After the dissolution of the Soviet Union, Russia began reshaping its legislative and executive branches of power. Judicial reform began two months before the USSR’s collapse, with the 1991 publication of “The Concept of Judicial Reform,” which emphasized the necessity for reform of criminal procedural legislation, especially since human rights needed maximum protection during the investigation and consideration of criminal cases in court. As a result of this activity, by the end of 1994, Russia had three competing drafts of the Criminal Procedural Code.
The draft developed by Yeltsin’s Presidential Administration was the most progressive. Regarding pre-trial detention, it envisioned arrests only under a court order, 48 hours of detention required before bringing a suspect before a judge, and two months of custody before a trial (with the possibility of extension under a court order for no more than two months, and subsequently for no more than one month.) However, many found this draft to be “too progressive.” Truth be told, the Presidential Administration’s draft really was far ahead of its time. In addition, many found irritating the fact that its language at times read like a Google translation of English to Russian. Needless to say, this draft didn't gain many supporters among law scholars or practitioners.
The draft developed by the Prosecutor-General’s Office was much more of a Soviet-style document, trying to preserve provisions that gave a wide range of powers to investigators and prosecutors. This version was strongly supported by all the investigative agencies, including the Ministry of the Interior and the Federal Security Service.
The more moderate draft developed by the Ministry of Justice attempted to reconcile the radically different concepts represented in the first two drafts. Despite its attempts at a compromise, in certain parts, it was much closer to the draft prepared by the Presidential Administration.
After a series of academic debates, it was the draft presented by the Ministry of Justice that was chosen as the base for further revisions and additions. However, upon submitting their draft to the State Duma, the authors faced a serious problem. First off, the Ministry of Justice wasn't vested with the power to introduce legislative drafts to Parliament. Secondly, the Russian government wasn’t in favor of submitting this particular draft anyway, and referred to Yeltsin’s Presidential Administration, which wanted to promote its own version of the draft rather than settle for the Ministry of Justice’s version. Thanks to the members of the Committee on Legislation and Judicial reform of the State Duma, the Criminal Procedural Code’s final draft was introduced to the State Duma in 1995. It was then discussed in parliamentary hearings and further improved in accordance with the recommendations of those hearings. Finally, in 1997 it was adopted in its first reading.
Meanwhile, continued implementation of the old Soviet Criminal Procedural Code became totally unacceptable. Since the newly-adopted rule-of-law principles from the 1993 Russian Constitution came into conflict with the norms of the Soviet inquisitorial system, the President’s Legal Department began introducing crucial norms from the new draft as amendments to the existing Soviet Code, in order to make the latter more applicable.
The first amendments were aimed at extending the powers of the Defense Counsel and at creating judicial control over investigations. For the first time, the Defense Counsel was allowed to take part in preliminary investigations, while the new amendments provided protection for suspects and the accused from the illegal influence of investigatory agencies.
During this period, the old Criminal Procedural Code was substantially improved by the rulings of the Russian Federation’s Constitutional Court. From 1995 to 2000 about 20 different rulings forced legislators to introduce a number of progressive amendments, such as the elimination of a judge’s right to initiate a criminal case under his or her own initiative (for example, at the victim's request), as well as the recognition of courts’ jurisdiction to impose pretrial detention as a measure of restraint.
At the same time, the work on drafting a new Criminal Procedural Code was going ahead at full steam. When the draft was approved in its first reading, the Russian State Duma’s Committee on Legislative and Judicial Reform set up a working group, which included the authors of all three drafts. By then, the Ministry of Justice, with the support of the American Bar Association’s Moscow office, had received the expert opinion of American and European academic lawyers, judges and attorneys on the draft. This assessment contributed greatly to the further activities of the working group and to the final legislative draft.
After adopting the draft in its first reading, the amendments needed to be considered. According to the Russian Constitution, there are a large number of so-called “subjects of legislative initiative,” e.g. persons and agencies that can introduce amendments to the draft in the course of its preparation for the second reading. The list of those “subjects” included the members of both chambers of the Russian federal legislature, the regional legislatures, the President, the Government, and the Supreme Court, among others.
Over 3000 amendments were introduced and discussed before the draft was prepared for its second reading. The working group once again found itself operating in an atmosphere of hostility with frequent heated debates. Due to nature of its compromise, the draft adopted in the first reading was criticized from two sides: investigative agencies called it “too democratic,” something that “bound the hands and feet” of those agencies, while human rights activists felt the draft was still essentially a Soviet-style document granting excessive powers to investigative agencies.
The Presidential Administration asked the Committee to send the draft to the Council of Europe for its expertise, and the Council promised to help. Then, the State Legal Department insisted that the draft be introduced for consideration in its second reading only after receiving feedback from the Council of Europe. Hence, in the Fall of 1998, the draft was sent to the Council of Europe, and the subsequent expert opinion was received in early 1999. While certain amendments and remarks made by European experts were deemed irrelevant due to a poor understanding of the Russian legal system, the draft was approved in general, with a sufficient number of the Council’s proposals taken into consideration. In 1999, the draft was finally prepared for the second reading, but State Duma members didn’t have time to consider it for a vote before the elections at the end of 1999.
This is when Professor Elena Mizulina, a criminal procedures expert, took the lead on further revising the draft Code. Mizulina started by reducing the number of representatives from investigative agencies represented in the working group and invited a number of human rights activists affiliated with different NGOs to replace them.
After a short period of time, including a two-week brainstorming session at a resort near Moscow, the draft was considerably changed by Mizulina’s working group and brought closer to the initial 1993 draft by Yeltsin’s Administration. Thanks to Mizulina’s efforts, the draft was included in the so-called “presidential legislative package,” promptly accepted by both chambers of the Russian Parliament, and signed into law at the end of 2001 by then President Vladimir Putin.
Many articles of the new Code symbolized a victory for human rights and the rights of the accused. Almost all the key provisions of the new Code expanded the powers of courts and limited those of the prosecutors. The most important provisions included the following:
• Arrest, search, seizure in a residential area, imposing of pretrial detention as a measure of restraint, and extension of pretrial detention must all be court-sanctioned;
• The initial pretrial detention period was limited to 2 months: the extension of this period would now require a judicial decision and a motion from a regional prosecutor and would be available only in case of a felony;
• Supplementary investigations, which always gave prosecutors a possibility of several attempts at, and an unlimited amount of time to pursue a guilty verdict, were eliminated;
• Plea bargaining introduction: for the first time in Russian history, those indicted on minor crimes with a maximum sentence of five years got the chance to avoid trial and pretrial detention;
• The institution of bail was introduced into Russian jurisprudence;
• Inadmissibility of evidence: for the first time, Russian judges were vested with the power to refuse evidence obtained illegally. This extended to all evidence obtained during the course of an investigation, when the defense counsel was not present.
All these highly progressive norms, new for the Russian criminal procedure, were heavily influenced by both the European Convention of Human Rights and the European Court for Human Rights. The provisions that established the forty-eight hour period of detention without a court decision and the necessity of a court order for taking a suspect into custody are among the most important achievements of judicial reform in Russia.
Passing the new Criminal Procedural Code didn't mean its authors completed their task: the decision was made to assess the criminal procedural reform’s influence, and the working group headed by Mizulina received a United States Department of Justice grant for a two-year project entitled “Monitoring of the Criminal Procedural Code Implementation.” The working group traveled all over Russia and conducted seminars and conferences regionally, educating local personnel on certain provisions of the new Code and collecting feedback from the agencies implementing those provisions. Numerous materials collected by the working group allowed it to evaluate the implementation and to see the most pending problems requiring a prompt solution. Their results demonstrated:
• that the internal interests of law enforcement agencies prevailed over national interests in the creation of a fair justice system;
• the steady tendency to subordinate the reform of criminal procedure to departmental interests, thereby stripping from the law everything that worked towards national interests;
• and a trend towards the further strengthening of departmental discretion.
Numerous draft amendments made by the Ministry of Internal Affairs and the Prosecutor-General's Office aimed at making the work of law enforcement agencies easier and at bringing back old standards from the Soviet code.
Unfortunately, with Mizulina not being reelected to Parliament, the aforementioned trends began to prevail, only to pave the way for some new amendments to pass, ones which qualified as a serious step back from previously introduced democratic changes.
These alarming trends also appeared during the application of the new Code by the courts. A conflict became obvious as law enforcement officers stuck to their old ways tried to reject progressive changes. As a result, the essence of a number of the new Code’s democratic initiatives was distorted by biased and arbitrary application. This, in turn, gave birth to the so-called “Basmanny justice” phenomenon, which years later ultimately resulted in Khodorkovsky’s conviction and the expansion of court powers being used for evil instead of good.
A history of the Criminal Procedural Code’s 1993-2001 development illustrates that, sadly, even the best and most democratic initiatives can be dramatically distorted or reversed by misapplication. Institutional changes do not guarantee success of reforms without the necessary modification of the values, principles, and legal consciousness of law enforcement agencies and officers. In the end, political will and institutional support mean nothing unless the mentality of those implementing the reforms changes for good.
