Institute of Modern Russia

We are not currency dealers—we are lawyers, which is probably worse. Since we are, unlike currency dealers, encumbered with a legal education, Alexei Navalny and Petr Ofitserov’s release from custody one day after a guilty verdict was returned against them should not be that surprising to us. Still, it is difficult to understand what is going on, since nothing similar has ever happened before in either legislative or legal history.

Or has it? A series of events in some ways similar to these did happen in the Soviet Union more than 40 years ago. The famous Russian lawyer Lev Simkin colorfully described the episode in his book Socialism with a Legal Face and wrote about it again on his Facebook page after Navalny and Ofitserov were released. His post is worth reprinting: “On the eve of the new year of 1971, in Leningrad, the court pronounced its sentence in the case of the samoletchiks—Jewish refuseniks (individuals who were denied permission to emigrate abroad), unsuccessful hijackers of a civilian aircraft that they wanted to use to escape to Israel. The great lawyer Semyon Aria, who was defending one of them, later remembered that when he was about to leave for Moscow after the trial, he got a call from the Leningrad District Court and was asked to immediately lodge an appeal. Such a thing had never happened before—that judges were asking lawyers to appeal against their own verdict, and the sooner the better. Four days (!) later, on December 28, 1970, the Supreme Court of the Russian Soviet Federative Socialist Republic considered the appeal, which resulted in the court replacing the death sentence with 15 years of incarceration. As it later became known, the reason for such haste was then–US President Nixon’s call to Brezhnev asking him ‘not to spoil Christmas for the Americans.’”

The similarity between these two cases lies in the sudden move by the law enforcement agencies to alter the convicts’ fate in a paroxysm of democratic feelings. In the case of the samoletchiks, these changes were much more considerable, because the appeal resulted in a new penalty. The capital punishment was replaced by the maximum term of imprisonment allowed under Soviet criminal legislation at the time. But in the case of Navalny and Ofitserov, the only thing that changed was the measure of restraint. It is still too early to talk about penalties, since their sentences have not yet come into force.

The quasi–fairy tale about kind and professional prosecutors, respectful of electoral rights provided by the Constitution, that suddenly came true on July 19, 2013, made a strong impression on the susceptible masses. The Internet was flooded with countless comments of different character, origin, and degree of coherence. The author of one of these, in particular, very rightly pointed out that according to Part 1.1 of Article 108 of the Criminal Procedural Code, “taking into custody as a measure of suppression may not be applied to the person suspected or accused of committing the crimes provided for by Articles 159–159.6, 160 and 165, if these offenses have been made in business activities.” The commenter then came to the formidable conclusion that at this stage of the proceedings against Navalny and Ofitserov, according to the law, the judge did not have the right to order that the men be imprisoned. And then, lo and behold, noble prosecutors realized what a mistake the unprofessional and naughty judge had made and immediately lodged an appeal, which resulted in the replacement of the order to hold Navalny in custody with a written order that Navalny not leave the place. The prosecutors’ motivation seemed to be the most dignified and humanitarian one possible—that is, to not limit the access of Navalny, registered as a candidate for Moscow mayor, to the electorate until the sentence comes into legal force. Clearly, these are not prosecutors, but Robin Hoods from the Kirov Forest—that part of it which has not yet been stolen by Navalny and Ofitserov.

The death penalty for Eduard Kuznetsov (left) and Mark Dymshits was replaced with 15 years of imprisonment.

I will not even speculate on the real cause of the actions of the Prosecutor’s Office and who staged the entire affair. I would just like to clarify some terminology relating to this case, since confusing legal terms often result in absolutely wrong conclusions. Thus, the first and most important thing: at this stage of the criminal proceedings, Navalny and Ofitserov are defendants, which is a different procedural status than that of the suspect or the accused. A suspect is a person against whom a criminal case is initiated or a measure of restraint applied before the announcement of a verdict; who is arrested for suspicion of a crime; or who, in compliance with Article 223-1 of the Criminal Procedural Code, receives a written notice that he or she is suspected of committing a crime (Article 46 of the Criminal Procedural Code). According to Article 47 of the Criminal Procedural Code, the accused is the person on whom a ruling or a bill of indictment is passed when he or she is brought to trial in the capacity of the accused.

Part 2 of the same article stipulates that when court proceedings are initiated against the accused, he or she becomes the defendant, and after a verdict of guilty is passed, the defendant becomes the convict. That is why, in discussing the Navalny case, one cannot refer to the aforementioned Part 1.1 of Article 108, which forbids taking into custody as a measure of suppression the person suspected or accused of committing the crimes outlined in Articles 159–159.6, 160, and 165. And although we certainly do not like Judge Sergei Blinov, in this particular case he did not violate the law, and the custodial restraint that he ordered as a measure of suppression with regard to the defendants corresponds with the current legislation.

The spontaneous rallies that broke out after the guilty verdicts against Navalny and Ofitserov were made public were a protest against the court decision and not against the custodial restraint that was the chosen measure of suppression. The placement of Navalny and Ofitserov in custody did serve as an emotional trigger for the public. However, that being said, neither the history of Russian legislation nor the annals of court practice include any mention of an appeal against a measure of restraint stipulated in a guilty verdict or of such an appeal having ever been considered on the day following a verdict and the measure of restraint consequently having been canceled. Indeed, this has never happened before! That is why, when Navalny and Ofitserov were released on July 19, the Russian legal community immediately began discussing the incident. Nobody, not even the greatest and the most experienced among us, had ever come across anything like this. The decision was therefore declared to have the value of a precedent, and the situation was thought to be not only historical, but also encouraging.

However, there were people who did not find the whole incident that encouraging. I had several reasons for not seeing it in this light. First of all, history shows that “Greeks bearing gifts” tend to be unlikeable, suspicious, and unreliable. Thus, I do not trust them—especially when this role is played by officials of our dear Prosecutor’s Office. To me, a Russian prosecutor who cares so much for human rights that he is prepared to declare a measure of suppression chosen by his fellow judge as contradictory of the law and to appeal against the corresponding part of the guilty verdict is nonsense. He would be an unviable organism, striving for self-destruction, whose life cycle is shorter than that of Professor Vybegallo’s cadaver (a character from Monday Begins on Saturday, the 1964 science fiction/fantasy novel by Boris and Arkady Strugatsky.)

Second, the jubilation over the alteration of the measure of suppression has completely obscured the fact that at this time, nothing much about the defendants’ fate has changed. The freedom that Navalny and Ofitserov regained on July 19 is reminiscent of Hegel’s “freedom as a figment of the imagination.” A guilty verdict has been handed down against both, and the unprecedented decision to release them until the sentence comes into legal force does not alter their procedural status. So, however sad it might be, this freedom is temporary and relative. At this time, it is hardly possible to foresee the result of the defense’s appeal, since the “Kirov Forest case” contains too many political variables. As for the legal aspect, we have conclusive evidence that in a case of extreme necessity, the Prosecutor’s Office is capable of remembering the principle of the supremacy of human and civil rights and freedoms, as well as the necessity of observing electoral laws. And finally, the motivation behind this decision is still anyone’s guess. The deck is indeed being shuffled very whimsically.