Fairness report on the trial of Mikhail Benyash in Russian Federation
EXECUTIVE SUMMARY

From April to October 2019, Human Rights Embassy monitored the criminal trial of Mikhail Benyash as part of the Clooney Foundation for Justice's TrialWatch initiative. Mr. Benyash is a well-known human rights lawyer in Russia. He has frequently represented activists arrested during demonstrations. In December 2018, Mr. Benyash was criminally indicted for allegedly assaulting police officers who had arrested him in connection with a protest. The evidence, however, suggested that it was in fact Mr. Benyash who had been assaulted by the police. He was convicted in October 2019. The proceedings against Mr. Benyash entailed significant violations of his rights under international law, including his right to be free from inhuman or degrading treatment; his right to be free from arbitrary detention; his right to be presumed innocent; and his right to an impartial court.

Mr. Benyash was detained by plainclothes officers on the basis of allegations that he organized an unauthorized protest. The officers appear to have failed to identify themselves before apprehending Mr. Benyash, causing him to believe he was being abducted. Mr. Benyash alleges that he was maltreated by these same officers, claims that were supported by his documented injuries, including internal hemorrhage and hearing loss. Notably, Mr. Benyash's initial arrest and detention were based on the false premise that he had received and ignored a summons to appear at a local police station. It was later revealed that the summons had not been mailed until after Mr. Benyash's arrest and detention. Mr. Benyash was quickly convicted of two administrative offenses (organizing an unauthorized protest and disobeying police orders) in proceedings riddled with due process violations. After serving a two-week sentence for the latter conviction, he was criminally charged with having attacked his arresting officers.

Mr. Benyash's trial was marred by absurdities. The prosecution's case was so implausible, the judge's bias against Mr. Benyash so evident, and the verdict so illogical that no reasonable observer could have deemed the proceedings and resulting conviction fair. In one flagrant example, prosecution witnesses who testified that they had seen Mr. Benyash inflict his injuries upon himself in the police station parking lot were proven to have been nowhere near the police station at the time. In other examples, the presiding judge coached prosecution witnesses who could not remember their pretrial statements or were struggling to explain inconsistencies and harshly admonished defense counsel for standard lines of inquiry.

Mr. Benyash has appealed his conviction before the Krasnodar Regional Court. If the conviction is upheld, his legal license will be revoked. This would be a grave blow to Mr. Benyash himself, the legal profession more broadly, and the protesters who rely on Mr. Benyash's support. The Court should overturn Mr. Benyash's conviction and acquit him in full.

Background

Mr. Mikhail Benyash is a human rights lawyer who regularly defends individuals arrested during protests. On September 9, 2018, demonstrations against a proposal to raise the age of pension eligibility were scheduled to take place in cities across the country. Mr. Benyash was in Krasnodar to monitor one such protest and provide legal assistance to participants. Shortly before the protest was due to start, he was walking down a side-street with Ms. Irina Barkhatova, a client.

The two were approached by plainclothes policemen: Officers Dolgov and Yurchenko. The officers had been tasked with apprehending Mr. Benyash for the administrative offense of "call[ing] for participation in an unsanctioned rally."[1] To note, the order to arrest Mr. Benyash was predicated on a false premise - that Mr. Benyash had ignored a summons to appear at the Krasnodar Ministry of Internal Affairs. At trial it emerged that the summons was sent on September 11, 2018, two days after Mr. Benyash's arrest.

The account that follows was relayed by Mr. Benyash and supported by Ms. Barkhatova, a direct witness to the disputed events. Officers Dolgov and Yurchenko forced Mr. Benyash and Ms. Barkhatova into their unmarked car without introducing themselves or providing any reasons for the arrest. Mr. Benyash thereby believed that the officers were "titushki" (thugs), not policemen. The officers drove Mr. Benyash and Ms. Barkhatova to the police station. En route, Officer Yurchenko attacked Mr. Benyash, strangling him and gouging his eye. Upon arrival at the station, the officers threw Mr. Benyash onto the pavement face-first with his hands cuffed behind his back. Subsequently, Officer Yurchenko beat Mr. Benyash inside an interrogation room at the police station. Ms. Barkhatova heard Mr. Benyash screaming in pain and yelling for help. Photos, videos, and medical records introduced at trial showed that Mr. Benyash suffered serious injuries, including hearing loss and internal hemorrhage.

The account of Officers Dolgov and Yurchenko diverges from that of Mr. Benyash. In their initial reports on the arrest, the officers stated that Mr. Benyash agreed to accompany them to the police station but upon arrival started to hit himself in the face; started to beat his head against the car windows; attempted to provoke a fight with the officers; and attempted to flee the police station, prompting the officers to restrain him with handcuffs. The initial police reports do not state that Mr. Benyash deliberately assaulted the officers and do not recount any injuries inflicted on the officers.

Following his detention and interrogation at the police station, Mr. Benyash was charged with the administrative offenses of organizing an unauthorized protest and disobeying the lawful orders of a police officer. With respect to the latter charge, the police alleged that Mr. Benyash had disobeyed the officers' orders to remain calm after arriving at the police station. He was convicted on both counts and sentenced to two weeks administrative custody for disobeying police orders and 40 hours of community service for organizing a protest.

The day he completed his two-week administrative sentence for disobeying police orders, Mr. Benyash was charged with the criminal offense of assaulting a police officer, rearrested, and remanded to custody. The criminal charges were based on new claims raised by the officers: namely, that Mr. Benyash had assaulted them (biting Officer Dolgov and punching Officer Yurchenko in the head), resulting in various injuries. As noted above, the initial arrest reports completed by the officers did not state that Mr. Benyash had deliberately assaulted them and did not mention any injuries. Further, the doctor who initially examined the officers found no evidence of bite marks or head injuries.

The criminal case included allegations that in addition to beating his head on the car window, Mr. Benyash had beaten his head on the pavement outside the police station. Two city employees who testified that they witnessed this episode were proven to have perjured themselves. Video and administrative arrest record evidence showed that these purported witnesses were assisting police in a different location at the time in question.

Investigation and Detention

The investigative and pretrial stage of the proceedings against Mr. Benyash were marred by numerous flaws. The police order to apprehend Mr. Benyash was based on the false premise that he had evaded summons to appear for questioning. The summons instructed Mr. Benyash to come to the police station on September 13 and was not mailed until September 11, two days after Mr. Benyash was arrested.

As recounted by Mr. Benyash and Ms. Barkhatova, the arresting police officers failed to introduce themselves or provide reasons for the arrest, as required by Russian legislation.[2] A video of the arrest filmed by Ms. Barkhatova shows Officer Yurchenko in civilian clothing pulling Mr. Benyash into an unmarked car while Officer Dolgov, also in civilian clothing, walks toward them. The defense additionally presented witnesses who had been arrested by Officers Dolgov and Yurchenko on other occasions, and who testified that the two had similarly failed to identify themselves or provide reasons for arrest, suggesting a certain modus operandi. Under the ICCPR and ECHR, arrests must be in line with domestic law (in addition to complying with other international standards). Given the preponderance of evidence that Mr. Benyash was immediately detained and pushed towards the car without Officers Dolgov or Yurchenko identifying themselves or their purpose, the arrest fell afoul of Russian domestic legislation and thereby afoul of the ICCPR and ECHR.

Subsequently, the various stages of Mr. Benyash's detention were arbitrary. When Mr. Benyash was first remanded to custody on the criminal charges, the presiding judge extended his detention for 72 hours on the pretext that his health was deteriorating and his diagnosis required clarification. Under the ICCPR and ECHR, the only detention objectives permitted in this situation are prevention of flight, prevention of re-offending, and prevention of frustration of the proceedings. Safeguarding a detainee's health is not a permissible objective for detention.

In addition, Mr. Benyash's detention pending his criminal trial was without any basis. In accordance with the ICCPR and ECHR, the default rule is pretrial release. Courts must undertake an individualized assessment to demonstrate the necessity of pretrial detention. In imposing pretrial detention in Mr. Benyash's case, however, the presiding judge (the same Judge Belyak who would later preside over Mr. Benyash's criminal trial) simply recited text from the Russian Code of Criminal Procedure regarding permissible justifications for pretrial detention. There was no reference to Mr. Benyash's specific situation and no reasoning as to why pretrial detention was necessary.

Trial

The trial before the Leninsky District Court for Krasnodar entailed numerous and flagrant violations, including violations of Mr. Benyash's right to call and cross-examine witnesses, right to be presumed innocent, and right to a fair and impartial tribunal.

As established by the ICCPR and ECHR, the defense is entitled to call and examine witnesses under the same conditions as that of the prosecution. In Mr. Benyash's case, the presiding judge, Judge Belyak, repeatedly curtailed the nature and scope of the defense's cross-examination of prosecution witnesses.

A retired police officer, for example, testified that he saw Mr. Benyash beating his head on the pavement outside the station. Asked to identify Mr. Benyash, he pointed at one of Mr. Benyash's attorneys. When the defense attempted to follow up on this issue, inquiring about the witness' eyesight, Judge Belyak halted cross-examination. Similarly, when the defense asked Officer Dolgov about whether he ever experienced memory lapses and Officer Yurchenko about why his initial arrest report varied from his testimony at trial, Judge Belyak ordered counsel to desist. At one point, Judge Belyak coached Officer Dolgov as to how to respond to defense questions about his inconsistent statements.

The defense was entitled to probe the discrepancies in the prosecution's case. Judge Belyak's restriction of such questioning violated Mr. Benyash's right to call and examine witnesses.

The proceedings also contravened the guarantee of judicial impartiality. Under the ICCPR and ECHR, judges must be impartial in fact (the absence of personal bias) and impartial in appearance. In this case both guarantees were violated.

With respect to the former, Judge Belyak consistently ruled to the detriment of the defense, was overtly deferential to the prosecution, assisted prosecution witnesses, and displayed a contemptuous attitude towards Mr. Benyash's attorneys, mocking defense questions and making inappropriate comments. In one example, Judge Belyak intervened to aid a prosecution witness who was struggling to recall the details of his prior statement. She stated: "Well, come on, remember! You put the prosecutor in a position when he should testify for you. Take pills or do whatever you need to remember." Apart from evidence of personal bias, Judge Belyak failed to meet the standard for impartiality in appearance. She had ordered Mr. Benyash's pretrial detention, a decision that was overturned as baseless by an appellate court, and had also presided over the administrative trial of Ms. Barkhatova for disobeying police orders (Ms. Barkhatova's actions during Mr. Benyash's arrest). Judge Belyak's prior involvement with the case thus provided objective grounds for a reasonable observer to doubt her impartiality.

Judge Belyak's conduct additionally violated Mr. Benyash's right to the presumption of innocence. In accordance with this principle, courts must resolve all doubts in the accused's favor and cannot convict the accused unless the state has proven his guilt beyond a reasonable doubt. As noted above, there were serious discrepancies in the prosecution's case, which stood in stark contrast to the consistent testimony of Ms. Barkhatova and Mr. Benyash: that the police officers had forced them into an unmarked car, had used violence against Mr. Benyash, and (in the case of Officer Yurchenko) had beaten Mr. Benyash at the police station.

In its verdict, the court did not resolve or even attempt to address these disparities, blithely stating: "the factual information ... does not cause the court to doubt its reliability."[3] The court likewise neglected to explain its dismissal of the defense case beyond asserting that defense witnesses were previously acquainted with Mr. Benyash and that the testimony of the examining doctor (who found neither bites on Officer Dolgov nor head injuries on Officer Yurchenko) did not disprove Mr. Benyash's guilt. In convicting Mr. Benyash in the face of significant contradictory evidence and failing to provide reasons for such, the court functionally shifted the burden of proof to the defendant, in contravention of the ICCPR and ECHR.

Abuse of Process

Mr. Benyash's case saw various organs of the Russian judicial system act in concert to prevent him from carrying out his human rights work. The ICCPR and ECHR protect against the use of criminal proceedings for an ulterior or improper motive. The European Court has set forth various indicia of improper motive, including the overarching political context; whether the charges concern the accused's political activities; lack of reasonable suspicion to bring the charges; the conduct of the proceedings; and an improperly reasoned judgment.

Mr. Benyash's case meets all of these criteria. With respect to the broader context, the Russian authorities are notorious for their suppression of peaceful protests and freedom of expression. On the day of his arrest, Mr. Benyash was planning to offer legal advice to participants in a protest against a recently announced government proposal. His apprehension and detention prevented him from providing any such assistance.

With respect to the grounds for the charges, the evidence - as discussed above - militated in favor of the prosecution of the police officers, not Mr. Benyash. The conduct of the subsequent trial was procedurally flawed, repeatedly violating Mr. Benyash's rights, and the convicting verdict unreasoned, ignoring manifest inconsistencies in the evidence.

Notably, the circumstances surrounding the initiation of Mr. Benyash's criminal case were highly suspect. Given his administrative conviction for disobeying police orders, a criminal prosecution based on the same facts would have violated the prohibition against double jeopardy. As such, after a criminal investigation was opened against Mr. Benyash, the prosecution appealed Mr. Benyash's administrative conviction. The relevant appeals court then vacated the conviction, paving the way for the prosecution to formally indict Mr. Benyash only two weeks later.

This sequence of events was highly coordinated, indicating the collusion of various branches of the judicial system and providing further evidence of abuse of process.

Lack of Recourse

Mr. Benyash's allegations that he was abused by Officers Dolgov and Yurchenko have yet to be addressed. His testimony, supported by that of Ms. Barkhatova as well as by medical and photo documentation, presents a prima facie case of inhuman or degrading treatment, prohibited by the ICCPR and ECHR. When an individual is taken into custody in good health but is subsequently found to be injured at the time of release, it is incumbent upon the state to provide a plausible explanation of how the injuries were caused. Both the ICCPR and ECHR require prompt investigation into claims of maltreatment.

The Russian authorities, however, have forestalled any such inquiry. In September 2018, Mr. Benyash filed a criminal complaint about the abuse allegedly inflicted by Officers Dolgov and Yurchenko. After the Krasnodar Investigative Committee repeatedly declined to open an investigation against the officers, Mr. Benyash filed several complaints with the Leninsky District Court for Krasnodar regarding the Investigative Committee's inaction. The District Court has dismissed these complaints on various grounds.

In October 2019, the Krasnodar Regional Court upheld the Leninsky District Court's rejection of Mr. Benyash's latest complaint, stating that the criminal trial had resolved all relevant issues. At trial, however, Judge Belyak ordered Mr. Benyash to pursue any grievances regarding the officers' actions in separate criminal proceedings. Subjected to circular reasoning and shuttled between various judicial bodies, he has been denied all recourse. The failure of the Investigative Committee, Judge Belyak, the Leninsky District Court, and the Krasnodar Regional Court to ensure an investigation into Mr. Benyash's credible allegations violates the ICCPR and ECHR.

Conclusion

Mr. Benyash's appeal against his conviction is pending before the Krasnodar Regional Court. Given the violations described above, the court should overturn his conviction and acquit him in full. As mentioned above, if Mr. Benyash's conviction is upheld on appeal, he will be barred from the future practice of law. The implications for the legal profession and the rule of law are alarming.

For a full legal analysis of the trial and explanation of the grade that has been provided, please see HERE

The link to the Clooney Foundation for Justice's press statement on the report is HERE

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[1] Krasnodar Police Delivery Order, September 8, 2018.

[2] Federal Law "On Police", Articles 5(4)(1) and 5(4)(2).

[3] Leninsky District Court of Krasnodar, Judgment, Case No. 1-178/19, October 11, 2019, pg. 41.

 

 

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