EcoPrisoner: Suren Gazaryan and Evgeny Vitishko
Suren Gazaryan and Evgeny Vitishko, two Russian human rights defenders, environmentalists, opposition leaders, were convicted in a politically motivated sham trial. Defenders are under immense governmental pressure because of kangaroo conviction. Moreover, due to initiation of another politically motivated criminal proceeding against Suren, he had to leave Russia and become a political refugee. In addition, severity of charges against Evgeny was increased. All this makes virtually impossible for defenders to perform their defending activities as well as work in a scientific field.
About Suren Gazaryan
Suren Gazaryan is a zoologist, the member of the Environmental Watch on North Caucasus’ Council, the member of Coordination Council of the Russian Opposition, a member of opposition political party ‘Yabloko’, a member of the Sochi branch of the Russian Geographic Society, a highly visible public figure.
Suren is a defender of a right to a favorable environment guaranteed by the Russian Constitution (Article 42). His work is conducted in Russia, mostly in the North Caucasus region. In particular, Suren was involved in protecting the UNESCO World Heritage site ‘Western Caucasus’ from the road construction to the President’s residence ‘Lunnaya Polyana.’ Suren was also actively distributing information on the potential danger of Olympics 2014 to the Sochi region environment.
In fact, Olympics are a great part of Suren’s public work. Suren was protesting the construction of the combined Olympic railroad and motorway ‘Adler-Krasnaya Polyana’ that was conducted in violation of the federal law on environmental protection, in particular on environmental impact assessment and the state ecological expertise. The road construction was embraced by working activities conducted without obligatory state permits, illegal logging, destruction of habitat of enlisted endangered species, and serious degradation of the river Mzitma which is considered the main source of drinking water for the city of Sochi. Such activities construe the violation of Russian laws, including the Criminal Code. Suren was also protesting illegal mining activities that were happening on the territory of the Sochi National Park and are related to Olympic construction.
In addition, Suren was protesting illegal construction on the territory of the ‘Bolshoi Utrish’ reserve. Such construction was conducted without obligatory state ecological expertise. Suren is also famous for outspoken criticism of Russian authorities on construction of a St. Petersburg – Moscow highway through the Khimki Forest.
About Evgeny Vitishko
Evgeny Vitishko is a mining engineer-geologist, the member of the Environmental Watch on North Caucasus’ Council, the chairman of the regional office of the opposition political party ‘Yabloko’, a public figure.
Evgeny is a zealous environmentalist. He is a chairman of The Tuapse Public Ecological Council, the chairman of the Tuapse Public University (the scientific society). Evgeny is actively protecting the Tuapse region as a whole and a Black sea shore from ecologically dangerous industrial activities. In particular, Evgeny was opposing bulk carrier terminal for transferring mineral fertilizers. He is the organizer and a participant of numerous rallies against the terminal. Evgeny is also famous for protesting illegal deployment of hazardous waste and oil-slimes on the territory of Tuapse municipal dump situated on the cape Kadosh.
Suren Gazaryan and Evgeny Vitishko are outstanding figures is a small but active Russian environmental movement. They investigate illegal activities authorized by the government and make such information on violations publicly available. By doing so, Evgeny and Suren protect a right to a healthy environment. Unfortunately, because of the sham conviction of Suren and Evgeny and the subsequent increase of severity of charges against Evgeny and the initiation of the second sham criminal persecution against Suren make it virtually impossible for defenders to enjoy their right to protect human rights.
The first sham trial
Suren and Evgeny were convicted on June 20, 2012. The district court in the city of Tuapse, along the Black Sea coast, found defenders guilty of ‘willfully causing damage to property that entailed significant loss’ (Article 167 part 2 of the Criminal Code of the Russian Federation). Damage was caused to a fence surrounding a dacha which allegedly belongs to the governor of the Krasnodar region, Alexandr Tkachev. The court sentenced activists to a three-year conditional sentence with a two-year probation period. Violation of conditions of the sentence, which include a curfew (12 am – 6 am) and the requirement to inform authorities about the changes of the place of residence, may lead to serving the sentence in a prison. Conditions of the sentence make environmental activism impossible, which require Suren and Evgeny to be out of home for days at a time.
How it was
On November 13, 2011, Gazaryan, Vitishko, and other activists organized rally in the village Dzhubga (Tuapse district, Krasnodar krai, Russia) where they called for protection of the Black Sea coast and the nearby forest. As part of the rally, activists made their way into the state forest fund, which must be open to the public according to Russian law. However, activists faced the fence surrounding the construction site – allegedly the dacha of the governor Alexandr Tkachev (hereinafter – Tkachev’s dacha). In order to proceed in the state public forest, activists had to remove one section of the fence which was installed illegally, in violation of the Forest Code. In fact, any construction work on the territory of the state forest fund is illegal. Being at the fence, some activists painted graffiti: ‘Alex [Alexandr Tkachev] is a thief’, ‘This is our land’, and ‘This is our forest.’ Gazaryan and Vitishko admitted to remove a small section of the illegally installed fence. They also told the court that they are ready to pay for the damage.
Serious Due Process Violations
The trial was shammed during all three days. Gazaryan’s lawyer was on a business trip on the days of trial, therefore, Gazaryan petitioned the court to either postpone the hearing, or allow him to defend himself. However, the judge denied the petition and appointed a public defender. Importantly, the appointed public defender was of limited familiarity with the case and had only an hour and a half to prepare to defend Gazaryan.
The judge also denied the defense’s request for additional time to call witnesses including those who took part on the rally on November 13, 2011. This additional time was necessary because some of the witnesses live in other cities. The judge also denied the defense petition for additional time for closing statements and allowed lawyers only 30 minutes to prepare them. All in all, only one out of 20 defense’s motions was allowed.
As to damage and its appraisal: the expertise ordered by defense found out that the caused damage was equivalent to 30 USD, and the accusation side insists that the damage was close to 4,000 USD. In fact, and it is proved by the defense’s expertise, the fence was not damaged so badly: it was deformed and graffiti was painted, but it could not cost 4,000 USD. The specific victim was not also identified by the court; the fact that the damaged property belongs to the ‘victim’ LLC ‘Kapitel’ was not identified by the court or pre-trial as well.
The court ignored the testimony of the forestry expert who stipulated that public access to forests is free under Russian laws (Article 11 of the Forest Code, Article 101 of the Land Code). Ignorance of this testimony constitutes violation of the Article 14 part 2 of the Criminal Code of the Russian Federation (on insignificance of act/omission).
The court also rejected the defense’s testimony that deformation of the fence and graffiti were conducted with the purpose to attract the attention to outrageous violation of governmental obligation to investigate the breach of law, as well as to show that the fence actually exists although the authority insists that it does not. The acts committed by Vitishko and Gazaryan were committed with the purpose of protection their right to a favorable environment and the right to use natural resources (in this case – forests).
Another serious violation of due process rights is connected with the main evidence. The video, which was used as the main evidence against Gazaryan and Vitishko, was never given the defense to become familiar with. The evidence allegedly contains the video of activists writing on the fence on November 13, 2011. The court denied the motion to make the video inadmissible evidence as this evidence had not been shared with defense or presented in the court.
Rental documents, satellite photos, and other evidence of violations, in particular proving illegal logging, illegal construction activities and illegal installation of the fence, are available and prove that the fence is on the public lands. There is even no objective evidence that Gazaryan and Vitishko wrote on the fence.
Numerous Requests to the Russian Authorities
It is important to note that Environmental Watch on North Caucasus (EWNC), Suren Gazaryan in particular, sent Russian authorities numerous requests to conduct governmental investigation based on the facts of illegal logging, illegal construction, including illegal construction of the fence, and on failure to conduct state ecological expertise. EWNC always uses legal tools to protect human rights. Facts of violation are proved by public investigation conducted by EWNC. Requests were sent to the Krasnodar krai Department of natural resources and state ecological expertise, Prosecutor’s office of Krasnodar krai, Krasnodar Department of Russian environmental inspectorate, the head of the Krasnodar Department of Interior, the President of Russia, and the Krasnodar Forestry Department. Unfortunately, governmental authorities did not take any measures to conduct investigation, ignored the law, and even more: responded that there was no logging on the territory of inspected public lands, and no fence (all correspondence could be presented to the Rapporteur’s Office if necessary). Thus, the criminal charges seem even more absurd: ‘criminals’ damaged the inexistent fence.
To conclude, bringing criminal charges are disproportionate to begin with. The whole trial and ignorance of basic due process rights constitute retaliation and punishment of Suren and Evgeny with the purpose to cease their defending activities. The right to a fair trial was evidently violated, the trial was accusational. This constitutes violation of the Constitution of the Russian Federation, as well as the international human rights standard – a right to a fair trial (Article 10 of the Universal Declaration of Human Rights, Article 6 of the European Convention of Human Rights, Articles 14 and 16 of the International Covenant on Civil and Political Rights). These standards are binding upon Russia.
Composition of the Court
The composition of the court was the following: judge Avdzhi G.L. (Авджи Г.Л.), public prosecutor Pilipenko E.A. (Пилипенко Е.А.), convicted Evgeniy Vitishko and Suren Gazaryan, defenders Dubrovina M.A. (Дубровина М.А.) and Kuchubin O.L. (Кучубин О.Л.), victim’s representative Soroka A.L. (Сорока А.Л.), secretary Novikova O.N. (Новикова О.Н.).
The cassation (took place in the city of Krasnodar, August 8, 2012) affirmed the sentence sued against Gazaryan and Vitishko. The panel ignored due process rights, the unfairness of the trial and the illegal nature of the ‘damaged’ fence as it did the trial court. The composition of the cassation is the following: the presiding judge Gorban V.V. (Горбан В.В.), judges Ruban V.V. and Lobodenko G.I. (Рубан В.В. и Лободенко Г.И.), and secretary Balina M.V. (Балина М.В.).
Initiation of a new politically motivated criminal investigation and increasing the severity of charges
Despite the fact that Gazaryan and Vitishko were convicted and conditions of the sentence severely limit their ability to engage in activism and public demonstrations, the governmental authorities do not stop misusing legal tools against activists. Thus, the criminal persecution was initiated against Gazaryan and charges against Vitishko became more severe.
Gazaryan was questioned on August 26, 2012 because of the initiated by the Gelendzhik police department (Krasnodar region) on August 16, 2012 a new criminal investigation against him. The investigation is the result of events taken place on August 2, 2012. Gazaryan and other environmentalists went to a luxurious Black Sea resort (cape Idokopas) which is allegedly belongs to the President Vladimir Putin (further – Putin’s Palace).
The Putin’s Palace became famous after Sergey Kolesnikov wrote to the ex-president Medvedev a letter where a businessman explains the kickback scheme used for construction of the Palace. Construction of the Putin’s Palace is accompanied with several violations of laws. Obligatory environmental impact assessment, a state ecological expertise (federal level), and public hearings were not conducted. The land for the construction was privatized illegally. Illegal logging of, among other species, enlisted endangered species (pine Pinus brutia var. pityusa) caused 2.7 billion rubles (approx. 9 million USD) of environmental damage. Constructed fence was blocking the access to public to forests and shore line. Such block is a violation of Forest, Land and Water Codes as well as the federal law on environmental protection. Consequently, human right to a favorable environment and the right to access forests and seashore guaranteed by Russian laws are violated. EWNC petitioned numerous times on those violations.
Gazaryan and his fellows came to conduct their public investigation as the Palace is built in violation of several laws. On that day activists walked along the resort’s perimeter road which is open to public. A security guard Pirogov approached Gazaryan on a motor scooter. The guard was armed with a rubble truncheon. This guard grabbed Gazaryan, twisted his arms and tried to take Gazaryan’s cell phone. Two other guards arrived.
Feeling threatened, Gazaryan wrestled free, picked up a small rock and told the guard to keep him distance. Then Gazaryan turned around, dropped the rock and walked away. Now the authority allege that Gazaryan’s action constitute a threatening to kill the security guard. Investigation files include only the portion of picking up the rock and a verbal communication.
Right now Gazaryan is in the process for applying for the asylum in Estonia. He had to leave Russia because authority included him in the federal wanted list (the order of presecutor Gordeev). Being on probation under the previous sentence, Gazaryan could face a real imprisonment.
As to Vitishko, on December 7, 2012, the Tuapse city court extended Vitishko’s probation period and imposed additional restrictions. The ground for this modification of charges is based on alleged violation of the curfew on October 14, 2012. On that day Vitishko had to spend the night in the Tuapse election district as an observer. Vitishko was nominated by the political party ‘Yabloko’ as a candidate for the Krasnodar region legislative assembly. In fact, Vitishko did not violate his curfew because he had notified the probation officer about his absence. But the judge ignored this information.
Action by Russia
Gazaryan informed several times Russian authorities on the violations of law related to the 10-12 139A forestry area. No actions to investigate the issue were taken. Gazaryan petitioned the President Medvedev as well. Moreover, on the day, when the President and the presidential Human Rights Council met, the petition in support of Gazaryan and Vitishko with 20,000 signatures, were handed to the President.
The only action taken by authority was the politically motivated sham trial, initiation the second criminal investigation and toughening Vitishko’s charges. Gazaryan, doubting that the fair trial can happen had to leave the country.
Other Human Rights Atrocities
On March 20, 2009 Gazaryan and Andrey Rudomakha were illegally detained. Gazaryan and Rudomakha were protesting against the construction of the Olympic road ‘Adler-Krasnaya Polyana’. Construction of the road was accompanied by massive illegal logging of enlisted endangered species. It was illegal because the government had not issued any permits. Having permit was a legal obligation. Gazaryan and Rudomakha call militia and told them about environmental wrongdoings. In fact, illegal logging of the enlisted endangered species constitutes environmental crime under the Criminal Code of the Russian Federation. Instead of ceasing illegal activities by construction company, militia detained environmentalists.
On October 12, 2009 Andrey Rudomakha, Suren Gazaryan, Valeriy Akatov (professor), Alik Le (EWNC’s member), and a German journalist Yutta Bluma were detained by border services during the public investigation conducted in relation to illegal logging of enlisted endangered species. Detention took place nearby the rural settlement Ahshtir.
On December 5, 2010, Gazaryan, Shevchenko and Rudomakha were detained in the city of Krasnodar during the rally where activists called for environmental protection of the Utrish forest. Construction works in Utrish were conducted in violation of environmental laws. Notably, the court later did not find violation of the law by Gazaryan. Rudomakha was released.
On February 11, 2011, three activists of the Environmental Watch on North Caucasus and a journalist (Suren Gazaryan, Dmitry Shevchenko, and Yekaterina Solovyeva, along with journalist Rimma Akhmirova of the Sobesednik newspaper) conducted a public investigation related to the Putin’s Palace. Activists freely drove to the Palace – the lifting gate was open. Private security officers called for the federal protection service’s officers (6 people, including senior lieutenant Nikitin A.R. (старший лейтенант Никитин Альберт Радиевич). Also, the border guards arrived together with their leader major Akin’shin (Акиньшин). Authorities checked activists’ documents. However, authorities could not answer the question what exactly law activists violated and what was the ground for a document checkup. Activists were prohibited to leave the territory of the Palace. Also, Gazaryan was beaten by federal protection service officers (video is available). Gazaryan’s property, including camera with evidence of the Palace, was stolen. Later, militia arrived and detained the journalist and took away her property.
On February 27, 2011 Gazaryan, Vitishko, Dmitry Shevchenko and Zufar Achilov were arrested by police officers nearby the Tkachev’s dacha. Activists did not violate any law; they were on the picnic with other friends and their physical presence was on public land. As part of the picnic activists conducted public investigation of illegal capture of public lands and illegal logging. Formally, militia came for “the verification of information about citizens in the forest who look like terrorists, with photo cameras and dressed in tourist clothes.” This “verification of information” was conducted within the frame of the operation “Sochi – anti-terror.” The formal reason for the arrest was “refusal to obey the order of the policeman.” Until today, there is no information which exactly order activists refused to follow. Gazaryan, Achilov, and Dmitry Shevchenko got 7 days of administrative arrest, Vitishko – 10 (Tuapse magistrate’s judge Maxim Dubov – the head of the 217th magistrate district). Achilov, Shevchenko and Gazaryan filed the complaint to the ECHR. On that day about 20 activists were illegally detained.
On May 6, 2011, Gazaryan was attacked by unknown on the territory of the Khimki Forest. The Khimki Forest is internationally known matter where construction of the motorway is illegal, i.e. in violation of environmental laws of Russia. The fight for protection of the Khimki Forest is ongoing.
Another harassment happened on February 23, 2012. Gazaryan is visited by policemen of Dzhubsky office who were with the car without registry numbers, policemen asked to be in 15 minutes in Tuapse (while it happened in Krasnodar and it is 3 hours away from Tuapse).
On February 29, 2012, policemen are watching Suren the whole night although it was already negotiated with persecutor that Suren is coming for interrogations on his own.
On March 13, 2012, Gazaryan and Viktor Dutlov (Gazaryan’s lawyer) were detained. Gazaryan and Dutlov were acting within the frame of criminal procedures (examined the fence, were taking pictures). Gazaryan and Dutlov were not on the territory inside the fence. March 14, 2012. Dutlov and Gazaryan were convicted in a made-up case and are sentenced to 10 days of administrative arrest. The formal reason was “refusal to obey the order of policeman.”
We kindly ask for your support of Suren Gazaryan and Evgeny Vitishko, whose persistent peaceful environmental activism is clearly so irritating to the Krasnodar region authorities that they are ready to throw them in jail for at least three years.