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English Language Page Analysis of some of the judgements passed by the low and medium level courts in various territories of the Russian Federation allows for certain general conclusions to be drawn about the basic characteristics of regional judicial practices. The sampling technique used in this research does not preclude obtaining accurate findings about the general trends in the judicial system, because the underlying judicial processes are subject to the same group of factors typical to all regions of Russia. Monitoring the implementation of human rights during criminal trials allowed identification of the following shortcomings common to regional judicial practice in the field of criminal justice: a) one-sided and incomplete nature of criminal proceedings, bias and arbitrariness on the part of judges; b) substantial violations of the procedural criminal law during the trial of criminal cases; c) reluctance of the judges to observe the rules on admissibility of evidence; d) inadequacy of the judgement passed by the court to the actual circumstances of the case. Violation of the principle of presumption of innocence occupies a special place among the substantial violations of procedural criminal law that take place during trials. Such violations are most striking when a sentence is based on assumptions. An example of such shortcomings has been documented in an expert review, prepared by the Independent Council of Legal Expertise on the case of A. Antropov, who was charged with robbery along with I. Kalmykov. Antropov was wrongly imputed with a robbery act committed “with objects which can be used as a weapon” (Clause “d,” Part 2, Article 162 of the RF Criminal Code). The court did not find whether the suspect was really in the possession of any object to be used as a weapon, nor did the court establish what kind of object that was. Meanwhile, according to Clause 13 of Ruling ¹31 of the Plenary Meeting of the Supreme Court of the Russian Federation “On the Judicial Practice in the Cases on Robbery,” passed on March 22, 1966, establishment of the nature of the tool endangering life and health of the victim is necessary for proper qualification of the imputed crime. The deed of I. Kalmykov, which was in fact an excessive act, cannot be imputed on A. Antropov, as the latter did not show in any way his support or approval of his friend act. Moreover, during the trial, no evidence was obtained that could point to a premeditated collusion between the defendants in the robbery case. “A premeditated collusion… assumes an explicitly expressed agreement of two or more persons that had taken place prior to the criminal act” (Clause 3, Part 10 of Ruling ¹1 of January 27, 1999, of the Plenary Meeting of the Supreme Court of the Russian Federation). As a matter of fact, the victim in the trial, V. Frolov, gave the defendants, I. Kalmykov and A. Antropov, a lift in his car to the house of their friend, Khudobin, and stopped at I. Kalmykov’s request in front of a large apartment building, rather than in a dark back alley more suitable for a criminal attack. Neither I. Kalmykov nor A. Antropov ever mentioned to their friends, investigating officer, or other people that there had been a prior agreement to rob the car driver. Thus, there is no evidence pointing to a premeditated collusion. The court’s conclusion about the presence of such collusion was based on assumptions, rather than on evidence. Therefore, the qualification of the act as “committed by a group of persons based on premeditated collusion” (Clause “a,” Part 2, Article 162 of the RF Criminal Code) should be removed from the court judgment in A. Anrtopov’s case, as one imputed on assumption… The judgment passed by the court also significantly violates the principle of the presumption of innocence (Part 1, Article 49 of the RF Constitution) and the prohibition of basing the conviction on assumptions (Part 2, Article 309 of the RSFSR Criminal Procedure Code). The courts of the first instance and appeal have ignored the recommendation of the Plenary Meeting of the Supreme Court of the Russian Federation on deciding doubtful issues, relevant to specific details of the case, in favor of the defendant (Clause 4 of Ruling ¹1 of the Plenary Meeting of the Supreme Court of the Russian Federation of April 29, 1996, “On Sentencing”)(1) In addition, the principle of the presumption of innocence is also violated when the judges or prosecutors publicly pronounce the defendants guilty before their guilt is established in court. Thus, for example, in the trial of S. Lazarev, held in the Khamovnicheski inter-municipal court of Moscow, the prosecutor stated at the very beginning of litigation that the defendant’s guilt had been fully established, when none of the available evidence had yet been examined. The protest of the defense, demanding to dismiss the prosecutor was denied by the bench. Extension of deadlines for the consideration of criminal cases is also one of the most common procedural violations. One such example was brought before the expert review in the case of A. Ivanov by the Independent Council of Legal Expertise. The materials at hand show that the litigation process in this criminal case has been going on for more than three years. It is noteworthy that several unlawful and unsubstantiated judgements have already been passed in this case, which indirectly points to the existence of reasonable doubt in the guilt of A. Ivanov and to the presence of a kind of solidarity between the court and the prosecution. In our opinion, the length of this drawn-out court proceeding and the status of defendant being attached to A. Ivanov for several years, violates his constitutional right to legal protection of his rights and freedoms (Part 1, Article 45 and Part 1, Article 46 of the RF Constitution). It is also inadmissible, keeping in mind the right, of every person “to fair and public trial within reasonable period of time” proclaimed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (Clause 1, Article 6 of the Convention)(2). The reluctance on the part of the judges to function within the rules of admissibility of evidence has often been displayed when the judge would refuse to dismiss evidence as inadmissible before retiring to the conference room to pass the verdict. The aforementioned review of the case of A. Ivanov, who was sentenced under Part 1, Article 222 of the Criminal Code of the Russian Federation (“illegal purchase, transfer, sale, storage or possession of arms, ammunition, explosives or bombs”), highlights a similar situation. The issue of admissibility of specific evidence in support of some circumstances relevant to the criminal case, which is being contested by the sides to the case as obtained by unlawful means, may be decided by the court both in the preliminary stages and during the trial, because the court would rule on the legal admissibility of evidence rather on the reliability of a specific document. The former situation provides for evaluation of the evidence in relation to other materials of the case, while in the latter situation this, as a rule, is not required. Part 1, Article 50 of the RF Constitution reads as follows: “In serving justice, it is not allowed to use evidence obtained in violation of federal legislation.” Part 2, Article 68 of the RSFSR Criminal Procedure Code contains the following rule: “Evidence obtained in violation of the law has no legal validity and cannot be used as a basis for prosecution or for proving any circumstances, listed in Article 68 of this Code.” Contrary to these rules, evidence is being “used,” “made the basis for prosecution” and “used to support,” in particular during a trial when guilt has to be found through the collection and verification of evidence, which is later evaluated during litigation and by the court’s decision. Russian legislation prohibits both basing the prosecution and courts’ decisions on inadmissible evidence and the use of such evidence as proof (for example, reading unlawfully obtained investigation materials to show that the defendant is lying to the court during the direct and cross-examination). In fact, there is no special “stage” specifically designed to be used for removing inadmissible evidence from the litigation process, which is also the case in a jury trial. The use of such materials shall “not be admitted” (Part 2, Article 50 of the RF Constitution) by the court and shall be recognized as legally invalid in the following situations: in the beginning of the court hearings and during judicial inquiry in the form of considering and granting the motions to the interesedt party; during sentencing; in the verdict. The sides shall have the right to file motions (Part 3, Article 46 and Part 2, Article 51 of the RSFSR Criminal Procedure Code), and the court is not entitled to deprive them of the opportunity to receive an answer (Part 1, Article 46 of the RF Constitution and Article 58 of the RSFSR Criminal Procedure Code). There has been no single ruling of the Plenary Meeting of the Supreme Court of the Russian Federation, which would provide for deciding the legality of evidence only and exclusively during the sentencing process (such a limitation is absent, for example, in Clauses 16–18 of Ruling ¹8 of October 31, 1995, and Clause 3 of Ruling ¹1 of April 29, 1996). On August 9, 1996, the Presidium of the Supreme Court of the Russian Federation upheld in his ruling on the case of Mityeyev and Polygalov the decision taken by the judge during the preliminary hearing to remove from consideration evidence obtained in violation of evidence collection rules. Clause 1.14 of Order ¹31 passed by the Prosecutor General of the Russian Federation on June 18, 1997, assigns to the subordinate prosecutors the responsibility to “ensure the inadmissibility of evidence, obtained in violation of legal procedures and to remove from the judicial inquiry the evidence that was obtained in violation of constitutional requirements and criminal procedural legislation of the Russian Federation.”(3) It is well known that the Moscow City Court has repeatedly passed judgements during judicial inquiries on various pieces of evidence, the admissibility of which had been contested by both sides in the case (see, for example, the ruling of the Moscow City Court of June 25, 1999, on the criminal case ¹2-197/99 against S. Filippov). Thus, by dogging timely consideration of the motion to dismiss a particular piece of evidence as legally void, the court effectively admits into the judicial process evidence obtained by unlawful means (testimonies, written acts, items). This method can be used as a way to deprive a party of the right to legal protection. Another form taken by this type of violation is references made during sentencing to inadmissible evidence or recognition of particular evidence as inadmissible without giving due notification to the parties concerned. The expert review prepared by the Independent Council of Legal Expertise on the case of V. Moiseyev highlights the following violation: The court wrote the following when handing down the sentence on the case: “The evidence collected in violation of the law and having dubious legal validity in the opinion of this court shall be excluded from the body of evidence produced by the investigation.” Nevertheless, the court did not make any further reference to the specific evidence excluded from the case. This is a gross violation of the following requirement, contained in Clause 3, Part 3 of Ruling ¹1 of the Plenary Meeting of the Supreme Court of the Russian Federation of April 29, 1996, “On Sentencing” (“Should the court decide to exclude a particular piece of evidence obtained in violation of the law, the court must justify its decision to exclude it from the body of evidence in the case by providing exact reference to the specific legal rules that had been violated.” The court left unnoticed the motion of the defense, which pointed to the violation of the defendant’s right (provided by the provisions of Part 1 and Part 3, Article 237 of the RSFSR Criminal Procedure Code) to be given a copy of the indictment and to have unlimited access to this main document of the prosecution, in order to be able to prepare an effective line of defense while being kept in the pretrial detention facility”)(4). The courts often admit evidence in spite of clear indications that the information was obtained through torture. The following cases can be brought up as examples of this practice. The case ¹1-137/2000 against A. Bulygin, charged under Clauses “a,” “c” and “d,” Part 2, Article 162 of the RF Criminal Code, O. Zulpiakov, charged under Clauses “a,” “c” and “d,” Part 2, Article 162 and Parts 1 and 4, Article 222 of the RF Criminal Code, R. Koshelev, charged under Clauses “a,” “c,” and “d,” Part 2, Article 162 and Parts 1 and 4, Article 222 of the RF Criminal Code. Bulygin was arrested on March 27, 1999, at 7 p. m. on charges of committing assault and robbery and taken to the police station ¹107 of the Chief Police Directorate of Moscow. Prior to the arrest and at the time of the arrest, the suspect did not receive any injuries. This was later established during the court inquiry. While being “questioned” (volume 1, page 231 of the case) and interrogated as a suspect in the case (volume 1, page 233 of the case) immediately after the arrest, A. Bulygin categorically denied his involvement in the robbery. Nevertheless, on March 28, 1999, at a quarter past 5 a. m., i. e., 10 hours 15 minutes after the arrest, an ambulance was called to the police station ¹107 to take A. Bulygin to an emergency ward where the examining doctor found that A. Bulygin had “bruises on both feet,” which were allegedly a result of a “domestic injury.” The detainee’s feet were so swollen that he could barely stand on them (volume 1, page 261 of the case). On the morning of March 28, 1999, after sustaining the above-mentioned injuries, A. Bulygin gave a testimony admitting his guilt. Following A. Bulygin’s transfer to the detention center ¹48/2, the facility’s doctor also registered the above-mentioned injuries (volume 1, page 262 of the case). According to A. Bulygin’s later testimony, he was beaten in the police station and pressured to admit his guilt. In particular, he was beaten with a rubber club against the heels. He was chained with handcuffs to a radiator and was denied visits to the bathroom. His torturers allegedly put a plastic bag on his head and kept it tight around his neck. The Khamovnicheski inter-municipal court of Moscow took no notice of the information about torture, admitted the interrogation protocol of A. Bulygin as evidence and made reference to it in the court’s sentence dated March 13, 2000. The city court of Moscow dismissed the appeals filed by the defense lawyers. Inconsistency of the conclusions made by the court with the actual circumstances of the case also constitutes a common departure from the rules of the legislation on criminal procedure. The essence of such practice is well exemplified by the following passage from the opinion of the Independent Council of Legal Expertise on the above-mentioned case A. Antropov. Antropov was found guilty of colluding on December 15, 1998, with I. Kalmykov to commit a robbery. The defendants stopped a car driven by V. Frolov, who gave them a lift to 10 Yaroslavski Avenue in the city of Moscow. When they stopped in front of the house, I. Kalmykov, who was in the front seat, took out a knife and, using it as weapon and threatening the life and health of the victim, put the knife to the shoulder of the motorist and demanded money. A. Antropov, who was in the back seat, took hold of V. Frolov’s jacket from behind, not letting him out of the car and also put an unidentified object to the victim’s neck and made a threat of violence, endangering the victim’s life and health (5). The judicial tribunal of the Moscow city court overseeing criminal cases left the sentence of June 23, 1999, unchanged. We find the judicial decisions taken in this case unlawful and unjustified. We also believe that they should be reversed on the following grounds. The courts of the first instance and appeal did not have sufficient reason to reject the testimony of the victim, V. Frolov, who freely confirmed at the public trial, without any pressure made against him, that A. Antropov was innocent, that at the time of the crime he was drunk sleeping in the back seat of the car and did not in any way threaten V. Frolov’s life or assault him. The victim’s testimony shows that he was threaten only by I. Kalmykov, did not pay attention to A. Antropov’s actions and did not see any knife or weapon in his hands. During the pre-trial investigation, V. Frolov gave a different testimony, because he had intentionally chased in his car A. Antropov and I. Kalmykov, caused injury to the latter, put him in the trunk and was attempting to take a bleeding and unconscious body of I. Kalmykov to an unknown destination when he was stopped by the police. Trying to escape punishment, V. Frolov gave false testimony about the incident and A. Antropov’s role in it, but during the trial decided to tell the truth to the court. Throughout the pre-trial investigation and during the trial, À. Antropov was consistent in his testimonies and denied any wrongdoing in the assault against V. Frolov. Once he learned that the police were looking for him, he freely and willingly went to a police station, where he stated his innocence. Thus, the conclusions made in the court’s sentence do not correlate to the actual circumstances of the case (Clause 2, Article 342 and Clause 1, Article 344 of the RSFSR Criminal Procedure Code). All in all, the trends identified above represent the main limitations on the right to fair trial. (1) Review of the case of A. Antropov by the Independent Council of Legal Expertise (expert: S. Pashin, Associate Professor of Law). (2) Review of the case of A. Ivanov by the Independent Council of Legal Expertise (expert: S. Pashin, Associate Professor of Law). (3) Ibid. (4) Review of the case of V. Moiseyev by the Independent Council of Legal Expertise (expert: S. Pashin, Associate Professor of Law). (5) Review of the case of A. Antropov by the Independent Council of Legal Expertise (expert: S. Pashin, Associate Professor of Law). Back |
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