One year on, the new Criminal Procedure Code shows results

By Marjorie FARQUHARSON (2003)

One year after Russia’s new Criminal Procedure Code came into force on 1 July 2002, the courts are acquitting up to 13 percent of the people they try, and the number of people being held in investigative detention has fallen by one-third, according to the Russian Supreme Court and the Justice Ministry, which have been reviewing the code’s impact. 

Until 2002, Soviet and, later, Russian courts bumped along with an acquittal rate of about 0.4 percent — far below the European average of around 10 percent. There are several reasons for the recent rise. First, the new code gives defendants the right to opt for a jury trial, and since January, 60 additional regions have joined the nine regions that have already been offering jury trials since 1993. One year from now, jury trials should be available in all but two of the federation’s 89 regions. 
Like jurors in other countries, Russians have tended to take a dim view of cases that are poorly prepared or that have a whiff of illegality, and they have often reacted by throwing them out. In an interview about the jury system with “Vremya novostei” on 2 July, Supreme Court Judge Aleksei Shurydin directed some especially harsh words at the Moscow City Prosecutor’s Office for the way it prepares cases. Juries began work in Moscow this month. 

Even in non-jury trials courts now acquit more defendants than ever before: around 2 percent of the cases they hear. One reason might be that prosecutors have been slow to grasp the new rules of the game. Since January, prosecutors have been obliged to attend all trials and to argue their cases on an adversarial basis with the defense. In his “Vremya novostei” interview, Shurydin said defense lawyers have so far been far better prepared than prosecutors and, consequently, have been far more persuasive in court. That gap, he said, is now closing. In this respect, prosecutors have clearly felt the impact of the new code. Under the old procedures, they were under no obligation even to turn up at hearings, and the prosecution’s case was often — literally — taken from the documentation as read.

Courts have acquired a new importance under the new code. Since July 2002, they must review the detention of all suspects within 48 hours of their arrest, and they are obligated to free them if they find no convincing grounds for keeping them in prison. The release figures published by the Justice Ministry for July-September 2002 speak volumes about police standards at that time. During the new code’s first three months, courts released 3,000 suspects — 1,000 more than for the whole of 2001. Since then, numbers have steadied off, leaving the Supreme Court to conclude that the police and prosecutors are using arrest warrants more carefully. Over the past year, arrests as a whole are down by 50 percent, according to the Justice Ministry, and on average courts have freed 10 percent of people detained within 48 hours.

Like Poland and Hungary, which brought in court supervision of arrests in the 1990s, Russia has seen a striking change in its penitentiaries as a result of the change. With fewer people entering the system, the problem of prison overcrowding has begun to improve, at least on paper. In March, the Justice Ministry reported that the number of prisoners has fallen by more than 10 percent, with a 32.7 percent decrease in the number of people being held in pretrial detention. This should mean more space for the prisoners remaining, and the ministry says that in some regions detainees now have their statutory allowance of four square meters per person. In other regions, this figure has averaged 3.5 square meters. Before the changes, detainees awaiting trial in big cities commonly had just 0.2 square meters of space to themselves.

The intervention of a judge within 48 hours of arrest was also intended to protect suspects from being compelled to “confess,” since any signs of physical ill-treatment would be immediately apparent to an outsider. This reform was urged on Russia by torture experts from the United Nations and the Council of Europe. In an interview with “Vedomosti” on 1 July, Supreme Court Chairman Vyacheslav Lebedev said that prosecutors have pressed charges less often, because “they are being more careful, and because suspects now appear before a judge.” In the first year of the new code, however, 68 people renounced testimony that they had given before their trial, according to the Supreme Court’s figures. Future statistics should track how many of them made claims of ill-treatment, how many of these claims were investigated, and how many officials were disciplined or prosecuted as a result. Whether the monitoring will venture into these contentious waters is not yet clear.

The new Criminal Procedure Code is a bold step toward reforming Russia’s justice system. It is the product of years of wrangling, which still continues. Agencies like the Federal Security Service (FSB), the Prosecutor-General’s Office, the Interior Ministry, and the Justice Ministry are unhappy with the new powers of the courts. In the week when the Supreme Court published its roundup of the year, FSB Deputy Director Viktor Kolmogorov complained to “Moskovskii komsomolets” that cases are collapsing in the courts, despite the defendants’ “objective guilt.” Kolmogorov put the phenomenon down to what he called the courts’ “bias toward acquittal.”

Some parts of the code are proving problematic even as they are being phased in. The political situation in Chechnya has made it impossible to find juries to hear cases in federal courts. The introduction of jury trialsthere and in Ingushetia has therefore had to be postponed, most recently until January 2007.

As long as the courts remain short of money, it is possible that the code could run like clockwork and people would still not to get fair trials. Supreme Court Chairman Lebedev made this point in his roundup of the year. Many regional governments still pay for judges’ housing and give them bonuses, which puts their independence seriously in doubt. In the future, the Supreme Court would like to see all payments to judges channeled through the federal budget, and regional grants restricted to the construction of courts. Some might question whether even this would go far enough. The introduction of juries in Moscow this month will be a litmus test for the new code, according to Svetlana Gannushkina of the Civic Assistance network, in a comment published in “Vremya novostei.” Gannushkina works on behalf of the many Chechen civilians who were rounded up from their homes and detained — reportedly on instructions from Moscow Mayor Yurii Luzhkov– after the October 2002 Moscow theatre hostage crisis. 

Marjorie Farquharson writes on human rights issues.
“Newsline”, 31 July 2003, Radio Free Europe / Radio Liberty