20 years under Putin: a timeline

Russia’s criminal process is about to be revamped once again. A new bill submitted to the Duma would incorporate the principle of “objective truth” into the criminal procedure and to eliminate the adversarial system. IMR Advisor Ekaterina Mishina, a prominent legal scholar, contends that this means, for all intents and purposes, the abolition of the presumption of innocence in Russia.

 

Russia's Investigative Committee Chairman Alexander Bastrykin is considered to be the chief advocate for the principle of “objective truth” in judicial proceedings.

 

Bill #440058-6, introduced to the State Duma on January 29, 2014, is one of the most honest documents of recent times. Everything in it is honest, open, and unveiled; nobody is pretending to be an innocent lamb or to hold in high esteem the basic democratic principles or guarantees of respect for human rights and freedoms. The text of the bill and its corresponding documents state honestly and unequivocally what Deputy Remezkov, who initiated the bill, and the other people standing behind him (whose names were not brought into the open because of their natural modesty) really want.

The authors of the bill propose to add a new principle to the criminal procedure, the purpose of which will be to establish the objective truth in a criminal case. “The objective truth” is defined as the “correspondence to reality of actual circumstances of a criminal case important for its settlement.” Furthermore, according to the explanatory note that accompanied the bill, the “establishment of the objective truth is defined as a general principle of the criminal procedure, implemented at all stages of criminal proceedings.” After stating that “the aim of the criminal procedure at establishing the objective truth is a necessary condition for a correct settlement of a criminal case and a fair administration of justice,” the author of the document notes with regret that the current Criminal Procedure Code is flawed, since it does not include the mandatory instruction to take whatever measures are necessary to establish the objective truth.

One of the fundamental principles of the democratic criminal procedure—the adversarial system—which is established by Article 15 of the Criminal Procedure Code of the Russian Federation, is described as extremely detrimental and inhibitive to the establishment of the objective truth. It appears that the adversarial principle is not only harmful but also unacceptable to the true Russian, since it leans toward the Anglo-American doctrine of the so-called pure adversarial system, foreign to the traditional Russian criminal process. Under this system, the court plays the role of a passive observer of the procedural adversary engagement of parties, and it should not take an active part in collecting evidence, because this can allegedly deprive it of impartiality and neutrality in the dispute by inadvertently placing it on the side of either defense or prosecution. The court’s main purpose is narrowed down to creating conditions so that the parties can exercise their rights and legal interests, as well as to evaluating the positions that the parties bring before the court.

We, of course, have no use for such an inert and spineless court that condones citizens’ exercise of their rights and freedoms. It is particularly delightful to realize the high ideal to which the authors of the bill propose we look up: “The demand to take all measures to establish the truth was traditionally included in the Russian law on criminal procedure—the 1864 Charter on Criminal Procedure, the 1922 Criminal Procedure Code of the RSFSR and the 1960 Criminal Procedure Code of the RSFSR in particular. Such an approach ensures citizens’ constitutional rights and guarantees the equity of justice to the fullest extent.” Truer words were never spoken. The 1864 Charter on Criminal Procedure (with all due respect to the reforms of Alexander II) beautifully provided constitutional rights and freedoms to subjects of the Russian Empire, which was then an absolute monarchy and did not have a constitution. And, of course, it would be a sin to doubt that respect for the rights and freedoms of Soviet citizens, provided by the 1922 Criminal Procedure Code of the RSFSR, was a strongly pronounced characteristic of the Soviet state, since the exercise of criminal justice was in the safe hands of the courts and the revolutionary tribunals, which followed the clear instruction to apply to all cases the “decrees of the Workers’ and peasants’ government, and in case of lacunae or lacking legislation, use their socialist legal consciousness” (Article 22 of the November 30, 1918, Statute on the People’s Court of the RSFSR.) Article 61 of the 1922 Criminal Procedure Code of the RSFSR established that “the court is not restrained by any formal proof and it is for the court to admit evidence, as the case demands, or to demand it from third parties, for whom such a demand is mandatory.”

The situation regarding the protection of citizens’ rights, freedoms, and interests was equally positive: according to the November 22, 1917, Decree of Court No. 1, “any unblemished individuals of both sexes having civil rights can act as prosecutors and advocates, including at the stage of the preliminary investigation, and attorneys in civil cases.” The Instruction for the Revolutionary Tribunal entitled “On the revolutionary tribunal, its composition, cases that come into its responsibility, punishments that it imposes and the procedure of its meetings,” adopted one month later, defined the responsibilities of the newly created “board of lawyers” as follows: “Under the revolutionary tribunal, a board of individuals is founded committing themselves to the profession of lawyer both as public prosecutors and public defenders.” This board was created “through enlisting all individuals willing to help the [furthering of] revolutionary justice and having presented the recommendations of the Soviets of Workers’, Soldiers’ and Peasants’ Deputies.” “Citizens of both sexes having political rights” could be admitted to the board, “according to the choice of the parties, as prosecutors and defenders having the right to participate in the case” (Provision 7). Citizens wishing to participate in the exercise of “revolutionary justice” had to meet two formal requirements: they had to be loyal to the new regime, and they could not have noble or wealthy kin (only such people had political rights in the first post-revolutionary months). Such were the courts and the “advocates” that “ensured citizens’ constitutional rights and guaranteed the equity of justice to the fullest extent.” It is this legislation that has triggered such nostalgia in the authors of the bill being discussed today. Are these not the noble ideals we should be looking up to?

The fact that one of the key judicial principles and the main guarantee of the protection of human rights is referred to as a “legal fiction” does not leave any doubts as to what fate the drafters of this bill are preparing for the principle of presumption of innocence.

I will endeavor to recall that the protection of citizens’ constitutional rights and liberties at that time was made particularly effective by the key principles of the 1922 Criminal Code of the RSFSR: the principle of retroactivity (Article 23: “The Criminal Code is applied to all actions that have not been examined by the courts prior to its entering into force”) and the principle of analogy (Article 10: “In case of the absence in the Criminal Code of direct references to specific forms of crime, punishment and measures of social protection are applied in accordance with the articles of the Criminal Code that provide for the most similar crimes in terms of gravity and type, in compliance with the general part of the present Code”). It was during that time that the key Marxist-Leninist formula of the priority of state interests over the interests of an individual was enshrined in legislation and became a fundamental principle of Soviet criminal law. This can even be seen in the format of the Special Part of the 1922 Criminal Code of the RSFSR, where the numbering of the chapters corresponds with the hierarchy of crimes in terms of their danger for society, ranging from the gravest crimes to the least grave. The first chapter of the 1922 Criminal Code of the RSFSR—the most extensive and detailed chapter—contained the list of state crimes that were considered the most dangerous from the point of view of Soviet lawmakers. Crimes against a person’s life, health, freedom, and dignity were covered only in Chapter 5—after state crimes, crimes in public office, secularization regulations, and economic crimes. According to Soviet legislators, crimes against a person were considerably less dangerous than actions such as “wasteful use by an entity or state plant manager of the workforce that has been provided to the entity of plant as labor duty” (Article 127); “distribution by an entity or plant manager of food products and consumer goods for purposes other than intended” (Article 131); and “production, with the aim of dissemination, of wines, vodkas and alcoholic drinks in general and alcohol-containing substances without due permission or in excess of the legally established strength, as well as unlawful storage, with the aim of dissemination, of the said drinks or substances” (Article 140).

The 1960 Criminal Procedure Code of the RSFSR, also mentioned in the explanatory note of Bill #440058-6 as one of the three exemplary legislative acts, and the 1960 Criminal Code of the RSFSR, which is inextricably linked to it, are of course not as odious as the aforementioned 1922 codes. The provisions of the 1960 Criminal Code and Criminal Procedure Code of the RSFSR reflect a number of positive changes (for example, the abolition of the retroactive principle), but they represented nothing more than progress from horrible to very bad. A number of specific Soviet principles provided by the 1922 codes were preserved, including the principle of the priority of state interests over a person’s interests.

As becomes clear from the recent bill’s explanatory note, the presumption of innocence guaranteed by Article 49 of the Russian Constitution, Article 14 of the Russian Criminal Procedure Code, Article 11 of the Universal Declaration of Human Rights, Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 14 of the International Covenant on Civil and Political Rights strongly impedes the establishment of the objective truth: “The legal fiction of the presumption of innocence, which envisages interpreting any unresolved doubts in favor of the accused, may be applied only in those cases when establishing the objective truth is impossible, and only after exhaustive measures have been taken to establish it” (Article 3). The fact that one of the key judicial principles and the main guarantee of the protection of human rights is referred to as a “legal fiction” does not leave any doubts as to what fate the drafters of this bill are eventually preparing for the principle of presumption of innocence. The fact that the Russian Constitution, the Criminal Procedure Code, and other legislative acts guarantee the presumption of innocence does not suit the authors of this bill. Nor does the current criminal procedure, which “does not provide for the return of the criminal case to the prosecutor in case there is a necessity to eliminate the deficiency of the preliminary investigation that cannot be eliminated during court proceedings, or if there are sufficient grounds for changing the accusations in a way that would worsen the situation of the accused. This hinders a thorough, objective and comprehensive trial and the passing of a fair sentence” (Article 4).

The blatant wish of the bill’s authors to steamroll through the reform of the criminal trial causes gloomy speculations about what their conception of the objective truth can be without the presumption of innocence and other procedural guarantees of individual rights. In ancient Russia, the testimony of someone who refused to work with the prosecution and was subject to torture by beating with long sticks or whips (“podlinniks”) was called “honest truth” (“podlinnaya pravda”). Does this not strike you as something similar?

Russia under Putin

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