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Legislative reform in the Russian Federation began before the
disintegration of the USSR, in June 1990 when the first Congress of Russian
Deputies adopted a declaration on state sovereignty. Before this Russian
legislation did not differ from that of the USSR3. Changes
stipulating differentiation of power and the right to private property were
introduced in the Constitution.
In 1991, the Supreme Council of the Russian Federation
adopted two very important documents which defined a new concept of human rights
and a legislative system as well as main principles for future legal reform in
Russia. These documents were "A Concept for Judicial Reform in the Russian
Federation" (henceforth — Concept) and "Declaration of Civil
and Human Rights and Freedoms" (henceforth — “Declaration”).
These documents did not have any legal force, but they created a more clear and
complete notion of a legal system than any former Soviet programs of reforms,
including those of the perestroyka period. The two documents were aimed at
overcoming the totalitarian past and the practice of human rights violations
inherent in socialist justice.
Most articles of the independence Declaration, in fact, copy
the articles of the International Covenant on Civil and Political Rights
(sometimes word for word). The Concept stipulates the establishing a new
judicial system absolutely different from the Soviet one and built on the
principle of the independence of new judiciary and bringing domestic legislation
into compliance with international human rights standards. At the same time, the
Concept is based on national traditions and restoration of the best achievements
of the "Great Judicial Reform" of 1864.
Other important legislative changes introduced by the Supreme
Council of the Russian Federation between 1990 and 1993:
 reorganization
of the judicial system (establishing a court of arbitration and a constitutional
court which was entitled to consider individual complaints;
gradual
introduction of jury trials (the Law of July 16, 1993) which appeared to be the
most important step of the judicial reform in the field of criminal justice (for
more details, see section III of this book);
better
judicial and financial guarantees for judges' independence and introduction of
the principle of judges' irremovability from office (the Law "On Status of
Judges in the Russian Federation" of June 26, 1996;
a
proclamation that arrest, detention, restrictions on the right to secrecy of
correspondence and telephone calls, search and other investigative activities
will be carried out only on the grounds of a judicial decision4;
introducing
judicial control over the legitimacy and validity of arrest (the Law of May 23,
1992); suspects received the right to appeal at court the procurator's decision
to arrest or to prolong arrest;
introducing
about 50 changes and amendments to the correctional labor code of the Russian
Federation (the Law of June 12, 1992) which brought it into close conformity
with international standards);
adopting
a law on operative-investigative activity (the Law of March 13, 1992) which for
the first time since 1917 legally defined the activity of one of the most
powerful special services;
adopting
a law on the state of emergency (the Law of May 17, 1995) based, to great
extent, on the International Covenant on Civil and Political Rights.
The Supreme Council also abolished the death penalty for a
number of non-violent crimes (violations of currency exchange rules, large-scale
embezzlement of state property and bribery etc.). Norms stipulating punishments
for homosexuality, vagrancy, violations of the passport regime and many petty
offenses were eliminated in the criminal code.
It should be pointed out that legislative changes were often
inconsistent. Though a number of laws (on militia, Procuracy, state security
bodies etc.) establishes a legal framework for the activity of corresponding law
enforcement bodies, they, to a great extent, contradict the Declaration of Human
Rights and the Concept of Judicial Reform. Many of these laws do not even
mention international principles of human rights, the supremacy of these norms
over domestic legislation and directly contradict the principle that violation
of liberty and personal integrity is allowed only by a court's decision.
For example, the Law on the Procuracy does not have a
provision on the protection of civil rights or the right to appeal the
Procuracy's unlawful decisions; the Law On the Militia has vague criteria for
adopting a decision to use special means and weapons. All these laws completely
ignore the principle allowing personal liberty and integrity to be infringed
only on the ground of a court's decision, stated in the Declaration.
As a result, the Procuracy, the MVD and state security bodies
retain many of their former totalitarian competencies and, thus, present a
threat to human rights.
On September 21, 1993, the President issued a Decree On
Gradual Constitutional Reform in the Russian Federation, which implied dismissal
of the Supreme Council and elections to a State Duma (new parliament). A
considerable number of deputies regarded this decree negatively, the situation
became critical and hostility between executive and legislative powers
increased; it was accompanied by street disorders and bloodshed. On October 3,
1993, a state of emergency was declared in Moscow.
On December 12,1993, elections to the upper chamber (Council
of Federation) and the lower chamber (State Duma) of the Russian parliament and
a referendum on the draft of the new Constitution took place.
The new Constitution, approved by the majority of votes in
the referendum, instituted main provisions of the Declaration and the Concept
concerning human rights in criminal justice. Chapter 2 of the Constitution,
"Civil and Human Rights and Freedoms" to great extent reproduces the
text of the International Covenant on Civil and Political Rights and recognizes
the priority of international norms over domestic legislation in the field of
human rights protection (art. 15, 17).
Below are some of the articles of the new Constitution:
"basic
human rights are inalienable and inherent to each person from his birth"
(Art. 17), and "are directly in force" (Art. 18);
principle
of the presumption of innocence (Art. 49);
the right
of a suspect to counsel from the moment of arrest, detention or indictment (Art.
48);
"nobody
should be subject to torture, violence, other cruel or degrading treatment or
punishment" (Art. 21);
the right
of the accused to a jury trial (Art. 47), especially if he is accused of crime
punishable by death (Art. 20);
"each
person is guaranteed a court defense of his rights and freedoms", the right
to apply to international bodies for protection of human rights and freedoms
(Art. 46); independence of judicial authority is also proclaimed (Art. 120);
integrity and tenure judges (Art. 121, 122); principle of adversity in court
proceedings and the equality of parties (Art. 123);
introduction
of the institution of ombudsman, his legal status and mandate were to be defined
in a federal law.
There are also norms in the Constitution envisaging that
arrest, detention (Art. 22), violation of liberty and personal integrity are
possible only on the basis of a court's decision. However, introduction of these
norms was suspended until the code of criminal procedure will be brought into
line with the Constitution.
Two years (1993—1995) of lawmaking activity by the new
Parliament brought less results that the previous three years. A federal law on
the Ombudsman, a new criminal-procedural code and criminal-executive code have
not been adopted yet. The new criminal code was strongly criticized both by
human rights activists and power ministries and was returned by the President to
the State Duma for further development.
Some legislative changes maintained of the previous
democratic direction. For example, the chapter about crime against state
property was excluded from the Criminal Code. In the present Criminal Code there
are articles concerning thefts or embezzlement of "another person’s"
property (earlier, property was differentiated as private and state, and crimes
against state property entailed a more severe punishment).
Some other norms were also eliminated in the Criminal Code.
For example, the RF Law of April 29, 1993 abolished arbitrary use of vehicles,
cars or mechanisms; violation of rules of domestic use of energy and gas, etc.
It should be noted that elimination of some norms does not imply that a certain
act is not considered a crime any more; it can become subjected to a more
general prohibition or fall under another article appearing in the Special
Section of the Criminal Code. Hence, infringements on the alcohol beverages
trade rules are punished as a violation of trade rules in general; diversion and
violations of currency exchange rules were excluded from the number of state
crimes, but are regarded now respectively as "terrorism" (a crime
against public security) and "Illegal currency transactions" (an
economic crime).
Certain types of punishments were abolished: conditional
sentences with compulsory labor, exile, and terms in an LTP.
In June 1995, the State Duma adopted the Law on Detaining
People Suspected and Accused of Committing Crimes, which came in force on July
20 that year). It replaces former legislative acts defining the legal status and
conditions of detention in IVSs (1976) and SIZOs
(1976).
Despite the democratic spirit in both chambers of the
parliament, changes in the field of criminal justice were inconsistent,
occasional and temporary, and often contradicted the concept. Tendencies toward
counter-reforms were simultaneously increasing.
For example, the new Law on Operative and Search Activities,
adopted on July 5, 1995, allowed wider limits than before for using criminal
court as evidence information from citizens’ inquires, information requests,
collecting samples for comparative examination, test purchasing, examining items
and documents, identification checks, searching premises, locations and
vehicles, controlling correspondence and other means of communication, tapping
telephone conversations, recording information from technical means of
communication, controlled supply and operative experiments.
Thus, procedural and non-procedural activities are mixed,
which is dangerous for a state that cannot be called a rule of law.
Draft Laws on Fighting Organized Crime and on Fighting
Corruption, officially approved by the lower chamber of the Parliament during
the period from 1993 to 1995, characterize a general tendency in the development
of the Russian criminal-procedural legislation in a particular way. In the
criminal justice field they suggest the following:
to make
sentences for this kind of crimes harsher, in particular, for organizers and
heads of criminal organizations;
to set up
special bodies to fight such crimes;
to
simplify procedures of providing evidence (i.e. concealing information about
witnesses; questioning witnesses under conditions of anonymity and altering
their appearances; broader possibilities of using information from secret agents
and other materials obtained in secret operations and searches);
to
establish special courts to combat organized crime or to assign special judges
to such cases (this measure was eliminated in subsequent draft laws).
Sergey Pashin, one of the authors of the Concept and its
advocate, is of opinion that:
"In general, it is possible to assert that ideas
stated in the Concept of Judicial Reform of 1991 were gradually neglected de
facto during the period from 1993 to 1995 and were substituted by simplified
notions and multiple repressive measures. Reforming and counter-reforming forces
are now in a state of unsteady balance and it seems that the latter are more
likely to win, because of the prejudices of every day consciousness inherent in
ordinary people, and because the majority of law experts and practicing lawyers
of the Soviet school are on their side."
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