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The Babitsky Trial: Rule of Law?
Andrei Babitsky could have avoided going to trial
by agreeing to accept the amnesty in the course of the investigation conducted
by the Russian MVD. But he does not consider himself guilty and we his friends
support him in this. He used a passport that was forced on him by the security
services (which had also manufactured the fake document) in a very desperate
situation in which he had every reason to believe that his life was in danger.
The court ignored all the circumstances that preceded
Babitsky's use of the fake passport. The court did not see fit to consider
the testimony of this author, who testified that the exchange of Andrei
Babitsky for Russian prisoners of war had been a hoax.
Igor Petelin, a member of the presidential commission
for prisoners of war and the missing in action, lied when he announced over
television channels that such an exchange had taken place. There is no protocol
of the commission deciding upon such a trade. This is confirmed by the chairman
of that commission, Vladimir Zolotarev, and his deputy, Konstantin Golumbowsky,
as well as every one of the ten members of the commission who are current
or former members of the Duma, including Ella Panfilova and Yuli Rybakov.
Andrei Babitsky, a journalist who was arrested illegally by the security
services, was handed over by them in a sham "trade" to persons
who cooperated with the security services and were quartered in the village
of Avtury, in the Shali rayon of Chechnya, in the house of an FSB officer,
a Chechen, Gazi Deniev. As fate would have it, Gazi Deniev was killed in
Moscow as a result of criminal infighting on the day before Andrei Babitsky's
The trial of Andrei Babitsky must be understood
as yet another official farce, an attempt to take the responsibility for
illegal actions used against an honest journalist off the shoulders of high-ranking
Russian officials, starting with President Putin.
What follows is not a stenographic record but a
description of the persons involved in the trial and others those who came
to support us and those who came for the opposite reason.1
For some time Igor Alekseevich was the deputy chairman
of the rayon court. However, by the time the Babitsky case was handed to
him, he was simply a judge in the Sovetski rayon of Makhachkala, albeit
the only Russian judge in that neighborhood. This could be the last case
he hears in Makhachkala since he has been offered a position as the chairman
of the city court of Kaspisk, which is less than 15 km from Makhachkala.
Everything we had learned about Igor Alekseevich
in advance indicated that he is not only a highly competent professional
judge but also an honest, decent person. And I have to say that during the
trial we had many occasions to confirm that. Moreover, despite the guilty
verdict, from the first to the last day of the trial, our entire team including
Andrei's colleagues from Radio Liberty, his lawyers, and the public defender
genuinely liked the judge. Only a "not guilty" verdict would have
satisfied us, but we never had any doubt about Igor Alekseevich's integrity
and professionalism. Andrei Babitsky felt this way also. Genri Reznik,2
one of the leading Moscow lawyers for the defense, said of him "with
his qualifications, his breeding and his intelligence, he would adorn any
court in Moscow." The judge allowed full coverage of the trial by all
the local and central media. There were microphones on the tables of all
the participants for every moment of the trial.
Judge Goncharov presented a living example of how
to run a court in a democratic society. He allowed into evidence practically
all of the statements by witnesses for the defense. The defense witnesses
were not questioned by the investigators prior to the trial. Thanks to the
judge, persons like Oleg Kusov, Radio Liberty's Caucasus correspondent,
and this author were able to testify. The judge allowed the defense motion
to add documents to the official record over the objections of the prosecutor;
among other papers, this included requests from the defense to the general
prosecutor's office and the responses.
However, Judge Goncharov did not pronounce a "not
guilty" verdict. He did lower the amount of the fine from 150 minimum
wages (as the procuracy sought) to 100 minimum wages. Andrei Babitsky could
be considered convicted for about 10 seconds, until the second part of the
verdict, applying the amnesty, was read aloud.
Not one of Andrei's advocates would utter a word
against the judge. As Genri Reznik put it, "we don't have the right
to demand heroism from a rayon judge." Had the judge issued a "not
guilty verdict," our excellent defense lawyers could well have had
to defend him against the authoritarianism of the authorities. (Genri Reznik
already had such an experience: the defense of the judge of the Moscow city
A "not guilty" verdict would have served
as a condemnation of the top government officials, from President Putin
on down, who had denounced Babitsky as a traitor before the whole nation.
All the same, each of us had the impression that Judge Igor Goncharov was
morally on our side and would have entered a not guilty verdict if not for
the political pressure of this case.
Andrei Babitsky was arrested by unnamed persons
while leaving Grozny on 16 January. He was taken to Khan-kala where the
headquarters of the Russian forces in Chechnya were situated. Unnamed persons
held him for two days confined in an automobile. Then he was placed in an
isolation cell at Chernogozovo detention camp, where he was beaten up by
more unnamed persons.
The only named persons at this stage were investigator
Chernyavsky and Deputy General Prosecutor Yuri Biryukov, who questioned
Babitsky on 27 January. It remains unclear on what grounds a criminal investigation
was being conducted against Babitsky, nor is it certain indeed that any
investigation was ever opened.
However, on 2 February he was told that the methods
of punishment against him would be limited to limitations on travel. But
then, unnamed persons on undisclosed grounds traded the journalist for an
unspecified number of unnamed prisoners of war. Once again, unidentified
persons took the reporter by force and handed him over to other unidentified
This multitude of unknown persons and circumstances
constituted an advantage for those who sought to defend the arbitrary use
of state power and it was a real liability for those who sought to defend
the journalist's freedom of speech and his ability to work in his profession.
We know who put Babitsky through this ordeal: Deputy
Chairman of the General Staff Valery Manilov, who called Babitsky a "lost
lamb;" the current Minister of Justice Yuri Chaika, who branded the
journalist a criminal; Deputy General Prosecutor Biryukov, who pronounced
the legality of the "trade;" and, regrettably, acting President
Putin, who was supposed to be the guarantor of the constitution and who
denounced Babitsky as a "traitor."
During much of the pretrial investigation, legal
work on Babitsky's behalf was carried out by Alexander Zozulya. He
won a very important battle when he persuaded the authorities to drop the
charge of forging the documents. During the trial he contributed to a brilliant
who gave the closing, proved that Andrei Babitsky used the fake passport
which was planted on him (and which was surely forged by the FSB) only because
he was forced to do so by the circumstances. The only time the passport
was used, to book a room for a night in the Hotel Dagestan, must be seen
simply as the realization of the constitutional right of a person to have
shelter. In the given circumstances, this was precisely the case.
Not only in his brilliant summation but also in
the written record, the draft acquittal that he gave to the judge, Reznik
demonstrated the discrepancy between the way the charges were formulated
and what constitutes a crime under the relevant statue Article 327 of the
Criminal Code of the Russian Federation which describes the crime as "the
knowing use of false documents." These are precisely the legal grounds
on which the lawyers are crafting an appeal to a higher court, first the
Supreme Court of Dagestan and, if necessary, the Supreme Court of Russia.
However, one woman, her last name is Meshieva,
at her nephew's behest gave shelter to the journalist for one night, without
knowing he was Andrei Babitsky. Since then her house has been searched on
two occasions, as a result of which a substantial sum of money has disappeared.
Another person who came under pressure as a result of showing kindness to
Babitsky is Dagestan's MVD minister, Adingerei Magomedtagirov. He was genuinely
relieved when Babitsky resurfaced on 25 February and rewarded the policemen
who brought in the reporter not as though they had caught a criminal but
as though they had saved a life. He greeted Babitsky warmly and told him
they would send him home. And then the call came correcting Magomedtagirov,
saying that Babitsky should be locked up.
There is one other person I have to mention. On
the day before the end of the trial, Magomed Khachilaev stopped by our hotel
room.3 He told Andrei and Savik Shuster, the director of the Moscow bureau
of Radio Liberty, that, shortly before the "trade," he was approached
by GRU officers who sought help in getting Russian prisoners of war who
could be traded for Andrei Babitsky. At that time Magomed and his brother
Nadir were under investigation. In one respect we do have to give Magomed
his due: he did not succumb to the provocation.
I am an officer who has gone through Afghanistan
and the first war in Chechnya and I have a moral right to say that we are
defending Andrei Babitsky against the unprecedented arbitrariness of state
power for a reason.4 We do not want to allow this government to kill in
a criminal and undeclared war women, children, old people ours or someone
else's. For this reason, we, the friends of Andrei, who are very numerous,
are with him to the very end, until our common victory in the courts. The
moral victory already is ours.
1 This trial account reminds us of the notes on
dissident trials that were smuggled out of the Soviet Union. It is a sad
reminiscence which we hope is not a portent of things to come. ed.
Unless otherwise indicated, all articles appearing in this journal have been commissioned especially