A court in Moscow has only reduced, and not revoked, the prison sentence passed on Konstantin Kotov, a Russian computer programmer who actively helped Crimean Tatar and other Ukrainian political prisoners and tirelessly protested against repression in occupied Crimea. The public prosecutor and courts have thus upheld a notorious law enabling the criminalization of purely peaceful protest. This is the second time a Russian has been imprisoned under the new Article 212.1 of Russia’s criminal code, and it is probably no coincidence that on both occasions, the target was an activist speaking out in defence of Russia’s Ukrainian political prisoners. Within days of Kotov’s arrest, the 24 Ukrainian POWs whom he had helped after they were illegally taken to Moscow, had collected money for him, and other former political prisoners, such as Oleg Sentsov, whom Kotov wrote to while he was imprisoned, have spoken out in his defence.

The Moscow City Court passed its rulingv on 20 April after hearings held behind closed doors because of the pandemic. The case had been effectively sent for retrial by a cassation court at the beginning of March, so there had seemed a flicker of hope that this time the conviction might simply be overturned. Instead, the prosecutor demanded a 1.5 year sentence, reduced from the four years originally passed, and the court obediently obliged. Given the period that Kotov has already spent in prison, the change means that he should be released in eight months.

Russia has over 300 political prisoners, including many Ukrainians, and all their convictions are obviously flawed. The norm used first to imprison civic activist Ildar Dadin, and then Kotov, stands out in the lack of any need to fabricate criminal charges. Article 212.1, introduced in July 2014, allows for criminal proceedings and a sentence of up to 5 years if a court has issued three rulings on administrative offences within 180 days. Since it is absolutely standard for even peaceful protesters holding a single-person picket to end up detained and facing administrative prosecution. It is easy to bring criminal charges against a large number of civic activists essentially just because they had taken part in perfectly legal and peaceful protests. The norm was widely criticized as unconstitutional from the outset, and seen as part of the offensive against civil society.

The new article was evidently repressive and attracted criticism both within Russia and abroad. The first three-year prison sentence was passed on Ildar Dadin in December 2015. Dadin was a well-known civic activist and his imprisonment, then his torture and added punishment received widespread publicity. He appealed to the Constitutional Court, challenging the law itself, rather than its application in his case.

The Court decided in a very long judgement on 10 February 2017 that the article did not breach Russia’s Constitution, but it did recommend some amendments and that Dadin’s case be reviewed. The Court stated that criminal liability for infringements at public events should be commensurate with the danger to the public of the actions. Criminal liability should not be applied in cases where the infringements were merely formal and caused no harm. The court needed also to provide the person’s intent to infringe established procedure for organizing or holding a public event. Soon afterwards. Russia’s Supreme Court revoked Dadin’s sentence and he was released.

It was widely assumed that the moves to release Dadin had initiated in the Kremlin, with Russian President Vladimir Putin having decided there was more to gain from an apparent softening in repression.

The repressive article was pulled out again at the beginning of 2019, probably because of the mounting number of Russians taking part in peaceful protests. Kotov became the second person to be imprisoned under 212.1, but the first to be placed in detention immediately following his arrest on 12 August 2019. He was sentenced to four years’ imprisonment by judge Stanislav Minin from the Tverskoy District Court on 5 September. That sentence was upheld on 14 October 2019 by Nina Sharapova from the Moscow City Court.

The episodes used to justify criminal prosecution and imprisonment in Kotov’s case were: a protest on 2 March in support for arrested student Azat Miftakhov; his detention and 5 day arrest on 13 May after a meeting in defence of political prisoners) outside the FSB buildings on Lubyanka; his detention and fine on 12 June at a protest in support of Meduza journalist Ivan Golunov. He was then prosecuted for merely posting a call on Facebook to come out in protest at the Moscow authorities’ blocking of real opposition candidates for the coming city council ‘elections’. He was detained on 24 July as he left his apartment block, and arrested for 10 days, and then again on 10 August after a protest on Sakharov Avenue.

Both courts had thus ignored the Constitutional Court’s instructions regarding application of Article 212.1.

Kotov’s case was raised at Putin’s annual press conference on 19 January and Kotov’s lawyers lodged an appeal with the Constitutional Court the following day.

In what appeared a re-run of the events around Dadin’s imprisonment, Putin got involved and on 25 January he instructed the new prosecutor general Igor Krasnov to “check the legality and justification” for the sentence. Krasnov and then the Constitutional Court leapt into action, with the Court deciding to review the case. It then concluded that the first court had justified a sentence that was close to the maximum (5 years) possible claiming that Kotov’s actions “presented a real danger of damage to citizens’ health, the property of individuals or legal entities, the environment, public order or public safety” It had not, however, investigated whether there ever was such a real danger, the Court noted, citing the 2017 Dadin judgement.

The Constitutional Court sent ‘the case’ back to the Moscow City Court. While it is excellent that the sentence is reduced, it is extremely worrying that it was not revoked. Neither the prosecutor nor the judge in such a political case need be suspected of any independence. If Kotov has not been released, it is almost certainly because that was the instruction from above.