Anastasia Baburova was a journalist who covered street politics and informal youth organizations, especially the activities of neo-Nazi groups and racially-motivated political violence. On 19 January 2009, she and her colleague, the human rights lawyer, Stanislav Markelov, were shot in Moscow, within walking distance of the Kremlin. This murder, committed in plain sight, was organized and carried out by Russian neo-Nazis, who called themselves “Russian nationalists.” Stas and Nastya were killed by the “Russian World,” the emergence of which they both tried to resist.
On the anniversary of their deaths we would like to share the interview, which Baburova conducted with Markelov shortly before their lives were cut short. On this same day in 2023, we published our translation of a little-known and politically prophetic article that Markelov wrote at the end of 2008. The occasion for the interview that we publish today was the scandalous decision of the government to prohibit jury trials in cases related to espionage, terrorism, the organization of mass riots, and other categories (nine in total). In 2013, their competence was limited even further to exclude crimes against the administration of justice, bribery, transport crime and sexual assault. Later, as a result of subsequent reform, even the size of the jury was reduced. Although never abolished even against the backdrop of the ongoing war in Ukraine, the institution of jury trials continues to operate under significant restraints. As Markelov and Baburova predicted, the public judgment that juries make on behalf of society would be later replaced by the discretion of the state.
— What is your assessment of the State Duma’s decision to abolish the practice of jury trials in the consideration of major cases?
— The elimination of jury trials in crimes related to treason, espionage, terrorism, as well as mass riots essentially means the abolition of the institution of jury trials as a functional means of administering justice. Note that cases belonging to the category of organized crime, where there were most complaints about jury trials, remain within their discretion. I note that, in European experience, only two countries have excluded crimes against the state from the discretion of jury trials: Spain and Ireland. In neighboring Northern Ireland (part of the UK), martial law and direct rule from London were introduced. Martial law was declared de facto in Spain in response to Basque terrorism. In our country, the authors of this law [on jury trials] cannot justify its introduction by Martial law [as it was not declared]. Moreover, if you look at the cover note that accompanies this fundamental change in the Russian law, which radically changes the system of criminal proceedings in the Russian Federation… Do you know how long it is? It’s one page and one paragraph! That’s the entire the explanation, which, moreover, practically doesn’t contain a single argument. Usually, even minimal changes to the law are accompanied by explanatory notes 4 to 8 pages long, and here you have just one page and a paragraph. Judging from the comments made by those State Duma deputies who successfully pushed for this bill, it was introduced based on the sui generis principle, that is, in relation to a specific case.
The specific occasion is preparation for legal consideration of cases based on evidence about which law enforcement has doubts. The purpose is enabling the court to pass judgments about these cases without the intervention of juries, because our law enforcement agencies, and now also the legislators, fear that the judgments of the juries will be against their interests. If the legal system changes on the basis of the sui generis principle, that is, on the basis of specific cases determined by the law enforcement, it will amount to the complete abolition of the legal system. It would mean that we don’t have laws, but just law enforcement practices designed by the law enforcement agencies themselves.
The same applies to the escalation of penalties for administrative offenses essentially up to the level of criminal cases. This would mean these penalties will be imposed without any degree of protection for citizens. Even now, courts issue administrative protocols in the Stakhanovite quantities, without clarifying the actual content of the case. The judges simply don’t take the time to explain the matter. In the case of significant sanctions, like an arrest for several months, then the person caught into this system would have no real protection. And now think about what it means for a person to be jailed for several months? Sometimes it can mean a broken life: a lost job, a family without a breadwinner, the loss of social ties. It’s a very serious punishment, in fact, a criminal punishment in the majority of cases. But they want to introduce it for administrative offenses, not criminal ones! How much must we distrust our own citizens to do this to them even for minor offenses?
— And what about the mass riots clause, doesn’t this create new opportunities to persecute dissent?
— The thing is, crimes against the state always involve dissent in one way or another. Another question is that this dissent sometimes really is illegal or even criminal. If the crimes of a terrorist are based on his ideological motives, he is, of course, a criminal, but also a dissenter. It’s just that he took up armed means of struggle that are absolutely unacceptable in a society. But if such a case is brought to the court of the public, as embodied by the jury, it will decide what prevails in this case — the desire to crack down on dissent or the person’s actual use of criminal means. In the latter case, naturally, nobody considers this person’s views, and he will be punished as deserved. But if there is no public court, the judgment will effectively be made at the discretion of the state.
— Does the panel of three professional judges prescribed by the new procedure allow for the objective administration of justice in comparison with a jury?
— The judges are state officials. And state officials are always embedded in the vertical of power. One can talk about the judges’ independence as much as one likes, but just look at the statistics. How many judges have lost their jobs? A lot. And how many have lost their jobs as a result of the citizens’ complaints? The number is close to zero. It turns out, then, that judges are tightly controlled by their own judicial hierarchy. And this judicial vertical is, of course, embedded into the vertical of power. Therefore, whether it is three judges, one judge, or a panel of forty judges… If they consider a specific case, there is always a probability that they will be guided not by legal considerations, but by so-called state interests or departmental interests.
— Concerning the parole of former Colonel Budanov [note: Markelov defended the victim in this high-profile case], could this decision trigger mass riots in Chechnya?
— The situation in the Northern Caucasus, both socially and psychologically, is significantly different from the situation in Russia as a whole. There, such decisions do not necessarily trigger immediate reactions, when social discontent boils over and then everything is forgotten. There, such a reaction can be more long-term. And it will manifest itself later: in the Northern Caucasus, no one forgets anything. In this case, it shouldn’t be forgotten that no one ever tried to release a Chechen field commander or the real bandits who were guided by separatist and Islamist ideas on parole. Yet, in this case, we are talking about crimes of the same level, major crimes against the person which took place at approximately the same time. And in the case of the actions of Colonel Budanov, we can even talk about a more serious negative influence on public opinion. Because the Chechen separatists and Islamists committed their crimes not under the slogans of the Russian Federation, on the contrary — under the slogans of the abolition of Russian laws, of the Russian authorities. And Budanov was a person who specifically represented the Russian authorities and the Russian security forces. Hence, his actions direct discredited the Russian authorities. And now the court has continued to discredit them, demonstrating that one can expect objectivity in the consideration of analogous crimes committed on the same territory, in the same armed conflict.
— And what kind of outcomes could this lead to, in principle?
— This can reinforce the opinion in the Northern Caucasus that the Russian legal system doesn’t work. Or, if it does, it works on the basis of direct political orders, performing specific political functions and violating the principle of objectivity and universality.
— And what specific events are we headed towards?
— In any case, whether there is a short-lived explosion of public discontent or a long-term hidden resentment, there is no way to avoid extremely unpleasant consequences.
The original version of the interview first appeared in Russian on January 21, 2009 in Novaya Gazeta.