What Ruslan Kutaev has been convicted for. Reporting from the courtroom

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08 July 2014

Yesterday, July 7, Judge Dubkov passed the sentence in the case of the first Chechen political prisoner Ruslan Kutaev. He was found guilty of criminal offenses under Article 228 (2) of Russian Criminal Code (illegal acquisition and possession of large quantity of drugs without intent to sell) and sentenced to 4-year prison term to be served in general regime (minimum security) penal colony. Plus – one year of supervised release with prohibition against public activity.

Kutaev was arrested one day after he had participated in the conference dedicated to the 70-th anniversary of Chechen – Ingush deportation, the conference was not agreed with the authorities (Ramzan Kadyrov made a public statement banning memorial events to avoid casting a shadow over the closing ceremonies since the date fell on the closing day of the Winter Olympics in Sochi). The activist repeatedly emphasized that he considered his case to be politically motivated: «…This is the way the Chechen authorities are hindering me from human rights activity… My opinion, which I express in public, differs from the officials’ one, and it irritates them. Nevertheless, this is not the main reason for my being  prosecuted either. Lately, it has become a tendency in Russia that politicians and social activists who criticize the authorities are being discredited, and the Chechen Republic doesn’t make any exception… That is why the false charges with acquisition and  possession of drugs and the criminal proceedings against me are mere vengeance for my political activity. This is the way  they are intimidating other Chechen political and social activists and human rights defenders, who openly criticize the authorities…».

The judge’s decision left the impression that is had been composed well in advance. For example, its content didn’t reflect or evaluate the arguments of the defense, which were voiced in the course of the hearing last Friday, on July 4.

During the hearing a prosecutor Bakhanoev’s speech was short (15 minutes) and almost similar to the indictment. The trial that lasted three months, during which for the first time in the Republic’s history a high-rank official gave the witness testimony – the head of the Chechen President’s administration Magomed Daudov, whom Ruslan Kutaev accused of using physical violence – had virtually no impact on the prosecutor’s speech.

– The evidence studied in the court provides convincing proof that during his stay in Pyatigorsk Kutaev hired a taxi and on the way to Gekhi village in the back of this car he found, that is acquired without intent to sell a drug substance of gray-beige colour, – the prosecutor Bakhoev was reading out quietly as a tongue-twister.  – During the preliminary hearing Kutaev did not plead guilty. However, during the pre-trial investigation with the participation of advocates Kutaev sincerely and completely repented of his criminal conduct, in which he provided a detailed confession. In connection with this I believe that the subsequent change of his story as well as denial by Kutaev of the fact of the committed crime aim at avoiding the responsibility and is a chosen method of defense… I request a 5-year prison term to be served in general regime penal colony to be imposed on Kutaev.
 
The second prosecuting official refrained from the speech during the hearings.
 
Kutaev’s advocates Ilyas Temishev and Petr Zaikin spoke over three hours in total,   consistently and vividly proving that the crime that Ruslan Kutaev is charged with exists only on paper.

The advocates dedicated a significant part of their speech to a detailed analysis of the witnesses for prosecution, who according to the investigation took part in the arrest and the personal search, in the course of which 3.257 grams of heroin were allegedly found on Kutaev.

The testimonies of the participants of supposedly one and the same event differed in everything: none of the police officers could tell who gave the order to conduct operational preventive activities in Urus-Martan district and how exactly they were performing them that day, when and in what staff content they came there and left for Gekhi village. The police officers testimonies also differed in relation to a number of individuals that they checked that day during so called operational preventive activities. Some stated that they did not check anyone before Kutaev’s arrest, some said that a few persons were checked. The police officers had no consistent version on how the witnesses attesting the arrest appeared in Gekhi. Both of the attesting witnesses for some strange coincidence turned out to be Grozny citizens, and they repeatedly took part in cases related to drugs as attesting witnesses (attesting witness Naurbiev has an outstanding conviction under Article 228 (2) – possession of extremely large quantity of drugs). Kutaev’s advocates succeeded in demonstrating that both of the attesting witnesses gave false testimonies as to how and for what reason they appeared in Gekhi on that day.

None of the police officers could explain what concrete suspicions they had about Kutaev. Witness Khagaev, operative criminal investigator of the Chechen Republic Internal Affairs Department Criminal Investigations Directorate Anti-Narcotics Force, who was filling in the personal search record, told the court that Kutaev was in a state of intoxication. However, nothing was mentioned about Kutaev having any signs of drug intoxication in the search record that Khagaev himself filled in. The police officers failed to explain to the court why they did not send Kutaev for medical examination on the day of his arrest.

Testimonies of the police officers concerning the weather were extremely inconsistent. Some said that on February 20 it was «drizzling», «snowing», while others confidently stated that it was «plus 15», «clear», «sunny».

In the photographs featured in the photo table for on-site inspection report dated February 20, 2014 it is clearly seen that the weather was gloomy, the rain drizzled and there were no shadows, since the sky was cloudy. But according to the weather service report, attached upon a motion of the defense to the materials in the proceedings, on February 20 the weather was bright and sunny, with no precipitation. The fact that during the on-site inspection the weather was bright  was indicated in the report itself. The weather service report confirms Kutaev testimony that he was taken for investigative activities ON THE NEXT DAY after the actual arrest, on February 21. Precisely on that day according to the weather report it was dull and raining. Thus the defense claimed that on-site inspection report was falsified.

A witness Said Bobotiev questioned in the court session, said that at the moment of the arrest, namely at 2 p.m. on February 20, Kutaev was on a visit to his place at Gekhi village, in Bolnichnaya street, house No.23. When they were about to have dinner, the police officers entered the house and took Ruslan away. When performing the arrest the police officers did not gave Kutaev opportunity to take his personal belongings, even did not let him put his shoes on and took him away from Bobotiev’s house in flip flops that belonged to Bobotiev. At the moment of arrest no personal search of Kutaev was performed, the personal search report was not drawn up, on-site inspection was not performed – he was just brought from the house out in the street and taken away by the police officers in one of 3-4 Toyota Camry cars with registration plates with letters EEE, which drove up to his house No.32 in Bolnichnaya street. The mentioned facts are confirmed by the photographs featured in the photo table for on-site inspection report, where it is clearly seen that Kutaev was indeed wearing flip flops. According to the prosecution’s theory he travelled to Pyatigorsk in these flip flops.

Flip flops became one more objective evidence of the fact that Ruslan Kutaev was arrested under circumstances which differed from the ones that the prosecution and the police officers and attesting witnesses, questioned in court, were describing.
  
What’s interesting is that none of the eight witnesses for prosecution remembered to mention the flip flops even when advocate Zaikin posed suggestive questions.

– Was Kutaev wearing Russian straw shoes?
 
– No! – answered witness Akaev, lead investigator on special cases with the Crime Detection Directorate Anti-Narcotics Force of the Ministry of the Interior of the Chechen Republic Akaev.

– He was dressed in-season!

– Maybe he was walking with aqualung, in flippers maybe, I don’t know, valenki (felt boots)… What kind of shoes was he wearing?
 
– Usual type. But nothing memorable… – answered witness Zakaev, lead investigator with the Criminal Investigation Unit under Department of Russian Internal Affairs Ministry for the Urus-Martan District.

– Maybe he (Ruslan Kutaev – author’s note) was in flip flops?

– Of course he wasn’t, – answered witness Biev, officer of the External Guards Directorate of the Ministry of the Interior for the Chechen Republic…

– If these people had indeed arrested Kutaev, they would have remembered such a detail, – said advocate Zaikin and turned to prosecutor Bakhanoev. – Mister prosecutor, do you, for example, wear flip flops in winter time?

– Your Honour! Please tell the advocate that he has no right to pose questions to the prosecutor during hearings! –  responded the public prosecutor Bakhanoev.

– This was a rhetorical question, – advocate Zaikin slimed condescendingly. – However, I would like to note that the witnesses for prosecution do not belong to ordinary public. They are police officers and by the nature of their work they are trained to take notice of such things…

Advocate Petr Zaikin’s analysis of the police officers and attesting witnesses testimonies in court about the drug substance allegedly found on Kutaev leads to amazing conclusions.

Advocate Zaikin’s question: «When you found this pack, was it ever opened or not? Was it untied, cut?»

Witness Zakaev answer: «I haven’t seen that, I don’t know. I wasn’t looking myself».

Zaikun: «As I understand, you haven’t seen the contents of the pack yourself, have you?»

Zakaev: «No, I haven’t. The expertise was performed by Criminal Investigation Unit specialists».

Zaikun: «If you say you didn’t see if it was opened or not, does it mean you did not see the content?»

Zakaev: «I did not see the content of the pack personally».

Zaikun: «The moment, when this pack was being visually inspected, so to say, right? Because you don’t know if it was opened or not. I wonder what distance you were from it at that moment?»

Zakaev: «We stood not far from each other, 10-15 meters».

– Your Honour! Honourable trial participants! – advocate Zaikin commented upon Zakaev’s testimony. – In the course of visual inspection of the material evidence in order to visually examine the substance in the pack, the quantity of which can be compared with the nail on the little finger, I approached by a distance of one meter and even closer. I doubt very much that the content of the pack that was allegedly found on Kutaev was possible to examine from a distance of 10-15 meters. With such eyesight a person should volunteer to become a cosmonaut!

The testimony of witness Yusupov, lead investigator with the Criminal Investigation Unit under Department of Russian Internal Affairs Ministry for the Urus-Martan District.

«At the moment of the personal search Beslan (Zakaev – author’s note) we were standing near our car at a distance of 10-15 meters from them».

Advocate Zaikin’s question: «Did you see the contents of the pack?»

Answer: «No, I only saw the pack itself on the top».

Question: «Was the pack tied, taped up in some way, with a scotch tape, for example?»

Answer: «It was tied in a knot, not by a single pack, but by turning the film over the film».
 
Question: «Can you demonstrate that?»

Answer: (demonstrates, tying a knot from the free ends of the pack. – the author’s note)  «Here, you turn that crosswise, then again, and tighten down the pack itself…»

– As we see, the material evidence – the pack with the substance – is tied up with black thread, – advocate Zaikin continued to comment witness Yusupov testomony. – However, Major Yusupov, experienced police officer, who works with drugs every day, seizes them and knows how important such details are, does not say a word about threads. On the contrary, he demonstrates totally different method of tying the pack, allegedly found on Kutaev.

The testimony of witness Madaev,  officer of the External Guards Directorate of the Ministry of the Interior for the Chechen Republic.

Advocate Zaikin’s question: «What was found (on Kutaev – author’s note) or maybe, not found? What was there»?

Answer: «A dark polyethylene pack».

Question: «Have you seen the contents of the pack»?

Answer: «No».

The testimony of witness Biev, officer of the External Guards Directorate of the Ministry of the Interior for the Chechen Republic.

Advocate Zaikin’s question: «Did you seize anything (from Kutaev – author’s note)? Did you see anything? What do you know?»

Answer:  «…Heroin, but I did not see it, I don’t know what colour it is, but they said it was heroin».

Question: «At the moment of the personal search at what distance were you from Kutaev?»
 
Answer: «When he was being searched I actually went 15-20 meters further away».

Question: «Did they find anything at all on Kutaev»?

Answer: «They did, in them words it was heroin, I saw that pack».

Question: «Which pack»?

Answer: «I don’t know, I even did not look at it, I didn’t come closer».

Question: «Did you see the pack? Or you were told that they found a pack? Did you see the pack with your own eyes»?

Answer: «I did, white milky powder, the investigator had it».

Question: (you managed to see that – author’s note) «…from a distance of 15 meters»?

Answer: «Maybe, 25 meters».

The testimony of witness Naurbiev.

Advocate Zaikin’s question: «What distance were you from Kutaev when he was being searched»?

Answer: «5 – 6 meters from Kutaev».

The testimony of witness Batalov: «Answering the question on where he got the pack from he (Kutaev. – author’s note) said that he found it in the back seat of the taxi when he was going from Pyatigorsk to Grozny. After that we performed a search and found this pack in his right pocket. He answered the question – «this is not mine». They said there was some powder in the pack. I did get much into the formalities, I didn’t look. The officers explained to me there was a powder inside, wrapped in some black pack. I saw it (a pack. – author’s note)…»

– I would like to bring to attention of the court the fact that all these testimonies of the witnesses contradict their own testimonies during pre-trial investigation, – advocate Zaikin said during hearings. – The police officers and the attesting witnesses submitted testimonies stating that they saw the contents of the pack allegedly found on Kutaev. However, in court it turned out that none of them saw it! The seized substance wasn’t demonstrated to any of the attesting witnesses and other individuals allegedly present when the pack was seized from Kutaev. Thus, the defense comes to the conclusion that the prosecution failed to come up with convincing evidence of the following facts concerning Ruslan Kutaev: 1)  that he was indeed arrested on February 20, 2014 by these police officers with participation of these attesting witnesses; 2) that he was subjected to personal search in the course of which drugs were found on him.

And now we are coming down to the most interesting point. The above-mentioned evidence proves that the drug was not found on Kutaev. But if Kutaev didn’t have it, where did it come from?

Judging by the  investigation materials, the narcotic substance materialized at the moment when it was sent for expertise. It was the First Deputy Minister of the Interior for the Chechen Republic Apti Alaudinov in person who signed the order for conducting the expertise on February 20, 2014.  But he did not have the right to do so, since no proceedings were initiated by him based on the materials of pre-investigation inquiries related to Kutaev case. Also, the position of the First Deputy Minister of the Interior for the Chechen Republic on its own does not give procedural powers for conducting pre-investigation inquiries since he personally as a police officer did not initiate proceedings based on these materials and did not conduct the inquiries. However,   based on my client’s testimony about the reasons for such energetic actions performed by this police general, it is hard to escape a legitimate conclusion…

So where from did the police general take the drug that WAS NOT FOUND on Kutaev, but was sent for expertise according to his order? An interesting document which may give answer to this question has come to my disposal. This is a television broadcast featuring a person that resembles General Alaudinov very much:

«I swear by Allah, swear by the Koran, our leader knows the situation here in Urus-Martan better than we do… I swear by the heaven-sent Koran, if there is even the slightest resemblance to Wahhabites, I took this responsibility upon myself, here is a new head of the District Department of the Interior, I personally ordered to wipe this out. If you need to put someone to prison – do so. If you have the opportunity to plant some evidence, to put something in a pocket – plant it, do what you want and kill who you want to kill. The leader said that… It’s just so you know, that I’m telling you, I swear by Allah and the Koran, now some unusually harsh actions will be taken in relation to such cases… Anyone who even utter a word against the authorities, I swear by Allah and the Koran, will be punished to the maximum possible degree… I won’t say that in front of the cameras, but I personally shall cause problems for this person wherever I can. I swear by Allah, I shall do my best…»

– Your Honour! – advocate Zaikin completed his speech in the hearings. – After this statement I personally have no more questions. I think that Kutaev should be found innocent of the crime that he is charged with and declared not guilty.  Not only the crime itself is missing in Kutaev’s actions but even the formal elements of a definition of a crime.    However no one should escape the law.  I think that it is necessary to find out where the drug came from. I think it is necessary to find out who pushed the police officers to commit a criminal offence and what was it caused by.  We should not only declare Kutaev not guilty, but also punish real criminals – the ones who put in motion this pack with heroin.

Judge Dubkov who was taking chair in the hearings, who obviously was under strong impression from advocate Zaikin’s speech, stood up and already made a step, on his way pronouncing the adjourning the hearing due to his leave to the consultation room for   consideration of judgment.

– What about the final speech of the defendant? – the second advocate Ilyas Temishev reminded him in surprise.

– Ah! – Judge Dubkov slumped in a chair wiping sweat from brow.    – I… remembered that I need to issue a decree on another case urgently… I’m sorry, we didn’t ask Kutaev. Do you have replications?

– I have no replications, – Ruslan Kutaev smiled, – but I shall make a final speech. Thank you, Your Honour, that in the end you remembered that I am sitting here. I also would like to thank my advocates. My defense has very logically and vividly proven my innocence and the fact that the case against me is forged. I have nothing to add since I submitted testimony during the trial and now I don’t want to tire anyone again with the details of this case. I repeat again that I plead not guilty…

During these 4 months that I have spent behind the bars I had enough time to analyze my life. I’m almost 60 years old… And all my life I was genetically proud, even boasted to some extent, that I am a Chechen. Because for me it is the synonym of freedom. Incredibly precise feeling of justice and honor. Already wise from experience, a community worker, a politician, a philosopher, standing in this cage, I repeat that I am a free Chechen… I realize that troublesome times have come in the history of all nations. To my deepest regret there are troublesome times in my republic NOW. And in troublesome times if you are committed to your principles you have to pay for it. That is why I am here now. Your Honour! A few final words. First of all, I am grateful to you. You always gave my relatives opportunities to communicate with me. Thank you for it. Secondly, if you free me from this court room, I won’t be surprised because I am innocent. But if you convict me, I won’t be surprised either. Because today one has to pay a high price to be a Chechen, to be a man of honour, to be honest and just.  That is why I will accept calmly any decision that you take.

Last words of Ruslan Kutaev’s final speech were met with applause.

Court bailiffs did not attempt to put an end to this expression of solidarity with the defendant.  With these applause Judge Dukov hurriedly left to the consultation room for consideration of judgment …