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Perspective
Volume XI, Number 2 (November - December 2000)

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The Babitsky Trial: Rule of Law?
By VYACHESLAV IZMAILOV
Military Correspondent, Novaya gazeta

The trial of Radio Liberty correspondent Andrei Babitsky took place on 2-6 October in the court of the Sovetski rayon of Makhachkala. Babitsky was found guilty of knowingly using false documents: to wit, a fake passport under the name of Ali Isa-ogly Masaev. According to the court verdict, he was to pay a fine in the amount of 100 minimum wages (this is slightly more than 8,000 rubles), but was amnestied under a Duma resolution on the occasion of the 55th anniversary of the Victory in the Great Patriotic War.

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 trial began.

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

The Judge: Igor Goncharov
Born and bred in Makhachkala, the judge is 45 years old. His father, Aleksei Goncharov, was the first deputy MVD minister of Dagestan in the 1970s and '80s. In 1977 Igor Goncharov earned his degree from the law department of Dagestan University.

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 court, Pashin.)

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.

Prosecutor Rashidhan Magomedov
The prosecutor, a department head in the republican procuracy, had worked for a few years in one of the mountainous regions of Dagestan. Roughly 40 years old, Rashid Magomedov doggedly drummed the state line that had been predetermined for him by the preliminary investigation, which was carried out by a special agent of the Russian MVD assigned to particularly important affairs, Aleksandr Danilkin. It was by a whim of fate that Magomedov was required to defend the abuses perpetrated by much higher authorities against a journalist. It was clear to all of us defenders that he carried out his duties professionally, but without any particular enthusiasm.

The Defense
The defense team was comprised of two excellent attorneys, Alexander Zozulya and Genri Reznik, in addition to the public defender, Pavel Gytiontov.


Pavel Gytiontov, secretary of the Union of Journalists of Russia, gave a brilliant oration. In an emotional and very persuasive presentation he showed clearly that the pre-trial investigation had failed to examine any of the events preceding 25 February, the day on which Andrei Babitsky gave the passport under the name of Ali Isa-ogly Mysaev to a clerk at the Hotel Dagestan in Makhachkala. This was the only occasion on which the journalist is accused of having used the fake identification. Gytiontov pointed out that this episode was preceded by nearly six weeks of arbitrary maltreatment of the journalist by the state. This tyranny continued throughout the pre-trial investigation.

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 individuals.
At roughly the same time, unnamed persons stole a passport under the name of Ali Isa-ogly Musaev from a clerk's office in the passport and visa service of the MVD, and in some unknown way transferred it to the undisclosed persons holding Babitsky. For two months there was no investigation into the missing passport not until journalists took note of this fact.

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."
The investigation and the trial were meant to protect the government and its top officials. In a formal sense they have succeeded.

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 defense.

Genri Reznik, 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.

Around the Trial
Many local persons approached us with warm wishes and support, among them ordinary people, local administration officials, local MVD officers and procuracy workers. For obvious reasons I cannot name them.

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.

After the trial
Having witnessed the excellent defense, many of us thought that there would be an acquittal and we were disappointed when the guilty verdict came down. At the time I said to Andrei that the verdict should not make us sad. "When, in the beginning of January, Russian officials and generals stated that there were no civilians left in Grozny, seeking to justify massive bombardment in this way, you exposed this lie by showing in your reportage the women and children who remained under fire. And I know that this saved hundreds of innocent human lives."

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.

A postscript
While the Russian authorities and security services were having their fun with Andrei Babitsky, an ITAR-TASS correspondent, Vladimir Yatzin, was killed by his captors after being held hostage for six months in Chechnya. He never did get any help from the Russian security services.
To this day we know nothing about the fate of Sergei Semendev, a journalist kidnapped nearly two years ago from Makhachkala. Viktor Petrov, a journalist from Samar, has been held by bandits in Chechnya for 18 months.


Notes:

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.
2 Genri Reznik is a top trial lawyer who takes on politically sensitive cases. Among others, he has represented Vladimir Gusinsky, and has been at the forefront of the effort to bring to responsibility the Kursk governor who recently made anti-Semitic comments. ed.
3 Magomed Khachilaev is the second person connected to this trial who has been killed in suspicious circumstances. Both Gazi Deniev and Magomed Khachilaev led local political movements, and were rumored to be involved in organized crime and have connections to Russian security services. The brothers Khachilaev are notorious personalities in Dagestan. In May 1998 they led the coup attempt in Makhachkala. In the summer of 1988 they were instrumental in supporting the villages that declared Shariah law, Karamakhi-Chabanmakhi. When federal forces launched a punitive operation in Karamakhi- Chabanmakhi in August 1999, the Khachilaev brothers participated in its defense. ed.
4 Since his forced retirement from the MVD, the author has worked tirelessly to bring about the release of hostages held in Chechnya. ed.

Copyright ISCIP 2000
Unless otherwise indicated, all articles appearing in this journal have been commissioned especially
for Perspective.




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