Institute of Modern Russia

"By my hand and for the good of the state, the bearer
has done what has been done."
—Cardinal Richelieu (Alexander Dumas, The Three Musketeers)

The State Duma has certainly left for its vacation with a flourish, ensuring that it sticks in everyone’s memory even while the lawmakers take a break from legislating. On July 1, a group of deputies introduced a new draft law in the Duma concerning police reform. This document, which expresses in concentrated form the parliamentarians’ concern for the people, was signed by several popular favorites, including Irina Yarovaya, Andrei Lugovoi, and Alexander Khinshtein. The names of Yarovaya and Lugovoi have long since become a recognizable brand, a guarantee of a certain quality in the draft laws they prepare. In this case, the recognizable brand did not let its readers down: the draft amendments to the federal law “On the Police” and a series of other laws break all previous records for the mind-numbing effect they produce.

In examining this draft legislation, the following points are of essential importance.

First, it is proposed to remove two basic prohibitions on police: that on shooting to kill when firing at women, and that on shooting in crowded areas if, as a result of the use of firearms, bystanders might be harmed (Article 23, paras. 5–6). The draft law would grant the police the right to shoot to kill at women, with the exception of women “with noticeable signs of pregnancy,” and also the right to shoot to kill in crowded areas “for the purpose of preventing (or suppressing) an act of terrorism, freeing hostages, repulsing an attack by an armed group on critically important or potentially dangerous facilities, or facilities, buildings, premises, or structures of government bodies.”

Second, the legislation proposes amending Article 30 of the federal law “On the Police” (“The guarantees of legal defense for an employee of the police force”) by adding Part 1-1, “The government guarantees the presumption of trust and support for an employee of the police during his execution of his official duties”; and Part 1-2, “An employee of the police is not subject to prosecution for actions carried out during the performance of the duties conferred on the police, and in connection with the exercise of rights granted to police, if these actions were carried out on the basis of and in the manner established by federal constitutional laws . . . and other regulatory legal acts making up the legal basis for the activity of the police.”

Let’s imagine what would happen if, God forbid, this draft law should be enacted in its present form and the police were granted the right to shoot to kill at women. In this situation, the question of what constitutes visible signs of pregnancy will be decided by those same police officers, inasmuch as existing legislation does not have a comprehensive definition of “visible signs.” Any decision of the police will be deemed legal by default, because the presumption of trust is guaranteed. And even if the policeman shoots a woman far gone in pregnancy whose overcoat slightly hides her belly, he will not be held liable for his actions, because, in firing at a pregnant woman, he was exercising his rights and performing his duties.

The other proposed norm will work in a similar manner, permitting a police officer to shoot to kill in crowded places for the sake of preventing (or suppressing) acts of terrorism, freeing hostages, and defending important facilities and places of operation of governmental bodies. The law does not provide a clear definition of the term “crowded area,” and therefore, as in the model described above, everything will be decided by the police, who will enjoy the governmental presumption of trust and will be freed from liability for their actions. The combination of the presumption of trust in the police guaranteed by the government and the freeing of police employees from liability for their actions if carried out within their rights and in the course of exercising the duties established for them by law gives rise to the right of police to rampage, a right sanctioned by the government. This will be the contemporary version of the famous document that Lady Winter solicited from Cardinal Richelieu, which read: “By my hand and for the good of the state, the bearer has done what has been done.”

This draft legislation looks especially good in the context of the widely proclaimed program of police reform that was initiated in Russia several years ago. In the post-Soviet space, the reform of the militsiya, the civilian police force, is one of the most important and complex tasks facing society today, requiring the adaptation of internal security agencies to the new situation and the new system of values that makes the defense of the rights and liberties of citizens a key priority. To use the terminology of the federal law “On the Police,” the fundamental task of reforming the Soviet civilian police force can, in short, be formulated as follows: how to turn a “cop” into “Mr. Policeman.”

In pursuing this task, it is necessary to solve two basic problems: to change the model of interaction between the militsiya and society in such a way that the new modus operandi will demonstrate a real change in the force’s key priorities, and to make people believe that the force really has become a different institution. In contrast with most of the other security and law enforcement agencies that deal with foreign threats, the militsiya is involved exclusively in domestic affairs. Only the militsiya has the right to use force against fellow citizens. Therefore, such important powers must be conferred on persons who have undergone the necessary training; whose activities are subject to designated limits; and, in case of necessity, who are subjected to corresponding sanctions. One additional characteristic feature of the militsiya is the fact that citizens must interact with employees of this service immeasurably more often than with employees of the other security and law enforcement agencies, and regardless of whether they want to or not.

In transitional societies that are trying to distance themselves from an authoritarian past, the legitimacy of the government is to a considerable degree defined by the extent to which the relations of the police with the citizenry correspond to the values of a democratic society.¹ In the transitional period, the police play an especially important role. First, the effectiveness of democratic institutions depends to a substantial degree on the activity of the police. The police can either help or greatly hinder the processes that are essential for progress toward democracy. These include electoral processes, public demonstrations, publishing activity, the exercise of freedom of assembly, the activities of the opposition, and free participation in the implementation of government policy.²

Second, a properly trained police force must be able to support and guarantee stability in the turbulent times that so often accompany a full-scale societal transition. The police are in fact able to “play an important role in such periods of uncertainty, which are infamous for such accompanying phenomena as social and political instability, the escalation of crime and violence, and impoverishment and disorientation of the population.”³

Third, being the most noticeable government agency, and one whose activities are sanctioned by the government, the police can be a visible demonstration of the essence of a new regime. After regular interaction with polite and professional policemen, citizens can begin to trust the new government more and to support it more actively. On the other hand, contacts with police that leave the impression that the regime has not in reality changed can lead to widespread discontent. For example, one of the triggers of the Arab Spring was the extremely negative experience of people’s interactions with the police.⁴

The ultimate goal of reforming a repressive law enforcement agency is the creation of a civilized democratic police force.⁵ There exist various definitions of such an institution, but two criteria are universally accepted: it must be accountable, and it must swiftly react to the needs and problems of the citizenry.⁶ The main difference between a democratic and a nondemocratic police force is that a democratic police force is oriented “downward” toward the needs of citizens, and not “upward” toward the directives of the government.⁷ Such a downward (people-oriented) police force must be accountable to elected bodies, and not to secret agencies that dwell in a mysterious half-light. Moreover, this accountability must be maintained through the aid of the media, NGOs, and other actors of civil society.⁸ Only in this way can a power structure hitherto aimed at protecting the government from its citizens and used as an instrument of repression be reshaped into a democratic force that exists for and works for the people.⁹

The reform of the police, like any other reform, must not and cannot be done in isolation. Its success to a large degree depends on the success of other reforms, including reshaping the system of criminal justice. The key role of police reform in broader form must not be underestimated, because a legitimate democracy cannot exist side by side with an unaccountable and authoritarian police force whose activities are carried out not for the people, but against them.¹⁰

If this draft law is adopted and the key provisions analyzed above retained, this will mean more than the total failure of Russian police reform and the triumph of the “government by cops” so brilliantly described by Leonid Nikitinsky. Not only we, but also our children and grandchildren, will want to cross the street when we see a person in a police uniform.

If the police receive the right to fire on people with impunity, they cannot claim to enjoy the trust of the public. And the legal presumption of trust guaranteed by the government does not change the picture, because it is impossible to trust a body that has received carte blanche to rampage in the name of defending the state from its citizens.

But the authorities don’t need a police force respected by citizens and working for them. They need unchecked fighters who are not constrained by any limits on their behavior. The adoption of this legislation in its present form will be an indicator of the willingness of the authorities to give, on the slenderest of pretexts, the right to fire on the people to a police force absolved from liability for its actions. And that means that the authorities fear public discontent.

Sources:

1. Bayley, David. Changing the Guard: Developing Democratic Police Abroad. Oxford University Press, 2005.
2. Ibid.
3. Uildriks, Niels A. Policing Post-Communist Societies: Police-Public Violence, Democratic Policing and Human Rights. Open Society Institute, 2003.
4. “Arab Spring: Timeline of the African and Middle East Rebellions.” Daily Telegraph, October 21, 2011.
5. Baroni, Claudia et al. “Criminal Justice Reform in Post-Conflict States: a Guide for Practitioners.” United States Institute of Peace, (2011): 81.
6. Bayley, David. “The Contemporary Practices of Policing: A Comparative View.” Civilian Police and Multinational Peacekeeping: A Role for Democratic Policing. National Institute of Justice (1999): 4.
7. Ibid.
8. Ibid.
9. Robertson, Annette. “Criminal Justice Policy Transfer to Post-Soviet States: Two Case Studies of Police Reform in Russia and Ukraine.” European Journal on Criminal Policy and Research 11, no. 1 (2005): 1-28.
10. Gerber, Theodore P., and Sarah E. Mendelson. “Public Experiences of Police Violence and Corruption in Contemporary Russia: A Case of Predatory Policing?” Law & Society Review 42, no. 1 (2008): 9.