Skip to comments.Stanislav Markelov: I defend the interests of Russian law
Posted on 11/28/2010 5:26:56 PM PST by struwwelpeter
"In justifying Budanov, we automatically recognize Chechnya as an independent state"
An unpublished interview with Attorney Markelov
We are printing a hitherto unknown interview with Stanislav Markelov, taken after he had returned from Chechnya in the early part of June 2002. Back then 'Stas' had become an attorney for the Kungayevs, the Chechen family accusing Colonel Budanov of abducting, raping, and murdering their daughter, 18 year-old Elsa Kungayeva.
This is the first time that this interview, taken six and a half years ago, has been published.
At the invitation of human rights groups 'Memorial', 'Civic Assistance', and others, in the middle of May 2002, attorney Stanislav Markelov joined the suit against Colonel Budanov. He represents the injured party. At the time legal counsel for the Kungayevs was Khamzayev, who had fallen ill. Many embraced the appearance of Markelov in temporarily replacing him, but when they realized that he had come to assist Khamzayev for a protracted period, they were tortured by questions: what nationality was he, and did the Chechen Diaspora hire him? The Court had considered testimony, which at the time they considered final: psychological-psychiatric evidence given by the Serbsky Research Center for Social and Forensic Psychiatry, as well as the experts from the prosecutors office. Forensic medical experts in Moscow also testified, using data from the previous two testimonies. After acquainting himself with the case materials, Markelov took a tough stance towards North Caucasus military district court of inquiry, reproaching them for bias, for violating the rights of the injured party, and, ultimately, for violating Russian law. The results of the psychological assessments, and the Court's conclusions based on these assessments, forced the lawyer to seek the truth from another source. He brought to Rostov-on-the-Don stacks of petitions from independent psychiatric and legal associations, and the evaluations of world-renowned Russian and foreign experts. Their conclusions refuted the Court experts, and protested the lawlessness of the case, but none of it was taken into account. Shortly before a famous turning point in the case (ed: the replacement of the prosecutor), the Court decided to deal with the unruly attorneys, Markelov and Khamzayev, by charging them with disobeying the Court and promising to have them removed. But the situation changed dramatically. The clarion call to the Law, and the logical inference by a Russian attorney on side of the Chechens, has finally been heard at the highest levels.
What, in your opinion, caused the replacement of the prosecutor, and is this a unique twist in the case?
In this case I had to actually play the role of the accuser, while Prosecutor Nazarov became Budanov's fourth attorney, only defending Budanov's position. Many initially looked at the case as a continuation of the war. On the one hand here are the Russians: a federal officer and his lawyers, while on the other there are the Chechens: the Kungayev family and their attorney Khamzayev, who by the way, is very competent and experienced. When I, a Russian lawyer, joined the injured party, the picture changed significantly. All this time I had been trying to prove that it was all much more serious than anyone imagined. It is a vector, a trend. Even though our legal system is not based on precedents, this case contains a number of important legal issues, the solutions to which will change the future direction of Russian legislation, and this will apply throughout Russia - rules that are either based on the Law, or savagery. Take for example, revenge. We have always considered aggravating factors in this. Budanov constantly changes his testimony, but he is stable on only one point, that he justifies his actions as revenge for fallen comrades, and the Russian court, oddly enough, perceives this motivation in a positive light. If revenge becomes a factor in justifying a criminal act, then our entire legal system is on the road to barbarism. Revenge is the rule of law in Chechnya, and in case of Budanov's acquittal, the next question - if we begin to judge according to Chechen law - is who really wins? In justifying Budanov, we automatically recognize Chechnya as an independent state. I think that this fact, finally, has become understood at the top, and so this unique twist in the case takes place, at the last minute the prosecutor is replaced. Nazarov's indictment, and I have never heard a more justificatory speech, was so curious in terms of violations of the Law, that the highest levels of law enforcement in the country, I think, could just not stand it any longer. It called into question their honor and the entire system.
But on the eve of this twist, the victim's lawyers made a move, as a sign of protest, by refusing to participate in the deliberations. Did this affect the course of events?
I think so. This, of course, was a risky, desperate step, but we had no other way to be heard. Before this the Court, quite illegally, suspended the investigation, despite our statements that not all of the witnesses had been questioned, and that not all of the testimony had been examined. They declared that the next day the sides would begin debate. Shortly before this, Rostov Attorney Tikhomirova was invited by the Kungayevs to join the case, and the Court did not see fit to even allow her to get acquainted with the case. After the Court announced the beginning of debate, it was my initiative, and this was something, as far as I know, that has never before happened in the history of Russian judicial practice, the refusal by counsel for one of the parties to participate. Debate is the final presentation, it clears up the parties' positions, and if we took part, then it would have taken more than a day just list all the errors made by the Court. The response to our action was shock, but nevertheless, a one-sided debate still took place. And then, right after this, they replaced the prosecutor. In place of Nazarov there appeared Milovanov, who did not copy the position of his predecessor, but, rather, stated: "I want to determine my own point of view." Similarly, for the first time the Court sounded somewhat reassured, since for a whole month I had to defend Russian Law from Russian law enforcement agencies. At the last session of the Court, for the first time in the history of this case, my point of view coincided with the opinion of the prosecutor.
Recently there was a complaint against you with the Inter-republic bar association, filed by the North Caucasus district military court. Of what exactly did they accuse you?
They said that I called it a kangaroo court and would not obey its decisions. I actually called it that, but not during the legal sessions, but after the hearings, when we were once again denied obvious motions. In the case file, for example, among Budanov's witnesses there suddenly appeared the names of two informants: Sembiev, who the day before Elsa's murder supposedly said that the Kungayevs were sniper spotters, and Yakhyaev, who seems to have given Budanov photographs depicting Elsa and her mother heavily armed and in the mountains. The Court ruled that the witnesses must be questioned, but added that it was impossible to locate them. So all by ourselves we found Sembiev. He was sitting in a Russian jail, so finding him was easy. And we located Yakhyaev by using his address. All this time he had been awaiting a subpoena from the Court. We asked that they be questioned, since they were Budanov's witnesses, but the Court, with the full support of Nazarov and the lawyers of the accused, refused to do so. So I called it a kangaroo court.
These witnesses were fictitious?
They were the main trump cards in Budanov's defense, but when we started to determine the facts we were faced with a series of legal jokes. Let's start with the photo, which was the cause for the arrest of the Kungayevs. This picture was nowhere to be found. No one ever saw it. Furthermore, from case documents it was known that both had participated in the first Chechen war, when Elsa was only 13 years old. Elsa's mother had a Group 2 handicap, and a serious illness, and could not even work in the fields, which, according to Chechen tradition, is obligatory for women. So imagine a 13 year-old sniper and her disabled mother out there in the mountains in full battle gear. Even Prosecutor Nazarov, on hearing this, considered Budanov's defense arguments "not serious". Now, regarding Sembiev's information: he confirmed that he had indeed pointed out to Budanov the house where snipers were receiving support. But he discovered that there had been some confusion. The fact is, in the large village of Tangi-Chu there is a Zarechnaya Street and Zarechniy Lane, about a mile apart. Sembiev pointed out a house located on Zarechnaya Street, while a drunken Budanov, driving around that night "to take out the snipers," turned up on Zarechniy Lane. The house, according to the informant, was supposed to be white, and surrounded by bushes, while the Kungayev home was of red brick, and out in the open. Well, the colonel made a mistake and grabbed whoever was close at hand. In his first testimony Budanov called Elsa, "the daughter of a female sniper," but in later testimony she had already turned into "a female sniper". The Court should have ascertained all of this, but instead they told us: "We have studied the case in full, and so we will not do so."
What do you think about the scandalous expert testimony by the Serbsky Institute in the case?
Initially, the psychological-psychiatric examination (of Budanov) was conducted by the Novocherkassk psychiatric clinic, and it concluded that, at the time of committing the crimes, Budanov was in an altered state of consciousness, though it was simply as a result of drunkenness. It is known that Budanov, on the day of the murder of Elsa Kungayeva, had celebrating his daughter's birthday. In his first testimony he said that he drank two bottles of vodka, but in the following testimony the amount of vodka was reduced to 600 ml, and then to 400. That is, the further the investigation proceeded, the more sober Budanov became. In the latest evaluation by the Serbsky Institute, he had finally sobered up. This evaluation came up with some very exceptional results: during the commission of the crimes of kidnapping and exceeding official authority, Budanov was partially insane, while during the murder he was absolutely insane and in a twilight state of consciousness. At the same time the experts said that he was not in a twilight state before or after the murder, and so as far as compulsory medical treatment they identified him as needing outpatient monitoring, and even decided that he was partially fit for military service.
The fact is, the leader of this committee of experts is the notorious psychiatrist Pechernikova, who sentenced to treatment many dissidents, including Vyacheslav Igrunov (ed: at the time a Member of Parliament), and initially this outraged both professionals and the public. The Court, however, refused to take it into account. In response to a personal telegram from Igrunov protesting the decision of any commission headed by such a compromised person (and similar telegrams had come from many of Pechernikova's other victims), a letter was sent to the Parliamentary disciplinary commission, complaining that, "a Member of Parliament is putting pressure on the Court." At the time we joked that they finally found someone guilty in the Budanov case - MP Igrunov and Attorney Markelov. The results of the psychological-psychiatric evaluations outraged the most imminent Russian and foreign specialists in these fields, and they responded by sending the Court alternative evaluations. The Court, who in principle would not take any of this into account, suddenly, after the twist in the case, determined that the final evaluation was in violation of the previous and did not answer every question, and so it was necessary to appoint a new commission. It was proposed that Psychiatric Clinic No. 6 in Petersburg, and the Bekhterev Institute, conduct the evaluation, but the Court refused and again selected the Serbsky Institute. There is certainly some corporate solidarity here. The commission invited specialists from the so-called field of general psychiatry, including some even more odious than Pechernikova, such as academician Morozov, who headed the Serbsky Institute during the darkest of the Soviet days. He declared insane, for example, Grigorenko, and many, many other dissidents. So, I suspect some surprises still await us.
What about the soldier Yegorov, who admitted to reporters from 'MK' that prosecutors forced him to confess to raping the already-dead Elsa Kungayeva?
Yegorov's video testimony that was made by the journalists, will, I hope, help in the investigation. But the fact is: the girl was raped while still alive. This was clear in the first forensic examination immediately after the autopsy, and the autopsy acknowledges this. Traces of blood, the result of Budanov removing the girls virginity, are clearly visible in the photographs. The pathologist who performed the autopsy did not do a histological analysis, allegedly due to the fact that he did not have on hand the necessary materials. I think that back then the analysis was not performed simply because it was an obvious case of rape. The next examination confirmed the pathologist's conclusion, but at the same time, however, it stated that the girl was raped either while alive, or immediately after death. Legally it does not matter; the fact is that Budanov raped Elsa Kungayeva. A later forensic examination that included specialists from Moscow concluded, with absolute precision, that the rape was not done by Budanov, but by the soldier Yegorov, who raped the dead body with a shovel handle during its interment. Independent experts, I turned to such world-renowned scientists such as Doctor of Medical Science A.I. Oyfa, a pathologist with 50 years experience, do not understand how this can be stated with precision, if the body was not disinterred and the specialists only used documents. In assessments of such examinations, they always put the conclusions of the pathologist ahead of anything else. The pathologist performed the autopsy; he saw the corpse. But the Court refused to even apply to the case conclusions by independent experts that I brought to Rostov.
We know that war brings out the very best, and very worst, qualities in people. For some it is self-sacrifice and heroism, while for others it is a chance for financial gain and to commit murder with impunity. So, in your opinion, who is Colonel Budanov - an original user of war, or its offspring?
I think that the war was a means to realize the colonel's worst ambitions. Yes, war is always accompanied by many crimes, but the situation that Budanov organized was utter chaos, a blow primarily against Russia and against any chance of establishing relations with Chechnya. An interesting detail: on March 26th, 2000, on the eve of Elsa Kungayeva's murder, when the villagers of Tangi-Chu were most loyal to the federal troops located there, they were going to vote in the Russian presidential elections. Budanov shouted, "I'll turn you into another Komsomolskoye!" and publicly beat the chief of city administration, who had approached him to complain about looting soldiers. A criminal inquiry into the beating was quickly suspended, allegedly in connection with the recent reconciliation of the parties. When the chief of the city administration was later asked whether there was reconciliation, he replied: "Back then the investigator asked me to write that, and I was afraid for my life." It was literally a day later that the peaceful village was bombarded for no reason, and Kungayeva was seized and murdered. In the eyes of the Chechens, Khattab and Basayev could not have thought up any better anti-Russian propaganda. And even then, the Kungayevs sought the truth in a Russian court, saying later that the whole village laughed at them for doing this. But, even if we imagine everything that motivated Budanov, killing a Chechen girl, if this is true, he had no right to administer vigilante justice and was required to report this to local representatives of the FSB and SWAT police. He is a soldier and his job is to fight, not perform law enforcement functions. But the next question is whether (the Kungayevs) are effective. When I entered the case, I decided that I would perform an experiment on the effectiveness of Russian law.
Interview by Irina Ozyornaya.
Thank you for the articles.
In Russia unfortunately it is “Live free and die”.
Investigation into the murder of Stanislav Markelov and Anastasia Baburova is complete
The Investigative Committee of the Russian Federation Prosecutor General's Office (SKP-RF) has concluded the criminal investigation into the murder of attorney Stanislav Markelov and 'Novaya Gazeta' reporter Anastasia Baburova. On Monday a criminal case was referred to the Prosecutor General's Office for confirmation of an indictment.
Two Moscow natives are charged in the lawyer's murder: Nikolai Tikhonov and Yevgeny Khasis. "It was found that Tikhonov and Khasis, adherents of radical nationalist views, committed the crime for reasons of ideological hatred and enmity in connection with Markelov's active involvement in the antifascist movement, as well as his professional activities in criminal cases protecting the rights of victims and accused who adhere to the antifascist ideology. Baburova was a witness to the murder of Markelov, and was killed in order to conceal the crime," the SKP-RF reported in 'Lenizdat.Ru'.
The murder occurred on January 19th, 2009. 34-year-old Markelov was shot in head while walking along Prechistenka Street after returning from a press conference. He was accompanied by 25-year-old Baburova, a freelance reporter for 'Novaya Gazeta', who was also shot and died later in a hospital.
According to Tikhonov's lawyer, Anatoly Zhuchkov, his client denies any involvement in the murder, but did plead guilty to trading in firearms. During a search, an assault rifle, two pistols, as well as corresponding ammunition, were found in Tikhonov's possession. The period of protective custody for Tikhonov and Khasis was extended until February 19th, 2011. The charges are punishable by up to life imprisonment.
Stanislav Markelov was a well-known lawyer whose work was linked to several high-profile cases. In particular, cases such as Budanov, where he was defended the family of Elsa Kungayeva, the terrorist attack on Dubrovka, the mass beatings in Blagoveshchensk, and the case affecting the city government of Khimki. It had already been suggested that the killing was linked to his professional activities. Markelov also had many cases involving ethnic murders, and took the side of the victims. Anastasia Baburova was a freelancer for 'Novaya Gazeta' and had written several articles on anti-fascists.
In 'Lenizdat.Ru', December 13th, 2010.
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