Court Hearing in the Orlov's case Was Carried out with Serious Procedural Violations
Human Rights Center Memorial is concerned about the fact that the trial over the head of its board has started with serious violations of the Code of criminal procedure.
Criminal case No.310555 in accordance with the part 3 article 129 (libel) of the Criminal Code of the Russian Federation was initiated on October 20, 2009 in relation with the fact that on July 15, 2009 after an HRC Memorial member, Natalya Estemirova, was murdered in the Caucasus Oleg Orlov spoke about the President’s of the Chechen Republic, Ramzan Kadyrov, responsibility for what had happened.
On September 13, 2010 at a court district No. 363 of Khamovniki district of the city of Moscow (1905 year street, 4, bld. 1) the court hearing of the case took place under the chairmanship of municipal judge Morozova Karinna Aleksandrovna.
The participants of the court hearing were:
secretary Bedrina Irina Anatolievna;
public prosecutor, assistant of the public prosecutor of the Central Administrative District Fomicheva Yana Vladamarovna;
representative of the aggrieved person (R.A. Kadyrov) Krasnenkov Andrey Anatolievich;
accused Orlov Oleg Petrovich;
defender of the accused, lawyer Reznik Genry Markovich.
At the beginning of the hearing the defender of the accused Reznik challenged the representative of the aggrieved person Krasnenkov due to the fact that Krasnenkov being the representative of the aggrieved person was interrogated three times during the pretrial investigation, and his testimony was included in the list of the proofs confirming the accusation. The protocols of the interrogations are entitled as "the interrogations of the representative of the aggrieved person." However, in accordance with the norms of the Code of criminal procedure there cannot be such a proof in the criminal case as testimony of the representative of the aggrieved person. In fact, Krasnenkov was interrogated in accordance with the procedure of interrogating of a witness, consequently, after that he became a witness.
Article 72 of the Code of criminal procedure reads:
"Defender, representative of the aggrieved person, civil plaintiff or
civil defendant does not have a right to participate in the process of the
criminal case if he:
- previously took part in the process of the same criminal case as a judge, public prosecutor, investigator, secretary of a court hearing, witness, expert, specialist, interpreter or witness of inquest."
It is obvious that the investigators, the public prosecutor and the representative of the aggrieved themselves made a gross mistake during the pretrial investigation.
Lawyer Reznik appealing to the judge (transcript of the dictaphone record by HRC Memorial; translation) said: "According to the Article 72 which you has just read, the person who was previously interrogated as a witness cannot take part in the process as a representative of the aggrieved. We cannot allow such a situation when the court’s ruling whatever it will be is simply going to be revoked due to the considerable violation of the law. <...> The serious violation of the Code of criminal procedure is obvious. I mean the appearance of Mr. Krasnenkov in the court hearing as a representative of the aggrieved."
The judge received the request on the challenge of the representative (see at Memorial's web-site: http://www.memo.ru/2010/09/14/1.pdf), after which she went to the decision room.
Only in one hour and 50 minutes (which is unprecedented time
for making a decision on such obvious grounds!) judge Morozova returned to the
court room and announced her decision (transcript of the dictaphone record by
HRC Memorial; translation): "The Court having heard the opinions of
the participants of the process, request on challenge of the representative of
the aggrieved Krasenkov A.A. believes that it cannot be satisfied. In
accordance with Article 72 of the Code of the criminal procedure, defender,
representative of the aggrieved person, civil plaintiff or civil defendant does
not have a right to participate in the process of the criminal case if he
previously took part in the process of the same criminal case as a judge,
public prosecutor, investigator, secretary of a court hearing, witness, expert,
specialist, interpreter or witness of inquest. At the same time the mentioned
norms of law don't include as the circumstances exclusion the participation of
the representative of the aggrieved his participation as a representative
during the process of this case as a representative (sic!). Moreover, the court
has not started to examine the evidence so far. As we can see from the case
materials Krasnenkov A.A. was not interrogated as a witness. On the basis of
the stated I find the arguments of the defense lawyer Reznik about the fact
that Krasnenkov A.A. was interrogated in accordance with the procedure of
witness interrogation in criminal case invalid.
Following Articles 61, 72, 256 of the Code of the criminal procedure of the Russian Federation the court decided: the challenge requested by the defense lawyer Reznik against the representative of the aggrieved Krasnenkov A.A. to leave without satisfaction."
HRC Memorial believes that such a decision of the court can be considered only as a totally groundless renunciation of a legal demand of the defense.
In this connection lawyer Reznik stated during the court hearing: "It is sad that our court hearing starts with the serious procedural violation. The situation when the representative of the aggrieved person interrogated during the pretrial investigation of the criminal proceedings who testified (the testimonies are provided in the indictment in the list of the proofs confirming the accusation) - is the same, Your Honour, if I would have been interrogated during the pretrial investigation as someone... maybe as a representative of the accused? It is serious violation of the law! I hope that it is the first and the last one! God knows how in such a situation – regardless the ruling would be acquittal or accusatory – it will remain unchallenged."
However, after that the violations of the Code of criminal procedure did not stop.
Explaining to the representative of the aggrieved his rights and duties the judge actually described the rights and the duties of the aggrieved person. According to the norms of the Code of criminal procedure the rights of the aggrieved person and the rights of his representative are absolutely different ones. In her speech judge Morozova gave to Mr. Krasnenkov those rights that would be those of Ramzan Kadyrov if he would have appeared in the court room. Particularly the judge informed that the representative of the aggrieved person Krasnenkov could testify at any moment during the court session.
In relation with this Reznik stated: "You explained to the representative of the aggrieved person that he appeared to have a right to testify at any moment. It is a know-how. It is roughly the same thing as if it have been explained to me that I can testify any moment within criminal proceedings.
There is not such a proof provided in the Code of criminal procedure as the testimony of the representative of the aggrieved person. It is an absolute nonsense. There can be testimony of aggrieved person. There can be testimony of witness. Within our criminal proceedings Krasnenkov has not been recognized as an aggrieved person, he is not a legitimate representative because Kadyrov is an adult and not an under-age. The only exception that Article 428 of the Code of the criminal procedure allows is the interrogation of the legitimate representative when the case in relation to an under-age is being examined. To be honest I just don't have enough words to express my attitude to the things happening in the process. From the very beginning we are plunging into the situation of absolute lawlessness."
After the judge had announced the beginning of the court hearing the public prosecutor read the descriptive part of the indictment.
Answering the judge's question about whether the accusation is clear to him or not Orlov said "no." He reported that he could not learn from the indictment on what exactly according to investigation and prosecution he accused Ramzan Kadyrov - of killing Natalya Estemirova himself or being a member of a group. And if being a member of a group – which role he had – of an executor, a mastermind, customer or accomplice.
As an answer, the judge herself started explaining the essence of the accusation to the accused. But Orlov's lawyer protested pointing out that in the adversary proceeding the accusation has to be explained by the one who had brought it. If the judge starts to explain the accusation that means that the court takes an unusual role in its functioning, that of the prosecution.
Only after that the public prosecutor started to explain. Member of the Public prosecutor's office failed to immediately report that, in the opinion of the prosecution, Orlov made Ramzan Kadyrov responsible for the organization of the murder of Natalia Estemirova. So this was first time when the accusation was represented quite clear.
Answering the judge's question if he agreed with the accusation Orlov said "no."
In the second part of the hearings three witnesses of the
prosecution were questioned:
Mal'sagova Aminat Alievna, head of the bodies of the Civil Chamber of the Chechen Republic, earlier - chair of the public organization North Caucasus Peacemaking center;
Dzubairaev Olkhazar Dzhabrailovich, officer of the bodies of the Ombudsman in the Chechen Republic;
Dzhumaliev Umar Saidbekovich, executive officer of the bodies of the Ombudsman in the Chechen Republic.
The next court session will take place on September 27 at 11 a.m. at the same district court.
The full trial transcript will be available at Memorial's website in the section Sud (Court): http://www.memo.ru/2009/09/10/sud.htm
September 16, 2010