “in my personal opinion, this aggressive war is unjustified and unlawful,” is liable to be prosecuted for “discrediting the army” under an Administrative Code article passed last March as part of a legislative package on war censorship.
Ukrainian captives without POW status
Another new phenomenon of 2022 in Russian legal life is the appearance of large classes of people who have no clear legal status under the Russian law and therefore no legal protections. This applies, first of all, to the Ukrainians captured by the Russian army during combat operations in Ukraine — usually, on the pretext that they “resisted” Russia’s “special military operation.” These prisoners have no POW status, since, as far as the Defense Ministry is concerned, Russia is not at war, Chikov explains:
In several cases, the Russian Defense Ministry has confirmed detention of Ukrainian nationals during combat and having kept them in custody for months (some of them since spring, some since the summer) for “resisting the special military operation” — given that there is no such a felony or misdemeanor in criminal law.
“What we have are foreign nationals, captured on the territory — ” But here, Chikov, an attorney practicing in Russia, is forced to leave his sentence unfinished, for the legal reasons he’d just discussed. “Okay,” he says, “let’s not talk about state ‘territories.’” What remains is that the Russian army captured these foreign nationals “in the combat zone,” and they remain in detention for months, without a court order, without any charges, without a clear legal status, without access to a lawyer — and also without lawyers being able to access them, given that their place of detention happens to be classified.
There may be thousands of people in this category, which can include real Ukrainian fighters as well as civilians (even students), who are all kept “incommunicado” on dubious legal grounds and without any access to the outside world, in violation of international human rights norms. In the eyes of Russia’s own laws, their status remains unclear, like much else in the situation:
It’s unclear on what normative grounds they are detained, how long they can be detained, or how they are treated while in custody. Do they have any complaints? Do they have access to healthcare? We don’t know anything about them. All we have is General Kokh in the Defense Ministry, and his standard responses to attorneys’ queries: “Yes, we’ve got so-and-so, he is fine, and there’s nothing more we can tell you.”
“The Defense Ministry doesn’t call this an abduction,” Chikov goes on, and this defines the legal situation:
What corresponds to Russian federal legislation are the Defense Ministry’s words, whatever they might be. So, we are observing a certain metamorphosis within the laws, such that the Defense Ministry calls these people detainees, arrested for resisting the special military operation, not abductees. To qualify something as an abduction, which is a crime, you need some organ which would investigate this, gather the evidence, and determine that a crime has been committed. This might happen some day, but from a legal point of view, we cannot call this an abduction at present.
As Russia’s evolving legislation draws further away from other rational vantage points, reality itself becomes harder to square with the legal framework. “We often have to be very careful in choosing words, when describing self-evident things,” Chikov admits. Working lawyers like him must adhere to a certain normative language to remain within bounds:
When there is a document and some corroborating events, we can state something on that basis. So here it is: no one denies that a certain number of Ukrainian nationals are detained by the Russian military. We currently don’t know where, we don’t quite understand the grounds, but we have a confirmed fact of detention.
Non-normative regulation and the fog of war
Among the trends that marked a real departure from the usual in 2022, but will probably persist in the years to come is “non-normative regulation.” What does this mean?
We have long got used to living in a police state. We can say with certainty that, by 2012, Russia had turned into a police state. Once again, this isn’t a true legal term, but it marks, and very clearly, a state’s propensity to over-rely on law enforcement. It does this by criminalizing different kinds of behavior, including completely peaceful things that shouldn’t be criminalized in a free society. The state is actively using different kinds of repressions, not necessarily very harsh ones — not necessarily mass executions, concentration camps, firing squads and prison for hundreds of thousands, not Stalin-style repressions — because those aren’t even necessary. It’s enough to prescribe some clear rules along with the sanctions for breaking them, and then make a show of punishing a few, to keep the rest in fear and obedience. This is the police state, or an authoritarian regime if you like. Political scientists and lawyers may use different terms, but that doesn’t make much difference.
One of the characteristics of the police state is clarity about rules and procedures: “Don’t go here, don’t say this, don’t stand there, don’t sit down here, because otherwise you’ll get ‘x,’ ‘y,’ and ‘z.’” These are the excessively restrictive but explicit rules of the game, Chikov explains; if you stick to them, you can minimize (though not exclude) the risk of facing penalties, the risk of being steamrolled by the repressive apparatus.
Against this backdrop, 2022 has once again marked a change. Regulation ceased to be public and explicit. Instead, it takes the form of informal consultations within the General Staff or in the Security Council, or statements made by the defense minister and the president. The president’s word has the highest degree of legal power. This means that our president is above the law. A decree doesn’t matter if the president says it’s no longer in effect.
Then, there are the General Staff’s internal directives , which are hidden from the public. It doesn’t matter that the law permits deferral of mobilization for fathers of four or more children under the age of 16; what matters is that the General Staff has granted deferrals to fathers of three. Since there’s nothing on this in the law, the mobilized conscript and his lawyer have nothing to work with. They cannot bring a piece of legislation to the draft office and expect its enforcement on the basis of the children’s birth certificates, since the General Staff’s directive is not a public document:
As a result, we wind up with a court case citing the General Staff’s classified directives, which is nonsensical, since no one can find out what those directives say. We have a mobilization decree that omits the paragraph specifying the number of people to be mobilized. No one knows what that number is. This means that our lives are increasingly regulated by informal directives.
Something happens today: say, the generals get together, talk, and decide that tomorrow morning the laws will apply differently. Others will only find out about this gradually — those others being detectives, prosecutors, and judges — because the news doesn’t reach them instantly. It follows that lawyers, including defense attorneys, will probably learn about this even later, and won’t have any means of response or defenses until some new body of cases is built up. This is the fog of war that has come from the front and spreads over our daily life.
Although this trend applied first to mobilization and the rights of the mobilized, it is gradually spreading into other legal spheres. “This is a long-term and very significant trend,” Chikov concludes. “It’s something we didn’t have before.”
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Regulating the police to let police regulate society
Broad, vague, and open-ended legal language is the basis of arbitrary law enforcement. Yet this says nothing of the authorities’ curious loss of interest in regulating society through legislation of any kind, be it clear or vague. Instead, regulation increasingly takes the form of internal prescriptions, issued for the insiders only. “This is a very interesting phenomenon,” says Chikov:
It turns out that we don’t need to regulate anything in society, apart from the law enforcement organs themselves; and even their behavior is regulated by documents that aren’t exactly normative, by memos, instructions, court directives, and all kinds of internal clarifications that travel down the whole hierarchy until they reach those who must ultimately enact them. This is all non-normative regulation that doesn’t go public and cannot be verified or questioned. And what matters most is that people who are subject to these norms don’t even know about them.
The most vivid example of how this started is the anti-extremism law of 2002. The term “extremism” is 20 years old, but no one in 20 years has managed to understand what it means, in spite of the active application of this concept in repressions. And that’s the whole point, Chikov explains: during the Second Chechen campaign, an “extremist” was a bearded armed highlander from the North Caucasus. But as of 2021, it was Navalny and his supporters. Why such a metamorphosis and such a range? Because the word “extremist” means whoever opposes the regime at any given moment.
People who try to understand Russian law enforcement often look for patterns and rational connections. The sense that there’s got to be some traceable logic assures ordinary Russians that, by adapting their own behavior, they can minimize the risk of running afoul of law enforcement. But if the authorities want to keep everyone cowed, what they need is not firm rules and clarity but arbitrariness and unpredictability. Why? Because arbitrary, wantonly cruel law enforcement robs people of all sense of control. Instead, they can only quake in expectation of the “sledgehammer’s” next strike.
“When there’s no logic,” Chikov says, “a person sinks into paranoia.” No matter what she or he might do, it could lead to punishment. Psychologically, this is paralyzing, which is precisely the objective of the state, in its attempt to turn society into a minefield, where a person doesn’t know where it’s safe to step, and where it isn’t. The society then turns into “a flock of sheep, bitten here and there by the sheepdogs to move where the shepherds want them to go.” But this has nothing to do with civil society, democracy, or the rule of law.
Lawyers without the rule of law
The arbitrary enforcement of not fully transparent laws and directives means that lawyers have a new role to play: they must act as interpreters of what the state expects of citizens — at least roughly. In the olden days, anyone could find, read, and understand the legislation in place. This is no longer the case, especially with regard to the new laws, whose convoluted language is often completely unintelligible to a non-specialist, and cannot be understood without an expert’s help.
The increasing prevalence of informal regulation, based on directives that aren’t made public (because they’re marked for internal use within different organizations), means that lawyers are also acting as monitors of the legal situation and all the ways in which different legal scenarios play out in different parts of the country. Understanding how both laws and internal directives are applied in practice, in real-life situations — “keeping a hand on the pulse” of legal precedent — becomes essential in representing an individual in court.
Meanwhile, the length of prison sentences is increasing. Ten years ago, much of Russian society was shocked by the two-year sentences issued to the Pussy Riot’s Maria Alyokhina and Nadezhda Tolokonnikova: to get two years for a performance was unprecedented. But that was then. Compare and contrast: Ivan Safronov just got 22 years on treason charges, for “something he may or may not have done,” Chikov points out. And then there’s Yashin (8.5 years for comments during a livestream), and Alexey Navalny (who faces up to 35 years on a slew of different charges).
The courts, meanwhile, are working in tandem with the State Duma, whose “mad printer” seems to have gone positively berserk: in 2022, they passed 670 new laws. Regardless of what share of those new laws might be repressive, it’s clear, for instance, that the new “foreign agent” law alone will affect hundreds of people and organizations on the new unified registry. There’s more and more talk about pressuring those who left the country, and we can expect to see new legal initiatives in that direction.
The fog of war in Russia is getting denser, and with it grows lawyers’ sense that their capacity to help is more limited by the day.
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