As covered in the previous post, in June a prominent Russian economist – Sergey Guriev – fled Russia after investigators began targeting him in the case of a 2011 report on the human rights implications of Mikhail Khodorkovsky’s ongoing incarceration. This case – popularly referred to as the ‘experts case’ (дело экспертов) – has gathered momentum since Guriev’s departure. At first, the experts case was officially focused narrowly on the 2011 report. Fast forward two months and the case has officially expanded scope to the general ‘humanization’ (гуманизация) of Russian criminal law, which allegedly took place during the Medvedev administration.
For example, one unnamed official told Vedomosti that investigators asked him whether Mikhail Paleev, a legal aide to Medvedev, was influenced by the Khodorkovsky report authors while he led a working group on the modernization of criminal law.
Who is Paleev? There are two notable points: (1) he is such an obscure and insubstantial public figure that finding a picture of him was a challenge until today; and (2) he has been in his position since the Putin administration. In other words, he’s a faceless lifelong bureaucrat. With some imagination, you can see how Paleev is an ideal mark – no siloviki connections, no liberal star power. If he fled Russia, I would wager that it would not make the front page of the NYT.
The Vedomosti report also noted that the investigators have also started asking questions about high-ranking officials and Duma deputies that worked on humanizing Russian criminal law.
The Humanization Project History
The idea of ‘humanizing’ the Russian criminal code was indeed a major priority of then-Pres. Medvedev, who in 2009 spoke of the need to ensure that criminal penalties are “commensurate with the seriousness of the crime” and to “make greater use of so-called administrative preclusion, that is, prosecute only in the case of repeated administrative offenses.” The result was a series of reforms that reportedly led to the freeing of 80,000 inmates out of a total prison population of 864,000. Medvedev also attacked harsh sentences for white collar crimes, including tax evasion. News coverage of the reforms at the time seem to confirm that Paleev played a minor role in pushing the president’s agenda and did draft the text of the working group he led. But, news reports reacting to recent events have stated that “not one of Paleev’s proposals was included in the package of reforms.”
Release the Chaika
The experts case took on its new aggressive approach and received official backing last month when Prosecutor General Yury Chaika gave a speech before the Federation Council. The day before his speech, Chaika attended a ‘working meeting’ with Pres. Putin at the Kremlin (coincidentally, I noticed that it was the first ‘working meeting’ the pair had since Putin resumed the presidency).
The purpose of the meeting was to discuss “work in the sphere of protecting entrepreneurs, and separately reported on the audit results of NGOs as well as issues related to corruption in the education sector” (my emphasis).
In fact, if you do a word search of the meeting transcript, ‘entrepreneur’ in Russian appears four times (incl. the title), and ‘NGO’ in Russian appears 15 times; ‘foreign': 6 times.
That said, in his remarks on entrepreneurs, Chaika did approvingly cite the “humanization of the legislation” with respect to business crimes. But, Chaika continued, “These recent amendments to humanize the legislation, where the punishment of incarceration has been replaced by penalties, unfortunately, we have hear a big slip-up.” This exchange followed (with Putin interrupting Chaika to prevent him from moving to the next topic):
Putin: one moment, in your opinion, should this judicial practice be tougher?
Chaika: yes, tougher. I believe that the Supreme Court should evaluate this practice in light of our conclusion. We need to analyze this practice and give you suggestions.
Chaika then went on to report about corruption in educational institutions and, finally, the audit of NGOs. To summarize, Chaika reported that many NGOs are acting as ‘foreign agents’ and some were still not in compliance with the law.
The following day, Chaika gave a speech in front of the Federation Council. The speech focused on the NGO audit, but Chaika managed to synthesize the previously separate issues of humanizing legislation and foreign agent NGOs into a single narrative by stating that an NGO receiving money from abroad was “preparing legislation aimed at liberalizing punishment for economic crimes.” Chaika elaborated:
The activities were agreed upon with the official representative of the United States, accredited by the U.S. Embassy in Russia, who also participated in some of the events, and the former Attorney General participated in a round table at the State Duma.
We are not against the humanization of legislation. Just the opposite. And you [the Federation Council] make laws. But that is why we believe that similar processes should be open and transparent. And if an NGO receiving funds from abroad participates in these processes, the state has the right to know who is funding it and in whose interests it is preparing a bill. And we do not understand why realizing the idea of humanization requires assistance from representatives of the United States, which is known for economic crimes often carrying sentences of 150 years and more.
Breaking it All Down
- The as-yet unsubstantiated claim that the 2011 Khodorkovsky report was ‘purchased’ by Khodorkovsky and Lebedev has turned into an official fact, warranting a broader investigation even though the initial investigation has not yielded any results.
- Russian NGOs that receive any funding from abroad are facing strict scrutiny, regardless of the nature of their relationship/interaction with foreign donors.
- The benign – and often boring – rule of law activities conducted by U.S. Embassies all over the world will now be viewed retroactively as evidence of some underlying conspiracy. This posture is particularly strange given the regularity with which members of Chaika’s own team – including his own Deputy, Aleksandr Buksman – travel to the United States to meet with their DOJ counterparts. For an example of these activities, see this list I pulled from reports by the DOJ OPDAT section. Indeed, these activities certainly seem less harmful than leaking secrets to a private American intelligence company.
- The purported Khodorkovsky-foreign agent-NGO-U.S. government nexus is now an official basis for unraveling the Medvedev-era criminal law reforms and launching investigations against any person or organization who can be tied to that effort. Note that this approach relies on a blend of both foreign and domestic enemies who are both known (e.g., Obama, Khodorkovsky) and unknown (e.g., financiers in U.S. or European capitals funding groups to make Russia less Russian).
- All of these observations are even more significant in light of the targeted politicized attacks on Navalny, Udaltsov, Ponomarev and others.
The Search for Meaning
All of the observations listed above tend to suggest a general outline of the shape of events to come in Russia. Hyperbolic comparisons to the 1930s are not helpful, but it seems possible that a modern, less bloody, variant of the Stalinist purges could take place. Specifically, the facts suggest that Putin has unleashed all law enforcement resources on investigating first a report and now an entire category of activity that is protected under the Russian Constitution.
Moreover, the vague threats to investigate unnamed Duma deputies who ‘participated’ in the criminal law reforms are highly disturbing. Read that again: they are threatening to investigate members of their rubber-stamp legislative body for doing what they were told to do, as expected, by the previous administration.
Thus, the siloviki desire to displace the Medvedev team, roll back curbs to law enforcement powers (e.g., pretrial detention), and inflate the risks of participating in any sort of ‘opposition’ activity. In their heads, this will have the effect of turning back the clock to 2005.
The problem is that the people, ideas, and institutions with which they disagree actually exist in their country. To some extent, their mere existence poses a threat to the very identity of the average siloviki, hence the need to concoct conspiracies that transform them into instrumentalities of an external threat (i.e., U.S. and lesser degree EU). Putin is perhaps the greatest representation of the average silovik, whose personal self-image is based on a country and level of influence that no longer exist. If you add the fact that a reasonable number of your own people disagree with you, it must be maddening. But conflating the ‘opposition’ with the external threat both lifts the obligation to reconsider the course, and reaffirms the old identity (why would the external threat be interested unless Russia still had some of its Soviet-era clout). Russia’s leaders are stuck in the action movie that is their life, and will react negatively to anyone who refuses to play their supporting part.
Short- to medium-term, it is difficult to see a positive dynamic emerging from the approached preferred by the current Russian leadership. The worst case is that unrestrained siloviki will bring back some of the repressive apparatus from the Soviet era, but will ultimately turn on one another in the fight for spoils. In the words of the great Tony Soprano, “It’s called a bust out.”