During this time, the prosecutor, too, appeared openly on the side of the accused, effectively acting as his defense lawyer, although his duty was to act on behalf of the victims.
The situation inside the courtroom was mirrored by the situation outside it. Public opinion was generally on Budanov’s side. There were meetings outside the court with red Communist flags, and flowers for Budanov as he was being led into the building. The top brass at the Ministry of Defense joined in, with public pronouncements by Minister Sergey Ivanov to the effect that Budanov was “quite clearly not guilty.”
The ideological basis for absolving Budanov was that, although he had committed a crime, it was a crime he had a right to commit. His treatment of Elza Kungaeva was justified on the basis that he was taking revenge on an enemy in war, because he believed the girl to be a sniper responsible for the death of officers.
The Kungaev family had major problems with lawyers from the beginning. The family was very poor, had many children, and no work, and was obliged to move to a tent in a refugee camp in the neighboring Republic of Ingushetia after their daughter’s tragic death. Family members were afraid of reprisals from the army for having gone to court (they were threatened on more than one occasion). As a result, they found themselves without a lawyer. At this point, the Memorial Civil Rights Center, based in Moscow, with a branch in Rostov-on-Don, found them attorneys and, for a long time, covered their fees.
The first lawyer who thus became involved in the case was Abdullah Hamzaev, an elderly Chechen who had been living in Moscow for many years and who was, moreover, a distant relative of the Kungaevs.[6] It must be said that his efforts were not effective; rather, the reverse was true—not because of any fault of Hamzaev’s but because Russian society is becoming increasingly racist. It does not trust people from the Caucasus, let alone from Chechnya. The press conferences Hamzaev called in Moscow, to describe how difficult it was to move matters forward in the military court in Rostov-on-Don, went nowhere. Journalists did not believe what he said, and, accordingly, no public campaign in defense of the Kungaevs was mounted. And a public outcry was, of course, the family’s only hope of making any headway.
The Memorial Civil Rights Center invited a young Moscow lawyer, Stanislav Markelov, to assist Hamzaev. Markelov was a member of the same Interrepublican College of Lawyers to which Budanov’s attorneys belonged. The major cases Markelov had defended before and that had attracted Memorial’s attention were the first in Russia to involve accusations of terrorism and political extremism: the blowing up of memorials to Emperor Nicholas II in the vicinity of Moscow, an attempt to blow up the monument to Peter the Great, and the murder of Russian citizens of Afghan descent by skinheads.
Markelov was Russian, and, at the time, his background was crucial. Memorial had made a good selection, because subsequently it was his energy, choice of tactics, and ability to communicate with the press that focused attention on the trial. Here is a summary of what Markelov himself has to say about what he saw in the court just after taking on the case. At this point, the trial was effectively occurring in camera, and journalists were banned:
“The court was in a great rush. It did not want to go into the details of any of our requests and rejected anything that could be interpreted to be against Budanov…. All our petitions, for example, to call witnesses, to call in experts, to have independent examinations, were rejected. I had the impression that Judge Kostin was not even reading them. We discovered that one of the informers who supposedly pointed out the Kungaevs’ house was a deaf mute, physically incapable of hearing Budanov’s question about the female sniper… and physically incapable of replying. The second informer was in fact photographed talking to Budanov one day earlier than alleged. Thus Budanov’s spontaneous reactions, feelings that overwhelmed the colonel and justified his behavior, are no longer valid. Witnesses also testified that on both March 25 and until midday on March 26, when the officers in the regiment began the binge drinking Budanov had organized in honor of his daughter’s birthday, the colonel was calm and showed no intention of taking revenge on some female sniper.”
The second informer turned out to be Ramzan Sembiev, a convict serving in a maximum security labor camp for kidnapping. What matters here is that there should have been no difficulty at all in bringing him to the court for cross-examination.
“The court’s approach to the case was ideological. The Kremlin was applying pressure for Budanov to be absolved of his sins. Nothing was important or relevant if it could be to Budanov’s disadvantage. The prosecutor’s office decided not to behave in… accordance with its role as defined by the Constitution….
“During Nazarov’s speech to the court, a number of other inexplicable things came out. For example, a prosecutor in Dagestan was said to have approached Sembiev in the labor camp after our application and to have asked whether he knew Budanov. Sembiev reputedly denied it and said the first time he had seen him was on television.”
“Was this conversation forwarded to the court as an official document?”
“No, of course not…”
Following in Budanov’s footsteps, the court decided to apply customary law instead. Budanov had acted entirely in accordance with Chechen customary law: he considered the murder he committed to be retribution. The court, and Russian society, supported him in this. What the case shows is that the authorities in Russia, and the state as a whole, accept that Russian law is in abeyance in Chechnya.
One of the main features of the Budanov case was the games played with the forensic psychological and psychiatric reports.
During the three years the case ran, the colonel had the benefit of four psychiatric reports and, when the initial verdict was set aside, of a further two. The conclusions of nearly all these documents were politically slanted and supported whatever the current Kremlin line happened to be.
The first two reports were compiled in the aftermath of the crimes, in May and August 2000, during the preliminary investigation. The first examination was carried out by the psychiatrists of the military hospital of the North Caucasus Military District and the Central North Caucasus Forensic Laboratory of the Ministry of Justice of Russia. The second investigation was produced by doctors of the civilian Novocherkassk Provincial Psychoneurological Hospital. According to these reports, Budanov was responsible for his actions—that is, he was answerable for his crimes. The documents were released during a period when Putin was talking a great deal about the “dictatorship of law,” which needed to be established in Russia. Under this doctrine, soldiers who committed crimes in Chechnya would be punished in exactly the same way as Chechen fighters who were members of IAFs.
Moreover, it was a time of courting the Chechens after the fierce assaults of 1999—2000 and the appointment of a new head of administration of the republic, Ahmad-Hadji Kadyrov. He had been one of the fighters and the mufti, or interpreter of Muslim law, for Djohar Dudaev, the first president of Chechnya, who had been assassinated in 1996 by a smart missile targeted by federal officers. Having earlier declared jihad on Russia, Kadyrov had subsequently become a friend of the Kremlin after “fully appreciating the situation.”
These two reports noted, however, that when Elza Kungaeva was strangled, Budanov was probably mentally unbalanced, and that he appeared to be exhibiting symptoms of brain damage resulting in a “personality and behavioral disorder.”
The Ministry of Defense took exception to these conclusions because they had two serious implications. One was that since Budanov was in his right mind at all other times, he could be prosecuted to the full extent of the law. The other was that the army was employing people with brain damage that nobody bothered to assess, that such people were fighting in battles, and that people with personality disorders had command of hundreds of individuals and had cutting-edge weapons at their disposal.
6
Abdullah Hamzaev died in Moscow in June 2004 after a serious illness. During the Budanov trial he was subjected to extreme pressure for speaking out against the accused and all he stood for. Hamzaev was threatened with retribution, and members of his family were intimidated both by Russian nationalists from extremist paramilitary groups and by officers who were colleagues of Budanov. He had several heart attacks in the course of the trial and was taken to the hospital. Once he suffered infarction and clinically died, but later returned to the trial. Hamzaev succeeded in ensuring that Budanov was sentenced to a long term of imprisonment, something few people believed possible in the spring of 2000.