His term of custody is reduced. By one day.

On Monday the Moscow City Court examined two appeals by Vasily Aleksanyan’s defence lawyers against decisions taken in July by the Simonovsky district court. The appeal court reached striking conclusions. In turning down the defence appeal against an extension of Vasily Aleksanyan’s detention in custody, the panel of judges reduced his term in remand by one day. In its ruling on the second appeal, concerning the resumption of criminal proceedings, the panel of three judges created such confusion that the only hope for clarity is when the defence attorneys receive the full text of the judicial decision.

Aleksanyan’s lawyers insisted that the appeal court first examine their complaint about the resumption of criminal proceedings against their client. Only then should it consider the appeal against the extension of his custody until 23 October. This was because the court decree on the resumption of criminal proceedings against Aleksanyan was evidently taken on 14 July this year in order to enable the hearings about the measure of restraint imposed on him to take place four days later, on 18 July.

The admission that the first decision of the Simonovsky district court was flawed, therefore, would have completely demolished the second decision. The Moscow City Court, however, decided to consider the two appeals in reverse order and began by refusing the defence the right to add to the case materials the conclusions of the recent consultation by doctors concerning Mr Aleksanyan’s present state of health.

In extending Mr Aleksanyan’s detention in custody in July, the defence believes, the Simonovsky district court totally ignored all the arguments presented by the defence; it hid its own arguments in favour of the decision; and, instead, it offered as a ruling a text that was indecent in its brevity. “There can be no talk of the grounds, motivation, lawful nature or substance of a judicial act whereby an individual’s detention is prolonged for 30 months after his arrest,” commented defence lawyer Gevorg Dangyan, “when such a ruling takes up only one type-written page.” If such a decision remains unaltered, he stressed, it sets “an appalling example of judicial practice”.

Vasily Aleksanyan remains in custody beyond the limits of a “reasonable term of detention” (a category applied by the European Court of Human Rights), said Dangyan, and it is inadmissible to consider the possible extension of the term of custody in the absence of the detainee. “The further detention in custody of a gravely ill man exceeds the bounds of common sense,” said the lawyer, in conclusion.

Defence attorney Yelena Lvova said, in her speech, that the chief violation committed by the Simonovsky district court was to substitute expediency for legality (“the court considers it expedient to extend the detention in custody of the accused Vasily G. Aleksanyan”, reads the court’s ruling). “As we know from our history, replacing the principle of legality with that of expediency is a dangerous procedure,” Lvova attempted to convince the panel of judges. “If the law ceases to operate then judges can take decisions according to the principle of expediency.”

Furthermore, as she reminded the judges, the medical conditions from which Aleksanyan is suffering are among three of those listed as entitling a prisoner to release from punishment. Even if Aleksanyan was brought to trial and found guilty, in other words, he could not be sent to a penal colony as part of his punishment. Yelena Lvova cited a 22 March 2005 decree of the Constitutional Court which states that in deciding on the measure of restraint a court “must take into account the institution of freedom from punishment and observe proportionality — and in this case, free our client from custody.”

Prosecutor Vlasov spoke briefly. Most notable was his comment on the obligatory presence of the accused at the judicial hearings. It turned out that he did not recognise such an obligation: “If the court had suggested bringing the accused to the hearing, then the defence and those who sympathise with Aleksanyan would have questioned the court’s humanity. Then we would have had the full firework display of objections.”

After consultation, the panel of judges decided to turn down the defence appeal but they did reduce the term of detention by a single day since the Simonovsky district court had chosen the wrong date when it calculated how long Aleksanyan had already been detained.

The Court then considered the second appeal, in which the defence were contesting the resumption of criminal proceedings against Vasily Aleksanyan. The defence attorneys’ main argument was that it is impossible (both without grounds and unlawful) to take such a decision until the reasons for halting the trial had disappeared: Mr Aleksanyan was not now a healthy man and had not completed his course of treatment. The extension of his detention in custody could not serve as a justification for resuming criminal proceedings which had been halted on quite different grounds, the defence stressed.

Aleksanyan’s lawyers soon gave their response to the prosecutor’s concern that their client’s participation would provoke uproar in court. “The law has been properly constituted,” asserted Yelena Lvova. “The proceedings cannot be resumed if the extension of custody must be considered in the presence of the accused. If his participation is excluded (Mr Aleksanyan is unwell), then the issue cannot be raised.” Moreover, the decision to resume criminal proceedings was taken, as the defence indicated, in an unlawful manner: Judge Korneyeva issued the ruling alone, without convening a court hearing or informing the parties.

“If such violations of the law continue, in dealing with the case of Vasily Aleksanyan,” said attorney Yury Terekhin, winding up for the defence, “then I shall not be surprised if we come to court in October” (when the prisoner’s term of custody expires) “and are met with the question: What are you doing here? We’ve already convicted and sentenced him.”

Returning to the courtroom after consultation the chair of the panel of judges read out the following: “We are terminating the hearing of the appeals submitted by attorneys Terekhin, Dangyan and Lvova against the ruling of the Simonovsky district court.” The judges then departed, leaving the defence in a certain degree of confusion since the grounds for the decision just pronounced could not be deduced, to put it mildly, from the announcement.

Had the latter appeal been heard first the defence team might have been able to demand that the court make public the motives for terminating the appeal hearing because it would have been impossible to proceed to their other appeal concerning extension of custody. Perhaps they would have adopted other procedural manoeuvres. The illogical sequence of Monday’s hearing deprived the defence of that opportunity, however. Now the appeal passes to the next level.