Let us forget for the moment the lamentations of representatives of
law-enforcement agencies, and the scientific workers who serve to further their
institutional interests on the basis of the “unprecedented growth in crime” and
“unbounded underworld activities”. It is understandable that statistical data showing
reductions in the most serious categories of crime—those against life and limb, against
public order, and even “street crime”—are put aside for use in other contexts (such
as demonstrating, when necessary, the success of their work).
The litmus test for discovering the official approach to management of
criminal policy is the state of criminal (both substantive and procedural) legislation. Of
course, when analyzing its norms, one must make certain adjustments: first, for the degree
of judges’ internal and external independence; and second, for institutional interests.
With regards to the first corrective coefficient, one should note that
with the adoption of legislation on the status of judges, the latter de jure
acquired personal independence. In practice, however, only a judge willing to sacrifice
his career can hand down just decisions. This is due to several factors: first, the
institutions currently supplying new members of the Russian bench, and the dogma of the
legal education they receive there; second, the dependence of the court as an institution
on the favor of local authorities; and third, the lessons learned by seeing judges have
their powers curtailed for not working in harmony with the higher chairs of state courts.
Many of those serving on the bench in fact become dispensers of particularly harsh, and
not always just, sentences. For example, it is simple to conclude from expert studies that
it is much easier (and more reliable) to hand down a guilty, rather than an innocent,
verdict. (This is confirmed by the fact that on the whole, across Russia, fewer than 1% of
all accused are acquitted; and of these, more than one quarter have their innocent
verdicts overturned.) The primary incentive for convicting people on the basis of shaky
evidence is a desire to confirm the legitimacy of holding the accused under detention. A
compromise in such cases might consist of sentencing a convict to imprisonment for a term
equal to (or slightly exceeding) the time already served in detention; but most often the
very fact of a person sentenced under a particular article of the Criminal Code
automatically entails sentencing them to serve a prolonged term of imprisonment.
Regarding the second corrective coefficient, it is sufficient to note
the following. The principle of the inevitability of punishment, which enjoyed such
popularity among Soviet legal scholars, and its echoes audible in Article 8 of the Russian
Federation Criminal Code, was never a guide to action for law enforcement agencies, and in
fact could not have been enacted in real life, no matter how much it was longed for. The
battle against crime is of a selective nature, and indicators of its direction and
progress are often prepared on the basis of institutional interests; a fair number of
“acts, bearing all the elements of a crime”, are in fact not reported.
As far as criminal-procedural legislation is concerned, it
grants the widest opportunity for holding a person under detention. It is sufficient to
note that Part 2 of Article 96 of the Criminal Code for the old Russian Soviet Federal
Socialist Republic allowed the detention of one accused “on the grounds of seriousness
of the crime”, even if their intentions to flee, obstruct investigation, or participate
in other criminal activity remained unproved. A judge, verifying the legality and validity
of holding a person in custody, was forbidden by the Plenum of the Supreme Court of the
Russian Federation from delving into the essence of the charges brought (Paragraph 9,
Resolution No. 3, of 27 April 1993, On the Policy of Judicial Verification of the
Legality and Validity of an Arrest or Lengthening the Term of Confinement in Custody).
A judge is not able to study all the materials involved in a criminal case; an
investigator thus has every opportunity to artificially strengthen the specifications of
the charges by going beyond the limits of the facts that are established by the evidence.
The most typical instances of this involve the transformation of petty theft into armed
robbery or larceny; locking someone in their apartment (for example) becomes kidnapping;
and a family argument in which one member slaps another is treated as a gross disturbance
of the peace. Such “excess specifications” are useful for the investigator also
because they give him the opportunity to make the perpetrator, locked up in a cell and
suffering from hunger, boredom, and illness, more amenable. They are useful for him too in
that the court, if it feels like it, has the right to mitigate the charges on its own
authority; but if it wants to make them more serious, it will be compelled to send the
case back for further examination, something which would reflect badly on the initial work
of the investigator. The maximum term of pre-trial confinement is already two years, and
with a bit of creativity, this can be increased by another month, or more (Art. 97, CPC
RSFSR). For purposes of comparison, it is worth noting that, according to federal
legislation in the United States, a person being in custody must be brought before a court
within a maximum of 90 days of his arrest; in Europe, the deadline for completing a
preliminary investigation may only in rare cases exceed six months. Russian law does not
consider the possibility of being set free pending trial as an inalienable human right,
subject to restriction only in exceptional instances.
Not only does the draft of the new Criminal Procedure Code preserve all
these approaches; it aggravates their corrosive effect on judicial practice. Part 6 of the
draft’s Article 55, Paragraph 2 of Article 77, and Paragraph 4 of Article 213 permit
compulsory examination of even victims and witnesses by experts, including in hospitals.
In such instances, they do not even have the right to appeal the decisions handed down
(Part 2, Article 128).
When deciding the question of whether it is necessary to keep a person
confined in custody, or extending the period of his confinement, the judge, in accordance
with Article 104 of the draft, does not even see the entire criminal file, but rather just
the “materials” which the criminal investigative agencies feel like showing him.
Criteria for the use of arrest are unclear. The draft does not even contemplate a
reduction in the maximum periods of confinement for minors, as opposed to adults. The
sense of Part 4 of Article 107 is that at the end of an accused’s 18 months of
confinement over the course of the preliminary investigation, the judge has the right to
extend the period of confinement to any length he wishes. By virtue of Part 1 of the
draft’s Article 102, bail is not applicable in cases of crimes punishable by
imprisonment for over 5 years; consequently, tens of thousands of people suspected of or
charged with crimes committed under aggravating circumstances, gross disturbance of the
peace (hooliganism), or grand theft, auto—that is, the most common sorts of
crime—cannot count on being freed on bail.
If one examines the existing criminal legislation, it is
impossible to not notice that, in the opinion of the Council of Europe experts who
studied, with the participation of myself and my colleagues, the subsequently adopted
draft of the Russian Federation Criminal Code, its authors rejected the European
legislative technique of setting out sentences: in most European countries, criminal law
establishes only the upper limits of punishment, which allows judges to hand down any of a
number of milder sentences in appropriate cases. Thus, in the RF CC, there are a whole
series of norms which hinder (except in extraordinary cases) the sentencing of a convict
to other forms of punishment beside imprisonment.
If the new Criminal Code of the Russian Federation, which went into
effect on 1 January 1997, is applied energetically and in full, it foreordains a sharp
increase in the prison population.
First of all, although certain acts are decriminalized, and punishments
henceforth mitigated in a number of norms, many other acts become (to the contrary)
criminal, and the term to which one could be sentenced is extended. Punishment is imposed
with the aim of “warning against the committing of new crimes”; that is, the
intimidation of the convict and others (Part 2, Article 43 RF CC). New forms of
incarceration have appeared in the “ladder of punishments”: restriction of freedom,
arrest, and life imprisonment (Article 44 RF CC). In spite of the accepted concept of the
RF CC draft, the normative text does not delineate categories of criminal offenses, and
Article 15 RF CC classifies crimes according to the maximum terms of imprisonment with
which they may be punished. Inasmuch as acts punishable by imprisonment are included in
the petty crime category along with acts supposedly punishable by milder penalties, the
judicial consequences for those convicted of these various types of crime are little
differentiated. The ordinary term of imprisonment has been extended from 15 to 20 years;
while the imposition of punishment for cumulative crimes or multiple sentences may reach
25 and 30 years, respectively (Articles 69 & 70, RF CC).
The problem of specifying punishment for cumulative crimes lies in the
fact that, with the adoption of the new CC, the harshness of sentences for certain acts
has been increased by a factor of 1? to 2; as a consequence, both the average term of
imprisonment and the numbers of prisoners will continue to grow. This is happening because
Part 3 of Article 69 of the RF CC has abolished the possibility of consolidating sentences
handed down in cases of misdemeanors and felonies.
Let us imagine that Mr. A killed Ms. B in order to get his hands on her
gold jewelry. Such an act is considered the ideal aggregate crime: murder for selfish
motives, and armed robbery. Let us further suppose that in the first case, the court finds
it just to impose a sentence of 13 years’ imprisonment, and in the second, 9 years. When
the rules for specifying punishment for aggregate crimes are applied, A would find himself
sentenced, on the basis of the RSFSR CC, to a prison term of 13 to 15 years; on the basis
of the RF CC, to a term of 13 years and 1 month to 22 years.
Second, the new RF CC has abolished the suspension of sentences
involving the imprisonment of first-time offenders up to 3 years (Article 46 of the RSFSR
CC).
Third, the basic grounds for releasing a person from criminal
responsibility have become essentially limited, although the number of footnotes to
specific articles in the Special Section—which assumes the release from criminal
responsibility as a form of encouragement for active repentance—has grown. In this case
too, however, the application of encouraging norms is sometimes dependent on the
discretion of the investigator and prosecutor (thus, by virtue of footnotes to Articles
337 & 338 of the RF CC, military personnel who go AWOL or desert as the result of a
confluence of “extenuating circumstances”—hazing, for instance—are not set free,
but only “may be released from criminal responsibility”). Incidentally, a norm has
been introduced into the RF CC pursuant to the illegal release from criminal
responsibility (Article 300). In order that the intent of this legislation is made
perfectly clear, the punishment for this particular crime is generally much more harsh
than that for placing an obviously innocent person under criminal prosecution (Part 1,
Article 299 RF CC).
Upon the release from criminal responsibility in connection with active
repentance, conciliation with the victim, or changes in the determining situation, the
will of the investigator and prosecutor once again become apparent (Articles 75-77 RF CC):
even if the victim is satisfied with the compensation he has received from the perpetrator
for damage, the prosecutor may continue the criminal investigation. If changes in the
determining situation earlier allowed for one’s release from criminal responsibility no
matter what crime was attributed to him, one can now talk only about one’s first petty
offense or misdemeanor. Procedures for releasing someone from criminal responsibility in
cases of administrative responsibility, with the court handing over of the case file for
review by the accused’s peers, and the accused himself to the collective responsibility
of his place of work or fellow employees, have been completely abolished.
One may thus assert that state criminal policy does not in any way presume a reduction
in the prison population. On the contrary, the heads of law enforcement agencies continue
to request appropriations for the building of new detention centers, prisons, and penal
colonies.
