There have been no major changes for the better in the Russian judicial system since the summer of 2008. This is clear from an analysis both of the way the courts operate and of trends in Russia's legislative policies. The country's new president, Dmitry Medvedev, came to office declaring the need to tackle corruption and "legal nihilism" in the Russian Federation's judiciary and system of law enforcement. He set up a working group to influence the situation but its personal composition raised doubts from the beginning since not one of its members had hitherto demonstrated the qualities of a reformer.
Neither did the group show itself in a good light in December 2008 when a new law, severely restricting the scope for trial by jury, was adopted. Henceforth any crimes investigated, in accordance with the Criminal Procedural Code, by the Federal Security Service (FSB) would no longer come before a jury. The offences affected, among others, are terrorism, treason, espionage and mass disturbances, i.e. crimes for which the Criminal Code envisages the most severe punishment, up to and including the death penalty. The volume of cases examined before juries in Russia - fewer than six hundred a year - is already unjustifiably low, it should be added. Yet trial by jury has proved significantly more objective. The principles of adversarial debate and justice are more fully respected in such trials while the quality of evidence is subjected to higher demands than before other courts.
The declared intention to reform the judicial system had no decisive influence in improving the defence of the rights and liberties of the individual. Neither did the standards of the European Court of Human Rights have a real impact on the practice of law enforcement in Russia, either in criminal or civil court hearings.
The negative trends in courts of general jurisdiction continued. As before the judges sided with the prosecution and the tendency to convict prevailed. Statistics from the judicial department of the Russian Federation's Supreme Court are unequivocal. Judges remain ill-disposed towards acquitting accused individuals, a trend that is both preserved and encouraged. Over a period of nine months in 2008, cases involving 863,862 individuals came before the courts. There were convictions for 697,525 of these individuals (about 80%), acquittals for 7,203 (about 0.8%). in the cases that came before courts of general jurisdiction the proportion of acquittals was even lower, 2,530 or 0.3%. When the cases concerning the remaining 4,762 individuals reached the Supreme Court on appeal a conviction was quashed for 244 individuals, or 5% of all examined verdicts at that level. The Court re-examined the not guilty verdict for 324 other individuals and of these 87 verdicts (27%) were overturned.
This trend could also be seen in the measure of restraint imposed by courts. Detention in custody was frequently chosen and prolonged. This is an infringement of Article 5 of the European Convention which refers to the "Right to Liberty and Security". Over a period of six months in 2008 district courts heard 1,184,000 petitions from law enforcement agencies to use detention in custody as a measure of restraint; on 1,067,000 occasions they gave their approval. This was an increase of 0.8% over the preceding period. In 98% of cases applications for detention, or for its prolongation, were approved by district courts.
This ignored demands that courts be more specific about the grounds for using detention as a measure of restraint or for its prolongation. The European Court has repeatedly raised the matter: Klyakhin vs. Russia, 2004; Smirnova vs. Russia, 2003; Khudobin vs. Russia, and others. Contrary to the instructions of the European Court detention is frequently chosen in Russia without any evidence that could justify the isolation of the individual from society. In the case of O.V. Smirnova in 2003, for instance, the court did not offer a single specific circumstance in its decree that could justify extending her detention in custody. Yet higher courts within Russia did not overturn the district court's decision concerning Ms Smirnova. There are many such examples.
Courts also continued to ignore the demands, of the Strasbourg Court among others, that the grounds for detention be argued anew when that period of custody is extended. The European Court of Human Rights has stated that it is insufficient, when prolonging detention in custody, to refer merely to the initial grounds for imposing that measure of restraint (W. vs. Switzerland, 33.35; Clooth, 43; and Khudobin vs. Russia). For the most part Russian courts ignore these principles as laid down by the European Court. In the case of Sokolova, for instance, the court argued that the initial grounds for imposing detention in custody "had neither changed nor lost their force at this present".
A variety of other violations have been observed relating to Article 6 of the European Convention, which guarantees the "Right to a Fair Trial". In particular, this concerns the demand that judicial hearings be held in public. Paragraph 1 of Article 6 specifies the right of each accused individual to "a fair and public hearing". Recently, however, there has been a tendency in the Russian judicial system to declare that a judicial hearing is closed to public and press for fear of infringing the confidentiality of the preliminary investigation, or for other invented reasons. In the case of S., for instance, the court's decision stated that if the hearings were held in public the confidentiality of the investigation would be infringed.
Yet Article 161 of the Criminal Procedural Code ("Confidentiality of the Data of the Preliminary Investigation") does not apply to the judicial hearing! Only until the preliminary investigation into a case has been completed is confidentiality of the data of investigation protected by law. Any other interpretation of these principles of the RF Criminal Procedural Code would mean that each hearing of every criminal case would have to be held in camera.
As before certain negative attitudes and forms of behaviour have been observed in this period. Judges were often hostile to such an important principle of procedural law as the standards of acceptability of evidence. There was an extension of the practice of bringing non-specific charges, thereby flagrantly violating the accused's right to a defence by denying him or her the right to know of what he or she was accused.
Frequently, confessions obtained through torture were used in court as the principal evidence of guilt. Medical verification of claims of torture were not always carried out, or else were implemented by medical staff dependent for their employment on the penitentiary facilities. The Supreme Court has forbidden jurors to be informed about the use of torture or to contest the authenticity of evidence. The daily records of court hearings are made by secretaries and then edited by the judges. There have been instances when these records were distorted in order to support a verdict of guilty.
Defence attorneys do not have the right to conduct parallel investigations and can only petition the investigators and, later, the court for certain investigative procedures to be carried out. Often these petitions are ignored. The right to defence thus loses its meaning and the right to a fair trial is violated.
The right to become acquainted with the case materials is sometimes restricted and the rights of the accused are infringed during the conduct of expert tests and reconstructions. The rights of defence attorneys are themselves at times violated. We know of cases when the offices of defence lawyers were officially searched and materials confiscated from the files of the lawyers without the permission of a judge. It is disturbing that many rulings, decisions and verdicts issued by courts are not provided with any motivated justification; that there is a refusal to examine the substantive arguments of the parties; and that arguments underlying complaints against court verdicts are given a formal and superficial examination when they come before courts at the appeal and supervisory level.
Guidelines issued by the Supreme Court in late 2008 and in 2009 contain points that reduce the rights of the individual, as protected by the European Convention. This particularly concerns decree 28 (23 December 2008) of the Supreme Court plenum, "On the application by courts of the norms of the RF Criminal Procedural Code", which governs proceedings in the court of second instance. This decree states that appeal courts have the right to annul the verdict reached by a magistrates' court and return the case to the prosecutor's office, in effect so that the latter can supply missing evidence for the prosecution. Such a right is also granted to the appeal court. In both instances this infringes the principle that the prosecution and judging of a case should be separate functions.
On 10 February 2009 the plenum of the Supreme Court issued decree 1 "On the procedure for examining complaints in accordance with Article 125 of the Criminal Procedural Code". There and in decree 26 (9 December 2008) of the plenum "Concerning an addition to decree 1 (5 March 2004) of the Supreme Court plenum ‘On the application by courts of the norms of the RF Criminal Procedural Code'" it is stated that investigative agencies can officially request information about the mental health of a citizen without permission of the court. Yet such information concerning mental illness, visits to psychiatric clinics or treatment in such institutions, is a matter of medical confidentiality. Evidently, the recommendation contained in the above addendum significantly weakens the guarantees of the "Right to Respect for Private and Family Life", thereby violating Article 8 of the European Convention.
At the same time, we should mention certain positive shifts in the practices of the Supreme Court. In the past guidelines issued by the Supreme Court permitted the detention in custody of the accused above and beyond the period established by law without seeking the permission of the court, i.e. without a judicial ruling as to the legal grounds for keeping that person in pre-trial detention. This was applied to various circumstances: while the criminal case was being prepared in the court of the first instance for transfer to the court of the second instance; while the appeal court was hearing a case; and if the verdict was quashed and the case returned for re-examination to the court of the first instance.
Point 28 of the afore-mentioned 23 December 2008 decree of the Supreme Court plenum has revoked that practice. The decree now states that "when taking a decision about the extension of detention in custody as the measure of restraint the appeal court must indicate in its resolution a specific and reasonable duration for the operation of that said measure of restraint ..."
There are also innovations in how a hearing before the appeal court is recorded. Although the Criminal Procedural Code does not demand it, since the end of 2008 and the beginning of 2009 the Supreme Court's judicial board for criminal cases has begun to keep a record during examination of cases on appeal. This practice has not yet become established in the appeal courts of Russia's many Regions.
A most encouraging decision was the Supreme Court's ruling that Judge Guseva from Volgograd had been unlawfully dismissed from her post. Guseva refused to make a daily report to the chairman of the panel of judges on cases under her supervision. Similar demands by the chairmen and chairwomen of many courts in Russia make a nonsense of the independence of the judiciary. We can only hope that the Supreme Court's support of the independence of each judge will serve as a precedent for other judges in Russia.
The article appeared first at the www.eu-russiacentre.org website.
