It has been repeatedly observed both in Russia and beyond that one of the key principles of the current regime’s modus operandi is “for friends, everything; for others, the law.” The already dire situation with the country’s adherence to the rule of law is further exacerbated by arbitrary law enforcement. As numerous cases have shown over the course of the last two decades, the government tends to use the law selectively to punish critics and protect loyalists.
May 6, 2012: Following a mass anti-Kremlin demonstration that ended in peaceful protesters’ clashing with police, dozens of activists were prosecuted and jailed in what has become known as the “Bolotnaya Square case.” None of the law enforcement officers has been brought to justice, despite human rights organizations’ decrying the use of excessive and arbitrary force to crack down the rally. Photo: Sergey Rodovnichenko | Wikimedia Commons.
More than 100 years ago, Russian writer Mikhail Saltykov-Shchedrin said that “the severity of Russian laws is more than offset by the lack of their enforcement.” The rule of law is not the rule of life for most Russians. And the government tries to compensate for this by making the law as harsh as possible.
Since the 19th century, the situation has changed only partially. Execution of the law is optional in respect of a select few. The phenomenon itself is called “selective enforcement” and is one of the factors influencing Russians’ attitudes towards the courts. It was precisely the selectivity of law enforcement that crystallized in the old Russian proverb, “The law is like a wagon-tongue: where you turn is where you go.”
Selective enforcement is the application by the government of different legal standards to cases with similar factual circumstances based on reasons other than law. The court can apply such an approach to assessing evidence and the degree of compliance with procedural norms as well as to determining the kind and rate of punishment. Law enforcement agencies can use it to choose whether they want to investigate law violations or turn a blind eye.
According to the 2020 statistics, the percentage of acquittals in Russia in non-jury trials is on average 0.34 percent for all categories of crimes. Only three defendants out of 1,000 manage to persuade the court that they are innocent. But there is a category of cases in which the courts acquitted defendants 12 times more often than average. These are crimes against the interests of state service. Only officials can be accused in such cases, and here courts pay more attention to the quality of evidence and demand more from the investigation. It is precisely the selectivity of law enforcement that affects the statistics.
A vivid example of selective law enforcement can be observed right now. Following the January 23 protests, the government immediately initiated a criminal investigation in the so-called “sanitary case.” The investigation equated the calls for peaceful protest to a violation of the sanitary and epidemiological rules, alleging the presence of COVID patients among the protestors. Charges have been brought against ten defendants (most of them are currently under house arrest), and dozens of searches have been carried out. All the defendants are opposition members.
However, when the opposition tries to bring officials or law enforcement officers to justice, the results are quite different. For example, after the January 23 protests, the Public Verdict Foundation, a human rights watchdog, asked the Investigative Committee to open a criminal investigation against police officers who violated the sanitary and epidemiological rules by keeping detainees in police vans for many hours without observing social distance. Neither the Investigative Committee, nor the police found any issues with these actions.
Likewise, law enforcement agencies saw no violation when several thousand people in Yekaterinburg held a face-to-face flash mob to support President Putin in defiance of the January 2021 protests against arbitrariness on the part of the authorities. One more example: on April 15, 2020, as Russia went into lockdown, the Moscow transportation authorities and police began to check for travel permits as people tried to enter subway stations. These inept and ill-prepared actions led to vast crowds of people accumulating by the subway entrances undermining the lockdown measures. Law enforcement agencies again saw nothing untoward.
Sentencing is another striking example of selective enforcement in Russian courts, which routinely act according to the principle “for friends, everything; for others, the law.” Courts may apply the law more leniently to defendants affiliated with the government (former or current officials or law enforcement officers) than to ordinary citizens, at the same time as issuing tougher sentences to political opponents of the government.
For example, a well-known Chechen human rights activist, 61-year-old Oyub Titiev, was sentenced to four years in a penal colony for allegedly possessing marijuana. Under suspicious circumstances, police officers found this substance in Titiev’s car (Titiev himself insisted that it was planted). The court took a completely different approach in the case of former police officer Amir Datsiev in St. Petersburg. Having planted drugs on his victim, Datsiev proceeded to extort money in return for dropping the false charges. The victim tried to commit suicide but eventually reported the incident. The court sentenced Datsiev to one year and three months in prison.
Both cases involved illegal drug possession. Still, while the human rights activist received a harsh sentence, in the case of the former police officer, the prosecution and the court waived charges of unlawful possession and distribution of drugs, though neither challenged the allegation that the defendant had actually used drugs.
Within the judiciary branch, selective enforcement is used to punish disloyal judges, while violations by loyal judges are ignored. Thus, back in 2005, the Judicial Qualifications Commission impeached judge Vlada Bliznets, who ruled in favor of companies affiliated with Yukos Oil Company. Officially, the reason for the impeachment was not connected to Yukos, rather due to Bliznets’ mistakenly copying several paragraphs from one opinion and including them into the text of another. Even though judges constantly make errors and insert parts of one opinion into another, there is no record of anyone else having been impeached for such a mistake. In an opposite example, Ekaterina Ignatova, a judge of the Moscow Arbitration Court, wrote an expletive (“suck cock”) following her signature in an official document. Even though the words were in white font on white background and thus invisible, the revelation caused a scandal. This “mistake” seems to be more severe and doubtless constitutes improper conduct, but this time, the Judicial Qualifications Commission decided not to punish Ignatova, who continues to work with impunity.
Law enforcement officers also evaluate certain situations depending on the status of the participants. For example, after an opposition rally was brutally cracked down on July 27, 2019, Russian blogger Vladislav Sinitsa, responding to a tweet from another user, wrote on Twitter about a hypothetical situation in which violence could be committed against children of law enforcement officers. The result of this hypothetical assumption was a sentence of five years in prison based on the testimony of two law enforcement officers who allegedly feared for their children’s safety.
Yet again, law enforcement officers reacted differently to the very real death threats posed by the head of Russia’s Investigative Committee, Alexander Bastrykin, to Novaya Gazeta editor-at-large Sergei Sokolov, who oversaw the newspaper’s investigative unit. On June 4, 2012, Investigative Committee security guards forcibly brought the journalist to a forest in the outskirts of Moscow, where Bastrykin personally threatened the journalist. The conflict, reportedly, was over an exchange of words between Bastrykin and Sokolov during a reporting trip to the North Caucasus. After Novaya Gazeta published an open letter detailing the threats and demanding safety for Sokolov, causing a great stir, Bastrykin admitted that he had lost his temper, although he denied the alleged threats and conversation in the forest. There was no law enforcement officer interested in touching this story in Russia, even though it went far beyond the hypothetical situation described by Sinitsa in his tweet.
Another characteristic of selective law enforcement is the difference in attitudes to the implications of an offense. For example, Kirill Zhukov, who raised the visor of a policeman’s helmet during a protest rally, was sentenced to three years in prison for violence against a law enforcement officer. Meanwhile, no criminal investigation into the terrible, unprovoked kick in the stomach that Margarita Yudina received from a police officer in January 2021 has been initiated. Not to mention the failure to bring criminal charges in the case of Alexei Navalny’s poisoning...
There is yet another twist in the selectivity tale. During the January 2021 protests, a young man was seen to attack police officers with a bat. He was swiftly and expertly detained. Many observers concluded that the video had been staged because it looks as if the filmmaker knew in advance what to shoot. Moreover, government-controlled media immediately shared the video of the incident with negative comments about protester brutality against the police. A criminal case has not been initiated, even though the attack was apparent and dangerous.
Selective law enforcement leads to a dangerous and destructive inconsistency of the law, which is being applied differently in identical circumstances. This practice undermines the credibility of the law and the concept of justice, since the outcome of a dispute no longer depends on the law itself or the defendant’s behavior. If law enforcement is selective, the outcome depends on an official’s unlimited discretion. This problem too is reflected in Russian folklore: “The law is holy, but the law enforcers are devils.”
* Igor Slabykh is a lawyer and manager with eighteen years of experience in Russia and the U.S.; he holds a law degree from the Moscow State Open University and an LLM from the George Washington University Law School.
