LAWS, LEGAL PROCEDURES AND THE CRIMINAL JUSTICE SYSTEM IN RUSSIA

HOW CRIMINAL JUSTICE SYSTEM WORK IN RUSSIA

According to Russian criminal procedure, officers of the Ministry of Internal Affairs (Ministerstvo vnutrennikh del--MVD), the Federal Security Service (FSB), or the Procuracy can arrest an individual on suspicion of having committed a crime. Ordinary crimes, including murder, come under the jurisdiction of the MVD; the FSB and the Procuracy are authorized to deal with crimes such as terrorism, treason, smuggling, and large-scale economic malfeasance. The accused has the right to obtain an attorney immediately after the arrest, and, in most cases, the accused must be charged officially within seventy-two hours of the arrest. In some circumstances, the period of confinement without charge can be extended. Once the case is investigated, it is assigned to a court for trial. Trials are public, with the exception of proceedings involving government secrets. [Source: Library of Congress, July 1996 *]

In August 1995, the State Duma passed a law giving judges and jurors protection against illegal influence on the process of trying a case. To the extent that it actually is practiced, the new law is a significant barrier to the Soviet-era practice of judges consulting with political officials before rendering verdicts. The protection of jurors became a concern in 1995 as jury trials, outlawed since 1918, returned on an experimental basis in nine subnational jurisdictions. Between January and September 1995, some 300 jury trials were held in those areas. Although another sixteen jurisdictions applied to begin holding jury trials, in mid-1996 the State Duma had not passed enabling legislation. *

In 1996 the court system convicted some 99.5 percent of criminal defendants, although only 80 percent were convicted in jury trials--about the same percentage as in Western courts. Expansion of the jury system faced strong opposition among Russia's police and prosecutors because the conviction rate is much lower and investigative procedures are held to much higher standards under such a system. Meanwhile, the advent of trial by jury and a nominally independent judiciary exposed a serious problem: in 1995 there were only about 20,000 private attorneys and about 28,000 public prosecutors in all of Russia, and most judges who had functioned under the old system had never developed genuine juridical skills. By the mid-1990s, a number of younger judges were actively promoting the jury system. *

In the mid-1990s, claims of illegal detention received somewhat more recognition in the Russian legal system than they had previously. An estimated 13,000 individuals won their release by court order in 1994--about 20 percent of the total number who claimed illegal detention that year. In general, the criminal justice system is more protective of individual rights than it was in the Soviet period, although the Mirzayanov case demonstrated that substantial obstacles to Western-style jurisprudence remain in Russia's legal system. *

Convictions and Prosecutions in Russia

The Soviet-Russian justice system has traditionally been dominated by judges and prosecutors, who worked closely together with the primary aim of convicting suspects. The judges rarely overruled let alone challenged the prosecutors. In some courts, the judge also acted as the prosecutor. [Source: Washington Post]

In the early 2000s, the conviction rates of defendants was 99.2 percent. In the 1990s it was 99.6 percent. Indictments are often the equivalent of convictions and rarely overturned by judges. Less than two percent of those charged are released on bail. Many are convicted on evidence that would be thrown out in a Western court. Even after the legal reforms were initiated in the late 1990s and early 2000s, the situation remained the same. In the first nine months of 2004, according to the Washington Post, two Moscow courts heard 4,428 cases and did not issue an acquittal in any of them.

The whole system is skewed to favor the prosecution. There is an unwritten non-acquittal policy among judges. The performance of police and investigators as well as prosecutor is almost totally based on the number of convictions they secure. In the rare case a suspect is not convicted because of a lack of evidence a new trial is sometimes declared and the suspect who has already been detained for two year can be detained for longer.

Indictments and evidence are often kept secret and hearings and trials are closed to the public. A lack of scrutiny means that abuses on the part of the prosecution are hidden. One defense lawyer told the New York Times, the prosecutor’s office “knows its hands are untied and feels it can do whatever it wants.” Politicians have immunity from prosecution.

Trials and Courthouses in Russia

During trials, defendants sit on a hard bench in cages. Sometimes they are handcuffed. The cage sometimes occupies a quarter of the court room and has bars that extend from the floor to the ceiling. Court cases are often drawn out and defendants have already spent years in prison by the time their case has been decided.

Cases are decided by three judges in black robes or a judge and two citizens, usually pensioners, called nodders because their opinions always agree with that of the judges. The judges often acts in both authoritarian and arbitrary manners. It is not unusual for judges to deny lawyers their right to call witnesses and introduce evidence.

Describing a Moscow courthouse, Sophia Kishkovsky wrote in the New York Times: “The crumbling yellow-brick building...is not what one might suspect of the main courthouse of Russia’s most important region. Chipped tile and peeling linoleum line the hallways. The smell of meat and potatoes cooking in the shabby cafeteria wafts up to the courtrooms.”

Under the Soviet-style system, prosecutors have enormous power. They wear blue military-style uniforms and are required to make their cases in two years or less. Court cases often feature little cross examination or grand rhetorical statements; rather they involve the reading of documents in a stale monotone for hours on end. Defense lawyers if they are present often do little but sit there. Judges can scuttle their requests to cross examine prosecution witnesses or call their own witnesses. Defense lawyer rarely appeal any conviction and if they do their chances of success are slim.

Procuracy (Prosecution) in the Russian Justice System

In the Soviet criminal justice system, the Procuracy was the most powerful institution dealing with nonpolitical crimes. Since 1991 the agency has retained its dual responsibility for the administration of judicial oversight and for criminal investigations--which means, essentially, that prosecution of crimes and findings of guilt or innocence are overseen by the same office. As it was under the Soviet system, the Procuracy in the 1990s is a unified, centralized agency with branches in all subnational jurisdictions, including cities. The chief of the agency is the procurator general, who is appointed by the president with the approval of the State Duma. (Under the Soviet system, the Supreme Soviet appointed the procurator general.) [Source: Library of Congress, July 1996 *]

Proposed reforms of the notoriously corrupt and inefficient Procuracy had not yet been enacted by the Russian government as of mid-1996, so the agency continued to function in much the same way as it did in the Soviet period. Experts did not believe that a new law on the Procuracy, proposed in 1995 and 1996, would establish a reliable oversight system over security-agency and regular police operations. In the meantime, procurators continued to arrest citizens without constitutionally mandated arrest warrants, and the general surveillance departments of the Procuracy continued to spy on law-abiding groups and individuals. *

In 1995 about 28,000 procurators were active at some level in the Russian Federation. Appointed to five-year terms, procurators must have a postgraduate education in jurisprudence. The Procuracy employs a large number of investigators who carry out preliminary investigations in what are called specific areas of competence. Special investigators are designated for cases identified as "essentially important" by state authorities. The Procuracy also has several institutions for research and education attached to it. *

Criminal Law Reform in the 1990s

In the mid-1990s, several efforts were made to pass a Criminal Code of the Russian Federation to replace the inadequate and antiquated Criminal Code of the RSFSR, which was passed in the 1960s and had remained the fundamental law of the land, with numerous amendments, since that time. In December 1995, Yeltsin, heeding MVD objections to certain articles, vetoed a code that had been developed by his own State Law Directorate and passed by parliament. No amended code was expected until after the presidential election of July 1996. Meanwhile, Russia lacked laws on organized crime and corruption under which mafiya and economic crimes could be prosecuted.[Source: Library of Congress, July 1996 *]

The 1995 draft Criminal Code included an article specifically prohibiting "conspiracy with the aim of seizing power and forcibly changing the constitutional form of government," an activity subject to a sentence of up to life imprisonment. The new law opened the concept of conspiracy to broad interpretation by state authorities, varying from a meeting held by the leadership of an opposition party to a simple telephone conversation between two citizens. *

The draft code also broadened the law on violations of civil rights on the basis of nationality or race, which carries a maximum sentence of five years. As in the case of conspiracy and political statutes, the ambiguity of the nationality and race law opened the door for serious abuses of individual rights. Prosecutors and judges were granted wide latitude in deciding what constitute "acts directed at incitement of social, national, racial, or religious hostility or discord." Such a charge could be leveled easily in a society with a huge variety of ethnic and religious groups, particularly groups with existing claims of autonomy or traditions of hostility toward one another. *

Many legal experts considered the new draft Criminal Code, which is a synthesis of presidential and State Duma proposals, to be a significant improvement over the old code. But, unlike Western states, Russia does not have a tradition of respect for legal rights or a well-established, balanced system of justice to interpret and administer the laws. Many of the laws adopted in the early 1990s concern crimes whose investigation is delegated to the security police, which have a history of human rights abuses and were not placed under effective oversight by the reforms of the early 1990s. Thus, in the atmosphere of relative political pluralism and freedom of expression in the first years of the Yeltsin administration, security agents still sometimes take advantage of the law to employ KGB-style tactics. *

Despite a lack of sympathy for personal liberty, in the early 1990s the Yeltsin administration made some reforms in the legal system to protect the rights of the individual. In June 1992, the Code of Criminal Procedure was amended to give a detainee the right to legal counsel immediately, rather than, as in the past, only after initial questioning. A detainee's right to demand a judicial review of the legality and grounds for detention also was recognized. In practice, however, these changes often have been offset by other laws intended to protect the state at the expense of the individual. The clearest example is Yeltsin's sweeping anticrime decree of 1992, but other instances have followed. In March 1995, Yeltsin issued a decree against fascist organizations and practices, which gave the security police broad new authority to arrest and investigate suspects. Under the 1995 draft Criminal Code, a person under arrest could not appeal to the courts to protest his or her confinement, but only to the procurator. The president also could appoint a special prosecutor to bring "highly placed individuals" to justice, thus undermining the principle of independent judges. The new code also extended the maximum period of internment of suspects without formal charges from three to seven days, although the counsel for the defense could not become acquainted with the materials of the criminal case until after the preliminary investigation had been completed. *

Judges and Lawyers in Russia

In the mid-1990s, a total of about 14,000 judges were active in approximately 2,500 courts at all judicial levels. To be eligible for appointment as a judge, an individual must be at least twenty-five years of age, have a higher education in law, and have at least five years of experience in the legal profession. [Source: Library of Congress, July 1996 *]

In 1992 a new Law on the Status of Judges was passed. The law was intended to confer greater status on the judicial profession by raising salaries and benefits. The 1993 constitution provides for some degree of judicial reform by establishing an independent judiciary and specifying that justices may only be removed or their powers curtailed or terminated in accordance with the law. Sitting justices also enjoy immunity from prosecution. *

Many judges are women. Some are ignorant and old and have spent much of their working careers in the Soviet system or a Soviet-like system. As of 2002. there were 18,000 judges. Judges themselves said there should be 50,000 of them get the job done.

The Supreme Qualification Collegium makes decisions on appointing, supervising, disciplining and dismissing federal judges. It consists of 29 members, including 18 elected by a congress of judges, ten representatives of the general public and one representative of the President.

Judges that make politically unpopular rulings risk being called before the Qualification Collegium and forced from their jobs on charges like “neglecting the interests of justice” and “belittling the reputation of judicial power.” According to Washington Post this happened with a judge who gave a Tajik youth a suspended sentence on charges of hooliganism for throwing a bottle rather than sending him to prison.

One of the biggest problems with Russian justice system is a shortage of lawyers. Lawyers in Moscow who earned about $100 a month in 1998 were making $800 a month in 2001. During trials they have to supply their own paper if they want copies of motions or opinions. A yurist, a kind of junior lawyer, in St. Petersburg made about $300 a month in 2001.

Jury Trials in Russia

According to a provision approved in 1994, trial by jury may take place in specific types of cases, including those involving the death penalty. This reform supersedes in part the older system of trial by judges and lay "people's assessors" who usually acceded to the judges' verdicts. In practice, trial by jury has made little headway in the hidebound court system. In 1995 jury trials were only available in nine of the eighty-nine subnational jurisdictions, although other jurisdictions sought permission to introduce them. [Source: Library of Congress, July 1996 *]

In 1993 jury trials were reintroduced in Russia in nine of Russia’s 89 regions after new constitution was adopted. They are now technically required throughout Russia for all serious crimes such as murder, treason. and violent rape. Jury trials existed in tsarist times after 1864 but were dropped after the Bolshevik Revolution in 1917 on Lenin’s orders. It was hoped that the widespread use of jury trials would improve the justice system as a whole by making the court process more adversarial and requiring higher standards of proof.

Describing the trial of a murder suspect in Moscow, Richard Balmforth of Reuters wrote, "Alexi, speaking from inside a padlocked metal cage, mumbled his version of what happened on that February day four years ago. The 12 jury members and two backups listened stolidly. The smartly dressed state prosecutor carried out her cross-examination without getting out of her chair. The defense counsel, only just appointed, made no opening statement...It was largely up to the matronly Alexandrovna [the judge] to again take a grip in proceedings, grilling Alexi on his evidence."

Jury trials still have a long way to go to being fair in the Western sense. Judges can manipulate the proceedings by deciding in an arbitrary fashion what can be admitted as evidence and what can not be. As of 2005, jury trials were held for about 8 percent of all criminal cases. The acquittal rate at jury trials was 15 percent, much higher than the one percent under the traditional prosecutory system. Many of the jury decisions however were appealed and overturned by the Supreme Court, who sometimes ordered a retrial with a different jury.

Laws in Russia

Criminal Code of the RSFSR (Russian Soviet Federative Socialist Republic) which was passed in the Soviet era in the 1960s, has remained the fundamental law of the land. After the break up of the Soviet Union, a new constitution and new civil, family and criminal codes were written up but much of the work was left uncompleted. A new land code was blocked by Communists in parliament. The rules for trials and criminal procedures date back to 1964 in the Communist era.

Already harsh laws were made harsher in the early 1990s as a way of dealing with the rising crime rate. In 1997, after four years of hard work, the second part of a new civil code was finished. Some people called the 352-page volume the most important document of the new Russia, even more important than the 1993 constitution. A Constitutional Court was created but no mechanism to enforce their decisions was established. A civil court for resolving disputes was established but then abolished

Russia has severe penalties from drug possession that date back to the Soviet era. Individuals can end up with long prison sentences for possession of small amounts heroin. Possession of as little as on five thousandth of a gram can earn someone three years in prison. Possession with intent to sell (many addicts sell small amounts of drugs to support their habits) can receive 10 years. The harsh laws and the increase in drug use has filled the prisons with lots of drug addicts. There is an effort to reform the drug laws. Some groups even have suggested decriminalizing possession of small amounts of drugs.

Property Laws in Russia

In 2001, legislation was passed that gave citizens the right to own, buy and sell land. The legislation covered the trade of about 2 percent of Russia's total land area. Before then, the constitution stated that private property was a right but in practice no one was allowed to own land. People could own building apartments and dachas but they had no clear titles to the land on which they stood.

Land ownership is a mess. Russia still retains entrenched view towards communal property. The ownership of buildings and land of privatized companies and collectives is still in dispute. Companies are unable to attain mortgages and put up their property as collateral for loans. The government still owns land in Moscow. Land rights and building permits are issued on the basis of long term leases, usually around 45 years.

Investors claimed they needed the protection of property right—from state officials and business rivals—before they would fork over their money. In 1991, it was assumed that once property was taken out of the hands of the state that new property owners would demand laws to protect their possessions and rights. But that never really happened. Much of the property ended up the hands of people who often used underhanded methods to obtain it and were capable of employing hardball tactics to hold on to it. They were not interested in new laws.

Lack of Business and Copyright Laws in Russia

Russia still lacks modern patent and copyright laws. Such laws didn't exist in the Soviet era and efforts to make new laws have been stalled in Parliament. Disputes are common over trademarks and inventions that have not been properly copyrighted or patented. In 2000, a company called applied for and won a patent for "glass containers" and then set about trying to extracted a royalty of 0.5 percent of gross revenues from a company that sold beer, soft drinks, vodka and anything else sold in bottles. Companies have also taken patents on things like nails and railroad tracks.

Some contracts are not enforceable in Russia. To get ahead and get an edge over rivals, the oligarchs (Russian tycoons) used aggressive takeover tactics, manipulated regional legislatures and judges and taken advantage of the lack of laws and the ease in which one can skirt the ones that existed. Often they behaved more like gangsters than business, using the muscle to take advantage of the weak, than businessmen trying to come up with a deal that appeals to all parties involved. The oligarch Mikhail Khodorvosky said, “At the time Russian law allowed us to do things that were unthinkable in the Western business world.”

Their influence is particularly strong among poorly-paid bureaucrats and judges in Russia’s provinces. One liberal politician told the New York Times, “There is much manipulation in the courts and law enforcement. It’s a kind of corporate, partly criminal system—a legal marriage between business and power.”

Khodorkovsky used a number of underhanded business practices. At stockholder’s meetings he locked minority shareholders out and diluted their stakes by issuing more share. Foreign investors were muscled out with physical intimidation and dirty tricks. Once he secretly changed the location of shareholders meeting so no one would be present to object about the dilution of their stocks.

Russian Secrecy Laws

The passage of a new secrecy law in 1993 indicated that the Yeltsin government was not prepared to abjure the protection of state secrets as a rationale for controlling the activities of Russian citizens. The secrecy law of 1993, harshly criticized by human rights activists, set forth in detail the procedure for labeling and protecting information whose dispersal would constitute a danger to the state. The concept of secrecy was given a broad interpretation. The law prescribed secret classifications for information on foreign policy, economics, national defense, intelligence, and counterintelligence. However, a more specific description of the classification process, including which specific types of information were to be classified as secret and which agencies and departments were authorized to classify information, was to be made public at a later date. [Source: Library of Congress, July 1996 *]

In general, the security police under Yeltsin do not use secrecy laws to prosecute individuals, but there have been exceptions. In October 1992, officers from the Ministry of Security arrested two chemical scientists, Vil' Mirzayanov and Lev Fedorov, for having written an article on current Russian chemical weapons research in a widely circulated daily newspaper. The article's revelation was embarrassing to the Yeltsin government because Russia had claimed it was no longer conducting such research. Although Mirzayanov was brought to trial in early 1994, public and international protest caused the Yeltsin government to release him two months later. In a landmark decision, the procurator's office awarded Mirzayanov about US$15,500 in damages for having been illegally detained.

Image Sources:

Text Sources: New York Times, Washington Post, Los Angeles Times, Times of London, Lonely Planet Guides, Library of Congress, U.S. government, Compton’s Encyclopedia, The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Newsweek, Reuters, AP, AFP, Wall Street Journal, The Atlantic Monthly, The Economist, Foreign Policy, Wikipedia, BBC, CNN, and various books, websites and other publications.

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© 2008 Jeffrey Hays

Last updated May 2016

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