In all criminal proceedings that occur in the Russian Federation,
except for court hearings with the participation of a jury, the requirements of Part 3,
Article 123 of the Constitution of the Russian Federation—that “Court proceedings
shall be carried out on an adversarial basis, with complete equality between the two
sides”—are ignored.
If one uses the word “inquisition” not in a pejorative manner, but
as a term which may be translated literally as “investigation”, then one may sine
ira et studio point out two distinguishing characteristics at the heart of the
currently reigning system of harsh, Soviet-style neo-inquisitional criminal court
proceedings.
First, the court plays the role of accuser, inasmuch as it is compelled
to carry out its own independent investigation of cases, in order to fill in the blank
spots left by the inquiries made by criminal investigative agencies or other preliminary
investigations. Too, the validity of an acquittal under the current policy must be upheld
by evidence at least no less convincing than the legitimacy of the conviction. The two
sides involved play no active role in the proceedings: their actions do not in any way
influence the content of the sentence, and they are only present with the right to act as
consultative voices in the performance of someone else’s work. Consequently, the court
does not have the right to acquit a person earlier than after all opportunities to convict
him have been exhausted: additional expert examination may be ordered, new witnesses may
be sought, or the case may be remitted for further examination. While all this is going
on, the accused, naturally, remains under a Sword of Damocles while awaiting news of his
fate, very often in preventative detention.
It is extremely characteristic that approximately 98% of all cases end
with sentence being pronounced in full court, with the participation of sworn deputies,
and only 3-4% in “other places of justice”. Thus, in 1996, some 903,200 cases (76%)
ended with sentences being handed down; 138,000 (11.6%) were dismissed; and 111,400 (9.4%)
were remitted for further examination. The number of cases in this last category actually
rose, from 9.1% in 1995.
The simple introduction of an adversarial form of court
proceedings—that is, a procedure in which the burden of proving the accused’s guilt
rests in fact on the prosecution, and the court could, if not presented with sufficient
evidence, rapidly acquit the defendant—would reduce the size of the prison population by
a factor of 2 to 3. Thus, of those held in Moscow SIZOs
on 1 May 1997, 56.2% were awaiting trial; among these, criminal cases were pending for one
person arrested in 1991, 2 people arrested in 1992, 5 arrested in 1993, 32 in 1994, 231 in
1995, 1,408 in 1996. Only a very small amount of this red tape is explained by the laxity
of judges: as a rule, cases remain unreviewed due to their sheer number; possibly one of
the co-defendants has fled; or perhaps the court is awaiting responses to its inquiries,
or the results of expert examination.
Second, in the tradition of all great inquisitors, the defendant is
viewed not as a person endowed with certain procedural rights, but as an object for more
or less impartial investigation. The result of such an approach in the Middle Ages was the
legalized use of torture; in our own enlightened era, the concentration of procedures on
obtaining confessions from suspects and defendants—in which the use of torture is
illegal, but nevertheless habitual. The prison population continues to rise as a result of
employing the accuseds’ own self-incrimination.
The technique for soliciting confessions includes, as one may judge
from the defendants’ own statements:
unprovoked harsh seizure of alleged perpetrators, or victims
designated for that role;
excesses in the course of delivering a helpless person to law
enforcement facilities: for example, placing a cellophane bag over his head, using the
feet to restrain a handcuffed person lying on the floor of an automobile, brandishing
weapons, making threats, etc.;
deliberate torture on the premises of the law enforcement
agency—often with the participation of the victim, who enjoys the organization’s
protection against any wrongdoing;
the obtaining of handwritten “heartfelt confessions”; the
subsequent interrogation of the author as a witness; the ordering of his detention; his
interrogation as a suspect; and the recording of testimony extracted under torture on
videotape in the presence of witnesses, most often in the course of “verifying testimony
on the spot”—an illegal practice in Russia;
attempts to cover up signs of torture, for which reports are
fabricated stating either that the suspect was resisting arrest by members of the police
force, or that he was “fighting” or “tripped and fell on the floor”; sometimes a
visit to a first-aid station is arranged, where broken ribs, bruises, and abrasions are
entered into the record, but the frightened suspect tells the doctor that he has no
complaints to make regarding his captors;
placing a person in the intolerable conditions of a SIZO, and then obtaining a confession from him as a
defendant by taking advantage of his disorientation and depression; or in exchange for
promises that he can go home, or that his confinement regime will be made less harsh;
prosecutors’ avoidance of verifying reports of torture; as a rule,
even if such verification is ordered by the prosecutor, or at the instigation of the
court, it is limited to the questioning of the alleged torturers (and they are not in the
habit, by the way, of introducing themselves as such);
interpretation of the presumption of innocence held in regard to the
alleged torturers as proof of the falsity of the defendant’s claims of torture. In fact,
the logic of this ought to be otherwise: for the purposes of opening a criminal case
against members of the police force, it may be admitted that the fact of their use of
torture is not as yet proven. For the purposes of determining the reliability of
“heartfelt confessions”, however, claims of torture may be considered believable; this
means that, by virtue of the presumption of the accused’s innocence, doubt must be
interpreted in his favor, and his confession must be declared inadmissible as evidence.
Certain oblique indicators hint at the use of torture in soliciting
confessions: officially reporting a suspect’s incarceration one, or even several days
after his actual arrest; or the prolonged holding of a suspect on the premises of a law
enforcement agency (IVSs and SIZOs
do not accept beaten prisoners), from which one may conclude that the officers were
waiting for the signs of torture to become less obvious; or the presence in a “heartfelt
confession” of phrases which a prisoner would be unlikely to use due to his age or level
of education, or which are stylistically typical of law enforcement officials (for
example, “Written by my own hand, voluntarily and with no physical or psychological
compulsion by members of the police force”).
The growth of the general prison population is also facilitated by such
domestic judicial practices as the following:
l placing more trust in admissions of guilt than in denials: the one
thing of which a person who has confessed to a crime can be certain is that it is this
unfortunate testimony which will lie at the heart of his sentence. Any other versions of
his story will be labeled false, and it will be argued that they are put forward only in
an attempt to evade criminal responsibility;
l attaching (with the same motives) more weight to the evidence
presented by investigators than to the testimony heard in court;
l the extrapolation of guilt when a conviction is based on the worst
suppositions of a defendant’s role in an affair.
Thus, Mr. K and his common-law wife Ms. I, having gotten extremely
drunk while visiting Mr. and Mrs. B, decided to stay overnight at their apartment. In the
evening of the following day, Mr. and Mrs. B were murdered, and their money and valuables
stolen. A portion of the jewelry stolen from the Bs was found in the apartment of K and I,
who were selling it off to their friends. K confirms that he killed the Bs, but swears
that I was extremely drunk and asleep at the time. He states that it was he who grabbed a
kitchen knife and began fighting with the Bs, since the couple had insulted his national
sensibilities (they had hidden his shoes so that he couldn’t leave, once they learned
that he had taken some of their things, “just like all dirty wogs do!”). Ms. I also
denies taking part in the murder of the Bs, although she admits that she participated in
the theft of their things. K. is found guilty of the murder of two people for selfish
motives, and of armed robbery committed with the assistance of I (his accomplice). The
court therefore recognizes the fact of a prior conspiracy between K and I for the
execution of this particular crime.
In 1996, acquittals were handed down for 4,943 defendants; following
appeals and judicial reviews, however, 28.4% of these were overturned (in the cases of
1,407 defendants). Acquittals were upheld without amendment with regard to 3,540
defendants, or essentially 3% of those tried whose cases were reviewed on the merits.
The incarceration of the accused is drawn out in many instances, while
the examination of sentences, including acquittals, drags on; there can be as many as one
appeal and three judicial reviews. One may thus, once a case is sent back for further
investigation or fresh review, find oneself repeatedly on trial, and jailed again and
again. Protests against an acquittal or the closing of a criminal case may be filed not
only by local prosecutors, but by the chairs of second echelon courts, and by the Chair of
the Supreme Court of the Russian Federation himself, or by his deputies. For purposes of
comparison, it is appropriate to note that in the United States, Great Britain, and the
overwhelming majority of British Commonwealth countries, prosecutors do not have the right
to protest verdicts of not guilty.
One may assert that Soviet neo-inquisitional justice operates on the principle of
Dante’s Inferno: “Abandon all hope, you who enter here!”. In a less dramatic
variation, the sense of this saying is well conveyed by the words of a children’s song
about a captured bird: “...You’re not getting out of the net / I’m not parting with
you / Not for anything in the world”.
