Fairness report on the trial of Server Mustafayev and his seven co-defendants in Russian Federation

E X E C U T I V E   S U M M A R Y 

From November 15, 2019 to September 16, 2020, Human Rights Embassy – an international human rights NGO – monitored the joint trial of Server Rustemovich Mustafayev, Ernes Seyarovich Ametov, Marlen Rifatovich Asanov, Memet Reshatovich Belyalov, Server Zekievich Zekiryaev, Timur Izetovich Ibragimov, Seyran Alimovich Saliev, and Edem Nazimovich Smailov before the Southern District Military Court in the Russian Federation as part of the Clooney Foundation for Justice’s TrialWatch initiative. Mustafayev is a well-known activist and the coordinator of Crimean Solidarity, a civil society group that supports individuals arrested and otherwise targeted by the Russian authorities in the Crimean peninsula. The proceedings against the men violated their fair trial rights and other human rights, including the right to be presumed innocent, the right to participate in the proceedings and to defend themselves, the right to call and examine witnesses, and the right to be free from unlawful and arbitrary detention. The Military Court of Appeal of Vlasikha should overturn their conviction on the basis of these violations and order that the men be released immediately. 

All eight of the defendants are Crimean Tatars, practicing Muslims, and human rights activists. Mustafayev and Smailov were arrested during raids on their homes in Crimea on May 21, 2018, while the other six men were arrested in similar raids on October 11, 2017.[1] Following their arrests, the Kiev District Court of Simferopol imposed pretrial detention.[2] Subsequently, the Southern District Military Court in Rostov-on-Don ordered the transfer of the men from Crimea to the territory of the Russian Federation.[3] 

The prosecution charged each man with two offenses under the Russian Criminal Code – “preparation for a forcible seizure of power or forcible retention of power”[4] and “organising”[5] or “participating”[6] in the activities of a terrorist organization, each carrying a prison sentence of up to 20 years. Various courts granted repeated prosecution requests for extensions of pre-trial detention for all eight defendants, who remained in custody from the time of their arrests through the conclusion of the first instance trial in September 2020. 

On November 15, 2019, the proceedings against Mustafayev and his co-defendants commenced before the Southern District Military Court in Rostov-on-Don.[7] A three-member judicial panel heard the case, presided over by Judge Rizvan Abdullaevich Zubairov.[8] 

The prosecutor, Colonel Evgeny Sergeevich Kolpikov, based the charges on allegations that the defendants belonged to Hizb-ut-Tahrir (HuT), an Islamic political party that is considered a terrorist organization in the Russian Federation and banned by virtue of a 2003 Supreme Court decision.[9] Neither Ukraine nor the United States consider HuT a terrorist organization: indeed, HuT is committed to non-violence.[10] 

In support of its case, the prosecution presented evidence of HuT publications banned by the Russian authorities that were allegedly seized at the defendants’ homes during the raids;[11] secretly taped audio recordings of the men speaking at a mosque they attended, which according to a prosecution “expert” report demonstrated that the men were conducting furtive HuT meetings; and testimony from two anonymous witnesses who claimed to have participated in these secret HuT meetings with the defendants.[12] At no point during the trial did the prosecution or its witnesses provide evidence that any of the eight defendants had planned or carried out specific acts of violence or that any of the defendants possessed or were attempting to acquire weapons. 

Mustafayev and the other seven men pled not guilty to the charges, pointing to the prosecution’s lack of relevant evidence with respect to the acts charged, highlighting the incoherence of the 1500-page indictment, and arguing that the charges were brought in order to punish and silence them for their activist work.[13] The trial proceedings took place over a total of 72 hearings between November 2019 and September 2020. On September 16, 2020, the Southern District Military Court pronounced Mustafayev and six of his co-defendants guilty of the charged crimes, sentencing them to cumulative terms between 13 and 19 years in a strict regime correctional colony, with additional probation periods between one and one and a half years.[14] One man was acquitted, with the court finding that he had been a member of HuT along with the other defendants but “voluntarily withdrew” from the organization’s activities in August 2017.[15] 

The trial entailed severe rights violations at both the pretrial and trial stages. The proceedings against the men were unlawful from the outset: they were brought in violation of international humanitarian law, with the authorities applying Russian criminal law in occupied Crimea and transferring Ukrainian citizens to Russian territory for detention and trial. In addition, the detention of all eight defendants, with most having been deprived of liberty for three years at the time of conviction, was both unlawful and arbitrary. Finally, the trial itself was characterized by repeated abuse of the defendants’ fair trial rights, such as the use of anonymous witnesses without objective justification or counterbalancing procedural safeguards; denial of the defense’s right to cross-examine prosecution witnesses and call its own witnesses; and violation of the defendants’ right to be presumed innocent – namely, an inadequately reasoned convicting verdict based on little to no relevant evidence. 

The following analysis is based upon the requirements of binding international treaties to which the Russian Federation is party, including the Convention relative to the Protection of Civilian Persons in Time of War (the Fourth Geneva Convention), the International Covenant on Civil and Political Rights (ICCPR), and the European Convention on Human Rights (ECHR). In order to fulfill its obligations under the above treaties, the Russian Federation must overturn the men’s convictions and ensure their immediate release. In addition, the Russian authorities must cease to apply Russian criminal law in occupied Crimea and stop the illegal transfer of Ukrainian citizens to Russian territory.

For a full Fairness report on the trial please see HERE

For a communication to the United Nations Working Group on Arbitrary Detention filed on behalf of imprisoned Crimean Tatar activist Server Mustafayev please see HERE

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

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[1] Human Rights Center MEMORIAL, "Bakhchisarai case of the eight on membership in the banned ‘Hizb ut-Tahrir.’" Available at https://memohrc.org/ru/special-projects/bahchisarayskoe-delo-vosmeryh-o-chlenstve-v-zapreshchyonnoy-hizb-ut-tahrir?page=2.

[2] See id.

[3] See id.

[4] Criminal Code of the Russian Federation, Article 278, in conjunction with Article 30(1) (“preparation” mode of liability).

[5] Criminal Code of the Russian Federation, Article 205.5(1) (Organization). Asanov, Belyalov, and Ibragimov were charged under this sub-article.

[6] Criminal Code of the Russian Federation Article 205.5(2) (Participation). Mustafayev, Ametov, Zekiryaev, Saliev, and Smailov were charged under this sub-article.

[7] Monitor’s Notes, November 15, 2019.

[8] Id.

[9] See Russian Federation National Antiterrorism Committee, Unified Federal List of Organizations, Including Foreign and International, Designated as Terrorist by the Courts of the Russian Federation. Available at http://en.nac.gov.ru/node/950.html. The Supreme Court decision has faced criticism for outlawing many organizations without adequate justification as to the nature of their activities. For example, in 2016, four prominent Russian human rights groups issued a joint statement that criticized the Supreme Court decision with respect to Hizb-ut-Tahrir as “unlawful,” since in their view neither the organization’s literature nor its practice or activities provided any suggestion as to its involvement in terrorism. See Memorial Human Rights Center, Civic Assistance Committee, SOVA Center for Information and Analysis, and Institute of Human Rights, “On the Persecution of Rustem Latypov”, February 16, 2016. Available at https://refugee.ru/news/o-presledovanii-rustema-latypova/.

[10] See The Brookings Project on U.S. Policy Towards the Islamic World, “The U.S., Hizb-ut-Tahrir, and Religious Extremism in Central Asia”, 2016. Available at https://www.brookings.edu/wp-content/uploads/2016/06/khamidov20030701.pdf.

[11] Monitor’s Notes, January 28, 2020; Monitor’s Notes, February 7, 2020; Monitor’s Notes, February 10, 2020; Monitor’s Notes, February 18, 2020; Monitor’s Notes, May 18, 2020; Monitor’s Notes, May 19, 2020.

[12] Monitor’s Notes, February 25, 2020; Monitor’s Notes, February 26, 2020; Monitor’s Notes, February 27, 2020; Monitor’s Notes, February 28, 2020; Monitor’s Notes, March 2, 2020; Monitor’s Notes, March 3, 2020; Monitor’s Notes, March 4, 2020 (anonymous witness “Ismailov”); Monitor’s Notes, June 9, 2020; Monitor’s Notes, June 10, 2020; Monitor’s Notes, June 11, 2020; Monitor’s Notes, June 15, 2020; Monitor’s Notes, June 16, 2020 (anonymous witness “Bekirov”).

[13] Monitor’s Notes, November 19, 2019.

[14] Monitor’s Notes, September 16, 2020. See also Southern District Military Court, First Instance Judgment, September 16, 2020, pgs. 40–41 (unofficial English translation).

[15] Southern District Military Court, First Instance Judgment, September 16, 2020, pg. 35 (unofficial English translation).