Scenario Paper Russia
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Russia.docx
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CHAPTER 5: RUSSIA
Book Reference
Terrill, R. J. (2016). World criminal justice systems: A comparative survey. Routledge.
Concepts to Know
· Marxism–Leninism
· Mikhail Gorbachev
· Democratization
· Constitution of the Russian Federation
· President of the Russian Federation
· Federal Security Service (FSB)
· Propiska
· Constitutional Court of the Russian Federation
· Judicial Department
· Procuracy
· Defense Counsel
· Justices of the Peace
· Jury
· Material Definition of Crime
· Measures of Restraint
· Plea Bargaining
· Ministry of Internal Affairs (MVD)
· Commission on Juvenile Affairs
THE LONGEST-RUNNING social science experiment of the twentieth century officially ended on December 25, 1991, with the resignation of Mikhail Gorbachev as president of the Soviet Union. From the Bolshevik Revolution of 1917 until Gorbachev’s resignation, the rulers of the Soviet Union had attempted to create a communist society that would be the envy of the world. Support for this goal was continual for more than 70 years, but the sense of purpose and direction began to unravel during the late 1980s. The principal cause for this shift in opinion was Gorbachev’s alternative rationale for achieving socialism. Although his ideas were a radical departure from some of the basic tenets of Leninism, Gorbachev generally favored implementing them incrementally. Nevertheless, disaffection with these ideas became quite pronounced among devoted communists, which led to the attempted coup of August 1991. This was followed by Gorbachev’s resignation and the formal dissolution of the country by year’s end.
The Soviet Union had been composed of 15 republics: Armenia, Azerbaijan, Byelorussia, Estonia, Georgia, Kazakhstan, Kirghizistan, Latvia, Lithuania, Moldavia, Russia, Tadzhikistan, Turkmenistan, Ukraine, and Uzbekistan. Russia was not only the largest republic in terms of territory and population, but it also dominated the policies of the Soviet Union—so much so that the words Russian and Soviet were often used interchangeably when referring to the foreign and domestic policies of the Soviet Union. Today, Russia is the largest country in the world, almost twice the size of the United States. It encompasses more than 6.5 million square miles that stretch from Eastern Europe through the northern half of Asia. The population of about 139 million has become more urban over the past 50 years. In fact, it has reached about 80 percent of the population— almost an exact reversal of the urban and rural ratio at the time of the 1917 Revolution (see Figure 5.1 ).
Russia is a federation consisting of six categories of administrative units. These include 21 republics, nine territories, 46 provinces, two federal cities, one autonomous republic, and four autonomous regions. Among these administrative units, the republics have the greatest claim to self-government. Although Russians comprise more than 80 percent of the country’s population, there are some 126 nationalities with distinct racial, linguistic, and religious preferences. The nature of the federation’s administrative units, coupled with the number of ethnic groups, has led some commentators to suggest that Russia might eventually follow the path of the Soviet Union and be divided into still smaller units.
Before the Bolshevik Revolution, Russia was characterized as a large, authoritarian, backward, rural nation. After the Revolution, especially as a result of Joseph Stalin’s reign, it emerged as a large, authoritarian, backward, industrialized nation. Believed to be one of the richest countries in the world, it has extensive holdings in oil, natural gas, and coal. While Russia is considered one of the few countries with the capability of becoming self-sufficient, this is unlikely to happen in the foreseeable future. Today, the principal industries are steel, machinery, machine tools, vehicles, and chemicals. Under the Soviet regime, centralized planning was emphasized, and individual creativity was essentially discouraged. The one exception to this rule related to the vast defense industry. In more recent years, attempts have been made to shift this industry to civilian use. Shortfalls continue to occur among the agricultural yields, and the extensive natural resources remain largely untapped because of deficient applications of technology. Thus, although the country is a highly industrialized society by world standards, it is not an advanced society. In addition, the industrial sector is becoming antiquated and less efficient. A large part of these circumstances are the result of unstable economic conditions.
To state that a country is industrialized as well as backward is rather paradoxical. Yet, Russia is just that—a paradox. Western scholars, journalists, politicians, and travelers have described it in this way for more than a century. For example, despite the fact the Soviet leaders heralded the establishment of socialist democracy, there were numerous indications that it was a totalitarian regime. The people often perceived themselves as strong, powerful, and morally superior, but they displayed an unqualified submissiveness to their leaders as well as a sense of inferiority to the accomplishments of the West. Their communist ideology called for the elimination of the exploitation of humankind; however, their political and economic institutions fostered a rampant form of corruption that infiltrated all aspects of life. The Soviets claimed to establish a land of the proletariat, yet they were extremely conscious of rank. Their historically significant revolution was designed to overthrow the tsar’s chains of oppression, but these were merely supplanted by the chains of the Communist Party. The party devoted a good deal of time and energy to publicizing its ideological principles to a people who were largely nonpolitical. The Soviet Constitution proclaimed free speech, free press, and free assembly, but institutional censorship and self-censorship were quite common, and the Committee for State Security watched over all assemblies. Finally, the Soviets spoke of the benefits of collective agriculture, but an estimated one-third of the agricultural output was grown on private plots.
Figure 5.1 Russia
Map courtesy of Bruce Jones Design Inc.
Despite these paradoxes, there has been a pronounced, deep love of country on the part of the Russian people. This quality is different from that of other countries, because the Russian love of country has been frequently tested, often to extraordinary limits. Throughout its history, Russia has been vulnerable to attacks from Asiatic tribes to the east and from Europe to the west. The last time this occurred was during World War II, when 20 million citizens died in defense of the motherland.
Protection from Russia’s enemies—real or imagined—was a central feature of the country’s foreign and domestic policies. It took two forms. One form of protection was security from the world beyond the borders. This was achieved by building a strong military establishment that was second only to China’s in size, by creating satellite zones that served as a buffer to the motherland, and by supporting or encouraging dissension in other parts of the world in the hope that these events would keep the enemy preoccupied.
The size of the military has been reduced because the leadership realized that it contributed to the economic woes of the country. Events in Eastern Europe led to a dismantling of the buffer zone that was established following World War II. While some of the popular commentary in the West viewed this as weakening Russia, this was not necessarily a correct assessment. Eastern Europe had been an economic drain for several years, as well as a source of insecurity from dissenting parties in the buffer zone countries. Today, some Russians view the former republics of the Soviet Union (characterized as the “near abroad”) as a new buffer zone.
The second protectionist approach focused on assuring security from within the country. With some 126 nationalities inhabiting Russia, there had been a great fear that internal dissent might arise. The Communist Party’s own history was a witness to that political reality. Since its inception, the party’s all-powerful Committee for State Security served to deter internal dissent. Since the creation of the Russian Federation, these fears have been realized as ethnic unrest continues to erupt. A good deal of attention has been devoted to events in Chechnya in particular.
Originally, the Soviet government was able to implement this security policy because the people were essentially patriotic and nonpolitical. Throughout their history, the Russian people came to respect power and authority. Whereas most citizens in democratic countries show deference to their law, Russian citizens display a similar regard for authority. Because such awe of power and authority generally leads to conformity, freedom—at least as United States citizens understand it—had no place in Soviet society. American concepts of law and freedom are based on historical events. The Renaissance, Reformation, and Enlightenment were instrumental in the evolutionary development of such ideas; however, these periods of intellectual change were essentially absent from Russian history.
The most pronounced theme running throughout Russian history has been the presence of totalitarian authority. Such authority has been all the Russians have known, be it a Mongol-Tatar khan, a Russian tsar, or a Communist Party leader. This factor assists in explaining some of the significant implications for the Russian political process and its criminal justice system. It also suggests that hope for dramatic changes in the region should be tempered by a recognition of that history.
The events in Russia since 1991 have focused almost exclusively on the leadership’s attempt to transform the old order to a new order. Central to this change has been a shift from a socialist economy to a free market economy. In this context, students of comparative criminal justice should be aware of three important observations.
Since the initial focus of change has been directed at the economic system, most of the political energy has been directed at achieving that goal. This has taken two forms: (1) changes directed specifically at the economy, and (2) reforms of the political system that control the economic infrastructure. As a result, only limited incremental changes had been introduced in the criminal justice system.
The changes that have occurred in the justice system were introduced in the form of legislation or policy. This does not mean, however, that these intended changes have actually occurred in practice. The difficulty of implementing new policy is not unique to Russia. All organizations (or perhaps, more specifically, the people employed by them), irrespective of political ideology, have some degree of difficulty accepting most kinds of change in the status quo.
What compounds the problems for the reformers in Russia are the profound changes that are central to political and social institutions. The magnitude of the changes has implications for a person’s ability to cope. To illustrate, two scenarios are presented here. One form of coping is directed at employees of the justice system. The vast majority of people working in the Russian criminal justice system have been the same people who were employed in the Soviet system. They—more than most Russian citizens—were apt to support the communist cause, because the nature of their jobs was to enforce law and maintain order. While many may feel betrayed by their leaders and disillusioned with the current situation, in all likelihood, many also would be more reluctant to embrace the new order. As such, they might thwart change by looking nostalgically at the old order and either seeking a return to it or at least some new version for maintaining order.
The other kind of coping problem is directed more at the ordinary citizen, but could also apply to some employees of the justice system. At issue is the psychological impact that the dissolution of the Soviet Union has had on its citizens in general. According to Richard Pipes, the collapse of the Soviet empire “has dealt a heavy blow. . . to the self-esteem of Russians” (Isham, 1995). This climate of self-doubt has manifested itself in several ways. For example, there is a reluctance in some cases to accept the new legal order and in other cases to reject the ethical basis for the new market economy. The inability to develop a consensus on legal and ethical issues of this kind fosters instability. In addition, the absence of a sense of internal unity has led to an unstable balance of authority within the administration of government. It has been pointed out by more than one commentator that this kind of situation only enhances a nihilistic attitude toward the state and its agents.
A second observation of which students of comparative criminal justice should be aware is that whenever a country undertakes a massive transformation in its view of the social order, disorder inevitably occurs. The movement from a socialist economy to a free market system is an example of a massive transformation in the social order. Hence, a good deal of disorder can be expected. Every two steps taken forward toward a free market economy will undoubtedly be followed by one, and sometimes two, steps backward. Change of this magnitude seldom, if ever, occurs in a straight, constant, upward curve. This point has been illustrated well by the attempted coup in August 1991 by hard-line communists, the armed uprising of October 1993, the election of ultra-nationalist legislators in December 1993, the ongoing battle to keep the republic of Chechnya within the Russian Federation, the Communist Party’s comeback in the parliamentary elections of 1995, and since 2000, president then prime minister and now president again Vladimir Putin’s authoritarian efforts to consolidate more power under his leadership.
A final observation is that the leaders of the movement to transform the Soviet system were all products of the old order. They will rely upon agents of the criminal justice system for the retention of a degree of order. Despite the fact that the leadership is attempting to move the country to a new social order, they may condone or encourage the use of law enforcement and order maintenance methods that have proved effective in the past. This fact also suggests why significant change in the justice system will not be forthcoming during the early stages of the transformation to a new social order. Thus, while people in the West might be encouraged by reforms adopted in Russia, they should realize that lasting change will only occur gradually over an extended period of time. These observations are noted here because upon the dissolution of the Soviet Union many within and outside of Russia thought that the country might embrace the rule of law. Although there was some movement in that direction, it has yet to be achieved and is unlikely for the foreseeable future.
Social systems and their governments are supported—and in some cases held together— by a belief or value system that offers direction and a sense of purpose. For example, the United States holds that all people are created equal and are worthy of equal protection and due process of law. Russia is presently in the process of changing its social system and hence is altering its belief and value system. Obviously, this process will take a good deal of time. In this context, time is not estimated by months or a limited number of years but rather is measured in terms of at least a generation or more. As has been mentioned, the central feature of this transformation from the old order to a new order has to do with adopting a different set of economic principles that are embraced by society. This process has a profound impact on the political and economic infrastructure of the country. In the Russian context, this transformation has enhanced the status of law because the application of legal principles is vital to the successful implementation of the changes. The role that law plays in this process is not limited to economics, however. Its enhanced stature is utilized in other political and social contexts, including criminal justice.
Because Russia has been in a state of flux and is uncertain about its immediate future and long-term prospects, it is important to consider the events that have been unfolding in the country since 1991 in the context of the ideology that gave the Soviet Union its direction and purpose throughout much of this century. Unlike the beliefs that hold other social systems together, the Soviet value system was much more ambitious. Referred to as Marxism–Leninism, it was both a normative and descriptive theory that purported to explain social interaction and to prescribe the means of changing it. When one takes into consideration the historical and cultural characteristics of the country and its people, it should come as no surprise that the Marxist–Leninist philosophy became the official ideology of the government. What follows is a brief summary of the evolution of the communist ideology in the Soviet Union. It is designed to provide the reader with an outline of the ideology of the old order so that one can better understand the significance of the decision to abandon it for a new order.
Communism
Marx
The central contribution of Karl Marx (1818–1883) to the development of the communist ideology was his belief in the role that economic factors played in political and social change. The production and distribution of wealth and the kinds of property relationships that developed had a considerable influence on the social consciousness of humankind. Historically, this was the case under slavery, serfdom, and capitalism, and it would also be true under socialism and communism. This economic interpretation of history was central to understanding society.
For Marx, the principal factor that causes dynamism in the historical dialectic is the class struggle. This struggle is carried on by two conflicting classes: those who own the land and the means of production and those who work in order to subsist. In a capitalist society, class antagonism exists between the proletariat (or urban workers) and the bourgeoisie (or capitalist producers). Marx viewed capitalism as an economic system that exploited the masses. He felt that there would come a time when the proletariat would rise up in revolution and eliminate the bourgeoisie. Socialism would then be established to replace the capitalist system. With this change, the class struggle would cease to exist. Since the bourgeoisie used the state for the sole purpose of controlling other classes, it would become obsolete and wither away. All of this would be but a prelude to the creation of the ideal communist society in which prosperity would abound for all. Orthodox Marxists were of the opinion that the proletariat revolution would occur in a highly industrialized society. They felt that in a country such as England, the revolution could even occur peacefully.
Lenin
At the beginning of the twentieth century, Russia was not industrialized. It was an agrarian society having a small proletariat incapable of overthrowing the bourgeoisie. In light of these facts, it was the theoretical contributions of Vladimir Ilich Lenin (1870–1924) that made the revolution possible in Russia. Many of his ideas remained the guiding force in Russia until the emergence of Mikhail Gorbachev. Among Lenin’s principal ideas was a belief that the socialist revolution could occur in Russia if the proletariat united with the numerically superior peasantry. From his perspective, it was imperative that the proletariat be led by an elite, militant, and highly disciplined organization. This group would become the Communist Party, whose single purpose was to unite the masses to lead the revolution. Because of the need for unity of purpose, there could be no room for divisions within the party. Lenin referred to this principle as democratic centralism: all authority would rest with the party executive.
Lenin saw the revolution and the deterioration of the state occurring in two phases. The first stage was labeled socialism. During this phase, the state would continue to exist; it would appear on the surface to characterize a bourgeois society, but there would be a significant difference. Under socialism, suppression would be in the hands of the majority rather than the minority. The masses would systematically suppress the oppressors of the old regime, and the means of economic production would be socialized. Although equality would not exist in the workplace, at least exploitation would be eliminated. In addition, in order to assure the success of the revolutionary movement, aspects of bourgeois law would have to be retained because of the need for control. The second stage would see the withering away of the state and law, as well as the emergence of equality for all workers. At that point in time, the ideal communist society would be established.
Stalin
In his critique of Lenin’s democratic centralism, Leon Trotsky was fearful that a dictator might emerge from the powerful executive of the Communist Party envisioned by Lenin as necessary for a successful revolution. Until his death, Joseph Stalin (1879–1953) proved Trotsky acutely prophetic. Some have argued that Stalin was necessary in order for socialism to have succeeded in Russia. When Lenin died in 1924, the revolutionary movement was in disarray, and an agrarian economic base existed in the country. Stalin changed that by converting the country into a powerful and increasingly modern industrialized state. He accomplished this feat through summary executions, mass imprisonment of suspected enemies, and an extensive system of forced labor camps. Just as credit is given to Lenin for creating a viable revolutionary formula for Marxism in Russia, Stalin is acknowledged for transforming the country into a powerful giant among states. His methods, however, have been criticized from within the Soviet Union since his death.
Gorbachev
Not since Lenin had a Soviet leader made such a significant theoretical contribution to communist ideology as Mikhail Gorbachev (1931–). His theory consisted of an alternative rationale for achieving socialism that radically departed from some of the basic tenets of Leninism and offered a method designed to realize that objective. There were essentially two factors that motivated Gorbachev to depart from standard interpretations of the communist ideology. First, he was highly critical of the manner in which Lenin’s democratic centralism was adopted, that is, the extent to which power was allocated exclusively with the Communist Party. Second, Gorbachev wanted to dispel the myth that the Soviet Union had entered into a mature form of socialism. Lenin had argued that the socialist revolution would occur in two phases. The first stage was referred to as socialism. Although the state would continue to exist, it would be transformed through the elimination of the exploitation of the masses. The second stage would be marked by the withering away of the state and law, and the emergence of an ideal communist society in which equality would exist for all. During Leonid Brezhnev’s regime, this myth implied that, because they had entered a mature form of socialism, the Soviets were on the road to achieving the ideal communist society. Gorbachev felt that nothing could be further from the truth.
Gorbachev’s theoretical contribution was an attempt to resuscitate the communist ideology toward the establishment of a truly socialist society. His prescription for what was ailing the Soviet Union was based on three concepts: glasnost (openness), perestroika (restructuring), and democratization. Each of these ideas was interrelated. For example, democratization could not be achieved without glasnost, and perestroika could not be realized without democratization. Gorbachev acknowledged that what had caused the inertia in the Soviet economy was a bloated bureaucracy. This phenomenon was not limited to the Communist Party (although Gorbachev largely placed blame on it); it was also evident in the national, republic, and local levels of government as well as in the state-run economic system. Various bureaucracies had looked after their own interests for years and had largely ignored the interests of the people. According to Gorbachev, the people must be free in order for socialism to succeed, and this could be achieved only if the interests of all were represented in society’s decision-making processes. The policy of glasnost (openness) was the starting point, for it was the means by which the inefficiencies in public life were criticized. Gorbachev’s views on what was wrong with Soviet society served as a practical illustration of glasnost. Actually changing the status quo would be achieved through perestroika (restructuring), but perestroika could not be realized without democratization. When Gorbachev spoke of democratization, he was referring to democratic socialism. For Gorbachev, democracy must be socialistic, and socialism must be democratic. Here he remained true to his ideological roots, while also transforming that ideology into a viable theory for the present.
In order to achieve democratization, several changes were necessary in the Soviet system. These changes corresponded to three major issues. First, a democratic society is governed by the rule of law. Law assures rights and freedoms for individuals and controls the potential abuse of power and authority of the leadership. Thus, constitutional reform was necessary to establish a socialist style of checks and balances. There was also a need for an independent judiciary that was not tied to the dictates of the Communist Party. Reforms that addressed some of these issues were introduced and adopted during Gorbachev’s tenure in power. Second, democratization should lead to both equality of social justice and equality of opportunity. The latter was designed to encourage and assure individual initiative and enterprise—something that had been largely absent in the Soviet Union and was sorely needed for its economy. Gorbachev faced the difficulty of squaring individual interests with the more traditional collective interests of socialism. Third, democratization would inevitably lead to a plurality of ideas. In the political context, this would lead to the abandonment of a single-party system and the establishment of a multiple-party system. While Gorbachev was in power, legislation had been adopted to enable this to happen, but it was only realized after the dissolution of the Soviet Union. According to Gorbachev, democratization would strengthen, rather than weaken, the Communist Party.
This democratic style of governance would lead to the realization of the strategy of perestroika, because democratic styles of management would be introduced in all aspects of life. This restructuring would enable the introduction of efficient methods of planning and development in the economic sectors of society. Further, it followed that perestroika would eventually lead to the resolution of the country’s economic woes. In light of the political developments in the Soviet Union, a case could be made that the policy of glasnost and the strategy of perestroika succeeded beyond the wildest dreams of its proponents, in particular those of Gorbachev. While some people in Russia remain supportive of communism, it is not suggested here that Russia might return to this system, irrespective of the fact that the efforts to establish a new order have been painful for people and disruptive for society at large. What is possible is that Russia might grow weary of its efforts to chart a course toward democracy and abandon such a course in favor of an ideology that in the end is as repressive as that found under the communist system.
Democratization
When discussing domestic political events in the Russian Federation, the Western press has often used the terms “democracy” and “democratization” interchangeably. This is an inaccurate use of those terms and a flawed portrayal of reality. In this context, democracy should be used to explain a fact. It literally means “government by the people,” and it has been used to make distinctions among different types of governments, such as government by a few (aristocracy) or government by one (monarchy or dictator). Democratization, on the other hand, is a process in which proponents of democracy are aspiring to establish that form of government but as yet have not achieved that goal (Berman, 1992; Iakovlev, 1990; Juviler, 1990).
The central feature of democratization is a recognition of the importance of government by rule of law. Gorbachev recognized the significance of this, for he saw law as the vehicle for assuring rights and freedoms and for checking potential abuses of power and authority. From the time of Gorbachev to the leadership of the Russian Federation, Russia has been establishing the legal foundations for a democratic system of government. Legislation has been passed that is designed to assure basic political rights that are fundamental to the creation of a democratic state. These rights include freedom of expression, freedom of assembly, freedom of association, freedom of speech, and freedom of the press. Although these efforts are concrete illustrations that the proponents of democratization are having some success, the Russian Federation is still a considerable distance from reaching the ultimate goal of an established democracy. In addition (as mentioned in the previous section), the fact that legislation has been passed does not necessarily mean that it has been implemented in practice, enforced by Russian standards, or is being complied with in a manner deemed appropriate by the West.
From a Western perspective, one of the most important concepts associated with the rule of law is due process of rights and the concomitant notion of an independent judiciary. Although legal documents of the former Soviet Union spoke of rights for citizens, in practice, they did not mirror reality. Rights were vested in the state, not in people. As such, it will take time for the Russian Federation to pass a sufficient amount of legislation that addresses due process issues. It will require even more time to enable it to function in a manner that meets an objective Russian standard. Even when this occurs, it may not have reached an appropriate standard from a Western perspective. Moreover, a state that proclaims to be subject to its own laws must guarantee its citizens an independent judiciary. While efforts are under way to move in this direction, this has not been realized at this time in the Russian Federation.
Throughout Vladimir Putin’s first tenure as president from 2000 to 2008, there were growing concerns that Russia was returning to a highly centralized authoritarian state. Since that time this attitude continued when Dmitry Medvedev, Putin’s handpicked successor, assumed the presidency, and Putin became the prime minister. The constitution limited the person holding the office of president to two consecutive terms. Some argued that there was a need to impose order at the expense of liberty in order to salvage a degree of liberty, which most Russians had found alien to their personal experience. A good deal of criticism was directed at the government’s increased control of the media (Amnesty International Report, 2008). Protests by opposing political parties or other groups are frequently stopped by police, and such incidents are not reported in the media. It is alleged that some journalists who have been critical of the government were sent to psychiatric hospitals. This strategy can have an obvious chilling effect on the press in light of the use of such hospitals to curb dissent during the Soviet era. Moreover, it has been widely reported that as many as 16 journalists were killed from 2000 to early 2009. The assassination of these investigative journalists, along with some Russian human rights workers, have been referred to as political killings, for the victims were either reporting or expressing opposition to the abuse of law by the state (Amnesty International Report, 2012; Human Rights Watch World Reports, 2012, 2013, and 2014).
The extent to which corruption is widespread throughout most state institutions is another concern that threatens to undermine democratization. It is important to note that corruption did not emerge during Putin’s tenure as president. It was rampant during the Soviet era and continued to flourish in both the public and burgeoning private sectors following the establishment of the Russian Federation. It exists in the economic, judicial, political, and social life of Russians and is viewed as normal. To illustrate the degree of the problem, Transparency International issued a Corruption Perception Index for 2013. The Index provides for most countries a score of between 0 and 100, with 100 being the highest in the confidence range. The score is based on the views of country analysts and businesspersons. Russia received a score of 28. By way of comparison, the other countries that have a chapter devoted to them in this book received the following scores: United Kingdom, 76; France, 71; Japan, 74; Turkey, 50; Saudi Arabia, 46; South Africa, 42; China, 40; and Iran, 25. The United States received a score of 73 (Transparency International, 2013).
While the Russian public is not oblivious to the issue of corruption, because they are frequently confronted with it in their daily lives, they accept it as a normal pattern of behavior. The principal focus for most Russians is simply to improve their standard of living. In late 2008, the Russian Public Opinion Research Centre reported that 74 percent of the population considered the level of corruption to be high or very high. The Public Opinion Foundation’s research indicated that 56 percent of businesspeople and 29 percent of citizens had paid a bribe. These respondents indicated that they doubted the government’s ability to reduce corruption. They were referring to President Medvedev’s National Anti-corruption Plan that was scheduled to become law in 2009. This skeptical attitude of the citizenry was further justified when the Procurator General’s Office reported that bribery offenses continue to increase. During the last six months of 2007, 6,700 offenses were recorded, and the number of offenses increased to 8,000 during the first six months of 2008 (Transparency International, 2009).
A recent public opinion poll indicated that 30 percent of Russians consider corruption inevitable in light of the political and economic system. Twenty-two percent of the participants noted the Russian national character as contributing to this dilemma. In addition, 18 percent argued that the government authorities need more control to address the problem (Levada Center, 2013). President Putin has acknowledged this ongoing problem and has argued for, among other things, the need to address the issue of corruption in law enforcement agencies and the courts.
Putin became president again in 2012, while Dmitry Medvedev assumed the post of prime minister. Numerous questions were raised about the legitimacy of the election. At the time, various groups, in particular the growing middle class, were opposed to Putin’s return to power. Since his return, the Crimean peninsula has been annexed, and a crisis of sovereignty in eastern Ukraine has sparked international concern. In reference to Crimea, 91 percent of Russian respondents supported the reintegration with Russia. Moreover, a 2013 survey found 46 percent of the Russian respondents supporting Putin’s agenda, while 36 percent were highly critical of it (Levada Center, 2013)
Constitution
The Constitution of the Russian Federation was adopted on December 12, 1993, the same day it was approved by the voters. The document consists of nine chapters and 137 articles. It explains how the state functions, what the rights of citizens are, and how the government is organized and administered. The document has been referred to as the “Yeltsin” Constitution because former President Boris Yeltsin was the force behind delineating its legal principles and assuring its subsequent approval. Chapter 1 consists of basic provisions for the establishment of the constitutional system for the country. For example, Article 1 states: “The Russian Federation/Russia is a democratic and federal state based on the rule of law, with a republican form of government.” Articles 10 and 11 clarify in general terms the organization of the central government by indicating that the three branches of government—executive, legislative, and judicial—are separate and independent from each other. Questions have been raised in recent years over the extent to which the leadership of Russia is truly committed to democratic ideals, as the words “oligarchy” and “authoritative regime” have crept into the discussion by scholars on Russia’s system of governance.
Although constitutions of the former Soviet Union spoke of citizens’ rights, in reality, rights were vested in the state and citizens were accorded a series of obligations. With this constitution, the roles are reversed. For example, Article 2 declares: “Human beings and their rights and liberties are the supreme values. The recognition, observance and protection of human and civil rights and liberties is the obligation of the state.” Article 7 states: “The Russian Federation is a social state whose policy is aimed at creating conditions that ensure a dignified life for human beings and their free development.” Other articles in this chapter recognize diversity of ideas and religious beliefs, guarantee freedom in economic endeavors, and acknowledge private forms of ownership.
While Chapter 1 acknowledged the importance of human rights, Chapter 2 provides a list of specific rights and liberties that were deemed significant enough to include in the constitution. These rights are divided into 47 categories. Articles 20 through 25 identify some of the rights that are of particular interest to students of criminal justice. They state:
Article 20. Everyone has the right to life. Pending its abolition, capital punishment may be established by federal law as an exceptional measure of punishment for especially grave crimes against human life, provided that the accused is given the right to have his case considered in a trial by jury.
Article 21. Human dignity is protected by the state. There can be no basis for its derogation. No one may be subjected to torture, violence or other treatment or punishment that is cruel or degrading to human dignity. No one may be subjected, without his or her voluntary agreement, to medical, scientific, or other experiments.
Article 22. Everyone has the right to freedom and personal inviolability. Arresting persons, taking them into custody and keeping them in custody are permitted only on the basis of a court decision. A person may not be subjected to detention for more than 48 hours before a court decision is rendered.
Article 23. Everyone has the right to inviolability of personal life, personal and family privacy, and the protection of his or her honor and good name. Everyone has the right to confidentiality of correspondence, telephone conversations, and postal, telegraph, and other communications. Restriction of this right is permitted only on the basis of a court decision.
Article 24. The gathering, storing, use, and dissemination of information about a person’s private life without his or her consent are not permitted. Bodies of state power and bodies of local self-government, as well as their officials, must provide everyone with an opportunity to become familiar with documents and materials directly affecting his or her rights and liberties, unless stipulated otherwise by law.
Article 25. Dwelling quarters are inviolable. No one has the right to enter dwelling quarters against the will of the residents, except in cases established by federal law or on the basis of a court decision.
These articles illustrate some of the constitutional concerns that have implications for both citizens and agents of the Russian criminal justice system. For the most part, many human rights issues identified in these articles have yet to be achieved to any significant extent and thus should be considered ideals. Although more will be said about this, it is important to identify briefly some of the concerns raised by both rights groups within Russia and various international organizations, such as ACAT-France, Amnesty International, the European Court of Human Rights, Human Rights Watch, and Transparency International. To illustrate, it is not uncommon for people to be subjected to torture and violence by police. The 48-hour rule on detention while in police custody is frequently waived. The right to confidentiality is breached by the authorities. Finally, criticism has been leveled at the cruel and degrading policies and conditions of many correctional institutions.
Other issues that deal with criminal justice in general and criminal procedure in particular are also addressed in this chapter of the constitution. They will be discussed in the section on law.
Chapter 3 is devoted to a wide range of issues that are significant for a federated system of governance. For example, distinctions are made regarding those issues that are solely the responsibility of the federation and those that are shared jointly between the federation and members of the federation. Of particular significance is Article 76, which illustrates the newfound importance placed on the rule of law. The article states, in part:
Federal laws may not be at variance with federal constitutional laws.
Laws and other normative legal acts of the members of the Russian Federation may not be at variance with federal laws. . . . If there is a contradiction between a federal law and another act issued in the Russian Federation, the federal law prevails.
The other chapters of the constitution deal with various branches or levels of government and are described next.
President
The president of the Russian Federation is elected to a six-year term by direct universal suffrage. He or she is limited to holding the position for two consecutive terms. The president is the head of state, which gives him or her the constitutional authority to represent the Russian Federation within the country and in the international community. The president is responsible for the formulation of domestic and foreign policy and serves as the head of the Security Council of the Federation and the Supreme Commander in Chief of the Russian Federated Armed Forces.
The constitution authorizes the president to appoint the chair of the government (or administration) of the Russian Federation, with the consent of the State Duma; to preside over meetings of the government; and to make decisions on dismissing the government. The president is responsible for presenting judicial candidates to the Constitutional Court and to the Supreme Court and a candidate for the position of Procurator General of the Federation. These candidates must then receive the approval of the Council of the Federation. The president also has the authority to issue directives and decrees that are binding throughout the federation, as long as they comply with constitutional and federation law.
As was alluded to earlier, the Constitution of the Russian Federation has been criticized within Russia because it extends significant powers to the president. Further illustrating the level of authority granted the office is Article 80, which states, in part, that:
The President of the Russian Federation is the guarantor of the Constitution of the Russian Federation and of human and civil rights and liberties. In accordance with procedures established by the Constitution of the Russian Federation, he takes measures to protect the sovereignty of the Russian Federation, its independence and its state integrity, and he ensures the coordinated functioning and interaction of all bodies of state power.
Clearly, significant powers are vested in the office of president, but this is not unusual by Russian standards. The political history of Russia has been dominated by strong, powerful leaders for centuries. In the Soviet context, Mikhail Gorbachev amended the Constitution of the USSR (Union of Soviet Socialist Republics) in 1990 to enhance the role of president. Until that time, the office had been largely ceremonial. Gorbachev’s purpose was to use the office to support his efforts at perestroika. In fact, amending the constitution to strengthen the presidency was a practical example of perestroika. Moreover, because the Russian people do not have a point of reference in their history with participatory forms of governance, Boris Yeltsin may have actually enhanced the likelihood that the country will remain on a path toward a democratic system by vesting significant authority in the office of the president. Only history will tell if the presidential authority is used to avert chaos or to cause it. As alluded to earlier, Vladimir Putin’s efforts to centralize more power under his presidency has raised concerns among those proponents of democratization and rule of law.
Prime Minister
Article 110 of the constitution states: “Executive power in the Russian Federation is exercised by the government of the Russian Federation.” The government includes a prime minister (chair of the government) and other federal ministers. The prime minister is appointed by the president with the consent of the State Duma. The principal responsibilities of the prime minister are to establish and organize the work of the government in coordination with other ministers. The government can be dissolved under the following circumstances: if it relinquishes its authority when a new president is elected; if it tenders its resignation, which can be accepted or rejected by the president; if the president decides to dismiss the government; or if the State Duma indicates its displeasure with the government through a no-confidence vote.
Federal Assembly
The Federal Assembly is a bicameral parliament that consists of the Council of the Federation and the State Duma. The members of each chamber elect a chair and a vice-chair who preside over their respective chambers. The State Duma is composed of 450 deputies who are elected to a term of five years and serve as full-time legislators. The administrative responsibilities of the Duma include consenting to the president’s selection of a prime minister, determining issues of confidence in the government, and bringing charges against the president with the intention of removing him or her from office.
Once legislation is adopted by the Duma, it is sent to the Council of the Federation for that chamber’s consideration. The Council is composed of 166 members. Each of the 83 administrative units that form the Russian Federation has two representatives to this chamber. One representative is selected from the ranks of the legislative branch of the administrative unit, while the other representative is a member of the executive branch of the local unit. It has been suggested by critics that the selection of representatives to the Council are largely controlled by the executive branch of the Russian Federation (Shiraev, 2010).
All legislation that deals with financial issues, international treaties, the country’s borders, or matters of war and peace must be entertained by the Council. Approval from the Council for all other legislation can occur either by a simple majority vote or by default if the Council fails to entertain the matter within 14 days of receiving it. The constitution assigns several other duties to the Council. These include confirming presidential decrees on such sensitive issues as the imposition of martial law or the introduction of a state of emergency, determining the use of federation troops outside the boundaries of the Russian Federation, appointing judges to the Constitutional Court and the Supreme Court, and removing the president from office.
Political Parties
At the beginning of this section, it was suggested that the development of the communist ideology gave the Soviet Union direction and purpose throughout much of the twentieth century. The Communist Party played a significant role in the politics of the Soviet Union. Unlike political parties in many Western countries, the Communist Party of the Soviet Union (CPSU) possessed a number of unique characteristics. Most significant was the fact that it was the real source of power and authority within the country. Another was the special purpose that it bestowed on itself. Whereas most political parties exist in the hope of winning elections, the CPSU’s original purpose was to foment revolution and to achieve power through force rather than the ballot box. Subsequent to the formation of the Soviet Union, the party’s primary goals were to maintain power and to determine and implement its policy for the future of the socialist state. This was fairly easy to achieve because the CPSU was either the dominant party or, for many years, the only political party in the Soviet Union. Membership in the party was kept small intentionally. In a country of more than 285 million inhabitants, party membership was approximately 16.5 million. This coincided with Lenin’s belief that only a small number of committed, disciplined revolutionaries were capable of directing the country through the various stages of revolution, socialism, and communism.
In considering the state of political parties in Russia today, we return to the context of the country’s efforts at democratization. Basic political rights are fundamental to the creation of a democratic state. Freedom of expression, assembly, and association establish a climate of opinion that in turn encourages a diversity of ideas. Support for this position has been included in the Constitution of the Russian Federation. Article 13 states: “Ideological diversity is recognized in the Russian Federation. No state or mandatory ideology may be established. Political diversity and a multiparty system are recognized in the Russian Federation.”
Following the dissolution of the Soviet Union, a number of political parties emerged in Russia, which suggested that the people were embracing the concept of political diversity. At the time, it could have been argued that there were actually too many parties. To illustrate, of the 43 parties that competed for seats in the parliamentary election of December 1995, 33 of them each received less than 3 percent of the vote. Recently, the number of political parties that have attracted the attention of voters in a significant way has diminished considerably.
United Russia is the political party that has supported the administrations of Putin and Medvedev. In the parliamentary elections to the Duma in December 2012, it secured 238 seats in the 450-seat Duma. The Communist Party is the only group that could be considered an opposition party in parliament. It espouses a socialist agenda that emphasizes moderate reform, including more public-sector spending and less privatization. It holds 92 seats in the Duma. The Liberal Democratic Party and the A Just Russia (sometimes referred to as Fair Russia) party are the only other parties of note. They secured, respectively, 56 and 64 seats in the Duma. In March 2008, Dmitry Medvedev received 71.5 percent of the vote, while his opponent from the Communist Party garnered 17.9 percent. In 2012, Putin garnered 63.6 percent of the vote, followed by the Communist Party candidate with 17.2 percent. The other party candidates for the presidency were in single digits. Today, commentators on Russia’s political system consider it devoid of any serious party competition.
Administration
The administration of the government of the Russian Federation is carried out by a combination of ministries, committees, and other federal agencies. Some of the ministries and federal agencies are directly subordinate to the president because of constitutional or legislative provisions. These include the Ministries of Defense, Internal Affairs, and Foreign Affairs. The other federal agencies that report directly to the president are Chief Security Guard Administration, Federal Security Service, Foreign Intelligence Service, Government Liaison and Information, Television and Radio Service, and Archives Service. Oversight of the other federal government units would fall to the prime minister. This would include Ministries of Agriculture and Food, Economics, Education, Fuel and Power, Justice, and Transportation. In addition, there is a host of other federal committees and departments.
As is the case in any large country, local governments serve a useful purpose. They usually provide many of the basic services to the citizenry, including schools, hospitals, recreational facilities, and distribution centers for goods, as well as other social services. The Constitution of the Russian Federation addresses this issue to some extent. For example, Article 131 states: “Local self-government is exercised in urban and rural communities and other geographical areas with regard for historical and other local traditions. The population independently determines the structure of the bodies of local self-government.” In addition, Article 132 indicates: “Bodies of local self-government independently manage municipal property; draw up, confirm and fulfill the local budget; establish local taxes and fees; safeguard public order; and alone resolve other questions of local significance.” In a country whose history has known only authoritarian rule and whose political perspective had been dominated by a single view of its social destiny (a revolutionary one at that), the Russian Federation has recognized the importance of self-governance by including it in its strategy of democratization.
A government that espouses principles associated with democracy is expected to adhere to the rule of law. Under such a system of government, people are vested with legal rights, and the state through its agents is obliged to protect the people in the exercise of those rights. Usually, the police are the initial government agents called upon to assure adherence to these democratic principles.
The basic principles associated with the governance of the Soviet Union were the reverse of those found in a democratic system. Government was not based on the rule of law but on the dictates of the Communist Party. The state was vested with all rights, while the people were subservient to the obligations of the state. Under this system, police considered themselves above the law, and people generally conformed to this arrangement because they tended to defer to authority.
During the Soviet era, three kinds of police systems were established: state security, militia, and ancillary forces. To a large extent, the government of the Russian Federation has had a difficult time reconciling or adapting these police systems to the democratization movement. In particular, basic issues of organization and policy have been in a state of flux. What follows is a description of the organization and administration of the three kinds of police systems established during the period of the Soviet Union, and how each system has attempted to adapt since the establishment of the Russian Federation (see Figure 5.2 ).
Organization and Administration of State Security
The history of the Soviet police began almost immediately after the October Revolution of 1917, when the principal law enforcement organizations were established. The method of organization goes a long way toward explaining the administrative history of these forces. In December 1917, the Council of People’s Commissars created the Extraordinary Commission for Combating Counter-Revolution and Sabotage (known by the Russian acronym Cheka). It was the new government’s first state security force and, as the name suggests, it was charged with eliminating all acts of counter-revolution and sabotage. The Cheka quickly acquired the power to impose summary executions on opponents of the regime. For example, it is estimated that the Cheka executed 50,000 people during the Civil War. Thus, the Cheka became the investigative arm as well as the executioner of the Party and revolutionary government.
Figure 5.2 Organization of the Police of the Russian Federation
This kind of police force was not new to Russia. As early as 1565, Tsar Ivan (the Terrible) had established the Oprichnina, a political police force known for its reign of terror. Subsequent Russian tsars adopted similar forces. It is generally assumed, however, that the Cheka was more effective than its predecessors. This is partly attributable to the use of Cheka agents posted throughout the country and the utilization of other local law enforcement personnel to assist in achieving the Cheka’s objectives.
The evolution of the state security force was marked by changes in both the organization’s accountability to a higher government authority and the significant role it played in the development of Soviet society. The Cheka allegedly was created because of the extraordinary conditions that existed at the time, such as the founding of a revolutionary government and the fact that the country was in a state of civil war. The Cheka was disbanded in February 1922 because of the infamous reputation it had acquired and because the times no longer warranted such an institution. Undoubtedly, some of the party faithful sincerely wanted the organization abolished, but in reality, a state security police continued to exist. The agency was renamed periodically as the central government was reorganized. The last time this happened was in 1954, when the Committee for State Security (KGB) was created and made accountable to the Council of Ministers of the USSR.
Thus, from the early development of the Soviet state, the government saw the need to create a security force that was distinct from a regular law enforcement corps. In terms of organization and responsibility, the state security force and the regular force were generally kept separate. On occasion, however, they were merged under one government unit. Two explanations have been offered for this change. One has focused on the pretext that party leaders were attempting to curb the often unwieldy power of the state security force. It was thought that amalgamation would achieve that end, but it seldom lasted for long. There was always an extraordinary event—either internal or external—to justify the party leadership’s desire to strengthen the state security unit. After all, since its inception, the state security force viewed itself as the “Sword and Shield of the Party.” The other explanation suggested that the mergers occurred when the party needed a mechanism that would instill greater fear into the lives of the average citizen. It was felt that the state security force would be in a better position to achieve that end if it was administratively merged with the regular forces.
The KGB remained the state security force until the demise of the USSR. It was a centralized force whose geographical jurisdiction stretched across the USSR and beyond. Its central office was located in the Lubyanka building in Moscow at No. 2 Dzerzhinsky Square. The Lubyanka building had been the headquarters of the Cheka; Felix Dzerzhinsky was that organization’s founder.
For Americans to comprehend the power and authority of the KGB, they would have to envision a merger of the FBI, the CIA, the National Security Agency, and the Secret Service, and then grant that consolidated agency the authority to implement on a regular basis policies and programs that are above the law. This authority had been afforded the KGB. One should not get the impression that the KGB was beyond control though, for the party leadership was careful to monitor the actions of the organization. The leadership remembered Lavrenti Beria’s attempt to make the unit a force unto itself. Moreover, the leaders of the KGB were loyal party members who remembered that Beria was arrested and executed for attempting to implement his scheme.
Despite the party’s diligence in monitoring the actions of the KGB, its ability to accomplish that goal was hampered somewhat during the years between 1960, 1970, and 1980. In the past, particularly during Stalin’s time, state security agents were essentially characterized as thugs. During these three decades, however, the people recruited to perform this work were highly educated and sophisticated individuals. They had been trained in the business of developing new methods to avoid detection. As a result, it would be folly for the party leadership to assume that they were kept apprised of all the activities of the KGB, especially those activities directed at them.
In order to understand how the KGB was organized, one must first appreciate its mission. The organization’s basic purpose was to maintain and extend the power of the Communist Party throughout the world. Among the principal means used to achieve that end was the carrying out of espionage, subversion, and terrorist acts in capitalist and third-world countries. It also attempted to control the communist parties and governments in the various satellite countries that existed along the borders of the Soviet Union. This was achieved by infiltrating the party and influencing its policies.
The KGB was also actively involved in the surveillance of its own people in an attempt to isolate and check the growth of anticommunist feelings among them. It was assisted in this endeavor by an extensive network of informers strategically situated in all walks of life. A subtle pall of terrorism hung over every Soviet citizen, because most had a relative or friend (or knew someone) who had been exiled or liquidated for anti-Soviet behavior in the past. For the estimated 10,000 politically active dissidents, the pall was not subtle. Rather, the fear was a constant in their lives. Gorbachev attempted to alleviate this fear when he expressed the desire to permit the establishment of a multiparty political system. This view was given legal force with the passage of the Law on Public Association (1990), which declared free association to be an inalienable human and civil right.
According to experts, the KGB was organized into several directorates (Barron, 1974, 1985; Corson and Crowley, 1986; Hingley, 1970; Levytsky, 1972; Myagkov, 1976). The first chief directorate was responsible for monitoring espionage and subversion outside the Soviet Union. It trained and planted KGB agents in foreign countries; it obtained sensitive information, often of a defensive nature, from Western countries; and it recruited foreigners into the KGB service.
Of more interest to the student of foreign criminal justice systems was the second chief directorate. It was divided into a number of departments, of which several were designed to monitor and control the lives of the Soviet people. In many respects, this was the most important unit within the KGB. It investigated and attempted to curb the large network of black marketeers as well as the corruption and waste that existed in the government. It also protected the vast industrial complex and sensitive research centers of the country. Other departments within this unit specialized in spying on tourists, foreign students, and foreign journalists. It was not uncommon for the KGB to try to recruit foreign students and journalists as KGB agents.
While Nikita Khrushchev was in power (1953–1964), he attempted to offer the appearance that the party was willing to permit the expression of unorthodox views. As a result of this change in policy and the subsequent attempts at free artistic expression, the leaders concluded that it was getting out of hand; there appeared more open displays of dissent from within the country than had originally been anticipated. In 1969, the party hierarchy approved the creation of the fifth chief directorate. Its primary responsibility was to eliminate dissent. Within this directorate, various departments suppressed literary works, nationalism among the various ethnic groups, and the practice of religion. This directorate was abolished during the Gorbachev era, in part because of its excesses. Another reason was that its mission was at cross-purposes with glasnost and democratization. For example, the Law on Freedom of Conscience (1990) enabled the free expression of religious beliefs, and the Law on Public Association (1990) permitted the free association of individuals with various groups.
The purpose of the eighth chief directorate was to monitor and decipher foreign communications. This was accomplished through the use of spy satellites and communications equipment located in Soviet embassies around the world. This unit was also responsible for maintaining the security of the Soviet communications systems within the country.
The unnumbered Border Guards directorate dated back to 1918, when Lenin formed a border guard unit within the Cheka. Because it was composed of land, sea, and air troops who guarded the Soviet borders, it had both a law enforcement and a military function. It kept undesirables out of the country, while also preventing people from illegally leaving. When Sino–Soviet relations soured in the 1960s, the troops from this unit fought the Chinese along their common border. These troops were assisted in their work by support brigades composed of civilians living in towns and villages near the borders. The number of checkpoints along the Soviet borders had been increasing under Gorbachev, allegedly in an attempt to curtail the smuggling of contraband. Among the more significant concerns was the emergence of illegal narcotics.
Finally, a new directorate was created for the protection of the Soviet constitutional system. It had three specific tasks. One was to prevent foreign groups from engaging in anti-Soviet actions that were designed to overthrow the Soviet state. Another was to curtail terrorist attacks within the country. It had been alleged that more than 1,500 persons were identified as being involved in terrorist activities during the 1970s and 1980s. The directorate’s third purpose was to address the problem of organized crime, which had been identified as a growing problem throughout the country.
Information about the KGB became more readily available to the public because of Gorbachev’s efforts at glasnost and the attempted coup in August 1991. As a result, the people of the Soviet Union began to learn what many had suspected for a long time: the KGB had truly extensive authority and exceptional power throughout the country, and it was utilized not only against ordinary people but also against high-ranking Soviet officials. The KGB was in a strategic position to implement this activity because it had a monopoly over the government’s communications system, which facilitated their efforts at surveillance and enhanced the likelihood of assuring total secrecy. They were also charged with protecting the president and the borders of the USSR.
In an attempt to deflect criticism during the autumn of 1991, KGB officials argued that the state security force should only be responsible for intelligence, counterintelligence, and, possibly, a few crimes, and the militia should be the principal law enforcement system dealing with crimes against individuals and property. The willingness to placate the rise of public opinion against the KGB came too late, though. In October 1991, the KGB was replaced with three separate organizations: a central intelligence service, an inter-republic counterintelligence service, and a state border service. It was assumed that the central intelligence service would be responsible for information dealing with foreign, military, and economic issues. The inter-republic counterintelligence service would handle domestic intelligence. The state border service would continue to guard the borders but would be established as an agency independent from the other intelligence-gathering services. At the time of the dissolution of the KGB, it was also suggested that a definition be provided to explain what constitutes state security in light of the fact that no law existed on the subject in the new political context.
The collapse of the Soviet Union in December 1991 caused the creation of the Russian Federation. Presently, attempts are being made to adapt a Soviet-styled state security service within the context of an alleged Russian commitment to democratization. The principal concerns influencing the debate have centered on basic issues of policy and organization.
One of the key policy issues was the extent of the authority that should be granted to the new state security service. Specifically, there was concern that the security service would attempt to reclaim its former absolute power. To illustrate, requests had been made since 1992 to permit eavesdropping on telephone conversations, opening correspondence, and performing secret searches without a warrant. In addition, it has been suggested that public and private organizations should be required to permit the installation of bugging devices and the hiring of agents as employees. Critics of these requests point out that this is an attempt to establish a police state once again, but this time it would have a legal basis. An important organizational issue has focused on whether the border guards should be a separate entity or a subordinate unit within the security service.
At the beginning of 1994, a new state security service was created: the Federal Counterintelligence Service (FCS). Although the head of the FCS was a director, the service was actually administered by a committee of 11 people. The president of the Federation appointed the director and exercised control over the activity of the FCS. Unlike most governmental agencies that usually report to a ministry, the service reported directly to the president.
The principal duties of the FCS were to prevent intelligence-gathering and subversive activities by foreign special services, to combat terrorism and trafficking in arms and drugs, to detect the more dangerous armed groups in the country, and to provide the president with information on threats to the security of the Russian Federation. It was also decreed that the border troops would be a separate service. Moreover, the FCS was deprived of several responsibilities that were usually associated with the Soviet security service. For example, investigative duties were assigned to procurators, and the Lefortovo prison was placed under the authority of the Ministry of Internal Affairs.
This arrangement of the Federal Counterintelligence Service did not last long, for the government had been arguing for a number of years that there was an enhanced need to combat dangerous crime. While organized crime, trafficking in arms and drugs, and white-collar crime remained issues, there was an enhanced concern over terrorists claiming to be associated with Islam and other extremist groups that included in some instances trade unions, public protestors, and bloggers. To address these concerns, changes were introduced during the 1990s and into the first decade of the twenty-first century that have had an impact on both the operational policy and the organization of the state security service.
First, the Federal Counterintelligence Service (FCS) had its name changed to the Federal Security Service (FSB for Federalnaya Sluzhba Bezopasnosti). The principal duties of the FSB are counterintelligence, intelligence, and combating corruption and organized crime. These duties reflect how the FSB is organized. The principal directorates of the FSB include the Counterintelligence Service and the Service to Protect the Constitutional System and Combat Terrorism. The Counterintelligence Service is responsible for counterespionage. This includes both the military and the military-industrial complex along with crimes associated with the Internet. The Service to Protect the Constitution focuses on terrorism both inside and outside the country and is concerned in particular with political extremists.
Throughout its long history during the Soviet period, the Border Guards had at times been an independent enforcement agency but also on occasion been subordinated to a position with the state security system. In 2003, the Border Service lost its independence and became part of the FSB. The Border Guards protect the state borders and devote a good deal of attention to the illegal drug trade. The Economic Security Service has a broad mandate that includes security of industrial enterprises, transportation, and the financial system. This directorate also provides counterintelligence assistance to the ministries of the interior, emergency, and justice. Finally, the Operative Information and International Relations Service is responsible for the analysis of foreign intelligence operations and international events. The other directorates within the FSB focus on support, such as human resources, scientific and technical issues, supply services, and oversight (Soldatov and Borogan, 2010).
Under the reorganization plans that led to the establishment of the FSB, the authority of the Russian state security service was expanded. Critics of this plan argued that the security service was taking on many of the attributes of the KGB. Of considerable concern is the fact that various investigative functions have been returned to the FSB. In addition, Lefortovo prison is utilized as a pretrial detention center for the FSB. Finally, the FSB is no longer subject to the oversight of the Procurator’s Office.
To illustrate the nature of the critics’ concerns, agents of the FSB can enter and search a premise without a warrant if they are of the opinion a crime is in progress or a citizen might be at risk. They are expected to notify the procurator of these activities within 24 hours. FSB agents are also permitted to open mail, tap telephones, and monitor other forms of communication without a court order if they are of the opinion that this is an emergency or the country’s security is threatened. Security issues are not limited to military or political concerns, but also include economic and environmental matters. While a judge must be notified of these activities within 24 hours, concerns have been raised that the law does not adequately explain or define the terms “emergency” or “security”.
It has been pointed out that the KGB was at least under the control of the Communist Party. The FSB is much more independent in that it does not answer to a political party or to the legislature, the Russian Federal Assembly. The FSB’s allegiance is to the state, that is, to those in positions of power rather than to the rule of law. This led to accusations of illegal activities and corrupt practices on the part of members of the FSB (Soldatov and Borogan, 2010).
Organization and Administration of the Militia
The militia was the other police force established during the early years of the developing Soviet state. It was created on November 10, 1917, and was mandated as the principal force for securing law and order for the new socialist government. The militia was empowered to perform the more traditional tasks of police work (that is, law enforcement and order maintenance in the usual sense in which those words are used). It was responsible to the People’s Commissariat of Internal Affairs (NKVD). Although the militia performed traditional police tasks, its authority extended beyond those parameters as understood in the West. For example, because the state had a monopoly over the means of production, there was an acute need for economic regulation and control. The militia played an influential role in that regard. The militia was designed as the principal regular police force in the Soviet Union, whereas the Cheka was styled as the first state security force. Compared to the state security force, the history of the militia was fairly uneventful.
From its inception, the militia had always been accountable to a government unit or ministry. When the Soviet Union ceased to exist, the Ministry of Internal Affairs (MVD) was responsible for the administration of the militia. The chair of the MVD was a member of the Council of Ministers of the USSR. For more than two decades before the demise of the country, the Soviets had a serious crime problem, similar to that found in capitalist countries. A more candid attitude toward these concerns had emerged and resulted in an attempt to strengthen and improve the quality of the militia. In fact, it was suggested that the MVD had become a very powerful ministry in light of its broad range of law enforcement responsibilities (Juviler, 1976). Moreover, some experts were of the opinion that a significant agency rivalry had developed between the MVD and the KGB.
The militia supposedly followed the principle of democratic centralism from its inception. This means it had a dual accountability: one to the Ministry of Internal Affairs for the USSR and one to the local soviet district in which the militia carried out its responsibilities. The militia, therefore, was both centrally and locally supervised in accordance with Soviet law. The unity of this dual accountability was achieved by having divisional inspectors of the militia appointed to executive committees of the local soviets. During the waning years of the Soviet Union, the executive committees of the local soviets increased their efforts at overseeing both the effectiveness and efficiency of the local militia. Of particular concern were issues involving public order, crime prevention, traffic safety, and a reduction in the number of instances in which people were avoiding socially useful work (Gabrichidze, 1986–1987).
The individual militia units found throughout the Soviet Union were each divided into four major departments. The size of the territory policed determined the size of the unit and the strength of each department. Both uniformed and plainclothes officers were assigned to these departments. While each department had a general responsibility for crime prevention, each was assigned a specific task in order to achieve that goal.
One of the most important departments was criminal investigation. This department investigated crimes that had been committed and those that were suspected of being planned. Within the department was a child welfare office responsible for juvenile offenders and neglected young people, which worked in conjunction with the local Soviet community councils on juvenile crime prevention. Members of a criminal investigation department were given an additional responsibility that in other countries is normally assigned to probation and parole officers: they attempted to find employment for inmates who had been released from prison.
The department for combating the misappropriation of socialist property was involved with economic and technical crimes. It was concerned with theft, bribery, and speculation in trade and industrial production. Department employees were not only concerned with detecting such crime, they also advised the managers of industrial complexes on ways to prevent such criminal activity. Members of this department watched for people who were living beyond their means. This was relatively easy to discover, because the militia or the KGB were likely either to have someone in the personnel department of the organization or have legal access to the person’s employment and salary record. Moreover, the department was assisted in its work by the Voluntary People’s Guard. This organization aided the militia by monitoring the activities of fellow workers or residents in housing complexes.
The passport department was another important component of the militia. The Soviet Union had an internal passport system designed to monitor the movements of its citizens. All citizens who had reached the age of 16 had an internal passport. The document contained the individual’s name, birth date, place of birth, nationality, marital status, number of children (if any), military service record, place of work, recent photograph, and any other pertinent information. The passport also included the propiska, a stamp indicating the specific location where the person had a legal right to reside.
These passports restricted the movement of people by indicating where a person was supposed to be residing and where he or she was employed. The passport system enabled the government to control where people lived and worked; it also served as a useful tool for police seeking leads about the lifestyle of a person suspected of anti-Soviet behavior. If a person was stopped far from his or her official place of residence without a pass, he or she became a suspect. The passport system also was used to determine whether a person was employed or was avoiding “useful work” (useful work was a constitutional duty of all Soviet citizens). It should be noted that now Russian citizens have more freedom of movement and the right to select their place of residence. The law, however, requires that they carry an internal passport issued by the government when traveling throughout the country. They must also register with local authorities during the course of their domestic travel. Government services can be refused and fines imposed for people who have not complied with this legislation.
The state automobile inspection and traffic control department was another significant division within the militia. Involved in the prevention of traffic accidents through public education programs, this department was particularly concerned about reckless drivers— especially drunk drivers. Excessive alcohol consumption was considered a significant national problem, and that point was brought home frequently by the number of alcohol-related traffic offenses. The department also was involved (in conjunction with the producers of automobiles) with improving the quality of motor vehicles (Karpets, 1977).
During the Gorbachev era, the Ministry of Internal Affairs announced several initiatives designed to improve either the efficiency or effectiveness of the police in general and the militia in particular. It suggested that there was a need for laws governing the rights and duties of the police. In addition, efforts were under way to improve operational equipment, particularly in the area of criminal investigation. Finally, there were discussions regarding organizational changes. It was suggested that the local militia be accountable solely to the Ministry of Internal Affairs for their republic. These local forces would be responsible for the more typical duties of law enforcement and order maintenance. A centralized national unit would remain and be responsible for major investigations; it would retain its dual subordination to the local and national government. A third unit would consist of regional task forces designed to address concerns such as organized crime, illegal drugs, and terrorism.
With the dissolution of the USSR, each of the former republics retained a militia force. In the Russian Federation, efforts have been directed at improving the effectiveness of the force, with particular attention to combating street crime. Several strategies have been employed to achieve this goal. First, the militia has recruited and trained more officers. Second, because the quota of conscripts to the army has been reduced, young men can serve their compulsory duty by assisting the militia. Third, officers have been shifted from units that had a more-than-adequate staff, such as the motor vehicle inspectorate. Finally, the militia has been relieved of some order maintenance duties. For example, referring alcoholics to treatment has been assigned to the Ministry of Public Health, although the militia continues to remove them from the streets. The Ministry of Social Protection has assumed responsibility for placement centers for children. The militia also has been relieved of the duty to help people who have been released from prison find employment and housing. Finally, the duty to install and operate traffic signals has been assigned to local administrations.
During the waning years of the Gorbachev era and since the dissolution of the Soviet Union, the militia has been the subject of reform efforts. In 1991, legislation, “On the Militia,” was passed that was designed to make the mission of the organization more transparent to the public. In 1996, a strategy was developed to reform the militia as it grappled with increased levels of crime and attempted to participate in the development of a democratic state and embrace the principles of the rule of law.
In 2011, another reform effort was undertaken. Unfortunately, the only notable change was that the militia was renamed politsia. It remains the principal department throughout the country for public safety and criminal investigations. It also contains special security forces. It has retained its militarized units that can work independently or with the military in combatting terrorism. Finally, politsia are responsible for policing extremist groups. At times, extremists have been very loosely defined to include those who oppose various government policies.
Unfortunately, the politsia has been one of the major disappointments at achieving reform, and some of the failure is not of its own making. There is a large-scale turnover within the organization among those who have the education, training, or skills to move into the more lucrative private sector. This is largely the result of poor working conditions, shortages of equipment, low pay, and limited career prospects of advancement.
While efforts have been made to introduce ideas about democratic policing and human rights concepts, they have not been very effective at this stage. These problems should not come as a significant surprise to those familiar with the difficulty of attempting to change the culture of an organization. This is especially the case in this context when the goal is to move an organization from a highly authoritarian approach to one that is based on democratic and rule-of-law principles. A number of officers had not accepted the rule-of-law principles, as illustrated by the considerable number of human rights abuses associated with the militia. Petty bribes and large-scale corruption have also been identified as serious problems confronting the organization. Obviously, low pay and an indifference to the rule of law contribute to these problems. Unfortunately, this situation leads to a lack of trust from the public (see Beck and Robertson, in Pridemore, 2005).
In spite of the well-publicized serious abuses by the police, the problems have not been addressed by the government’s reform efforts. The lack of professionalism, poor quality of training, significant employee problems with alcoholism, serious levels of corruption associated with bribes, and collaboration with organized crime continue to impact the image of the organization. Of particular concern has been the level of torture or ill treatment of real or alleged criminals. Two issues have been identified that contribute to this ongoing problem. First, the primary tool employed by Russian police investigators is to secure a confession, rather than collect evidence or interview witnesses. This approach is encouraged by the organization, because its main goal is to secure a high percentage of admissions of guilt at the pretrial stage of the process. Torture and other forms of ill treatment enhance the likelihood of a signed confession. Moreover, procurators, judges, and even defense attorneys have been known either to condone or ignore appeals that a person’s procedural rights were violated while detained under police custody.
The other issue associated in particular with the level of torture by police is often referred to as the “Chechen syndrome.” Following the dissolution of the Soviet Union, the republic of Chechnya sought its independence. Two wars were fought between Russia and the Chechens in1994–1996 and in 1999–2000. Russia ended up regaining control of the region, although they kept troops there until 2009 in light of anti-terrorist events. The police that were deployed to Chechnya during the conflict were redeployed to police civilian areas of Russia. A number of these officers suffered from post-traumatic stress disorders as a result of their posting in Chechnya. Left untreated, these officers have been identified as exacerbating the problem of abuse of people in police custody, in particular enhanced violence toward ethnic minorities (ACTA/ACTA-France, 2013).
Ultimately, a number of critics of the current situation in Russia have pointed out that the ability of police to use torture or other inappropriate tactics without a serious threat of sanctions is based on four factors. Essentially, each is a defect in the law that could be remedied. First, the Code of Criminal Procedure has enabled the use of torture techniques. Second, the Criminal Code has not defined torture adequately. Third, the Code of Criminal Procedure essentially discourages investigations of alleged abuse. Fourth, courts ignore complaints of victims during their trials (Levada Center, 2013). While each of these defects could be remedied and thus help to address the problems, there does not appear to be an interest on the part of the government to focus adequate attention on the issue.
Organization and Administration of Ancillary Forces
Soviet citizens were encouraged to mind other people’s business; one overt expression of this attitude was the extent to which the Soviet Union had implemented a series of ancillary police forces. They represented a third type of law enforcement system. As was spelled out in their Constitution, the Soviets had a penchant for stressing that citizen duties included protecting socialist property from theft and waste, defending the country, and promoting social order. The ancillary forces illustrated how these duties were translated into action, and they made a significant impact on law enforcement in the Soviet Union.
Volunteer guards were organized by workers, collective farmers, students, pensioners, and other groups. They were directed by the local soviet executive committee. Membership was limited to people who were at least 18 years old and who had been accepted by the guards. Ideally, the scheme was supposed to attract those people who were already model Soviet citizens. The volunteers were expected to perform their work within the limits of socialist law.
A statute updating the duties of the Voluntary People’s Guard was approved in 1974. These duties included “protecting public order, reporting or delivering alleged violators to the authorities, and assisting agents of the justice system.” The rural executives exemplified another type of ancillary force that has operated in villages since 1924. They consisted of people appointed by the local soviets who assisted the local militia in crime prevention, transporting people under arrest, guarding government property, and supervising health and fire safety. Housing administrators also assisted the militia, as they were the caretakers and watchers of government housing projects. One of their principal tasks was to maintain a register of all residents, which was turned over to the militia.
Finally, Soviet youth groups often provided the militia with auxiliary forces. This was primarily limited to the Komsomol (Young Communist League). Members of this group, ranging in age from 15 to 27, aspired to membership in the CPSU. Membership in Komsomol was limited to people who had been sponsored by other Komsomol members or members of the Communist Party. There were, however, two additional youth groups that accepted virtually all children. The Youth Octobrists accepted seven to 10 year olds, while the Pioneers was a group designed for children ranging in age from 10 to 15. All of these groups emphasized party doctrine and the importance of collective responsibility to the socialist society. In addition to this extensive auxiliary system, the KGB and the militia—like police throughout the world—relied upon an extensive network of informers who may or may not have been associated with one of these ancillary groups. Most of these ancillary groups ceased to exist with the collapse of the Soviet Union. Even before 1991, young people’s interest in joining the various youth groups was declining.
One area in which police volunteers may emerge without ties to a political party is in the large municipal areas of the Russian Federation. To illustrate, Moscow has established a new law enforcement organization called Volunteer Police Aides. This group is organized on a volunteer basis by people who live in the city, have reached the age of 18, and do not have a criminal record. Although these police aides will be under the authority of the mayor of Moscow, the goal is to have them work in close contact with law enforcement agencies. According to the municipal resolution that created the volunteer police aides, these aides are supposed to assist police in combating crime, help keep order on the city streets, offer crime-prevention seminars for citizens, and perform some of the functions that formerly were the responsibility of the militia. While they do not have the power to search, seize, or arrest, they do have the right to check documents, write up reports, and send lawbreakers to the appropriate agencies.
Legal Status
It has already been pointed out that the Soviet state placed the rule of law in a subordinate position to politics, which was determined by the Communist Party. The Party was ultimately responsible for establishing the policy and directives for the various law enforcement systems. Each force, in its own way, was concerned with assuring obedience to the collective social rights and obligations of the citizenry. The extrajudicial powers afforded the police, particularly the state security force, enabled them to perform their responsibilities and claim that it was being accomplished within the context of the Constitution of the USSR and the laws of the Soviet state.
The Soviets permitted violations of a person’s civil rights—something that is generally viewed as unacceptable in the West—if it would achieve obedience to the collective social rights and obligations. Until the waning years of its existence, this was not perceived as a significant issue inside the Soviet Union. One reason was that people respected and showed deference to power and authority. In addition, throughout their history, the Soviet people had been conditioned to expect the police to serve as the guardians of communist orthodoxy. When a person’s rights were violated, it was supposedly done with the intent of furthering the socialist cause—the preeminent goal to which all citizens were expected to subscribe (at least nominally). Thus, whatever process could further the Marxist–Leninist ideology was ultimately deemed politically and legally acceptable.
The legal status of the police, at least in theory, has changed dramatically in the Russian Federation. The democratization movement has drawn attention to the importance of government by rule of law. Initially, the leadership of the Russian Federation attempted to establish the legal foundations for a democratic system of government. The Constitution of the Russian Federation, which was adopted in 1993, is an illustration of that effort. What remains to be seen over time is the application of the theory in practice so that the police are conditioned to carry out their law enforcement and order maintenance duties within the law. Presently, reports from human rights groups within Russia and those of the international community suggest this is clearly not happening.
The Police and the Public
The politsia remains the principal regular police force responsible for daily law enforcement and order maintenance tasks. During the Soviet era, it suffered from a serious degree of inefficiency. Some of the reasons are familiar to people in the West. For example, part of the inefficiency was the result of having multiple law enforcement agencies that had overlapping or shared jurisdictions that were often hampered by bureaucratic infighting and a failure to coordinate information. Budgetary allocations favored the KGB over the militia, which prevented the militia from having a reasonable assurance that equipment such as automobiles and radios would work. It also kept them from having access to basic technology, such as computers. This lack of access hindered the militia in implementing modern proactive and reactive policing strategies.
In many cases, members of the militia had attempted originally to join the KGB. The militia was then their second choice, in the hope that they might still be able to improve their standard of living. In a country in which citizens were constantly confronted with shortages in basic necessities, the situation had a profound impact on the choices people made. Few recruits were guided by the idealistic desire to improve the socialist system or possibly even an interest in police work.
In light of the economic crisis that continues to confront Russia, budgetary problems persist for the politsia and have had an adverse impact on its effectiveness as the principal law enforcement agency for the country. Their equipment is often old (weapons and transport), in short supply (ammunition and transport), or nonexistent (handcuffs and flak jackets). They are no longer provided with special subsidized housing. Their wages are low and often not paid in a timely manner. Obviously, this situation has had an adverse impact on the morale of the officers and is not conducive to attracting the kind of new recruit that the politsia seeks as it attempts to change its image.
Under the Soviet system, police considered themselves above the law. People generally conformed to this arrangement because they had long paid deference to authority. With the advent of the Russian Federation, the people became vested with legal rights and the police became obliged to protect the people in the exercise of those rights. While this change in basic principles of governance should have a considerable impact over time on the relationships between the police and the public, one cannot expect it to happen immediately. For example, the significant increase in crime has caused officials to approve search and seizure strategies for law enforcement that infringe on some of these new legal rights. Segments of the population appear to support this strategy. As one Moscow shopkeeper put it, “the state used to protect us from harm, but it also kept us under control. Now, we have the freedom to be insecure” (Handelman, 1995). Some people have become weary of this kind of insecurity, especially in light of all the other kinds of uncertainties that people must confront on a daily basis.
In view of these facts, the relations between the police and the public are presented in the context of three issues: (1) recruitment and training, (2) crime prevention, and (3) the public perception of the police. Much of this information relates to the politsia rather than to the Federal Security Service, because information is more readily available on the former. In addition, it should be pointed out that several of the crime-prevention efforts were initiated during the Soviet regime and were considered worthy of continuation under the new political arrangement.
Recruitment and Training
Bureaucratic infighting and the lack of technological sophistication contributed to low morale in the militia. This was compounded by inefficiency in the recruitment and training process. By the late 1980s and throughout the 1990s, opportunities within the militia were not improving as they were in other ventures. As such, officers began to leave the service. This could not have happened at a more inopportune time, as crime in general and organized crime in particular had begun to flourish.
The Russian Federation’s Ministry of Internal Affairs has attempted to address some of these concerns, particularly in the area of recruitment and training. The politsia recruits people between 18 and 35 years of age who have completed a high school education and are physically fit. In the past, a significant proportion of recruits came from rural areas in the hope of securing a stable job and an improved standard of living. The recruit is also expected to have completed compulsory military service, although some are permitted to have their service in the politsia count as their compulsory service. Background checks on a recruit’s character and criminal history are mandatory, as is a psychological test.
Under the new structure, Russians are experiencing a new freedom of movement. Today, a recruit can apply anywhere in the country for a position with the politsia. There is an expectation that in time there will be a good deal of flexibility in transferring to another part of the country. In addition, the politsia is beginning to recruit some female officers for patrol, although most of them are assigned to work in an office or to specialize in working with juveniles.
The profile of a politsia officer emphasizes three characteristics: to be versed in law, to be skilled at patrol work, and to possess the qualities of a “military man” (Morn and Sergevnin, 1994). These characteristics have implications for the recruitment and training of politsia officers. In the past, an emphasis was placed on military traits, whereas today attempts are made to balance the attributes of each characteristic.
The Ministry of Internal Affairs has established more than 60 regional training centers that train politsia recruits and persons planning a career as a correctional officer. Basic training for the politsia recruit is usually four to six months. This is followed by another four-month probationary period that combines training and working at a police department. Basic training attempts to combine a mix of theory, technology, and practical education. This includes an elementary introduction to the study of ethics, history, Russian society, administrative law, criminal law, criminal procedure, criminology, and forensic medicine. In addition, a somewhat more concentrated effort at training is devoted to first aid, arrest procedures, self-defense, police driving, firearms, and physical training. Once basic training is completed, the recruit spends six months working on the streets under the guidance of a field training officer.
Politsia officers who aspire to a rank above that of first lieutenant must continue their training at one of the 17 politsia colleges. This is a two-year program that includes four areas of study. The social studies component includes courses on philosophy, history, economics, politics, social science, and basic law. The law component deals with such topics as administrative law, financial law, family law, criminal investigation, criminal procedure, correctional labor law, corrective labor psychology, court psychology, forensic science, and medicine. The skills component of the training focuses on police driving, criminal investigative photography, forensic science, self-defense, and firearms. A final component deals with military training. This explains why some recruits are able to fulfill their compulsory military obligation by entering the politsia. This two-year program also provides students with some basic practical training by having them spend time at local politsia offices. The successful graduate of the politsia college begins a career as a second lieutenant.
There are also 17 politsia universities. The politsia university consists of a four-year program that is similar to the politsia college, but has a greater emphasis on theory. The successful graduate of the university also begins a career as a second lieutenant but can be considered for promotion to the rank of colonel because of this university training.
Finally, those officers who aspire to the highest ranks within the politsia must gain entrance to the Academy of the Ministry of Internal Affairs. A candidate must be recommended to the Academy. This usually occurs if the person has been recommended to a high-level administrative post within the politsia or if the person is completing a doctorate degree from a university and is likely to be hired by one of the politsia colleges or universities. At the Academy, the emphasis is placed on the study of administration and management. The successful graduate is eligible for promotion within the politsia to the rank of general.
While Russia has established an extensive training program for officers who aspire to various levels of promotion within the politsia, a good deal of criticism has been directed at this scheme. For example, some of the training appears to be redundant, and it has been suggested that this could be reduced by abolishing the politsia colleges. Another concern is that more attention should be devoted to ethical and legal topics in light of the country’s move from a police state to one that is in the process of democratization. Finally, it has been suggested that the vast social and economic changes in the Russian Federation should lead to an overall evaluation of the relevance of the various training programs (Morn and Sergevnin, 1994).
Crime Prevention
Until 1989, the Soviet media did not publish crime statistics because the government did not divulge them. One reason frequently given for the absence of such information was the belief that by publishing such statistics the CPSU would be perceived as having failed in its efforts to create a socialist society. After all, Soviet citizens had been led to believe that crime was a product of the capitalist economic system. It follows from this line of thinking that money would not be forthcoming to support criminal justice in general and crime-prevention techniques in particular because crime would diminish naturally as socialism reached its mature form. Even if the government had been willing to release the information, it probably would have been inaccurate. The size of the country, the poor communications network, and the unwillingness of local officials to admit the existence of a high level of criminality were cited as distorting factors (Zeldes, 1981).
Although local officials remained reluctant to discuss the level of crime with citizens of a particular community, senior government officials began to express their frank concerns to the nation as a whole. During his brief tenure as general secretary, Yuri Andropov initiated extensive investigations into corruption on the part of government officials. Gorbachev’s policies of glasnost and perestroika further heightened both the identification of instances of corruption in government and the public’s awareness of the role of law enforcement in combating it. The process of investigating inefficiency in government and industry uncovered cases of white-collar crime. Moreover, Soviet law enforcement personnel, which had long been suspected of corruption, had their image tarnished by the number of officers dismissed on corruption charges. For example, 161,000 officers under the jurisdiction of the Ministry of Internal Affairs were dismissed between 1983 and 1985 (Dobek and Laird, 1990). The number of dismissed officers continued to rise. One expert on the Soviet Union suggested that approximately 15 percent of the militia had been dismissed as a result of this anti-corruption campaign (Shelley, 1990b).
Gorbachev’s policies led to the publication of Soviet crime statistics for the first time. Data from the period between 1985 and 1989 illustrate why government officials were concerned about the level of crime throughout the Soviet Union. During that period, the number of registered crimes increased by 18 percent (from 2,083,501 to 2,461,692). Specifically, murders and attempted murders increased by 15 percent, serious bodily injury by 34 percent, robbery by 82 percent, and crimes committed by gangs by 20 percent. In 1991, the last year that the Soviet Union existed, the number of registered crimes was 3,102,748, which represented an 11 percent increase over the previous year (Serio, 1992).
After Gorbachev assumed the position of general secretary, he attempted to address the problem of alcohol abuse, a major contributor to a number of social ills, including crime. For several years, the government had undertaken campaigns to curb alcohol consumption, but Gorbachev enhanced the campaign. Alcohol was considered a key factor in the poor productivity of Soviet industries, it was a major cause of traffic accidents, and it was cited as the principal cause of hooliganism. “Hooliganism” was a term used to describe a number of offenses, such as disorderly conduct, vandalism, and minor assaults.
The minister of internal affairs for the Soviet Union also commented on the nature of the crime problem (Fedorchuk, 1985–1986). Among the concerns cited were the ineffectiveness of attempts at reducing embezzlement and theft of state and public property. He pointed out that the level of juvenile crime was increasing. Such a trend, however, may be partly explained by improved efforts of law enforcement in concentrating on juvenile delinquency, which in turn caused an increase in recorded crimes committed by juveniles. The minister also addressed the perennial problem of alcohol abuse by noting that 43 percent of all crimes were linked to drunkenness. In some cases, such as those of hooliganism and vandalism, the percentage rose to between 70 and 80 percent. Moreover, two-thirds of all murders and serious assaults were related to alcohol abuse.
Authorities in the Russian Federation continued to report increases in the level of criminal activity. For example, there was an 18 percent increase in the amount of crime recorded from 1990 through 1991. In that comparison, robberies rose by about 33 percent, while thefts grew by approximately 50 percent. The level of crime continued to be a very serious problem throughout 1992. For example, premeditated murders increased by 40 percent, and assaults and robberies rose by 60 percent over the 1991 figures.
Within the Russian Federation, illegal drug abuse is joining alcohol consumption as a serious problem. Black markets are flourishing in narcotics, tobacco products, and weapons. Counterfeiting is also widespread, and there is a growing concern over the theft and resale of cultural and art items. The degree of concern about crime has increased significantly among citizens. When asked in 1991 if the army and police should jointly patrol the streets of Moscow, 46.3 percent of the respondents said yes. One year later, 53.3 percent of the respondents agreed with the idea. In an opinion poll conducted in 1993, people indicated that they wanted tougher legislation and measures against criminals. Moreover, in a series of surveys on crime in Russia, Izvestia reported that people were as worried about the level of crime as they were about inflation and the rise in prices of consumer goods.
In 1992, the government identified 4,000 organized crime groups, of which 1,000 had interregional or international connections. A good deal of attention has been directed at the issue of organized crime in Russia (Handelman, 1995; Oleinik, 2003; Smith, 1996; Wodel in Pridemore, 2005; Williams, 1997). It is interesting to note that an organized criminal underworld with codes of honor and rituals, not unlike that of the mafia, existed in Russia long before the Bolshevik Revolution in 1917. Throughout the Soviet era, organized crime was an important force in the black market economy, and the leaders of these criminal enterprises frequently directed their operations from prison. Government bureaucrats, including those associated with criminal justice agencies, were aware of this relationship and allowed it to flourish. In some cases, particularly during those years leading up to the demise of the Soviet Union, bureaucrats participated in black-market enterprises.
It has been suggested that with the collapse of communism and the dissolution of the Soviet Union, organized crime was poised to fill a void. For example, amidst the insecurity and disorder confronting Russia, organized crime has been able to impose order in some sectors of the society where government agencies have failed. In addition, while organized crime in the West is usually involved with the supply of illicit goods and services, that kind of association is sometimes blurred in Russia. In the context of Soviet law, organized crime was involved in a variety of business enterprises that were deemed illegal, such as extortion and creating a competitive open market within the economy. While extortion remains illegal, the techniques for developing a market economy are considered legal for the most part. At issue is the lack of clarity in law as to which practices are legal or illegal. Under these circum stances, both the legal and illegal prospects for organized crime are enhanced further. This situation impedes and frustrates the crime-prevention efforts of law enforcement. It has been suggested that the ascendancy of organized crime and the pervasive impact it has had on social and economic conditions throughout the country has disturbed the public more than many of the other problems that they are confronting.
The Ministry of Internal Affairs estimated that approximately 450 organized crime groups were in operation in 2007, with about 12,000 people involved in their criminal enterprises. It is interesting to note that the number of organized crime groups has declined from those cited in the early 1990s. It has been suggested that this could be attributed to several factors, such as improved data collection, a clearer understanding of what constitutes an organized crime group, and the consolidation of such organizations. Moreover, it was pointed out earlier that corruption can be found throughout several state institutions, with the police always associated with these organizations. With regard to corruption and organized crime groups, it has been suggested that one enterprise that police have taken over from local gangsters is the protection business. It is generally believed that this was prompted by the extremely low salaries of police officers and the need to supplement their income, especially in light of the dramatic changes in the Russian economic system (Serio, 2008).
In a report issued in 1997, the Ministry of Internal Affairs offered its assessment of the crime problem in the country. One of the most significant issues confronting the government is the inability to collect revenues to which it is entitled. The number of companies that are not paying taxes has been a serious concern for some time, and these numbers continue to increase. This problem is facilitated to some extent by the serious problem of corruption at both the central and local levels of government. The ministry also points out that banks have been crippled by embezzlement, bribes, and various fraudulent practices, as have pension funds and the insurance industry. Another problem is the amount of counterfeit currency, both domestic and foreign, and various state securities that are in circulation. It has been suggested by some Russian scholars that the nature and degree to which some of these economic crimes have proliferated was due in part to the lack of experience among senior government officials in understanding how market economies function.
In light of the economic hardships confronting so many people, the ministry acknowledges that more people are involved in illegal activities. For example, 1,618,000 people were charged with a criminal offense in 1996; of these, 1.25 million were first-time offenders. The vast majority of offenders were guilty of theft, with residential burglaries the most common crime. This led to further expansion in the private security industry. The government is also concerned with the large quantities of firearms and explosive devices that are in circulation. Finally, public indifference to law and order is reflected in the level of alcohol and other drug abuse. The problem of alcohol consumption has been a long-standing problem in Russia and was mentioned earlier. The ministry presently estimates that more than 36 percent of the people charged with a crime were under the influence of alcohol, while 15 percent were under the influence of another type of drug or toxic substance (see Gavrilova et al. and Paoli, in Pridemore, 2005). The consumption of narcotics by injection has led to a serious public health problem in Russia. The World Health Organization estimates that three out of every four Russians infected with HIV/AIDS is a narcotic addict between 17 and 30 years of age (see Butler, in Pridemore, 2005).
Public Perceptions of Police
Like crime statistics, accurate information about the extent to which Soviet citizens had official contact with police also has been lacking. It was suggested that the average citizen did not have much personal contact (if any) with the KGB, because most citizens were not involved in the overthrow of their government. People in the West were sometimes given a distorted view of the extent to which the KGB intruded on people’s lives. A political dissident had some justifiable fears, but most Soviet citizens were nonpolitical. The KGB, however, did maintain a vigilant watch over people through the dossiers they possessed on them.
KGB contact with the general public was minimal outside the confines of the job. KGB agents lived in separate apartment complexes and had privileges of shopping at special government stores. The manner in which KGB agents were afforded better living accommodations and other perquisites reflected just one aspect of the rank-conscious class structure evident in the Soviet Union. Citizens were more apt to have contact with members of the militia or the Voluntary People’s Guard, for these were the forces that were principally responsible for daily law enforcement and order-maintenance efforts.
Because the communist ideology had been the official doctrine of the state for most of the century, people reacted in different ways when it collapsed. Some felt a sense of loss, others felt relief, and yet others still felt a good deal of apathy toward politics. Irrespective of one’s view of communism and the collapse of the Soviet Union, it was inevitable that many would be frustrated with their current circumstances. While the world learns through the media of the many incidents of instability at the national political level, there are countless circumstances of instability on an individualized personal level. One commentator has suggested that, above all, in Russia, there is a lack of the legal, ethical, and psychological bases necessary for the establishment of new market relations. Until a fundamental change occurs, the sense of loss and feelings of instability are likely to continue (see Ivanov, in Isham, 1995).
There is also widespread skepticism of the government’s ability to deal with such issues as poverty, welfare, and crime. According to one commentator, the absence of a strong centralized authority, to which Russian citizens had long been accustomed, has created two differing perceptions. The absence of authority has expanded the amount of freedom experienced by citizens, though this is often falsely attributed to democracy. On the other hand, the level of violence that has been occurring in Russia can also be attributed to the absence of a strong centralized government (see Dragunskii, in Isham, 1995).
It has been suggested that a dislike of state authority, either because of what it once was or because of what it has become, impacts on how all state employees are perceived by the public. Presently, law enforcement officers have one of the lowest ratings among the public-sector agencies (see Filatov and Vorontsova, in Isham, 1995). According to a report issued in 2008 by the Russian Public Opinion Research Centre, the traffic police in particular and the police in general were considered among the most corrupt institutions by the public (Transparency International, 2009).
It is generally assumed that part of the reason for this low rating is the rather ineffective record of police at controlling crime and the low expectation that people have that they can effectively address terrorist threats. In addition, while police violence toward civilians is not new, there has been an enhanced reporting of cases of aggressive policing that involved the beating, shooting, and torture of civilians. As such, it has been suggested that a clear majority of the public distrust the police. As mentioned earlier, growing cynicism on the part of law enforcement officers has led some to be corrupted by the very organized crime elements that they are expected to pursue.
When a state proclaims that it is subject to its own laws, it usually supports the validity of that proclamation by guaranteeing an impartial and independent judiciary. The Russian Federation is in the throes of transforming its judicial machinery so that it can assure its citizens that the state is, indeed, subject to its own laws. As is the case with so much of the Russian justice system, the judiciary is undergoing incremental reforms. In some instances, significant change has been introduced; in others, the proposed reforms remain largely on the drawing board. In those instances in which reform has been introduced, a word of caution is in order: the introduction of reform does not necessarily mean that it will be implemented in a timely manner—or, perhaps, at all.
Throughout the era of the Soviet Union, the basic principles associated with the administration of justice were the reverse of those found in a democratic society. Just as the Soviet police were subject to the dictates of the Communist Party, members of the judiciary were also expected to comply with the wishes of the party and the state. Thus, the notion of an impartial and independent judiciary was essentially absent.
It should be noted that during the Soviet era the judicial structure retained many of the characteristics that were in place before the Bolshevik Revolution of 1917. These characteristics were similar to those found in the Romano-Germanic law countries on the continent of Europe. The reasons for these similarities were twofold. First, although Russia was characterized as a backward country until the twentieth century, there were enlightened tsars who occasionally attempted to modernize the state administrative apparatus. From at least the sixteenth century into the eighteenth century, a number of tsars borrowed legal principles and administrative mechanisms from the West. The French model was the one that was principally emulated. Thus, a Russian version of the Romano-Germanic legal system and its accompanying judicial mechanisms were in place before the 1917 Revolution.
Admittedly, the composition and purpose of the judiciary changed following the Revolution, but in a number of respects, its form was strikingly similar to what had evolved on the continent of Western Europe. In some respects, this became even more pronounced after the end of World War II. As a result, some legal scholars questioned treating the socialist legal system as a separate legal family. They argued, not without justification, that socialist law was merely an aberration of the Romano-Germanic law family. Other legal scholars maintained that the Soviet legal system was a distinct family and should be treated as such. What made it distinct was not its form but rather the substance of the law and the purpose of its legal mechanisms.
The importance of substance versus form was first illustrated during the early days of the Revolution. The leaders of the revolutionary movement had not developed a precise plan to replace the existing judicial system. Most scholars attribute this to the fact that the revolutionaries were caught off guard by the success they achieved in Russia. It should be remembered that Marx had not envisioned the socialist revolution occurring in a country with such an underdeveloped economic base. He was convinced that the revolution would first occur in an established capitalist country.
Lenin, therefore, failed to address a basic issue that confronts most revolutionary leaders: that of not having devised a clear plan for replacing the status quo, in this case the existing governmental mechanisms of the tsar. Lenin was not without some guidance, though. Marx and Engels had explained the role that the legal system would play in a socialist society, and the leaders of the Revolution moved quickly to transform those views into action by establishing a new court system.
For example, the People’s Commissars issued a decree in November 1917 that abolished all the courts and legal institutions that had existed under the tsar and created the people’s courts. One judge and two assessors would sit in a newly established people’s court to hear both civil and criminal cases in which the accused could be sentenced to as much as two years of imprisonment. Both judges and assessors were to be elected by the people of the district they served. The decree also called for the abolition of government investigators, prosecutors, and private attorneys. The judge was to conduct the preliminary investigation until a new legal system was established with appropriate administrative mechanisms. Any citizen could serve as a prosecutor or counsel for the defense.
In December of the same year, the revolutionary tribunal was created. It was responsible for more serious criminal offenses and for crimes against the state. Opponents of the revolutionary government found themselves before this tribunal, which was composed of a chair and six assessors elected by the people. The tribunal had the power to establish investigating commissions that were composed of people elected by local soviets. Each commission was empowered to issue orders regarding searches, seizures, and arrests. Although any police force could carry out the wishes of an investigating commission, the Cheka served as the tribunal’s principal investigative arm. Moreover, all citizens were eligible to serve as prosecutor or defense counsel before revolutionary tribunals.
Although piecemeal changes in the court system were introduced through decrees issued by the People’s Commissars after 1917, the most significant changes occurred with the enactment of the Statute on the Judiciary of the RSFSR (Russian Socialist Federative Soviet Republic) in 1922. This legislation established a unified judicial system throughout the federation. A court hierarchy was created with people’s courts, provincial courts, and the Supreme Court of the RSFSR. The Supreme Court was given the responsibility of supervising the other courts. With this legislation, the revolutionary tribunals were eliminated, and their authority was largely transferred to the provincial courts. There were two exceptions to this plan: separate military tribunals and military-transport tribunals were retained and were given the authority to hear crimes that threatened the military and transport systems, respectively.
Statutes also appeared in 1922 regulating the bar and the procurator’s office, which had been decimated as a result of the events of 1917. During this period, new legal codes were enacted dealing with civil law, criminal law, and criminal procedure. With the passage of the 1924 Constitution of the USSR, much of the previously adopted legislation was elaborated further. Thus, by the mid-1920s, the new Soviet legality was created, with judicial institutions designed to assure the success of the new social order. Serious setbacks to the furtherance of the Soviet legal system were to occur during the period of Stalin’s regime, especially during the purge trials of the 1930s. Since Stalin’s death, the Soviet leadership and legal profession attempted to resurrect a socialist version of legality with legitimate mechanisms to administer the system. With the advent of Gorbachev’s leadership, an even greater impetus was directed at reforming the legal system to achieve his vision of democratic socialism.
The Soviet Union had a four-tiered court hierarchy responsible for handling civil and criminal litigation. The courts were regulated by the 1977 Constitution of the USSR, the Code of Criminal Procedure, the Law on the Status of Judges in the USSR, and various statutes passed by the Supreme Soviet. The highest court in the Soviet Union was the Supreme Court of the USSR. The work of the court was performed in two ways. Four times a year, the court held plenary sessions. A plenum had a responsibility to consider: (1) protests of decisions from divisions within the USSR Supreme Court or union republic Supreme Courts, (2) interpretations of USSR law, and (3) disputes among the judicial agencies of the union republics. Thus, a plenum was concerned principally with an examination of judicial patterns that were emerging in the Soviet court system.
When the court was not addressing itself to issues at plenary sessions, its members were divided into three judicial divisions or collegia: (1) the collegium on civil cases, (2) the collegium on criminal cases, and (3) the military collegium. As a collegium, the court handled two kinds of matters. For exceptionally significant cases, it would occasionally serve as a court of first instance; under these circumstances, the court was composed of a judge from the court and two people’s assessors. In addition, the court entertained judicial protests from the chair of the Supreme Court of the USSR, the procurator general of the USSR, or their deputies. These protests were limited to decisions handed down in the Supreme Courts of the Union Republics that were considered contrary to all-union legislation or were in some way at odds with the interests of the particular union republic. In such cases, the bench consisted of three judges from the Supreme Court of the USSR.
As was indicated earlier, the Soviet Union was a federated country composed primarily of 15 union republics. Each republic had a Supreme Court that in many respects mirrored the organization of the Supreme Court of the USSR. The regional courts were the next tier in the hierarchy and consisted of courts of first instance and courts of appeal. As courts of first instance, they handled more complex civil cases and more serious criminal cases. As a court of first instance, a judge and two assessors would hear these cases. The appellate jurisdiction was limited to decisions, judgments, and rulings from the people’s courts that had not as yet entered into legal force. People’s courts were sometimes called district courts or city courts. These courts consisted of judges and assessors who were elected by a superior soviet of people’s deputies. Judges were elected to a 10-year term and assessors to a five-year term; both were renewable. The vast majority of cases of first instance were handled by the people’s courts.
Organization and Administration of the Courts
With the creation of the Russian Federation, the authorities have attempted to establish a new judicial system. For over two decades, significant attempts have been made to establish an independent judiciary that conforms to the rule of law and democratic principles. This is an important undertaking, because throughout the Soviet period most people did not trust the courts. Judges were viewed as an extension of the law enforcement community, who were concerned about maintaining the interests of the Soviet state rather than the administration of justice. The Russian Federation has a five-tiered court hierarchy responsible for handling civil and criminal litigation (see Figure 5.3 ). The courts are regulated primarily by the Constitution of the Russian Federation, the Code of Criminal Procedure, and the 1996 Federal Constitutional Law on the Judicial System of the Russian Federation.
Constitutional Court of the Russian Federation
When a country is ruled by the dictates of a single political party that is considered above the law, as was the case with the Soviet Union, issues of constitutionality are irrelevant. The Constitution of the USSR authorized the procurator general to oversee the utilization of laws with the objective of assuring that they were executed properly and fairly. The Constitution, however, did not grant the procuracy the authority to rule on the constitutionality of laws and decrees.
During Gorbachev’s tenure, it was acknowledged that unconstitutional laws had been approved throughout the history of the Soviet Union. To rectify the problem, a Constitutional Supervision Committee was created to review draft legislation and to indicate whether it conformed to constitutional provisions. The need to have a mechanism in place for purposes of constitutional review was acknowledged early in the Russian Federation. As a result, the Constitution of the Russian Federation authorizes the Constitutional Court of the Russian Federation to be the supreme judicial body of constitutional oversight in Russia.
The Constitutional Court has several responsibilities. It handles cases concerning conformity with the constitution. These include federal laws and acts, laws and acts of members of the Federation, and domestic and international treaties. It resolves judicial disputes between two or more federal bodies, between a federal body and a member of the Federation, and between members of the Federation. Generally, these cases are entertained following a request from either the president, the Council of the Federation, the State Duma, one-fifth of the members from either chamber, the government of the Russian Federation, the Supreme Court of the Russian Federation, or other bodies of executive or legislative authority. The court also considers complaints from citizens if the issue involves an allegation that a person’s constitutional rights and liberties were violated.
The court consists of 19 judges. Depending on the nature of an issue, the court may sit in plenary session. If the matter involves an interpretation of the Constitution, a majority decision requires two-thirds of all the judges on the court with no abstentions. When not in plenary session, the court is divided into two chambers in order to handle the other business brought before it. The judges are nominated by the president of the Russian Federation and appointed by the Council of the Federation for a 12-year term. Members of the court must be at least 40 years of age; they retire at 70.
Figure 5.3 Organization of the Courts of the Russian Federation
Supreme Court of the Russian Federation
According to the Russian Constitution, the Supreme Court of the Russian Federation has the ultimate judicial responsibility for civil, criminal, administrative, and other cases from general jurisdiction courts. At least once a month, the Presidium of the court will meet to decide, among other things, cases heard by way of supervision. Judicial supervision involves entertaining either an appeal or a protest against a judgment of an inferior court before the lower court’s decision enters into legal force, or if it does have legal force, it is not being appealed by way of cassation.
Most of the work of the court is conducted in the three judicial divisions: civil, criminal, or military. For exceptionally significant cases, usually when important interests of state are at issue, the court may occasionally serve as a court of first instance. Under this circumstance, the court would consist of a judge and a jury, but on occasion, a panel of three judges might hear a case. Usually, the court handles appeals by way of cassation from regional courts. In these cases, the court consists of three judges. The judges of the Supreme Court are nominated by the president of the Federation and appointed by the Council of the Federation. Finally, the court is composed of 115 judges who can serve until the mandatory retirement age of 65.
Attached to the Supreme Court is the Judicial Department, which is a federal agency responsible for the administration of the Russian court system. It assumed this responsibility in 1998 when a federal law removed court administration from the duties of the Ministry of Justice. This is a practical example of protecting the independence of the judiciary. The Judicial Department deals with all organizational issues that impact the court below that of the Supreme Court. It is responsible for the oversight of a number of personnel matters, such as the selection and training of judicial candidates, working with law institutes, and raising the qualifications of judges and other court personnel. It also maintains court records and issues statistical reports. Finally, the Judicial Department is responsible for the maintenance of court buildings and the purchase of supplies and equipment for the courts.
Regional Courts
For our purposes, the courts at the regional level are referred to as regional courts, but one should be apprised of the fact that not all of these courts are officially referred to by this title. Some of these middle-tier courts are called courts of autonomous territories and supreme courts of autonomous republics. Such names explain the nature of the locality served. Moreover, some of the principal cities (such as Moscow and St. Petersburg) have city courts that enjoy the jurisdictional status of a regional court. These courts are divided into civil and criminal divisions. Regional courts include judges, who are nominated by the president of the Federation, and may include a jury depending on the nature of a case at trial.
Regional court jurisdiction includes original and appellate cases. As courts of first instance, regional courts handle the more complex civil cases and the more serious criminal cases that are not considered appropriate for the district courts. A judge and a jury or a panel of three judges would hear these cases. The appellate jurisdiction is limited to decisions, judgments, and rulings from the district courts that have not as yet entered into legal force. A panel of three judges entertains such appeals.
District Courts
District courts, which used to be referred to as people’s courts until 1996, are primarily courts of first instance. With regard to criminal cases, they handle the more serious offenses in which a defendant could receive a term of imprisonment of more than three years. At a criminal trial, the court would include a single judge and a jury.
The district courts also hear appeals from justices of the peace courts. In this context, the appellate procedures are different from what one would expect of a court with appellate responsibilities. Once a case is appealed, a single district court judge retries the case. Thus, the matter is not returned to the justices of the peace court for a reconsideration of the matter.
Justices of the Peace Courts
Justices of the peace courts were first introduced into Russia in 1864 but were abolished following the Russian Revolution in 1917. Throughout the 1990s, when there was a good deal of talk about judicial reform, it was suggested that justices of the peace courts be reintroduced in order to alleviate the backlog of cases in the district courts. This was also considered by some as another example of introducing democratization to Russia. Justices of the peace courts were gradually introduced throughout Russia from 2001 to 2003. From an organizational perspective, these courts are unique in that administrative support is supplied partially by the regional government rather than solely from the federal government. The regional administrative support includes the recruitment and training of the justices, providing court staff, and maintaining courtrooms. The federal government provides a budget to cover the salaries of the justices and many of the court personnel.
The jurisdiction of the courts includes three general areas of Russian law. Civil cases include simple divorce issues that do not involve disputes over property or children, some property cases, disputes over land, and some labor disputes. Criminal cases encompass those offenses in which the maximum punishment is less than three years’ imprisonment. Finally, certain federal administrative law cases have been assigned to these courts. For purposes of criminal justice, the most prominent issues include petty hooliganism, public drunkenness, and serious traffic violations of a noncriminal nature.
When the court sits, it consists of one justice of the peace. Thus far, many of the criminal cases have involved personal accusations, consumer fraud, and hooliganism. One study has indicated that the personal accusation cases are often successfully mediated by the justice. Less than 3 percent of those found guilty are incarcerated. When a person appeals the decision of the justices of the peace court, the matter is retried in a district court. The aforementioned study found that only 1.5 percent of the verdicts were overturned, and only 0.8 percent of the sentences were altered on appeal (Solomon, 2003).
Legal Profession
As it pertains to the criminal justice system, the Russian legal profession is divided into three distinct groups: (1) judges, (2) procurators, and (3) defense attorneys. By and large, members of each group are professionally trained in the law. Although jurors serve an important purpose in the judicial process, they are distinct from the legal profession. Their role will be discussed separately.
Before the status of the three professional legal groups is presented in their Russian context, some general comments about the Soviet legal profession are in order. As of 1988, the number of practicing attorneys in the Soviet Union was approximately 25,000; this was small in relation to the population of the country and in contrast with other industrialized countries (Schroeder, 1990). The history of the legal profession since the 1917 Revolution provides an explanation for the status of lawyers in the Soviet context. It should be remembered that the official view of the Revolution was that law, and therefore the legal profession, would ultimately become superfluous in a socialist society. It was expected that they would wither away in time. This attitude was illustrated by the fact that early decrees stated that anyone could serve in a judicial capacity, irrespective of their legal training. Although some jurists who had been trained in law before the Revolution were utilized by the government, the tendency was to recruit people who had not been exposed to the prerevolutionary law school curriculum. Thus, people who were interested in studying law were discouraged from doing so because it was uncertain that such training would enhance their careers. Moreover, the traditional method of studying law came to an abrupt halt with the abolition of university law departments.
With the passage of the 1936 Constitution, the Soviet leaders reversed themselves by opting for a view of law different from that of their predecessors. Stalin, among others, saw law as serving a vital role in assuring the stability of socialist society. As a result, legal education became respectable; by the late 1950s, it had reached new heights in terms of the number of people enrolled in university law departments and legal institutes. An important characteristic of the Soviet legal profession was the fact that most members worked for the state. This was obviously the case among procurators and judges, but it was equally true among professional defense attorneys. They belonged to professional bar associations that were controlled by the Ministry of Justice.
Despite this kind of control, the legal profession was not without some political clout. Donald Barry and Harold Berman indicated that the CPSU was influenced by public opinion. Professional organizations, such as the Soviet bar, were in a significant position to offer meaningful advice regarding party policy (1968). With the law elevated to a respectable status, a principal concern of the bar had been to enhance the status of the profession, especially through improvements in the educational system. Their goal was to improve their chances of influencing party policy.
It should be pointed out that the legal profession did not hold exclusive rights to representing people in courts. People not trained in law retained the right to participate in trials. Some experts suggested that the maintenance of this policy was an implicit example of the party leadership’s belief that in time a professional class of lawyers would not be necessary, as their purpose would wither away with the state. Thus, though the Soviet bar was attempting to become a more influential voice in party policy, at least as it pertained to law and the legal profession, the party was keeping its options open by controlling the extent to which it would allow the bar to become a strong lobbyist for its causes.
With Gorbachev’s efforts at democratization and perestroika, the legal profession improved its standing considerably. The introduction of economic change required the skills of lawyers. For example, changes in the law of property significantly increased the number of cases brought to court. With the introduction of new regulations governing cooperatives in 1988, legal cooperatives emerged that were not controlled by the Soviet bar (Schroeder, 1990).
Judges
Gorbachev’s attempts at redefining the communist ideology led to significant discussions about reforming the judiciary. The impetus for this reform was based on his view of democratic socialism. One of his goals was the establishment of a socialist style of checks and balances within government, and a specific feature of that goal was the creation of an independent judiciary. In order to appreciate what Gorbachev was attempting to achieve, it is important to consider the state of the judiciary (in terms of both the official position and actual perceptions of people) in the Soviet Union.
Judges were elected, performed a collegial task, and were independent and subject to the law. According to the Soviet Constitution, all judges were elected by specific groups. Moreover, all citizens who had attained the age of 25 were eligible for election as judge. A long-standing criticism from both within and outside the Soviet Union was directed at the lack of credentials held by many people’s court judges. According to M. Cherif Bassiouni and V. M. Savitski (1979), this concern was largely resolved. Citing a 1976 article in Pravda, they pointed out that 95 percent of the people’s judges had a university education (a considerable improvement since 1960, when only 71 percent had achieved that distinction). A formal legal education was finally imposed as a prerequisite for election (though a majority had already pursued advanced legal studies before this requirement was introduced). Those without formal legal training had to take a law course to assure their competency.
A second characteristic of the Soviet judiciary was the collegial manner in which they performed their tasks. Whether it was hearing a first-instance case or an appeal, a single judge did not decide an issue. A judge was always assisted in the process by either other judges or lay assessors. This characteristic was not unlike the principle of shared responsibility found in countries utilizing juries or lay judges.
A third characteristic was the independence of judges. Soviet legal writers had often criticized the manner in which some judges were appointed to their positions in the West. They maintained that it was flawed logic to assume that such judges would display a greater sense of equity because of their purported independent status. They argued that this kind of permanency of tenure instead would lead to arbitrary actions, because the judges would endow themselves with a perception of superiority. Moreover, as members of the bourgeoisie, judges would tend to perpetuate and protect the interests of the property class. In a country that claimed the elimination of class as one of its goals, this was an unacceptable method of judicial selection. From their point of view, election was the only way to assure a true sense of independence in the administration of law.
Associated with judicial independence was the principle that judges were subject only to the law. This principle implied that judges should not be exposed to excessive political pressure, because this would hinder their judicial objectivity. This principle is found in constitutional documents of most countries and was present in the Soviet Constitution. One must keep in mind, however, that the principle had not been honored in practice. The CPSU was not only the ultimate interpreter of the law, but it also controlled who was placed on the ballot for election as a judge.
From a Western perspective, these factors raised serious questions about the extent to which judges were allowed to interpret the law freely and independently. In the waning years of the Soviet Union, these concerns were discussed openly. The Soviets began to admit that too many judges deferred to the judgment of others, especially procurators and their investigators, and that judicial decisions had often been designed to conform more to the dictates of the Communist Party and the whims of local party officials than to the written law. In addition, the method of determining judicial effectiveness was not unlike that used for police and procurators, because part of a judge’s mandate was to reduce crime. As a result, judges were evaluated on the basis of the number of convictions and acquittals in their court. This kind of posturing resulted in defendants not being acquitted of charges that either lacked sufficient evidence or were based on illegally obtained evidence, which helped to explain the 99.7 percent conviction rate of criminal cases in Soviet courts (Dobek and Laird, 1990). These concerns, which were acknowledged by government officials, severely hampered attempts at judicial objectivity and led to charges of accusatory bias on the part of judges.
Finally, in countries that view the rule of law as a basic and decisive feature of the social fabric, citizens tend to regard the position of judges as prestigious because they are considered society’s guardians and interpreters of the law. This was not the case in the Soviet Union. Law had never played a significant role in Russia, and the Marxist ideology alleged that law would eventually wither away. As such, its value in the Soviet political and social context was limited and viewed as temporary. Moreover, the CPSU was the actual guardian of the law and the ultimate interpreter of the role that it and the judiciary would play in society (Ginsburgs, 1985).
While discussions continued on ways to improve the Soviet judiciary, the Law on the Status of Judges in the USSR (1989) was designed to establish its independence. The new law consolidated the rules governing the judiciary, which were scattered throughout various pieces of legislation and policy. It attempted to improve the standards of quality among judges who were often lax or totally absent. For example, judicial appointments would now call for a higher level of legal education, along with the passing of a qualifying examination. The law also established a mechanism for judicial oversight, with the creation of qualifications collegia. Members of the collegia were judges elected to a five-year term by the conference of judges for the region served by the collegia. Finally, Article 3 of the law stated that “judges and people’s assessors are independent and subordinate only to law.” This was designed to address the problem of party interference within the judicial process.
With the establishment of the Russian Federation, the judiciary was confronted with several problems. The approval of a new Constitution in 1993 helped to clarify some judicial issues. Chapter 7 of the Constitution is devoted to the judicial branch. It addresses such basic principles as judicial independence, authority, and autonomy. The Constitution states:
Article 118. In the Russian Federation, justice is administered only by the courts. Judicial authority is exercised through constitutional, civil, administrative and criminal proceedings. The judicial system. . . is established by the Constitution of the Russian Federation and federal constitutional law. The creation of extraordinary courts is not permitted.
Article 120. Judges are independent and are subordinate only to the Constitution . . . and federal law.
Article 121. Judges are not subject to removal from office. The powers of a judge may be terminated or suspended only on grounds and according to procedures established by federal law.
Article 122. Judges have immunity. Criminal charges may not be brought against a judge except according to procedures determined by federal law.
Article 124. Courts are financed solely from the federal budget, and this financing must make possible the full and independent administration of justice in accordance with federal law.
The Russian Constitution established some basic principles about judicial independence, authority, and autonomy. These principles are significantly different from those espoused in the Constitution of the former Soviet Union and are similar to those found in Western countries.
In light of Soviet history, a central point of discussion remained the independence of the judiciary, specifically what independence would mean in the Russian context. In crafting the 1992 Law on the Status of Judges of the Russian Federation, the authorities used the 1989 Law on the Status of Judges in the USSR as a starting point. The 1992 law has been amended. With regard to the matter of independence, Article 2 of the law states, “Judicial power is self-dependent and acts independently of legislative and executive power.” Article 4 further points out, “Judges are independent and submit only to the Constitution of the Russian Federation and to the Law. They are not accountable to anybody in their activities which deal with the administration of justice.”
Despite these positive steps, a practical problem confronts the Russian Federation. There is a serious shortage of qualified judges. Some judges resigned with the collapse of the Soviet Union, others were asked to step down because of their judicial conduct, and some left to pursue other careers. For those judges who stayed, a process was not immediately in place to replace them as their judicial terms expired. Some judges were reelected by the now defunct people’s soviets to terms of five or 10 years and, in some instances, for life. There also are cases in which judges have continued to serve on the basis of the previous electoral mandate.
Many judgeships have been left vacant, however. It was estimated in 1994 that there were about 1,400 judges in the Russian Federation. As such, the lower courts were understaffed by approximately 1,500 judges. There were severe shortages in the higher courts, too. In some regions of the country, the shortage of judges amounted to more than 20 percent. There are also parts of the country where the judicial branch is close to paralysis. In some instances, people’s assessors were functioning as judges; in other cases, people who had no legal background or training were serving as judges. Finally, during this rather chaotic situation, some parts of the country attempted to alleviate the problem by electing justices of the peace who had been mandated to handle minor civil and criminal matters so that the understaffed courts could focus on more significant cases.
In an attempt to improve the quality of candidates for judicial appointment, the Law on the Status of Judges of the Russian Federation lists the basic requirements. A candidate must be a Russian citizen who is at least 25 years of age. The person is expected to have received a higher legal education and had experience within the legal profession for at least five years. A candidate must also pass a qualifying examination that is administered by the Ministry of Justice. Based on a candidate’s background, the results of the qualifying examination, and what specific judicial office is being sought, the Qualifying Collegium of Judges offers a recommendation to the office of the president of the Russian Federation. The president in turn offers his or her recommendation to the Council of the Federation. The Council is legally charged with making judicial appointments.
The newly created justices of the peace must meet many of the criteria established for Russian judges. The age, education, and work experience within the legal profession are the same. The qualifying examination and recommendation for appointment is the responsibility of judges from the region in which the person would serve. The rules for selecting a justice of the peace offer a good deal of latitude. They can be appointed or elected by the regional legislature or they can be elected directly by the people. Thus far, regions prefer to appoint rather than elect the justices. Finally, the justices serve a specific term in office that cannot exceed five years. The specific term is determined by local law. Once the term of appointment expires, the justice can seek another term in office.
In an effort to further improve the quality of the judiciary, the Russian Academy of Justice was founded in 1998 by the Supreme Court of the Russian Federation and the Supreme Arbitrazh Court of the Russian Federation. The Academy of Justice was established for two purposes: to provide training for new judges and continuing education for members of the judiciary and to conduct research on court organization and issues that impact the judiciary. The arbitrazh courts constitute a separate system of federal courts with its own procedural code. Arbitrazh courts specialize in matters that deal with a wide array of contractual issues, such as right of ownership, changes in a contract, performance of obligations, loans, bank accounts, and bankruptcy.
Commentary on the judiciary has been somewhat mixed. On the one hand, it has been suggested that the levels of incompetence and corruption are exaggerated. The arbitrazh system was singled out as effective when dealing with disputes between businesses. Moreover, the number of people seeking the assistance of courts to resolve disputes has increased from 1 million under Yeltsin to 6 million during Putin’s tenure (Sakwa, 2008). On the other hand, Transparency International found that a Russian survey reported that more than 78 percent of the respondents did not expect to find justice in the courts. Part of the problem deals with “the unofficial expenditures” or bribes to some court officials. Comments from senior judges appear to support this public perception that corruption is clearly prevalent at the trial court level (Transparency International, 2007). Recommendations to address this problem have included public awareness campaigns to educate people about the role of judges, regular review of judicial salaries with the goal of achieving near-parity with the private sector, examination of existing penalties for corruption within the judiciary, and randomizing the allocation of trial cases to judges.
Although the government and the public are well aware of the problems confronting the judiciary, the issues continue to persist. Frequent reports have identified allegations of political interference, corruption, and judges working in concert with procurators and police in the administration of unfair trials. To illustrate, complaints have been made that perpetrators of torture are rarely placed on suspension or receive any disciplinary action. In those cases brought to trial, the sanctions are usually lenient, with some receiving a suspended sentence. As was the case during the Soviet period, it is not uncommon for judges to receive unsolicited specific direction from more senior judges in the judicial hierarchy on how to handle the case. Failure to comply with the directions can lead at most to removal from office and at least to the prospect of being passed over for promotion. In a 2010 study by the Levada Center, 92 percent of the respondents indicated that they did not have any faith in the Russian judicial system (ACAT-France, 2013; Amnesty International, 2012).
It should be noted that some victims of judicial abuse have sought justice with the European Court of Human Rights. The Court has been particularly critical of the failure to hold perpetrators of human rights violations accountable for their actions. Moreover, their rulings in favor of the victims have identified ineffective pretrial investigations and flaws in the trial and sentencing phases of the process. All concerns have been raised for some time now (Human Rights Watch, 2012, 2013, and 2014).
It has been suggested that there are a few bright spots associated with the courts. First, Putin is credited with improving the funding for courts. Second, the Constitutional Court is viewed as the most independent of the Russian courts. Some commentators have noted, however, that the court has been careful to avoid getting embroiled in matters of an overtly political nature (see Solomon in Ginsburg and Moustafa, 2008). Of course, one could characterize this as displaying sound judicial prudence, particularly under the circumstances. Unfortunately, the public perception of the judiciary is that it lacks independence and is subjected to manipulation at several levels by various government authorities for political reasons. While critics would concur with this assessment by the public, it has been pointed out that even critics acknowledge that the Russian judiciary is still a work in progress. One must consider the manner in which the Communist Party dominated the judiciary during the Soviet era. It has been suggested that it will take time for the judiciary to transition fully to a more independent and transparent system (Shiraev, 2010).
Procurators
The Office of the Soviet Procurator was originally established in 1922. It was a unique institution as compared with prosecutor’s offices found in Western criminal justice systems. Experts have characterized it as a highly centralized agency that embraces a unity of purpose and is assured a good deal of independence.
The procurator general of the USSR was appointed by, and accountable to, the Supreme Soviet of the USSR. Subordinate to the procurator general were three principal deputies, each responsible for the coordination of a group of departments. Included among these major units were general supervision, office of investigation, supervision and review of civil cases, supervision and review of criminal cases, supervision of the affairs of minors, supervision of the MVD, supervision of the KGB, supervision of the prisons, and supervision of the control and inspection department (Smith, 1978).
The procurator general was ultimately charged with the appointment of other procurators throughout the USSR, who served renewable five-year terms. The office represented a highly centralized system that assured a strict interpretation and observance of socialist law by all governmental and nongovernmental organizations, officials, and citizens. Unlike other components of the legal profession, the procuracy was clearly dominated by party members (one estimate placed it at 83 percent). It also tended to be a male bastion (Butler, 1988).
The Statute on Procuracy Supervision in the USSR explained the principal tasks of the procurators. Tasks included supervision of the execution of laws, the activities of preliminary criminal investigations, the legality and justification of judgments, the execution of judgments, and the places of confinement. Although the procuracy performed the role of the prosecutor in criminal cases, the office had a much greater role and authoritative scope than the prosecutors of other countries. Indeed, the procuracy served a powerful and influential role throughout all phases of the administration of justice in the Soviet Union. In addition to being highly centralized and unified in purpose, the procuracy retained an independent status. It was accountable solely to the Supreme Soviet. This further enhanced its position of authority among the various government units at the national, republic, provincial, and local levels.
It had been suggested for some time that Soviet criminal procedure was biased in favor of the prosecution because procurators were responsible for investigating the charges. To rectify this injustice and to assure greater objectivity, it was suggested that the investigation function be removed from the procurator’s office and placed with the Ministry of Justice. Although this approach was not introduced, it would have mirrored the method employed by countries adhering to Romano-Germanic procedural principles.
The Soviet procuracy was late in responding to Gorbachev’s reform agenda. Initially, it was thought that the procuracy might lose its authoritative position and jeopardize its future role in the criminal justice system (Smith, 1992). Although the legislative and executive branches of the Russian Federation had intended to curtail its powers, the procuracy remains the most powerful component of the Russian justice system. The other branches of government concluded that the procuracy was the only office capable of guaranteeing that law and order would be maintained while also acknowledging the importance of due process rights (Smith, 1996).
As a result, reference to the procuracy in the new Russian Constitution assures that it will remain a powerful organization with significant breadth and depth of authority in the justice system. For example, Article 129 of the Constitution states: “[the] Procurator’s Office constitutes a single centralized system in which lower-ranking procurators are subordinate to higher-ranking procurators and to the Russian Federation Procurator General.” The 1995 Law on the Procuracy, which has been amended several times, also explains in greater detail the responsibilities of the office, which illustrates why the procuracy is considered such a powerful organization within the justice system.
The procuracy essentially has two kinds of responsibilities. One of these is a supervisory function that is applied within four different forms or contexts. The first of these, and the most important, is a general supervisory authority over the execution of laws throughout the federation. Essentially, the procuracy provides oversight of the Russian bureaucracy and citizenry, ensuring that they are in compliance with the law. The ultimate goal is to assure that the law is executed and thus interpreted in a uniform fashion. A special Investigative Committee was established in 2007 and charged with the investigation of certain crimes deemed particularly serious. Many of these offenses are highly sophisticated and require extra resources to investigate effectively, and federal funds were forthcoming to address these problems. The crimes targeted included cases of fraud and embezzlement of federal funds and corruption in government agencies. The committee is also mandated to focus attention on crimes against women, children, and the elderly.
A second supervisory function of the procuracy involves providing protection to the rights and freedoms of the citizenry by advising people of their rights, offering recommendations to prevent further violations, and initiating legal proceedings against offenders. A third supervisory function focuses exclusively on the preliminary investigation into a criminal matter. Specific concern is directed at assuring that any search and seizure of evidence, any arrest or detention of a suspect, and all legal requirements leading to a prosecution are in compliance with the law. A final supervisory function of the procuracy involves oversight of all correctional facilities. This would include both institutions that detain people awaiting trial and those used for confining people to a period of incarceration after trial. In addition to these supervisory functions, other units within the procuracy are responsible for prosecuting criminal cases. Some of these personnel are involved in either coordinating or conducting the preliminary investigation into alleged criminal conduct, while others focus their attention on prosecuting cases in court (Butler, 1998).
The procurator general is nominated by the president of the Russian Federation and appointed by the Council of the Federation to serve a five-year term. All the other procurators are appointed by the procurator general, and the entire procuracy is organized by and subject to the procedures of federal law. The basic requirements to become a procurator are somewhat similar to those of candidates for judicial appointment that were mentioned earlier. A candidate for the procuracy must be a Russian citizen who is at least 25 years of age. The person is expected to have received a higher legal education and serve a six-month probationary period. It is interesting to note that people who work for the procuracy today cannot be involved with an organization that pursues a political agenda. This policy is in stark contrast to the Soviet era, when procurators and the investigative staff often followed or enforced the dictates of the Communist Party.
The Office of the Procurator General includes the Research Institute, which has existed for more than 30 years. The mandate of the Institute is to research and disseminate information about law, order, and crime. Because of the dramatic changes that have occurred in Russia since 1991, the Institute has spent a good deal of time directing its efforts at defining and clarifying the role of the procuracy as it relates to its mandated issues of law, order, and crime, as well as to internal organizational issues of administration and management (Skuratov, 1994).
Defense Counsel
Following the Russian Revolution and with the enactment of the 1917 Decree of the People’s Commissars on the Courts, the long-accepted notion that there should be a profession of practicing attorneys came to an abrupt end. Private attorneys were viewed as yet another product of a bourgeois society. In 1918, special collegia were formed for people who agreed to act as either prosecutors or defense counsel. Two years later, that system was abolished, as prosecutors were separated from defense attorneys. Under the new system, lists of people willing to serve as legal representatives were made available, but there were no regulations requiring that the people have formal legal training. By 1922, however, defense attorneys were organized into collegia or bar associations. In order to join a collegium, the candidate had to complete a legal education program and must have practiced for two years. Although this remained the basic requirement for admittance to the Soviet bar, it did not mean that the person had completed a five-year course of study at a university law department.
Bar associations (collegia of advocates) were organized throughout the country at the town, regional, and republic levels. There were 157 such collegia in the Soviet Union before the nation’s demise. Although these associations claimed to be independent social organizations, the organization and work of the membership was regulated by the state through specific statutes that pertained to their functions. Moreover, the collegia were ultimately controlled by the ministries of justice at both the republic and national levels.
For years, lawyers for the defense were confronted with an image problem fostered by the attitudes of judges and procurators. People who supported a change in the standing of judges also suggested that the status of defense lawyers must improve. One suggestion was to establish a national bar association that would supersede in some respects the 157 local bar associations. It was alleged that a national association would provide the bar with a greater political voice and in turn strengthen the quality and quantity of counsel for the defense.
The status of defense counsel gradually improved in the years after World War II. Article 158 of the Soviet Constitution gave the accused a right to defense counsel. It was estimated in 1988 that counsel appeared in court for about 70 percent of the criminal cases and was present for approximately one-third of the preliminary investigations (Butler, 1988). In addition to defending a person in a criminal case or serving as an advocate for their interests in a civil matter, Soviet attorneys performed other tasks that were similar to those undertaken by lawyers in the West. For example, they advised clients on legal matters and drew up legal documents.
Soviet citizens in need of legal assistance could select their own defense counsel or allow the local legal aid bureau to assist in selecting an attorney. Over the years, Western scholars had been highly critical of the apparent limits imposed on counsel when defending criminal defendants. They took issue with the purported extent to which an attorney was free to provide counsel to a client. For example, a client in a political trial was not free to select an attorney of his or her choice because only a small number of lawyers had been cleared by the state to defend such clients (Kaminskaya, 1982; Subtelny, 1984).
Prior to 1958, defense counsel was not involved in any case until the matter came to trial. Thus, the task of defending a client was initiated after the completion of the preliminary investigation conducted by the procurator, KGB, or militia. Peter Juviler, among others, pointed out that on occasion the accused either were not told by the investigator of their right to legal assistance or had been discouraged from availing themselves of that right (1976). Moreover, Juviler argued that once counsel was appointed, it was not uncommon for investigators to attempt to block counsel’s access to the client before the trial. As a result of the democratization efforts during Gorbachev’s era, the law was changed to permit access to defense counsel for suspects, the accused, and defendants at the time of their detention, arrest, or the filing of charges.
Also of great interest to students of the common law system was the fact that Soviet defense attorneys did not conduct their own investigation into the case. In the Soviet system, it was the responsibility of the procurator to collect the evidence and identify witnesses, for it was assumed from the outset that the procurator would conduct an objective investigation. This method was characteristic of other countries influenced by the Romano-Germanic tradition. Defense counsel, however, could request that the procurator interrogate a particular witness. The vast resources at the disposal of the procurator were supposed to be used to uncover all relevant facts in a case. Thus, information that may lead to the accused’s exoneration was as significant as that which might incriminate the person. This method further enhanced the Soviet argument that defense attorneys need not be actively involved in the preliminary investigation.
The assumption that the procurator would perform an objective investigation was proven false and became the subject of a good deal of criticism in the Soviet Union. Since 1970, counsel had been permitted to participate in the investigation with the approval of the procurator. However, according to Juviler, this type of waiver was rare. Another suggestion from proponents of democratization recommended that defense counsel be permitted to participate in the collection of evidence (as is the case in countries that adhere to Romano-Germanic legal principles). It was felt that such a change would improve the quality and objectivity of criminal investigations.
In the past, Soviet authorities argued that an active involvement by defense counsel at the investigatory stage would inevitably lead to two investigations. The procurator would begin to lose objectivity and become an advocate for the state’s actions, which was not the purpose—at least in theory. Moreover, the cost of a defense investigation would create an unnecessary burden on the accused and deprive some citizens of counsel. From the Soviet perspective, this was unacceptable, for it would destroy one of the purposes of socialist democracy.
During the Gorbachev era, two strategies were employed to improve the status of defense counsel. One involved reducing the supervisory authority of the Ministry of Justice over the various local bar associations. For some, the goal was to establish a national bar association. In 1989, proponents of a national association managed to create the Union of Advocates, a voluntary association. With the dissolution of the Soviet Union and other subsequent changes, it was not clear if the Union of Advocates would eventually gain supervisory authority over its profession or reach a compromise with the Ministry of Justice over its role in the Russian Federation. Early indications suggested that the Ministry of Justice might be reasserting its authority (Burrage, 1993; Huskey, 1990). The other strategy was to enhance the role of defense counsel in protecting the interests of their clients in criminal cases. The ultimate goal was to establish a level playing field by developing procedures that were more adversarial in nature. This would involve accepting the notion of the presumption of innocence of the accused and according defense counsel equal rights with those of the procurator.
Although nothing concrete happened during the Gorbachev era to establish a more equitable system of procedure, the Constitution of the Russian Federation suggests that significant change might be in the offing. Article 48 states: “Everyone is guaranteed the right to receive qualified legal assistance. . . . Everyone who is detained, put in custody or charged with committing a crime has the right to avail himself or herself of the assistance of a lawyer (defender) from the time he or she is detained, put in custody or charged.” Article 49 indicates: “Everyone accused of committing a crime is presumed innocent until his or her guilt has been proved according to the procedure stipulated by federal law and established by a court verdict that has entered into force. An accused person is not obligated to prove his or her innocence.” Finally, Article 50 points out: “No one may be convicted more than once for the same crime. During the judicial process, the use of evidence obtained by violating federal law is not permitted. Everyone who is convicted of a crime has the right to a review of the verdict by a superior court according to the procedure established by federal law, as well as the right to request clemency or a lighter penalty.”
The Russian Constitution acknowledged various rights of the accused, but the procurator still retained a significant amount of power. In fact, some of the informal practices of the Soviet period that benefited the procurator continued to be utilized (Jordan, 2005; Solomon, in Pridemore, 2005). The 2001 Code of Criminal Procedure has been heralded as another illustration of Russia’s embrace of the principles of the rule of law. Various features of the Code are practical examples of a procedural shift away from the inquisitorial method to an adversarial approach. This, of course, enhances the position of defense counsel. Among the rights that counsel has gained are to meet privately with a client, to collect evidence independently of the procurator, to identify defense witnesses, to invite professional experts to testify on behalf of the defense, to be present for all procedural actions involving a client’s case, to examine and make copies of the government’s documents after the investigation, and to file appeals regarding pretrial or trial procedures.
It was mentioned earlier that there were 157 collegia of advocates at the time of the dissolution of the Soviet Union. In 2002, there were 47,000 advocates registered with one of the 145 collegia of advocates or one of the 50 “alternative” collegia throughout the Russian Federation. Each collegia is an independent self-governing professional association (Butler, 2003). It is also important to note that the 2002 Federal Law on Advocate Activity was designed to establish a national framework for the profession. One product of this legislation is the Federal Chamber of Advocates of the Russian Federation. The Chamber’s mandate is to represent the interest of advocates.
Jury
Trial by jury was first introduced into Russia in 1864, but it was abolished with the 1917 Revolution. During the period of the Soviet Union, a trial court included a professional judge and two people’s assessors. In all Soviet courts, assessors were elected to a five-year term. People’s court assessors were elected by the people the court served. Assessors serving in superior courts were elected by the corresponding soviet of people’s deputies. Any Soviet citizen who was at least 25 years of age was eligible for election. The work of an assessor was not a full-time responsibility; assessors heard cases for approximately two weeks out of the year. It was not a requirement to have any understanding of the law, and most assessors did not. Once elected, assessors were given an information handbook and were expected to attend lectures by jurists. These measures were designed to supplement their minimal understanding of the law.
Because of the limited amount of time actually served in court, assessors did not become very knowledgeable about either the substantive or procedural nuances of the law. Thus, they were dependent on the advice and counsel of the professional judge. The purpose of people’s assessors was not unlike that of jurors in England and France. They assured civilian participation in the administration of justice. From the official Soviet point of view, this was an important responsibility, but it appeared to be a cosmetic exercise in actual practice. Nevertheless, it served as another illustration of socialist democracy in action.
People’s assessors continued to be utilized in the courts of the Russian Federation until fairly recently. As was pointed out earlier, people’s assessors had functioned as judges in those regions of the country that do not have a sufficient number of professional judges to serve the needs of the area. Although assessors were viewed originally in the Soviet Union as assuring civilian participation in the administration of justice, the Russian Federation introduced jury trials into the present system initially on a limited basis. As a result, issues are likely to be raised regarding the necessity or desirability of having two distinct approaches for assuring citizen involvement in the judicial process.
When in 1992 the Ministry of Justice proposed the establishment of jury trials, there was some opposition to the idea, especially from the procurator general. Nevertheless, legislation was adopted in 1993 to introduce the jury on an experimental basis for certain types of cases in nine regions of the country. Support for its use was reaffirmed with the new Constitution of the Russian Federation. Article 123 states: “In instances stipulated by federal law, judicial proceedings are conducted with the participation of jurors.” By 2003, the experiment was extended to the other 69 regions of the country. Further guidelines for the use of the jury are found in the 2001 Code of Criminal Procedure.
Essentially, the procedure allows the defendant, if he or she has been accused of a specific kind of crime, to choose between a jury trial or a traditional trial. The list of crimes that fall under this category include murder, kidnapping, rape with aggravating circumstances, child trafficking, gangsterism, large-scale bribery, treason, terrorist acts, calls for violent change in the constitutional system, and some other select crimes against the state.
In 2008, however, the use of the jury was eliminated in trials involving espionage, extremism, high treason, and terrorism. The objection to this change came from a wide group of stakeholders, such as members of the Jurors Association, lawyers, economists, and human rights groups. At issue is the concern that innocent people will be charged unfairly, especially given the breadth of circumstances that could be applied to extremism and terrorism. The opponents of this change also argued that rather than curb the use of the jury, it should be expanded. In light of the difficulties in establishing an independent judiciary, some are of the opinion that the use of the jury may, over an extended period of time, facilitate the emergence of a truly independent judiciary (Mishina, 2012).
Any Russian citizen who lives in the district where a trial will take place can serve as a juror. A juror must be at least 25 years of age, legally competent to serve, and without a criminal record. Twelve people are selected by the procurator and defense counsel after having their names drawn from a list of 30 to 40 eligible to serve. Potential jurors are questioned by the procurator and defense counsel, and a written challenge can be submitted to the judge objecting to the possible selection of a juror.
As is the case in English trials, the Russian jury sits separately from the judge in the courtroom. This is unique to recent Russian experience, because when people’s assessors were used, they sat on either side of the judge. Like common law countries that employ a jury, the Russian jury decides matters of fact, while the judge determines issues of law that arise during the trial. The responsibility of the jury is to determine if the accused is guilty or not guilty of the charges. Russian juries are expected to return unanimous verdicts during the first three hours of deliberations. Majority verdicts are permitted after that time. A not-guilty verdict is adopted if at least six jurors cast such a vote. If the jury finds the accused guilty, they can request that the judge show leniency at sentencing or they may decline to make such a request.
The current use of juries has been in place for more than a decade. Several issues have been raised that point to defects in the system and calls for reform. First, some have suggested that the minimum age of a juror should be lowered to 18. Those who oppose such a change argue that people under the age of 25 do not possess a sufficient amount of life experiences to be placed in a position of deciding the fate of a person at trial. The counter argument is that young people serve in the military, and participating in the administration of justice is an equally important responsibility.
Second, it has been suggested that qualifications should be added when determining the fitness of a candidate as a juror. Some procurators and judges have suggested an education qualification should be introduced. The problem with this idea is that 90 percent of Russians have a secondary education, while only 28 percent are university graduates. Jurors are supposed to represent a cross-section of the community. Another qualification suggested by some is a “reliability” qualification. The concern with this idea is that the government could, and inevitably would, exclude people from jury service on subjective grounds of what constitutes trustworthiness.
Third, there is an issue of transparency in the process of selecting a jury pool. Concern focuses on the fact that the list of potential jurors is not made public. Moreover, questions are raised about who conducts the random-selection process. Critics contend that some jurors have been singled out for jury duty frequently because of their ongoing support for the procurator. Obviously, this raises questions about the supposed random selection of jurors. To rectify this problem, it has been suggested that selection committees composed of officials from the three branches of government, representatives from the bar, and citizens administer the process in open court.
Finally, there is a concern over the actual selection of the jury and the use of peremptory challenges. Defense counsel, in particular, is at a disadvantage because the names of potential jurors are only revealed on the first day of the trial, and they are only permitted two peremptory challenges. To help rectify these problems, it has been suggested that defense counsel should have the right to investigate the jury pool for possible manipulation or fraud. Moreover, requiring potential jurors to complete a questionnaire would provide more background information on members of the pool. Lastly, there appears to be general support to increase the number of peremptory challenges from between three and 10 for each defense counsel (Kovalev, 2014).
Legal Education
There were three approaches to acquiring a legal education in the Soviet Union. The most desirous method was selection as a day student in one of Russia’s 48 law departments that were associated with a university. Day students were selected from the people who scored the highest on a competitive entrance examination. They participated in a five-year program and were given books, tuition, and a stipend for living expenses. Night students, whose numbers had been equal or larger than day students, were individuals who had not scored as high on the entrance examination, but they had been accepted to the school. They participated in a six-year program and worked full-time at a job during the day. Finally, there was an extensive system of legal correspondence courses available for people who wanted to study law, even though they had not qualified for a law school position. As is the case in the United States and other countries that offer similar programs, this course of study was not held in high regard, because such programs lacked the academic rigor of a full-time course. Nevertheless, correspondence courses served a useful purpose in producing people knowledgeable in law, for the demand for lawyers had been outweighed by the numbers produced by law departments.
The system of legal education in the Soviet Union resembled that established on the continent of Europe, at least in terms of the range of nonlegal subjects offered. This was because Soviet law students had not already acquired the equivalent of an undergraduate college education. The typical first-year law student was 20 years old, had completed 10 years of formal education, and had worked the previous two years.
The curriculum was planned by authorities within the central government bureaucracy. The plan consisted of three groups of courses. The first group consisted of ideological courses. These courses, taken at the beginning of the program, included basic principles of scientific communism, history of the Communist Party of the USSR, and Marxist– Leninist philosophy. In addition, all students studied a modern foreign language (English, German, and French were most popular) as well as Latin. The second group included courses dealing with the culture and history of the law. Among the courses prescribed at this phase were Roman law, theory of state and law, history of political science, history of state and law of foreign countries, history of state and law of the USSR, government and law of bourgeois countries and countries liberated from colonial dependency, logic, court statistics, and accounting. The third category included more specialized law courses such as administrative law, finance law, civil and family law, civil procedure, criminal investigation, criminal law, criminal procedure, collective farm law, land law, labor law, social insurance law, international law, criminology, corrective labor law, court psychology, and forensic medicine and psychiatry.
The course format included lectures and a seminar component in the more advanced classes. Starting with the second-year students, approximately five weeks out of the year were spent in practical training in a court or government law department. Fifth-year students spent most of their time in practical training and in writing a thesis to be defended at the end of the year. Upon graduation, about 50 percent of the students joined the staffs of political agencies such as the MVD, KGB, procuracy, and courts; these were the most prized positions. About 25 percent entered practice as an advocate; approximately 20 percent became legal counsel for various institutes, industrial enterprises, and collective farms; and 5 percent continued their studies (Juviler, 1976).
The student desiring to continue legal studies at the graduate level was required to gain admittance to one of the four law institutes. These institutes trained future legal scholars and law professors but were not associated with the law departments of universities. The placement was quite competitive for the limited number of positions available. Candidates in the law institutes were required to complete two years of practical work before they were permitted to apply. Anyone meeting the entrance criteria was eligible, but only those invited to apply stood a serious chance of being accepted. In addition to training legal scholars, the institute’s staff produced legal treatises on Soviet law. Students spent a good deal of time assisting the staff in the preparation of these works. The rest of their time was spent in the research and writing of a thesis. Once a thesis was successfully defended, the student was awarded the degree of candidate of legal science. The student could remain at a law institute to continue a career of scholarly research or return to a university to teach.
Because of the heavy teaching assignments in Soviet law departments, the teaching faculty were not noted for their scholarly research (as is the case with law faculties in the West). Most scholarship was produced by the staffs of law institutes. Graduates of the institutes usually were awarded a doctorate degree for their contributions to the enhancement of Soviet legal knowledge. This was awarded approximately five to 10 years after receiving the degree of candidate of legal science. To achieve that distinction, the thesis must be defended before the faculty of a law institute other than the one attended by the writer.
Since the demise of the Soviet Union, two observations have been reported with regard to legal education in the Russian Federation. First, the ideological courses have been removed from the required courses of the law school curriculum. They have been replaced by courses designed to assist students in understanding the role of law in a market economy, such as banking, commercial law, and taxation. Some courses have also been introduced to retrain lawyers who initially studied law during the Soviet era. Second, interest in the study of law has increased significantly in the country. Although this may be initially attributed to the change in economic system and the opportunities the market offers to people trained in law, it should eventually benefit the justice system as the quality and quantity of lawyers interested in public law issues increase over time.
In light of the increased interest in the study of law, existing law schools have expanded their programs, and new law schools have been created to handle the demand. The five-year undergraduate degree is still designed to produce specialists in a branch of law. Because of the political and economic changes in Russia, the law graduate has a variety of career opportunities in the private sector that did not exist for previous generations of Soviet lawyers.
Questions have been raised about the quality of legal education in light of the transformation from the Soviet Union to the Russia Federation. One concern has been the proliferation of law schools offering an undergraduate program. While they appear to be meeting a market demand in that legal education is popular, a number of students have no interest in practicing law. Of course, a student’s lack of interest in actually practicing law is not unique to Russia. Students in several countries throughout the world elect to major in law because the training provides a skill set that offers them a wide range of employment opportunities upon graduation. Students who plan on a legal career tend to seek admittance to the more prestigious law schools. All students who wish to practice law, however, irrespective of the school attended, will find employment. It is interesting to note that those without superior knowledge and skills find work within the government.
Another major concern centers on the quality of the education offered. At issue for some is the lack of practical training in law schools. Some in the legal academic community oppose the notion that they should be preparing students for legal practice; rather, they see their role as providing theoretical training. While some in the private sector agree, others are of the opinion that legal education should be designed as practical training for the demands of the marketplace.
Also related to the issue of the law school curriculum is the lack of attention paid to professional ethics. In light of the documented concerns over corruption and malfeasance within the judicial system, there is an obvious need to address the apparent lack of a moral foundation in the legal profession. Those concerned with this dilemma argue that law schools should provide courses that teach how to address ethical conflicts in the workplace and establish professional rules of conduct. Thus far, such courses do not exist (Shepeleva and Novikova, 2014).
The essential idea behind the democratization movement has been a recognition of the significance (indeed the necessity) of government by rule of law. The leadership of the Russian Federation has acknowledged its importance by indicating in Article 1 of their Constitution that “[t]he Russian Federation is a democratic and federal state based on the rule of law, with a republican form of government.” This acknowledgment is a first step, because throughout the history of the Soviet Union, government was ruled by ideology— specifically that of the Communist Party. Moreover, as has been indicated elsewhere, creating law does not in itself assure that it will be implemented or enforced.
As it relates to the criminal justice system, the rule of law is often associated with issues such as due process, presumption of innocence, and rules of evidence. What follows is a presentation of the changing nature of such issues, first in the context of the Soviet Union and then considered under the circumstances found in the Russian Federation. Of particular interest is the impact on criminal law and criminal procedure as the country moves from a set of assumptions based on government by rule of ideology to a government based on the rule of law.
The history of socialist law began in November 1917 when the Bolsheviks assumed power in Russia and established a new order that was intended to lead to the emergence of a communist society. In that society, both the state and law were to disappear as a result of becoming superfluous in a communist society. The Soviet leadership, however, never claimed to have established a communist society.
Starting in 1917, they were in the process of creating a socialist state in the Soviet Union. The purpose of a socialist state was to prepare for the emergence of a communist society. According to Soviet jurists, all law was used to exploit the masses. However, they held that socialist law was unique. In fact, they argued that there were only two kinds of law: nonsocialist law and socialist law. Nonsocialist law was more maturely developed in capitalist countries; its purpose was to assure the protection of private interest through the exploitation of the masses. Socialist law was dominated by the doctrines of Marxism– Leninism; its purpose was to establish a collective interest by exploiting conformity in accordance with the goals of the Communist Party. Soviet society was considered imperfect because of its dependence on the use of coercion to achieve some of its ends. Nevertheless, Soviet leaders contended that their use of law was far superior to that found in capitalist countries.
Although the history of socialist law began in 1917, the Bolshevik break with the past was not a total rejection of previous practices. Admittedly, the substance of law changed drastically, causing socialist law to become a distinct legal family, but much of its form could be traced back to the Romano-Germanic tradition. The importance placed on codifying the law, the retention of many of the formal judicial organizations, and the rules of pretrial procedure were noticeably similar to those found in Romano-Germanic countries.
With the advent of Gorbachev’s leadership and his attempts at redefining communist ideology, the reform of law was raised to a new status. The impetus for this reform was based on Gorbachev’s views of democratic socialism. To summarize, democratic socialism required governance through the rule of law. Law assured individual rights and freedoms and was designed to control the potential abuse of power by the authorities. In order to achieve this form of democracy within the Soviet Union, constitutional and other legal reforms were necessary. Reforms had already been introduced in the judiciary. Efforts were also underway to change substantive and procedural law.
From a Western perspective, the history of socialist criminal law was marked by a lack of clarity, while criminal procedure suffered from arbitrary enforcement. Both were products of the Bolshevik leaders’ failure to create an orderly plan to replace the law of the tsarist regime that they had abolished. Some efforts at codification were undertaken following the adoption of the 1918 Constitution, but it was not until the early 1920s that an extensive attempt to systematize the law was commenced in earnest. In 1922, the Criminal Code of the RSFSR (Russian Socialist Federative Soviet Republic)—the largest of the 15 republics— was adopted. Its purpose was to unify the criminal law and to check the indiscriminate practices of revolutionary tribunals and the Cheka. It also served as a model code for the other union republics.
Although the code systematized the law to some extent, it did not really clarify its limits. In the general section of the code, two principles were introduced establishing both the uniqueness of socialist criminal law and perpetuating its vague and arbitrary characteristics. One of those principles was the material definition of crime; it was expressed in Articles 6 and 7 of the code:
A crime is any socially dangerous act or omission which threatens the foundations of the Soviet structure and that system of law which has been established by the Workers’ and Peasants’ Government for a period of transition to a Communist structure.
A person is dangerous if he commits acts which are injurious to the community, or if his actions present a serious menace to the established laws of the community.
The Soviets, therefore, established a principle stating that acts or omissions that were criminal did not have to be specifically described in the code. Rather, any act or omission that was deemed “socially dangerous” was a crime. Thus, the code lacked a specific definition of crime. Such an approach was alien to the Western method of codification. It also assured the continuance of broad discretionary powers for the investigative arms of the Soviet criminal justice system.
The second principle, known as the principle of analogy, was a logical extension of the first. It was found in Article 10 of the code:
In the case where the Criminal Code makes no direct reference to particular forms of crime, punishment or other measures of social protection are applied in accordance with those Articles of the Criminal Code which deal with crimes most closely approximating, in gravity and in kind, to the crimes actually committed, and in conformity with the regulations laid down in the General Section of the Present Code. . . .
With such a principle in force, a formal criteria for criminal liability was absent from the code. Defenders of the principle alleged that the revolutionary nature of the time warranted the use of this concept. However, it further enhanced the elastic interpretation the courts and investigative agents could apply to an accused’s criminal conduct.
The codes were revised again in 1926, but the principles of material definition and analogy remained intact. In fact, they were more harshly interpreted throughout Stalin’s regime, especially during the purges of the 1930s. Stalin’s measures led a number of prominent scholars to criticize these principles. They were abolished when the Soviet leadership attempted to divorce itself from the methods of Stalin in the late 1950s. Although attempts were made to reduce the ambiguity of the law and to modify its severe application, the leadership did not totally abandon Stalin’s methods. Critics contend that despite the fact that the principle of analogy was rescinded, it remained effective in spirit. In fact, it has been suggested by some scholars that everything was prohibited in the Soviet Union unless a law stated otherwise.
Finally, one of the most persistent causes for ambiguity in socialist law was the number of government branches with authority to enact law. Although this problem had existed since 1917, it was illustrated by the current guidelines established under the 1977 Constitution. These were essentially the same rules that existed under the 1936 Constitution, so they had been a part of the legislative process for some time. Unlike a common law country that finds its sources of law in legislation, judicial decisions, and custom, the socialist legal system more closely subscribed to the continental legal system’s method of legal sources. The supreme law-making authority was vested in the popularly elected legislative bodies. In the Soviet Union, this included the Supreme Soviets of the 15 republics as well as the ultimate legislative authority, the Supreme Soviet of the USSR. Moreover, the doctrine of separation of powers had been absent from the Soviet political system. Both the judiciary and the executive were ultimately accountable to the legislative branch.
At this point in this discussion, it would appear that the Soviet Union had a highly efficient and orderly lawmaking system. However, although law was enacted by the Supreme Soviet and the various union republics, the Constitution authorized other government branches to legislate as well. The Supreme Soviet could issue decrees and acts; the Presidium of the Supreme Soviet could amend legislation, issue edicts, and adopt resolutions; the Council of Ministers could issue decrees and resolutions; and the various local units of state administration could adopt and execute decisions and orders. There was concern that many of these units of government did not publish their decrees or resolutions. For example, it had been suggested that 80 percent of the acts issued by the Council of Ministers were not published (Dobek and Laird, 1990). Thus, the people were left unaware of acts (by commission or omission) that violated established policy.
The number of agencies empowered to legislate and the amount of legislation enacted had created a serious dilemma. This situation was compounded further when the legislation was not published. This problem had existed since 1917. Despite Soviet attempts to reduce the ambiguity through codification, it persisted. The situation created difficulties for agencies responsible for interpreting and enforcing the law. For the Soviet criminal justice system, this overwhelming amount of legislation merely added to the ambiguity of the law and the arbitrary fashion with which it was administered.
In the 1980s, the Soviets attempted to address the issues of ambiguity and arbitrariness in their legal system. For example, the Institute of State and Law of the USSR Academy of Sciences produced a document called the “Theoretical Model of a Criminal Code (General Part)” in 1985. It was used as a point of departure in the debates about revising the criminal law, and in 1990, it was instrumental in the draft and adoption of amendments to the Fundamentals of Criminal Legislation of the USSR. In the course of these discussions, it became obvious that a more liberal sentencing policy would likely receive the most immediate benefit from these efforts at reform (Butler, 1988).
In another development, the Law of Appeals went into effect in 1988. It provided citizens with a right of appeal when they thought that the actions of an official of the government had in some way violated their rights. This legislation was expected to curtail the arbitrary actions of bureaucrats—particularly those involved with employment and housing law. According to Soviet legal experts, the law would not have a significant impact on agents of the criminal justice system because provisions in the act limited the actions that could be taken against members of the KGB, and complaints against the Ministry of Internal Affairs appeared to be excluded from the legislation (Quigley, 1988a). Nevertheless, these developments suggested that a new climate of opinion was emerging in the Soviet Union, and if it was permitted to continue, additional legislation might be forthcoming that would specifically address concerns related to arbitrary actions of agents of the criminal justice system.
Criminal Law
In an attempt to revise the criminal law, the Supreme Soviet of the USSR adopted several new laws in 1958. These included the Fundamentals of the Criminal Legislation of the USSR and the Union Republics, the Law on Criminal Responsibility for Crimes against the State, the Law on Criminal Responsibility for Military Crimes, and the Fundamentals of Criminal Procedure of the USSR and the Union Republics. The Fundamentals served as a binding model, with each Soviet republic establishing its own laws. The intent behind these reforms was to clarify the laws and to eliminate the arbitrary fashion with which they were previously enforced. In short, it was an attempt to de-Stalinize the Soviet criminal justice system. In addition, each union republic was required to amend its existing laws to conform with the new basic principles established by the Supreme Soviet and to enact new criminal codes and codes of criminal procedure. This was largely accomplished during the early 1960s.
With the collapse of the Soviet Union, the government of the Russian Federation adopted the Criminal Code of the RSFSR as its own and then proceeded to make incremental amendments to it. Much of this effort had been directed at eliminating issues that were based on ideology rather than the rule of law. To illustrate, a person in the Soviet Union could be imprisoned for involvement in a commercial activity. Today, the Russian leadership wants its citizens involved in commercial activities in order to strengthen its market economy. Thus, one of the obvious changes in the criminal code was that it was no longer a crime to be involved in a commercial venture. It also should be pointed out that the change in economic system resulted in several new types of economic crime. They included violating securities procedures, false business activities, violating antimonopoly laws, divulging commercial secrets, and violating the tax laws.
One of the more troublesome issues with the adoption of the old Criminal Code was the retention of the general definition of crime. The Russians insist on retaining the old Soviet term “socially dangerous act” in the definition (Finckenauer, 1995; Van Den Berg, 1992). From a Western perspective, we expect our criminal laws to meet objective standards that are rational, certain, and impartial. By meeting these standards, there is a greater likelihood that people will be treated fairly and equally. Including the concept of “socially dangerous” lends itself to arbitrary, capricious, and discriminatory interpretations of a person’s actions. The history of criminal justice in the Soviet Union offers numerous illustrations of arbitrary investigations and questionable convictions. The concern then is that the Russians are apt to continue such practices, which has led one scholar to suggest that “the rule of law in Russia is, as of yet, an illusory goal” (Finckenauer, 1995).
In 1996, a new Criminal Code of the Russian Federation was introduced. It replaced the Criminal Code of the RSFSR that was originally enacted in 1960 and amended after the demise of the Soviet Union. The new Criminal Code of the Russian Federation took effect in 1997 and was amended in 1998. It is divided into two parts: the general part and the special part. The entire code is subdivided further into 12 sections, 34 chapters, and 360 articles. The general part is subdivided into six sections that are titled: (1) criminal law, (2) crime, (3) punishment, (4) relieving from criminal responsibility and punishment, (5) criminal responsibility of minors, and (6) compulsory measures of medical character.
The principal purpose of the Soviet criminal law was to protect the socialist political and economic system, along with the socialist legal order. The purpose of the 1996 Criminal Code is strikingly different, and the tasks are spelled out in Article 2: “protection of the rights and freedoms of man and citizen, ownership, public order and public security, the environment, and the constitutional system of the Russian Federation against criminal infringements, ensuring the peace and security of mankind, and also the prevention of crimes.”
While “socially dangerous act” has been retained in the definition of crime, critics of the term, when employed in the Soviet context, should note that it is not being used as it had been in the past. Moreover, other principles and standards have been introduced into the new Code that are designed to prevent arbitrary, capricious, or discriminatory investigations that could lead to questionable convictions. To illustrate, Article 1 states: “Criminal legislation of the Russian Federation shall consist of the present Code. New laws providing for criminal responsibility shall be subject to inclusion in the present Code.” Thus, the Code is supposed to be an all-inclusive document. Article 3 points out that “[t]he criminality of an act, and also the punishability thereof and other criminal-law consequences, shall be determined only by the present Code. The application of a criminal law by analogy shall not be permitted.”
In addition to the principle of legality, the new Code includes other principles that are designed to differentiate this Code from the codes of the Soviet era. Article 4 speaks to the principle of equality of all persons before the law; Article 5 addresses the principle of guilt, that is, the need of the authorities to establish guilt; Article 6 is devoted to the principle of justness, which is concerned with determining an appropriate level of punishment; and Article 7 is concerned with the principle of humanity, which prohibits the assessing of sanctions that cause either physical suffering or are demeaning to an individual.
The issues of intent and negligence are considered under Articles 25 and 26, respectively. Article 25 states:
An act committed with direct or indirect intent shall be deemed to be a crime committed intentionally.
A crime shall be deemed to be committed with direct intent if the person was aware of the social danger of his actions (or failure to act), foresaw the possibility or inevitability of the ensuing of socially dangerous consequences and wished the ensuing thereof. A crime shall be deemed to be committed with indirect intent if the person was aware of the social danger of his actions (or failure to act), foresaw the possibility of the ensuing of socially dangerous consequences, did not wish them, but consciously permitted these consequences or was indifferent to them.
Article 26 explains negligence:
An act committed through thoughtlessness or carelessness shall be deemed to be a crime committed through negligence. A crime shall be deemed to be committed through thoughtlessness if the person foresaw the possibility of the ensuing of socially dangerous consequences of his actions (or failure to act) but without sufficient grounds arrogantly counted on the prevention of these consequences.
A crime shall be deemed to be committed through negligence if the person did not foresee the possibility of the ensuing of the socially dangerous consequences of his actions (or failure to act), although with necessary attentiveness and prudence these consequences should and could have been foreseen.
Two factors influence criminal responsibility: age and mental capacity. People who have reached 16 years of age are subject to criminal responsibility. Although people under the age of 16 are generally not subject to criminal responsibility, there are a number of exceptions made to this rule. Young people who have attained the age of 14 and have committed certain serious crimes may be prosecuted. The crimes for which a young person may be prosecuted include homicide; intentional causing of grave harm to health; intentional causing of average gravity of harm to health; stealing a person; rape; forcible actions of sexual nature; open stealing; assault with intent to rob; extortion; unlawful taking possession of an automobile or other means of transport without the purpose of stealing; intentional destruction or damaging of property under aggravating circumstances; terrorism; taking a hostage; knowingly making a false communication concerning an act of terrorism; hooliganism under aggravating circumstances; vandalism; stealing or extortion of a weapon, ammunition, explosive substances, or explosive devices; stealing or extortion of narcotic means or psychotropic substances; and the destruction of transport or railways into unfitness.
By way of clarification, it should be noted that the term hooliganism refers to a specific criminal offense that existed under Soviet law and has been retained with the new Russian law. According to Article 213, hooliganism is defined as “the flagrant violation of public order expressed by a clear disrespect for society accompanied by the application of force to citizens or by the threat of the application thereof, and likewise by the destruction or damaging of another’s property. . . .” It has long been one of the most common types of offenses committed in the country.
The other factor that determines a person’s criminal responsibility involves mental capacity. People who are in a state of nonimputability (that is, not aware of the character and consequences of their actions because they suffer from chronic or temporary mental disturbance, feeble-mindedness, or other mental illnesses) are not subject to criminal responsibility. Article 21, however, states that “compulsory measures of a medical character provided for by the Code may be assigned by a court to a person who has committed a socially dangerous act in a state of nonimputability. . . .” This could possibly lead to the person’s commitment to a general or special psychiatric hospital. The use of psychiatric hospitals in the Soviet Union had been a topic of intense dispute, because political dissidents often found themselves sent to such facilities. At issue in those cases were the criteria used to determine mental illness, derangement, or deficiency. For example, critics of the Soviet system alleged that the desire to emigrate to Israel should not have been grounds for such a commitment, but such a criterion was used for that purpose in the past. It should also be noted that defendants who commit crimes while in a state of intoxication are not free from criminal responsibility. According to Article 23, the state of intoxication can be caused by alcohol, narcotics, or other stupefying substances.
The general part of the code also contains a section on punishments. The code lists three purposes for punishment that include restoring social justness, reforming the convicted person, and preventing the commission of a new crime. As was the case during the Soviet era, the Russians make a distinction between punishments that are considered either basic or supplementary measures. These were identified in Article 45:
Obligatory tasks, correctional tasks, limitation in military service, limitation of freedom, arrest, confinement in a disciplinary military unit, deprivation of freedom for a determined period, deprivation of freedom for life, and the death penalty shall be applied only as basic types of punishments.
A fine and deprivation of a right to occupy determined posts or to engage in a determined activity shall be applied either as basic or as supplementary types of punishments.
Deprivation of a special, military or honorary title, class rank, and State awards, and also confiscation of property, shall be applied only as supplementary types of punishments.
Notably absent from this list of punishments are the sanctions of exile and banishment. These sanctions were utilized for a number of years during the Soviet regime; both were eliminated shortly before the collapse of the Soviet Union.
The death penalty is considered an acceptable sanction in exceptional cases and those instances include homicide, infringement on the life of a State or public official, and genocide. The method of carrying out the sanction is through shooting a bullet in the back of the head. It is interesting to note that the code prohibits carrying out the death penalty on women, people who committed the crime before reaching the age of 18, and men who have attained the age of 65 at the time of sentencing. In addition, through the pardon process, a death sentence can be replaced by a sentence of deprivation of freedom for life or deprivation of freedom for 25 years. Finally, the Russian Federation suspended the use of capital punishment in 1997 (Mikhlin, 1999).
The special part of the 1996 Criminal Code is subdivided into six sections that represent the major crime categories: (1) crimes against the person, (2) crimes in sphere of economy, (3) crimes against public security and public order, (4) crimes against the state, (5) crimes against military service, and (6) crimes against peace and security of mankind. Each crime is listed under one of these categories with the specific elements that constitute the offense and the type of sanction that may be imposed. To illustrate, Article 162, the crime of assault with intent to rob, states: “Assault with intent to rob, that is, an attack for the purpose of stealing another’s property committed with the application of force dangerous for life or health, or with the threat of the application of such force shall be punished by deprivation of freedom for a term of from three up to eight years with or without confiscation of property.” This article also includes subsections devoted to when this offense is committed either by a group of persons or by an organized group. In those instances, the sanction of deprivation of freedom ranges from seven to 12 years and from eight to 15 years, respectively.
Russia is clearly a country in transition, moving from one set of political ideals and economic principles to a profoundly different set of ideals and principles. The 1996 Criminal Code of the Russian Federation illustrates that fact well, for it is similar to criminal codes found in Western democratic countries. Many similarities have to do with Russia’s attempt to establish a market economy. Some parts of the code, however, are unique to the country’s experience. They reflect either the Soviet past or the current transitional phase that the country is and will continue to confront for the foreseeable future.
Criminal Procedure
When the Code of Criminal Procedure of the RSFSR was introduced in October 1960, it was designed (like the criminal code) to de-Stalinize the Soviet criminal justice system. It is worthwhile to note some of the basic or fundamental principles that were expressed in the code. Among the more important principles, Article 2 stated that no innocent person would be prosecuted or convicted. Unfortunately, the application of this principle was largely ignored in practice—an allegation that has been supported by critics both in and out of government. Article 13 assured that only the courts would administer justice, suggesting that counterrevolutionary trials would no longer be handled by military tribunals. Article 16 proclaimed that judges and people’s assessors were independent and subordinate only to the law. The principle of judicial independence must be viewed within the context of Soviet ideology, for the article also stated that court decisions were made “in conformity with socialist legal consciousness,” which was determined by the CPSU.
Article 14 stated that the administration of justice was based on equality of all citizens before the law and courts. Nationality, race, religion, and social or economic status were not supposed to affect the outcome of the case. Soviet jurists had been fond of claiming that this principle was frequently violated in capitalist countries. This was one of the reasons frequently offered for the superiority of socialist law over capitalist law. Article 17 assured that judicial proceedings would be conducted “in the language of the majority of the local population.” This was considered an important principle because of the number of ethnic groups that resided in the Soviet Union. The right to a public trial was granted under Article 18. There were some exceptions to this rule, however. For example, trials involving state secrets were not open to the public, and the court could decide to conduct closed trials if the defendant was under 16 years of age or when the case involved a sex crime.
Finally, the Soviets maintained that there was an implied presumption of innocence in their law. Whether the presumption truly existed has been a hotly debated issue among both Soviet jurists and Western experts on socialist law. If one accepts–at least in theory—the role of the procurator, a case could be made for the existence of this principle. Although the presumption of innocence was implied in a number of articles in the code and in other pieces of Soviet legislation, Article 20 was often cited as an important illustration of this sentiment. It proclaimed that “a thorough, complete and objective analysis of the circumstances of the case” was an obligation of the procurator, the investigators, and the court. A number of critics argued that this was not the case, and they pointed to countless examples of accusatory bias by judges and procurators to prove their point. Much of the bias was the result of the Soviet procedure’s focus on the “objective truth” of the case, that is, the factual guilt of the accused. This procedure did not make a distinction between factual guilt and legal guilt, which is an important feature of the adversarial process. As such, courts frequently permitted the procurator to conduct supplementary investigations into a case after the trial had started.
Though the code was designed, in part, to de-Stalinize the Soviet criminal justice system, experts on the earlier codes argued that the procedural codes were not substantially different from the codes in force during Stalin’s regime. Obviously, the hope was that Soviet citizens would be assured legal protection as a result of these procedural guarantees. A number of Western experts believed that the average Soviet citizen was protected, but they were quick to point out that this was not the case for political dissidents. Critics of the Soviet system contended that procedural abuses continued despite attempts at reform, but that the abuse was not nearly as blatant nor as harsh.
Upon the dissolution of the Soviet Union, Russia continued to use the Code of Criminal Procedure of the RSFSR in an amended form as the Code of Criminal Procedure of the Russian Federation. There was a healthy skepticism regarding the ability or willingness of agents of the Russian justice system to comply with the new procedural protections. Of course, the Russian Federation’s new Constitution assured a commitment to a number of fundamental procedural rights that were designed for people involved in the justice process. Article 15 states: “Bodies of state power, bodies of local self-government, officials, citizens and associations of citizens, must observe the Constitution of the Russian Federation and the laws.” Article 46 proclaims: “Everyone is guaranteed judicial protection of his or her rights and liberties.” Article 49 indicates: “Everyone accused of committing a crime is presumed innocent until his or her guilt has been proved according to the procedure stipulated by federal law and established by a court verdict that has entered into force. An accused person is not obligated to prove his or her innocence.” Finally, Article 50 assures: “No one may be convicted more than once for the same crime.” Some of these constitutional rights were strikingly similar to the protections enunciated in the old Code of Criminal Procedure of the RSFSR. As a result, there was some uncertainty as to whether the agents of the justice system would display deference toward these constitutional rights. At issue was whether the agents of the justice system had accepted the principle of government by rule of law.
While a new Criminal Code was approved in 1996, the initial attempts were unsuccessful at drafting a new Code of Criminal Procedure. Some commentators were concerned that the office of the procurator retained too much authority. Critics argued that the new code should enhance the independence of the judiciary and strengthen the role of defense counsel in the process (American Bar Association Central and East European Law Initiative, 1996). Finally, on July 1, 2002, and after having been amended four times, the 2001 Code of Criminal Procedure of the Russian Federation went into effect.
The new Code is significant because it introduces several changes to the criminal procedural process that did not exist in the old Soviet code. As such, a new approach to criminal procedure has been introduced with this Code. Chapter 2 of the Code is devoted to explaining the philosophical principles that are the foundation for the rules that guide the procedural changes. The purpose of the criminal court proceedings is to protect the rights of people and organizations who are victims of crime and to protect the rights and freedoms of people who have been unlawfully accused or convicted of an offense. The principle of legality states that any violation of the procedural norms of the Code by a court, procurator, investigator, or body of inquiry in gathering evidence would lead to that evidence being declared inadmissible. Other principles point out that justice will be administered only by a court and that the procedures employed in the court will be of an adversarial nature. Thus, the court is independent of the procurator, and the accused will be represented by counsel in many circumstances. With the declaration of the presumption of innocence, the burden of proof is clearly placed on the procurator. A number of principles speak to prohibiting violations to the honor and dignity of participants in a criminal proceeding, protecting people from illegal arrest and detention, protecting peoples’ rights and freedoms, prohibiting illegal searches and seizures, guaranteeing the right of a defense, and the right of appeal against procedural actions or decisions of the trial court. The two most prominent changes are judicial supervision at the pretrial stage, which still employs an inquisitorial approach while also enhancing the independence of the judiciary, and an adversarial process during the trial.
An examination of criminal procedural issues is divided into two categories. The first involves the pretrial process, which includes police and procurator powers, along with other issues pertinent to the preliminary investigation. The second category is concerned with the trial process. It consists of the main hearing as well as appellate reviews.
Preliminary Investigation
Once a complaint has been received by the police or procurator, a decision to initiate a case has to be made. Even before that, a written report is entered into the record that confirms the complaint was received by the appropriate authority. Anonymous complaints are not grounds for starting an investigation. The decision to proceed must be made within 72 hours of receiving the complaint, but the period can be extended by a procurator for up to 10 days. Either an investigator with the consent of a procurator or the procurator will issue a decree to initiate an inquiry into the matter. After a decree has been approved, a preliminary investigation begins. Either an investigator from the procurator’s office or the politsia usually conducts the investigation. The procurator, however, is mandated at all times to supervise the entire process. If a decree is issued that refuses to initiate an inquiry, obviously with reasons for such a decision, an appeal can be made to the procurator or to the court. The Code also permits a private accusation, which enables the victim of a crime to initiate a prosecution through an application to the court.
The preliminary investigation should normally be completed within two months, with a possible extension of up to six months. Further extensions are possible depending on the complexity of the case. It should also be noted that during this investigative stage the Code now permits defense counsel or the suspect and a victim or a civil plaintiff the right to interrogate witnesses, to conduct their own investigation, and to collect evidence that they may deem pertinent to the case.
There are a number of legal issues—most importantly, the rights of the accused—that are of great concern during a preliminary investigation. These will be examined presently. For the moment, though, assume that the preliminary investigation has been completed. At this stage of the process, a decision must be reached either to indict the defendant or to terminate the case based on the evidence collected. The procurator scrutinizes the investigator’s recommendation in all instances. If the investigator recommends the issuance of an indictment, the procurator can concur and prosecute the case or vacate the recommendation and terminate the case. If the investigating officer favors terminating the case, the procurator will either concur or decide to indict the defendant. In all cases, the ultimate decision rests with the procurator.
Articles 24 through 28 of the Code explain the reasons for terminating a criminal prosecution. Among the more obvious reasons for refusing to initiate a prosecution are the absence of a crime, the absence of evidence, the expiration of the time to initiate a prosecution for the specific offense, and the death of the suspect or the accused. Other reasons for declining to prosecute include whether the parties have reconciled and the incident was a first-time offense that is considered of average gravity, and whether the accused is no longer considered socially dangerous. Finally, a prosecution might be halted in connection with Article 75 of the Criminal Code of the Russian Federation. Article 75 states in part:
A person who committed a crime for the first time of average gravity may be relieved from criminal responsibility if after the commission of the crime he voluntarily acknowledged his guilt, facilitated the eliciting of the crime, compensated the damage caused or otherwise made amends for the harm caused as a result of the crime.
If an indictment is sought in the case, the next phase of the process is a trial in a court of first instance. Before that process is described, however, it is important to examine some of the procedural issues involving the rights of the accused during the preliminary investigation.
Power to Detain
According to the Code, the investigators have the right to detain a person suspected of committing a crime for which punishment may be assigned in the form of deprivation of freedom, only if one of the following grounds exists: if the person is caught committing the crime or immediately after committing it, if the person is identified by eyewitnesses, and if the person has traces of the crime on him or her or at his or her place of residence. Other reasons for detaining a person include when information suggests that the person is a suspect and he or she either attempts to flee, has no permanent address, or his or her identity cannot be established.
Following such a detention, the procurator must be notified within 12 hours. Within 48 hours, the procurator must either approve the confinement or order the person’s release. The Constitution of the Russian Federation lends further credence to this policy, for Article 22 states “[a] person may not be subjected to detention for more than 48 hours before a court decision is rendered.” Once a person is detained, he or she has the right to see counsel, and this must be honored within the first 24 hours of detention. Unfortunately, breaches of this right occur frequently.
Before a suspect is interrogated, the suspect must be informed of his or her rights, which include the right to know what crime(s) he or she is accused of committing, and the opportunity to offer explanations, submit petitions, and appeal from the actions and decisions of the person conducting the investigation. If the suspect is being detained, he or she must be interrogated within the first 24 hours of detention, and defense counsel has the right to be present during this initial interrogation. This right is also circumvented by the police by claiming that the person is not being detained, but is present in an informal capacity to assist the police with their enquiries.
If sufficient evidence has been collected, the investigating officer may issue a decree to prosecute the suspect as the accused. Once the accusation is presented, the investigator is “obliged to explain to an accused his rights.” These rights are explained in the Code, which states, in part:
The accused shall have the right: to know what he is accused of and to give explanations concerning the accusation presented to him; to present evidence; to submit petitions; to become acquainted with all the materials of the case upon completion of the preliminary investigation or inquiry; to have defense counsel; to participate in the judicial examination in the court of first instance; to submit challenges; and to appeal from the actions and decisions of the person conducting the inquiry, the investigator, procurator and court.
It is important to point out that under Soviet procedure the accused was not permitted assistance of counsel until after a formal charge had been submitted. The Constitution of the Russian Federation, however, changed this timetable to benefit the accused. Article 48 states: “Everyone who is detained, put in custody or charged with committing a crime has the right to avail himself or herself of the assistance of a lawyer from the time he or she is detained, put in custody or charged.” Although a suspect has a right to counsel, many do not have representation during this initial phase of the process. Often, the person cannot afford to pay for this service and the authorities often allege that they are having a difficult time finding counsel that is available and willing to take on the case at this initial stage. This is unfortunate, because it is at this phase in the process that a suspect often needs counsel the most to protect his or her rights.
Power to Search and Seize
Article 12 of the basic principles of the Code focuses on the inviolability of the living quarters. It states in part that “[a]n examination of the living quarters shall be carried out only with the consent of the persons residing in them, or on the ground of a court decision . . .” Searches may be permitted:
If an investigator has sufficient grounds to suppose that the instruments of a crime, or articles or valuables criminally acquired, or other articles or documents which may be of significance for the case, are on some premises or in any other place or are in someone’s possession, he shall conduct a search to find and remove them.
A search may also be conducted for finding wanted persons, as well as corpses.
A search shall be conducted in accordance with a reasoned decree of the investigator and only with the sanction of a procurator. In instances not permitting delay, a search may be conducted without the sanction of a procurator, but the procurator must be informed subsequently within one day of the search.
Witnesses should be present during searches and seizures. The accused, an adult member of the family, or a representative of the manager of an apartment complex may serve as witness to the investigation. Moreover, only items pertinent to the investigation may be seized. Article 13 of the basic principles addresses the issue of privacy. “Restrictions of the citizen’s right to the privacy of the correspondence, of the telephone and other talks, of the postal, telegraph and other communications shall be admissible only on the ground of a court decision.”
Searches of persons are subject to the same regulations as searches of objects. In addition, a personal search may be conducted during detention or confinement or in any other place if there is sufficient cause to believe a person is concealing information that is pertinent to the case. Personal searches are conducted in the presence of witnesses of the same gender. These policies have essentially been reiterated in Chapter 2 of the Constitution of the Russian Federation dealing with human and civil rights and liberties.
Measures of Restraint
In order to assure cooperation throughout the preliminary investigation and trial, the investigator, procurator, or court can impose measures of restraint upon the accused. A number of factors are taken into consideration when selecting a measure. These include the seriousness of the accusation as well as the accused’s criminal history, personality, employment status, age, state of health, family situation, and other circumstances.
Several options available to the authorities are categorized as measures of restraint. For example, an accused’s written promise not to depart from his or her residence without the investigator’s approval may be a sufficient restraint in some cases. Personal surety is another method. This is a signed promise from a minimum of two people who are willing to ensure the good conduct of the accused. Surety of a social organization is similar to a personal surety. The difference is that the restraint is ensured by a social organization with whom the accused is associated. Confinement under guard is yet another method. The standard term of confinement cannot exceed two months, but extensions are permitted in exceptional cases. Finally, bail (in the form of money or valuables that are deposited with the court) is a method of restraint. When people evade the authorities while on bail, the money is turned over to the state.
Defense Counsel
Out of all the members of the Russian courtroom work group, defense counsel has the potential for the most significant role expansion. In the Soviet system, defense counsel’s involvement was permitted only after the preliminary investigation was completed. Thus, until counsel was selected, the procurator was the sole guardian of the accused’s rights. During the last few years under the Soviet system, this policy was superseded by a law that permitted suspects, the accused, and defendants access to counsel at the time of their detention, arrest, or the filing of charges. Some experts have alleged that under the Soviet system, the primary role of defense counsel was to attempt to mitigate the accused’s responsibility based on the circumstances of the case. In addition, the accused could choose to refuse the assistance of counsel.
In the Russian Federation, a person now has a constitutional right to assistance of counsel. Article 48 states: “Everyone is guaranteed the right to receive qualified assistance. In cases stipulated by law, legal assistance is provided free of charge. Everyone who is detained, put in custody or charged with committing a crime has the right to avail himself or herself of the assistance of a lawyer (defender) from the time he or she is detained, put in custody or charged.” It is this constitutional right that provides the basis for the potential expansion of defense counsel’s role in the courtroom work group. With the new Code of Criminal Procedure, the role of defense counsel has been enhanced further.
According to Article 49 of the code, the accused has a right to counsel at various stages in the procedural process. These include the moment a criminal case is instituted, the moment a person is detained, the moment a person is declared a suspect, the moment a person’s rights and freedoms are procedurally infringed upon, and the moment a ruling orders a person to trial.
The accused has the right to refuse the use of counsel, but he or she must state this request in writing. There are some occasions when the utilization of defense counsel is required. These are cited in Article 51 of the code and include cases in which the suspect has not refused the use of counsel, the suspect is underage, the suspect cannot exercise his or her rights because of a physical or psychological defect, the suspect does not have a command of the language in which the case is being conducted, the suspect is accused of an offense in which the punishment is a form of deprivation of freedom of at least 15 years or harsher, or the suspect is scheduled to have a jury trial.
There are also several rights and duties given to defense counsel. These include meeting with the accused; collecting and presenting evidence; employing specialists to assist with the defense; being present when the accusation is brought; taking part in the interrogation of the accused, as well as other investigative actions; acquainting oneself with the materials of the case and copying the necessary information; entering petitions; taking part in the judicial proceedings of the case; and lodging complaints against actions and decisions of the investigators, procurators, and the court.
The Civil Plaintiff
People who have suffered a material loss as a result of a crime can bring a civil suit against the accused, and it can be entertained by the court, along with the criminal case. A victim who brings a separate civil suit by way of civil proceedings and has had that civil suit dismissed cannot then jointly introduce the same suit with the criminal case. If a civil suit is not brought, the court can compensate the victim for material losses on its own initiative.
Concern for victims of crime was also entertained in the Constitution of the Russian Federation. Article 52 states: “The rights of victims of crimes and of abuse of power are protected by law. The state ensures the victims access to the judicial system and compensation for damages incurred.” Article 53 further indicates: “Everyone has the right to reimbursement by the state for damages incurred through illegal actions (or inaction) by bodies of state power or their officials.”
The Trial
Once a procurator decides to refer a case to trial, the court (in an administrative session) must make a preliminary determination regarding the case. The composition of the court in an administrative session is a single judge. Both procurator and defense counsel are eligible to present their positions at this session. While in an administrative session, the court entertains various petitions from the participants in the case. It also resolves various questions that pertain to the trial. The judge can refer the case for a preliminary hearing or bind the case over for trial to the appropriate jurisdiction. The judge has 30 days in which to make a decision if the accused is not in custody and 14 days if the person is in custody.
If the case is to be bound over for trial, the judge determines the type of trial and location, whether the accused needs counsel for his or her defense, and whether measures of restraint should be applied or altered. The trial should begin within 14 days of this decision, unless it is a jury trial, in which case the trial should begin within 30 days.
A preliminary hearing is conducted by a single judge at the request of one of the parties in a criminal proceeding. It is held to entertain requests that evidence be excluded, to request time to obtain additional evidence, and to interview witnesses. The judge rules on the admissibility of the evidence, and in such instances, the procurator may amend the accusation. This, in turn, may influence which court has jurisdiction and determine the type of trial that is appropriate for the case. The judge may bind the case over for trial, return the matter to the procurator for further consideration, suspend the proceedings, or terminate the case.
Having concluded the preliminary phase of the trial, the main hearing or judicial examination is ready to begin. Under the 2001 Code of Criminal Procedure, the various roles of the courtroom workgroup have changed to reflect the adversarial nature of the trial process. The judge now has a neutral passive role, while both the procurator and defense counsel have a more active role. Emphasis is also placed on the openness of the procedural process, with the court’s judgment based on the evidence presented at trial. While closed trials or sessions of trials are still permitted, they are limited to cases involving state or other secrets protected by federal law, an accused under the age of 16, or crimes of a sexual nature or other crimes that demean the victim.
What follows are the various steps in a standard trial:
1. The procurator explains the accusation and identifies the precise offenses cited in the Criminal Code. The judge asks if the accused understands the charges that have been brought against him or her. The judge asks if the accused wishes to enter a plea or if he or she wishes to make a statement regarding the accusation.
2. The procurator then submits evidence to the court, and it is cross-examined by the defense. Defense counsel submits evidence to the court, and it is cross-examined by the procurator.
3. If the accused agrees to give testimony, he or she may do so at any stage of the trial with the approval of the judge. The accused would be first questioned by defense counsel and any other participants of the defense, if more than one defendant was being tried. The procurator would then question the accused, which would be followed by counsel for any civil plaintiff. The judge may reject any leading or irrelevant questions put to the accused. Once the counsel for each side has finished questioning the accused, the judge may ask questions of the defendant.
4. If the victim gives testimony, this may also occur at any stage of the trial with the approval of the judge. The victim would be first questioned by the procurator and counsel for any civil plaintiff. Defense counsel or multicounsels would then pose questions to the victim. Again, the judge may reject any leading or irrelevant questions put to the victim. Finally, the judge may put questions to the victim. While being questioned, the victim may use notes and read from documents to elaborate on their testimony.
5. Then, witnesses in the case are interrogated. Each witness is questioned first by the party that called him or her as a witness. The judge may ask questions after both sides have completed their interrogation of the witness. While being questioned, the witnesses may use notes and read from documents to elaborate on their testimony. In addition to being kept separate from other witnesses, they are not permitted in the courtroom until called to testify. Witnesses must remain in the courtroom after the completion of their interrogation until the judicial investigation is completed, unless the judge grants them permission to leave early.
6. Next, the expert witnesses who provided testimony during the preliminary investigation are interrogated. They do so when either petitioned by one of the parties in the case or at the request of the judge. The interrogation questions are submitted in advance to the expert in order to give the person time to prepare his or her answers. Initially, the questions are read out in court in order to solicit the views of the parties to the case. This may lead to questions being amended or rejected by the judge. If expert witnesses contradict one another, the judge may seek the opinion of another expert.
7. Material evidence may be introduced for examination at any point in the trial at the request of one of the parties. Once the evidence has been examined, the judge asks the parties if they wish to add anything to this judicial investigation. The judge would rule on any requests. Once any actions are completed the judge would declare the judicial investigation completed.
8. The trial then moves to the oral argument or pleading phase. Oral arguments are speeches presented by the procurator, defense counsel, defendant, victim, and participants in any civil issues being aired during the trial. While the court determines the sequence of these speeches, the rules call for the accuser being heard first and the defendant always being heard last. The speaker may not be interrupted as long as the presentation does not digress from the issues raised in the case. These speeches may only refer to evidence that has already been introduced during the judicial investigation.
9. Following the oral arguments, the participants are allowed to rebut. Defense counsel and defendant always have the right to the last rebuttal.
10. The defendant is then permitted to make a final statement, at which time no questions may be put to him or her.
11. Before the court retires to consider the case, the major participants have the right to propose in writing their views as to how the court should resolve the standard questions raised during the trial (see Item 12). The court is not bound to entertain these proposals.
12. The judge then retires to a conference room to consider the case. The court is mandated to return a judgment that is both legal and well reasoned. Chances of the court reaching such a judgment are enhanced by the court discussing and responding to a series of questions. The questions posed include: Did the criminal act take place? Did the act contain the elements of a crime as described in the Criminal Code of the Russian Federation? Did the accused commit such an act? Is the accused guilty of committing the crime? Is the accused subject to punishment for the crime committed by him or her? Exactly which punishment must be assigned to the accused and are there either mitigating or aggravating circumstances? Are there grounds for finding guilt but not imposing a punishment? To what type of correctional facility should the prisoner be sent? Is the civil suit subject to satisfaction? Is the material loss subject to compensation? On whom and in what amount must court costs be imposed? What will be the measure of restraint with respect to the prisoner? While considering these questions, the court may decide to reopen the judicial investigatory phase of the trial to clarify points of interest.
13. The court must then reach a judgment either to convict or acquit. A judgment to convict must be based upon a reasoned evaluation of the information presented during the judicial investigation. Acquittals are permissible if the event of a crime is not established, the elements of a crime are not in the act of the accused, and participation of the accused in the commission of the crime is not proved. If a civil suit was entered jointly in the criminal case, its outcome also is determined at this time.
14. The court returns to the courtroom to render its judgment. All people in the room are required to stand when the judgment is announced. If the defendant has been found guilty, the sentence is passed.
When a case is heard by a three-judge panel, the questions raised in the aforementioned item 12 of the trial process are determined by a simple majority vote. Any member of the court may explain in writing his or her dissent from the majority opinion. This dissent is not revealed when the judgment of the court is announced, but is included in the case file. Thus, the dissent may be considered if the case is appealed or subjected to judicial review.
In 2002, the Russians introduced a special proceeding, which is a form of plea bargaining. In the event the accused admits guilt to the charges leveled against him or her and if the parties to the case agree, a judgment can be issued by the court without a trial. In such cases, the sanction for the offense cannot exceed five years of imprisonment. The procedure calls for the court to certify that the accused understands the consequences of his or her decision to plead guilty and that it is being made voluntarily. If the court or another party to the case is not satisfied, the trial would proceed.
One study has indicated that since its introduction the special proceeding has become increasingly popular among the legal community. To illustrate, while only 11.2 percent of cases (153,354) handled in the three types of trial courts were resolved through the special proceeding in 2004, that percent rose to 42.5 (476,489 cases) by 2008. The study also reported, however, that the public was not very supportive of the procedure. At issue, apparently, for the respondents in the survey was questioning the fairness of such a process (Semukhina and Reynolds, 2009).
The jury trial was introduced in 1993 on an experimental basis in nine regions of the country. Support for its use was reaffirmed with the new Constitution of the Russian Federation. Article 123 states: “In instances stipulated by federal law, judicial proceedings are conducted with the participation of jurors.” By 2003, the experiment was extended to the other 69 regions of the country. Guidelines for the use of the jury are found in the 2001 Code of Criminal Procedure. The procedure allows the defendant, if he or she has been accused of a specific kind of crime, to choose between a jury trial or a traditional trial. The list of crimes that fall under this category include murder, kidnapping, rape with aggravating circumstances, child trafficking, gangsterism, large-scale bribery, treason, terrorist acts, calls for violent change in the constitutional system, and some other select crimes against the state.
Any Russian citizen who lives in the district where a trial will take place can serve as a juror. A juror must be at least 25 years of age, legally competent to serve, and without a criminal record. Twelve people are selected by the procurator and defense counsel after having their names drawn from a list of 30 to 40 eligible to serve. In addition to the 12 jurors, two alternates are also selected. Potential jurors are questioned by the procurator and defense counsel, and a written challenge can be submitted to the judge objecting to the possible selection of a juror.
At trial the Russian jury sits separately from the judge in the courtroom. The responsibility of the Russian jury is to decide matters of fact, while the judge determines issues of law that arise during the trial. The opening procedures of a jury trial are slightly different from those of a nonjury trial that were explained earlier. At the beginning of a jury trial the procurator and then the defense counsel provide an introductory statement that essentially outlines the case that they are about to present. Russian jurors are permitted to ask questions of the accused, victim, and witnesses during the course of the trial. They submit their questions in written form through the jury foreman to the judge. The judge may reject questions that are deemed irrelevant. In addition, information about the accused’s prior criminal record cannot be introduced, as it might prejudice the jury.
According to Article 334 of the 2001 Code of Criminal Procedure, the responsibility of the jury is to determine three questions: (1) Did a criminal act take place? (2) Did the accused commit the criminal act? and (3) Is the accused guilty or not guilty of the charges? Before the jury commences its deliberations, the judge will provide them with a list of written questions that they must answer in the course of their deliberations. The parties to the case are able to examine and comment on the questions before they are presented to the jury. The defense is permitted to put questions to the jury that deal with the factual circumstances of the case that the judge must include in his or her list of questions. After receiving the questions but before leaving the courtroom, the judge sums up the case for the jurors by reviewing the accusation, the evidence, and the positions of procurator and defense. The judge further explains the rules surrounding the evaluation of the evidence and the important principle of the presumption of innocence. Russian juries are expected to return unanimous verdicts during the first three hours of deliberations. Majority verdicts are permitted after that time. A not-guilty verdict is adopted if at least six jurors cast such a vote. If a jury finds the accused guilty, they can request that the judge show leniency at sentencing or they may decline to make such a request. If a jury finds the accused guilty, but the judge is of the opinion that the person is innocent, the judge may dissolve the jury and send the case back to a new preliminary hearing.
After the jury has submitted its verdict to the judge, it is dismissed. The trial would then continue with the matters involving any civil litigation that may be attached to the trial. For example, funeral expenses, medical costs, or other damages that might be at issue would be entertained only by the judge.
Once the trial (traditional or jury) in a court of first instance is completed, the next stage in the criminal process involves any possible appeals. The court that heard the case is responsible for informing participants of this right. The procurator and defense counsel have the right to appeal the judgment of the court by way of cassation. Those involved in the civil suit may also do the same, as long as it involves the judgment of the civil suit. The procurator, through the cassation process, has a professional obligation to protest any illegal or unfounded judgment.
When a cassation has been filed, the original judgment of the court of first instance is suspended. The cassation is entertained by the court at the next level in the court hierarchy. Actually, when an appeal is made against the judgment of a justice of the peace, there is an automatic retrial in the district court. All courts hearing cassation appeals must do so within 10 days of receipt of the petition. There is one exception, however, in that the Supreme Court has a 20-day period.
Cassation is not an entire review of the case. Its purpose is to verify the legality of the original decision. There are four reasons for vacating or altering the judgment of the trial court: the judgment of the court is not based on the factual circumstances of the case, the procedural rights of the accused as spelled out in the Code of Criminal Procedure were violated, the Criminal Code was misinterpreted, or the punishment is unjust. Cassation sessions are open to the public. The major participants in the original trial are eligible to participate in the appeal. A panel of three judges hears the cassation petition. The court hearing the appeal may return one of four decisions: to uphold the original judgment, to vacate the judgment and refer the case for new investigation or a new judicial consideration, to vacate the judgment and terminate the case, or to change the judgment. When the court changes the original judgment, it cannot increase the punishment or issue a sanction for a more serious crime. The court can only reduce the original punishment for the original offense or sentence the defendant to a less serious offense. After the cassational judgment is rendered, the case is returned to the court of first instance for execution. This is done within five days of the cassational court’s ruling.
Once the cassational judgment has been rendered, the overwhelming majority of cases are considered final. Nevertheless, there is one final method by which a judgment can be protested. This is referred to as judicial supervision. A judicial supervision is considered only after a judgment has taken legal effect. A supervision can be initiated only by the chair of a court that ranks above the court that rendered the judgment or by a procurator who is above the rank of the procurator who participated in the protested judgment. Judicial supervisions are initiated to check illegal procedures or unfounded judgments. The court may return one of five decisions when considering a judicial supervision: (1) uphold the judgment; (2) vacate the judgment and all subsequent judicial rulings and decrees, and terminate proceedings in the case or transfer it for new investigation or new judicial consideration; (3) vacate the cassational ruling as well as subsequent judicial rulings and decrees (if any have been rendered) and transfer the case for new cassational consideration; (4) vacate the rulings and decrees rendered by way of judicial supervision, leaving the judgment of the court and cassational ruling either unchanged or changed; or (5) change the judgment, ruling, or decree of the court. As in the cassational proceedings, a panel of three judges renders the judgment. Russian procedure also provides for the reopening of a case if new evidence is discovered.
The Russian people have been subjected to authoritarian governments throughout their history, whether it was the capricious and at times benevolent direction of the tsars or the planned and calculated leadership of the Communist Party. In both cases, the majority of Russian citizens displayed a good deal of respect for the power and authority imposed by their leaders. This attitude has been attributed to the fact that the Russian people are essentially patriotic and nonpolitical. This created a conformist attitude toward the state by the citizenry. Since 1917, deference was paid to the authority of the CPSU because the party was the principal interpreter of Marxism–Leninism, the ideology upon which the Soviet socialist system was based.
Irrespective of the country, there tends to be general agreement as to the purpose of a correctional system. It is designed and responsible for those individuals who have been sanctioned for failing to abide by society’s norms as articulated by law. It has been pointed out that the Soviet Union placed a greater emphasis on ideology than on law, while the Russian Federation is attempting to establish a society based on the rule of law. Thus, the present dilemma facing Russia is that of transforming the basis for the correctional system to a set of legal principles. Considering the history and present circumstances, a good deal of progress has been made in this endeavor.
The correctional system of the Soviet Union had been established primarily to handle two types of norm violators. There were those people who had violated “traditional” dictates of Soviet criminal law. The term “traditional” is defined here as crimes that are found in all countries; that is, offenses described either as street crime or white-collar crime. The other norm violators were political prisoners, referred to by Amnesty International as “the prisoners of conscience.” Depending on how one wants to interpret this category, most countries are likely to have some people who are depicted as “prisoners of conscience” or who view themselves as such. The Soviet Union appeared to have more political prisoners than would be found in most other countries. This was largely attributed to two factors. The first was the unwavering faith of the Soviet leadership in the Marxist–Leninist philosophy and the desire to have all citizens conform to its dictates. The other factor was the leadership’s ongoing policy objective of assuring the country’s internal and external security. Soviet corrections served as an important mechanism in the government’s attempts to enhance and assure security within the country.
Some experts were of the opinion that the introduction of glasnost would lead to a reduction of the number of people labeled political prisoners. They based this view on the fact that Gorbachev had made it known that he was committed to strengthening socialist legality. This was translated to mean that he favored ensuring greater social justice by providing citizens with more rights and legal safeguards. There were at least two tangible signs that this was occurring. In 1985, the Institute of State and Law of the USSR Academy of Sciences drafted for circulation and discussion the “Theoretical Model of a Criminal Code (General Part),” and in 1990, amendments were introduced to the Fundamentals of Criminal Legislation of the USSR.
It was stated earlier that correctional systems are designed and responsible for those people who have been sanctioned for failing to abide by society’s norms as articulated by law. However, law in the Soviet Union was not considered a guiding force behind the correctional system; rather, the system sought direction from the dictates of Communist ideology. Both the rationale and method of sanctioning an offender were tied to the ideology, as were the administrative goals and management objectives of the correctional system. With the establishment of the Russian Federation, efforts have continued to build on those initially introduced by Gorbachev to strengthen the role of law in society— including changes in the correctional system. In several instances, legislation has been adopted to rectify some of the long-standing concerns, while in other instances the lack of funding precludes implementation.
Sentencing Philosophy
The general part of the 1996 Criminal Code contains a section on punishment. Article 43 is devoted to the concept and purposes of punishment.
Punishment is the measure of State coercion assigned by judgment of a court. Punishment shall be applied to a person deemed to be guilty of the commission of a crime and shall consist of the deprivation or limitation of rights and freedoms of this person provided for by the present Code. Punishment shall be applied for the purpose of restoring social justness, and also for the purpose of reforming the convicted person and preventing the commission of new crimes.
As was the case during the Soviet era, Russia ascribes to multiple-purpose objectives for sanctioning, which include such standard rationales as deterrence and rehabilitation.
The Soviet efforts to achieve the sentencing rationales of deterrence and rehabilitation were clouded by the allegations that physical suffering was very much in evidence when a person was sentenced during the Soviet era, in particular when the sanction included a term of deprivation of freedom. Mindful of these criticisms, a draft of the Fundamentals of Criminal Legislation that was undertaken during the Gorbachev era suggested that the purpose of sanctioning should include deterrence and rehabilitation rather than punishment. This view has essentially been introduced into the Russian Federation with the 1996 Criminal Code.
By way of illustration and alluded to earlier in the section on law, the new code is guided by a series of principles. One is legality; that is, an act can be deemed criminal only if it is addressed by the present code. Another is equality, or the proposition that all people are equal before the law. A third principle is that guilt must be established in order to hold a person criminally responsible. A fourth principle is justness; that is, the punishment must correspond to or fit the crime. The last principle is that of humanity, which is specifically concerned with the purpose of sanctions and punishment. Article 7 of the code in which the principle is spelled out states: “Criminal legislation of the Russian Federation shall ensure the security of man. Punishment and other measures of a criminal-law character applicable to a person who has committed a crime may not have as their purpose the causing of physical sufferings or the demeaning of human dignity.” While acknowledging that these principles will be significant and useful only if they are interpreted correctly and implemented in practice throughout the various stages of the judicial process, they do offer a new standard for administering justice in Russia.
With regard to the underlying philosophy behind Russian sentencing, it is useful to consider the fourth principle of justness to a greater extent. This principle is spelled out in Article 6 of the code. “Punishment and other measures of a criminal-law character applicable to a person who has committed a crime must be just, that is, correspond to the character and degree of social danger of the crime, the circumstances of committing it, and the personality of the guilty person.” It goes on to state that “No one may bear criminal responsibility twice for one and the same crime.” The central issue here is that judges are asked to consider the nature of the crime and the personality of the offender, which would include mitigating circumstances and aggravating punishment.
Among the circumstances that might mitigate the punishment are being a first-time offender, the age of the offender, pregnancy, being responsible for young children, being prompted by arduous living conditions or compassion, physical or mental compulsion, unlawful behavior of victim, rendering assistance to the victim, and acknowledgment of guilt. The circumstances that might aggravate the punishment include being a repeat offender; grave consequences of the crime; degree of participation; use of a weapon; degree of cruelty; prior collusion or being in an organized criminal group; the victim having been young, pregnant, defenseless, or helpless; and the offense having been motivated by hate based on nationality, race, or religion. Some of these factors were available and utilized by judges during the Soviet era.
As mentioned earlier in the section on law, the Russians make a distinction between punishments that are considered basic and those considered supplementary measures. The sanctions that can be imposed only as a basic measure include obligatory tasks, correctional tasks, limitation in military service, limitation of freedom, arrest, confinement in a disciplinary military unit, deprivation of freedom for a determined period, deprivation of freedom for life, and the death penalty. Two sanctions can be assessed as either basic or supplementary punishments; they include a fine and the deprivation of a right to occupy a determined post or to engage in a determined activity. Finally, a few punishments can be issued only as a supplementary measure; they include (1) the confiscation of property, or (2) the deprivation of a special, military, or honorary title; class rank; or State award. These sanctions will be explained in greater detail throughout this section of the chapter.
Of particular interest to students of comparative correctional institutions is the degree to which they differ under the administration of the Russian Federation from that of the Soviet era. A central feature of the Soviet correctional system was the tripartite rationale for sanctioning. It was based on the need to reform or reeducate the offender to the goals and purposes of socialist society and legality, to assure that the offender performed a useful service or socially significant labor while they were being punished, and to enhance the possibility that the person would comply with the law in the future and not commit new crimes. Various regimes had been developed to impress upon the individual the state’s commitment to establishing an orderly society with which all citizens were expected to comply. From the Soviet point of view, it was the task of reeducation that was—at least theoretically—the most significant rationale for sanctioning and thus central to each type of sentence.
The extent to which Soviet corrections was shrouded in secrecy resulted in Western accounts being largely limited to those of Soviet émigrés who had personally experienced a term in a correctional facility. Because these people were often convicted of political crimes, and given the Soviet attitude toward such offenders, their prison regimen was harsher than that to which an ordinary street criminal might be subject. Both the regimen and the sincerity of the Soviet commitment to rehabilitation became highly suspect in light of these émigré accounts—at least in terms of the Western perspective.
As was suggested earlier, the purpose of sentencing in the Russian Federation has focused on deterrence and rehabilitation. It is important to note that in the Russian Federation rehabilitation is used in two contexts. On the one hand, the traditional use of the term refers to programs within correctional settings and more recently to the diversion of people from custodial to noncustodial sentences. On the other hand, rehabilitation has a special significance for former political prisoners. In the Russian context, it also means the restoration of a person’s rights, standing, and reputation, which were destroyed because the person was persecuted and labeled a criminal within the framework of the Soviet criminal justice system (Moskal’Kova, 1992). Although much effort has been made to correct this past injustice, there remain political prisoners who have not yet had their names and reputations restored.
The principles behind the 1996 Criminal Code are designed to offer a new standard in which to administer justice. Part of that new standard should be the transformation of the old correctional system of the Soviet Union to a more humane approach under the Russian Federation. While the legal principles mentioned earlier are clearly a start in the right direction, the state of corrections in Russia is presently in a crisis mode. The nature of that crisis is incorporated into a description of the organization and administration of the correctional system.
Organization and Administration of the Correctional System
Ministry of Justice
The organization and administration of the correctional system of the Russian Federation was initially the responsibility of the Ministry of Internal Affairs, as it had been under the Soviet Union. In late 1998, that authority was transferred to the Ministry of Justice. Although one can hope that a change in administration might facilitate an improvement in the state of corrections in Russia, it does not appear likely. Part of this has to do with external factors that are beyond the control of any ministry responsible for administering corrections. The central problem has been a lack of adequate government funding to support corrections. Given the breadth and depth of the economic problems confronting the country, this should come as no surprise. Another significant problem is the number of people who are either being sentenced to a period of incarceration or are being held awaiting trial. This is a reflection of the increased crime rate throughout the country. The abysmal economy is a contributing factor to these circumstances, as is the manner in which government bureaucracies function in the country. A key feature of these bureaucracies, which is a holdover from the Soviet era, is an overreliance on centralized decision making. There is also a crisis in both the quality and quantity of personnel working in the field of corrections. All of this makes one skeptical that the state of corrections will soon improve in the Russian Federation.
In light of the fact that the Ministry of Internal Affairs had long been responsible for the central planning and policy development of the correctional system during both the Soviet era and the initial years of the Russian Federation, it is useful to review its tenure as that authority. The ministry has long been an important part of the government. As pointed out earlier, this ministry was also accountable for the militia (the regular police force) during the Soviet era, and it has retained that responsibility today. When it was responsible for Soviet corrections, it had an even more powerful role. As a ministry, it could issue legal orders, and as a member of the Council of Ministers, it could participate in the passage of legal decrees that influenced the administration of the correctional system. Because most legislation affecting corrections was seldom published for public consumption, this kind of law-making authority was quite significant. The actual implementation and administration of the correctional system was handled through the offices of the ministry at the union republic or regional level. The ministry’s original arbitrary legal authority was curbed significantly during the Russian Federation’s attempts to administer its institutions according to rules of law.
Because penal statistics were considered state secrets, Western experts were unable to acquire an accurate assessment of the number of penal institutions or inmates in the Soviet Union. Amnesty International, however, had identified at least 330 facilities in the course of their defense of Soviet political prisoners (1975). They indicated further that more than one-half of these institutions were located in the RSFSR, the largest of the Soviet Union’s 15 republics. As a result of the dramatic changes during and since the demise of the Soviet Union, information about the justice system of the Russian Federation is not considered a state secret.
Scholars have suggested that statistical data from Russia should not be interpreted as precise numbers but rather as approximations to be considered along with other information (King, 1994). It is in that spirit that the following data are offered. In 1991, the Ministry of Internal Affairs of the USSR reported holding 765,000 convicted prisoners in its various prison facilities and 200,000 people were also being held in detention, which meant that they had either not gone to trial or were awaiting their sentence. In 1992, the Ministry of the Interior for the Russian Federation reported 600,000 convicts incarcerated and another 150,000 awaiting either a trial or their sentence. Amnesty International has reported that there are approximately 1 million people incarcerated in Russian correctional facilities; of these, hundreds of thousands have not been sentenced but are awaiting trial. A more recent study indicated that the prison population peaked at more than 1 million in 2000. Since that time, the population declined, rose again, and has begun a steady decline, measuring about 865,000 in 2003 (see King and Piacentini, in Pridemore, 2005).
With regard to the number of facilities in operation, the Ministry of the Interior reported in 1992 that it utilized 981 facilities for its prison population. Of these, 922 are for adults and 59 are for young offenders. Among the adult institutions, 30 are for female inmates. Of the 59 facilities for young offenders, three are designated for female offenders. The facilities for the prison population are designated as colony settlements, educational labor colonies for juveniles, hospitals, labor colonies, prisons, and remand prisons (or jails).
Finally, the most recent information from the government indicates that as of July 2013 there were more than 686,200 inmates held in various facilities, such as penal colonies, settlement colonies, prisons, colonies for those sentenced to life, and juvenile colonies. Included in the total number are the almost 115,300 people held at either remand prisons or remand wings in penal colonies. Women make up 56,700 of those incarcerated in penal institutions. There are 2,100 people held in the juvenile colonies who are between the ages of 14 and 19. All of these figures are reductions in the populations from the previous year. Finally, there are 876 correctional facilities for adults and 46 for juveniles, as well as 230 remand facilities.
Imprisonment
Before the various types of correctional institutions are explained, it is important to offer some general comments about the sanction of imprisonment in the former Soviet Union and in the Russian Federation. Imprisonment had been frequently utilized in the Soviet Union. It was estimated that one-half of all convictions—for approximately 0.5 million people annually—involved deprivation of freedom (Juviler, 1976). More recently, it was suggested that as late as 1983, between 70 and 80 percent of the defendants in people’s courts were sentenced to a term of imprisonment. High rates of incarceration were the order of the day and had always been so under the Soviet regime because the prison population was a significant feature in the Soviet economy. Nils Christie reminded us that the prison colonies “were among the best functioning parts of the old economy. Here was a captive work force, sober, well-ordered, working in two shifts in factories inside the same fence” (Christie, 2000). By 1988, however, the percentage of sentences to incarceration had dropped to about 30 percent (Butler, 1988). This change in policy was attributed both to glasnost and to the policy of strengthening socialist legality.
It should be noted that the term “imprisonment” is not used by Russians when describing forms of punishment in general and periods of incarceration in particular. Presently, an offender in the Russian Federation can be sentenced to a term of imprisonment or incarceration in one of three ways. The term “arrest” is used in the 1996 Criminal Code to describe a period of confinement from one to six months. This sanction cannot be imposed on people who have not reached the age of 16, or on women who are pregnant or have children up to the age of eight.
Deprivation of freedom for a determined period is another sanction associated with incarceration. The term ranges from six months to 20 years. The type of facility that an offender would be sent to would depend on the nature of the crime and aggravating and mitigating circumstances associated with the offense. The facility could be a prison, correctional labor colony, or colony-settlement. It has been reported that the average length of a sentence imposed by a Russian court is five and one-half years and that the actual time served is about three years (King, 1994).
The final sentence to a term of incarceration is deprivation of freedom for life. As Article 57 of the code indicates, this is a sanction imposed as an alternative to the death penalty for “especially grave crimes infringing life.” The code goes on to state that this form of deprivation of freedom “shall not be assigned to women, and also to persons who have committed a crime in age of up to eighteen years, and men who have attained at the moment of the rendering of judgment by the court sixty-five years of age.”
During the waning years of the Soviet Union, Gorbachev’s policy of democratization and his strategy of perestroika had a significant impact on the correctional system. The goal was basically to humanize some criminal legislation. These efforts were also assisted by the human rights movement within the country. Of particular interest to that movement was the issue of capital punishment. While the government advocated eliminating it for most economic crimes, human rights groups favored the total abolition of the sanction.
In public opinion polls taken in the late 1980s, it was suggested that 80 to 85 percent of the population opposed the complete elimination of the death penalty. When readers of Moskovskiye novosti were asked if they favored the abolition of capital punishment, approximately nine out of 10 opposed the idea on the grounds that they felt the death penalty deterred murders. Although the deterrent effect had not been studied in the Soviet Union, Soviet officials and scholars pointed out that they were familiar with the studies and debate in the United States. Many scholars and officials were convinced that the reform of socialist legality would inevitably lead to a reduction in the number of offenses punishable by death.
According to official records, 25,000 people were executed between 1962 and 1994. While 76 people were executed in the Soviet Union in 1990, only three people suffered this fate in Russia in 1993 and four in 1994. The president of Russia established a committee on clemency, which commuted death sentences to life imprisonment. This usually meant a 15-year sentence in a labor camp. In 1994, 150 people had their sentence commuted. It appears that those who failed to have their sentence commuted were convicted of serial murders.
The Russian government has altered the use of the death penalty. Article 20 of the Constitution of the Russian Federation states: “Everyone has a right to life. Pending its abolition, capital punishment may be established by federal law as an exceptional measure of punishment for especially grave crimes against human life, provided the accused is given the right to have his case considered in a trial by jury.” As mentioned earlier, the death penalty, according to the 1996 Criminal Code, is considered an acceptable sanction in exceptional cases and those instances include homicide, infringement on the life of a State or public official, and genocide. It is interesting to note that Article 59 of the code, which deals with the death penalty, prohibits carrying out the sanction on women, people who committed the crime before reaching the age of 18, and men who have attained the age of 65 at the time of sentencing. In addition, a petition through the clemency process can replace a death sentence with a sentence of deprivation of freedom for life or deprivation of freedom for 25 years. Finally, it should be noted that the Russian Federation suspended the use of capital punishment in 1997. While several notable politicians have expressed their opposition to the sanction and legislation has been introduced to abolish it, this has not happened as yet.
Types of Institutions
The Russian Federation has continued the Soviet practice of having two basic types of correctional facilities: prisons and correctional labor colonies (see Figure 5.4 ). According to the Principles of Correctional Labor Legislation, offenders are sentenced to prison when they have committed “heinous crimes” or are considered “particularly dangerous recidivists.” It should be noted that a remand prison is primarily used to hold offenders who are awaiting trial. Thus, its population and some of the management problems associated with that population are like those found in countries that use jails for similar purposes.
Figure 5.4 Organization of the Correctional Facilities of the Russian Federation
There is a multiple classification scheme for correctional labor colonies. The general regimen is designed for most first-time offenders and offenders sentenced to less than three years. The strict regimen is reserved for people convicted of particularly dangerous crimes against the state or who have previously served a term of deprivation of freedom. The special regimen is designed for offenders deemed particularly dangerous recidivists or persons for whom the death penalty has been replaced by deprivation of freedom.
Colony settlements are open institutions that are utilized for two kinds of offenders. Inmates who have displayed significant progress toward rehabilitation while in a correctional labor colony are transferred to colony settlements. In addition, people who have been found guilty of an act of negligence, rather than of specific intent, are usually sent to a colony settlement.
While the Soviets had not considered psychiatric hospitals part of their correctional system, the use of such hospitals for the rehabilitation of criminal offenders attracted an unusual amount of international concern. On the surface, the Soviet Criminal Code appeared to espouse a fairly modern and humanitarian view toward criminal offenders suffering from some form of mental illness. Article 11 of the general part of the code stated that a “person shall not be subject to criminal responsibility who at the time of committing a socially dangerous act is in a state of non-imputability.” According to various articles in the code, the court had the authority to commit a person to compulsory treatment in either a general or a special psychiatric hospital. In addition to the offender’s mental condition, the court was expected to take into consideration “the character of the socially dangerous act” and “the special danger” that the offender’s actions represented toward society.
At issue was the lack of procedural protections in the Soviet use of such facilities. Three principal concerns were expressed by professionals in the West, as well as by some members of the psychiatric profession in Russia. These concerns centered on the type of offenders sent to these hospitals, the arbitrary procedural safeguards that were spelled out in the code, and the lack of written regulations protecting the offender’s rights as a patient. In 1975, Amnesty International published a report, “Prisoners of Conscience in the USSR,” which offered one of the more extensive assessments of these concerns. Probably the most serious allegations leveled at the Soviets regarding their use of psychiatric hospitals had been the confinement of political and religious nonconformists (Slovenko, 1983). Amnesty International, among others, documented a number of cases in which people who did not follow the Communist Party’s line or who attempted to express their religious convictions in a manner that was deemed unacceptable by the authorities, found themselves labeled insane and thus subject to treatment in a psychiatric institution.
In addition to this concern was the ever-present fear that abuse by design or negligence was possible in these highly secretive facilities. It is important to stress that this issue had been raised not only by critics from the West but also by those within the country. Two pieces of legislation were passed during Gorbachev’s tenure that were designed to reduce the confinement of political and religious nonconformists. The Law on Public Associations (1990) and the Law on Freedom of Conscience (1990) acknowledged political and religious freedoms of expression.
Another concern regarding the use of psychiatric hospitals concerned the arbitrary, and at times contradictory, procedural safeguards granted a person declared mentally ill. For example, Article 188 of the Procedural Code stated that “[i]f a suspect is referred to a forensic medical institution in connection with an expert examination, he shall be granted the rights established by Articles 184 and 185 of the present Code.” Article 185 guaranteed the rights to:
· Challenge the expert
· Request the assignment of an expert from among persons indicated by him or her
· Present additional questions in order to obtain the opinion of an expert concerning them
· Be present, with the permission of the investigator, at the expert examination and give explanation to the expert
· Become acquainted with the opinion of the expert
However, Article 184 stated that a “decree to assign a forensic psychiatric expert examination and the opinion of the experts shall not be announced to the accused if his mental state makes this impossible.” Thus, the rights established under Article 185 could— and allegedly had been—disregarded as a result of the statement in Article 184. A final procedural concern in such cases was the declaration cited in Article 407 that a judge may exclude a person diagnosed as mentally ill from attending the court hearing. While this rule may have had some validity for a person who truly was diagnosed insane, serious questions arose regarding the person’s rights if the diagnosis was based on political or religious convictions.
Finally, Amnesty International alleged that there was no code guaranteeing the rights of people sent to psychiatric hospitals, nor were there regulations explaining the conditions under which they would be detained. Amnesty International had already claimed that inmates’ rights were violated in prisons and labor colonies that purportedly had legal protections. They were concerned, based partly on cases they had collected, that there existed serious human rights violations in Soviet psychiatric facilities. Their examples focused on political and religious dissidents.
In an attempt to dispel some of the international concern over this issue and to strengthen socialist legality, the Soviets ratified a new law in 1988: the Statute on Conditions and Procedures for the Provision of Psychiatric Assistance. This legislation called for the Ministry of Internal Affairs and the Ministry of Public Health to determine appropriate medical care and assigned to public health agencies the responsibility for establishing procedures for retaining a person in a mental institution. It also assured that a person in need of psychiatric assistance would be guaranteed a legal defense with assistance of counsel and that the procuracy would be responsible for supervising the issuance of such an order. In addition, a person deemed in need of psychiatric assistance could appeal the decision to either a higher public health agency or directly to a court. A final feature of the new legislation was a criminal penalty for medical personnel who assigned a person known to be healthy to a mental institution. They could receive a sentence of either deprivation of freedom or of corrective labor for up to two years; they could also be deprived of the right to hold certain positions or engage in certain activities for one to three years. The Russian Federation has essentially turned its psychiatric hospitals over to the Ministry of Public Health.
Regimens
Our knowledge of the regimen in Soviet correctional facilities is based largely on information obtained from émigrés who at one time were incarcerated in these institutions. Many were political prisoners, and it was assumed that they were subjected to harsher treatment than most inmates. Nevertheless, they frequently found themselves serving their time alongside regular or nonpolitical prisoners (Anonymous, 1986; Feldbrugge, 1986).
Amnesty International’s report, “Prisoners of Conscience,” offered a useful synthesis of the conditions that existed in Soviet correctional institutions. The information presented in the report came as no surprise to students of Soviet government and society. Books and articles had already appeared that graphically illustrated the conditions in Soviet correctional institutions. The most notable were the literary works of Aleksandr Solzhenitsyn. Nevertheless, Amnesty International’s report served as a useful updated synthesis on the conditions.
Among the concerns raised in the report were the manner in which prisoners were generally maintained and the methods adopted to assure the achievement of the goal of reeducation. Apparently, these were two significant factors that distinguished the regimens in Soviet prisons as well as the various correctional labor colonies. In terms of general maintenance, Amnesty International alleged that the quality and quantity of food distributed to Soviet inmates was a serious concern. They also contended that food was often rotten and the daily consumption of calories was below the level required for active people, according to the World Health Organization. Soviet inmates were very active because of the hard labor that was an integral part of the regimen. Moreover, it had been reported that food parcels sent from family and friends rarely reached the inmates. In addition, the quantities of food decreased with the severity of the institutional regimen. This was of particular concern to Amnesty International, considering that the harsher regimens imposed a more strenuous form of labor that required more calories in the diet, rather than less.
The other major concern about general maintenance was the quality of medical care. Inmates on a low-calorie diet lost weight, which was often a contributing cause to their reduced work output. This in turn resulted in smaller portions of food being distributed as a form of punishment, which could cause malnutrition and serious medical problems for inmates. Amnesty International alleged that a common complaint among prisoners was poor medical care. This included inadequate medical facilities and equipment, as well as inexperienced doctors and unqualified medical assistants (the latter were sometimes drawn from the ranks of the inmate population).
Article 7 of the Principles of Correctional Labor Legislation identified four principal means by which the reeducation of inmates was achieved. They included “the regimen under which sentence is served, socially useful labor, political education, and general and vocational education.” Amnesty International, among others, offered some comments and criticisms on these methods. They were generally concerned about the compulsory nature of prisoners’ participation in the rehabilitation program and the lack of correctional personnel who were truly qualified to evaluate the inmate’s progress toward reeducation. Most correctional personnel were guards who had been recruited and trained by the Ministry of Internal Affairs. It had been suggested that many of the guards were unsuccessful police candidates who were seconded into this alternative career path. This had implications for their approach and commitment to their job as well as their methods of treating inmates.
According to the Soviet Constitution, all people had a duty to work. This tenet, which was an integral part of the Marxist–Leninist collective philosophy, was extended to the laws and rules regulating correctional facilities. Inmates were paid for their work based on its quality and quantity but were required to reimburse the institution for their food and clothing. The most significant concerns expressed by critics of the Soviet’s work requirements were the inadequate diet provided for inmates who must perform strenuous physical labor and the lack of safety precautions provided for inmates who were often assigned dangerous work.
Political education also was considered a principal means of reeducation. Apparently, the Soviets did not make serious attempts at the reeducation of political prisoners. It has been suggested that this was largely the result of inadequate instructors for the political education classes. It was not uncommon for a young, uneducated guard to conduct such sessions. This could lead to some rather awkward situations if the class was attended by highly educated dissidents who possessed a superior understanding of Marxism–Leninism.
Finally, general and vocational education programs were suspect. Corrective labor regulations mandated that inmates who had not attained a grade school education be given access to one, and a high school program should be offered whenever feasible. There was no information available as to the success of these programs. Vocational education was considered a failure, however, because inmates generally left correctional institutions without gaining appreciable employment skills.
On the surface, Soviet correctional facilities had many of the same goals as Western penal institutions. Rehabilitation, work, and education were integral components of the correctional regimen—at least in theory. However, critics of this system were bothered by the methods employed to achieve these goals. Without regard for moral principles, it was relatively easy to conclude that the Soviet system was at least more cost-efficient than the systems found in the West. Indicators suggested, however, that the system was not more effective than those adopted in the West; recidivism, a principal index of effectiveness, was apparently quite high in the Soviet Union.
The concerns expressed about the regimens in Soviet correctional facilities were similar to those expressed in the West. They had been expounded upon by Soviet émigrés, Soviet writers in Russia, and Soviet scholars in the West. These concerns were already familiar to students of American corrections. Many of the Soviet correctional facilities were old. The correctional personnel were often undertrained and frequently they were people who had been rejected from service in the regular police forces. As a result, their commitment to and motivation for their profession was questionable. Although inmates were expected to perform useful labor while incarcerated, few actually acquired a marketable skill that could benefit them upon release.
Confinement in an institution often led to serious problems for inmates and staff. Isolation could completely destroy the inmate’s previous ties with society. In more recent years, this had been exacerbated by the passage of more liberal divorce laws. Inmates also became frustrated by the hopelessness of their situation. This could lead either to violence within the institution or to dangerous passivity (which aided the guards while the person was incarcerated but had negative consequences for the individual upon release). Moreover, the Soviets’ acknowledgment of high rates of recidivism had implications for the rehabilitative programs devised for inmates.
Finally, inmates experienced additional frustrations upon release. These included the dissolution of marriages and the deprivation of residence permits where their families were located. Although local Soviet committees were expected to assist the offender in finding employment, it was not uncommon for them to be less than enthusiastic about placing former inmates in jobs within their districts. These kinds of frustrations often led former inmates to return to criminal activity, eventually increasing the recidivism rate further.
On the eve of the collapse of the Soviet Union, officials of the Ministry of Internal Affairs acknowledged that the conditions in some prisons were becoming more violent. Of particular concern was the increase in the number of assaults on prison guards. Ministry officials attributed this situation to three factors: (1) more violent forms of criminal behavior had escalated throughout the country; (2) a greater proportion of the prison population consisted of violent criminals; and (3) the greater proportion of violent inmates was also attributed to a decrease in the number of white-collar criminals sentenced to these institutions. This last factor was the result of a change in policy introduced as part of a reform effort to humanize the correctional system.
The principal concern expressed about Soviet prisons was the need to humanize the conditions under which inmates must live. The leadership of the Russian Federation indicated a desire to improve the system. During strikes and riots, inmates demanded that the conditions be brought up to international standards. While the Russian leadership is probably sincere in its desire to change several correctional policies, there is a basic fact of life in Russia that will either prevent or retard the implementation of strategies to correct some of the more serious problems: the fact that the entire country is in the throes of transforming its former centralized planned economic system to a market economy. Because so many law-abiding citizens are having a difficult time feeding and clothing themselves and their families during this period of transition, it is highly unlikely that funding will be provided to assist with the reformation of the prison system.
As a result, it is assumed that inmates will continue to be crowded into very old facilities. Many of these institutions are well over 100 years old and have not been modernized to even early twentieth-century standards. The staff will also remain undertrained. In fact, there have been instances over the past few years in which there was no money to pay the staff. In these circumstances, it follows that there is also no money to pay the inmates who are working in labor colonies.
The diet of the inmates remains poor. In the past, this was part of the planned prison policy, by which an inmate’s normal intake of food was reduced as a disciplinary measure. Today, the poor diet is attributed to the fact there is limited funding to purchase food for the prison system. This translates into meager food rations for the inmates. In recent years, prison officials have enhanced the ability of inmates to receive food packages from outside the system. They have also increased the number of visits an inmate can receive. Conjugal visits, limited to family members, have long been permitted in Russian prisons.
It has been pointed out that the health of people entering prison is often in a deteriorated state. Prison only accelerates this problem, which has led to a high incidence of tuberculosis (Mikhlin and King, in Matthews and Francis, 1996). The concern over this problem has been heightened by the fact that a multiresistant form of tuberculosis has been identified among inmates. Amnesty International, among others, has been reporting on this problem for several years. In its 2001 annual report (which covers the year 2000), Amnesty International reported that 100,000 inmates suffer from tuberculosis and approximately 10,000 die each year. It has also been suggested that about 30,000 inmates have the multiresistant form of the disease (Christie, 2000). The alarming rate at which tuberculosis has contaminated the prison population is a serious concern. What is even more alarming are the predictions that it will spread rapidly throughout the general population as inmates with the disease are released from prison and infect others. In addition to these problems, the Russians have finally come to terms with the fact that illegal drug abuse and HIV/AIDS has become a serious concern in the general population and in particular with its prison population (see Butler, King, and Piacentini, in Pridemore, 2005).
Unlike some correctional systems in the world, Soviet—and now Russian—inmates work at real jobs in correctional labor colonies. They are paid wages similar to those outside the prison. In recent years, some industries even permitted paid annual leaves. However, the change in the economic system has created havoc in some of the Russian correctional labor colonies. In a centralized planned economy, the raw materials needed to produce goods in the prison industries were provided by the state. The goods produced in the labor colonies were then sold and distributed by the state. Under this system, the prison industries were not confronted with competition. Presently, some labor colonies are finding it impossible to compete in a market economy. Because they are no longer being subsidized by the state, many industries are idle. This situation has further enhanced the tensions associated within the Russian correctional system.
One study has indicated that some prison colonies have increased their efforts to barter with the local community. Bartering helps maintain the social welfare needs of both the prisoners and the staff of the facility. Moreover, it benefits the local community by often assisting local farmers or a light industrial venture. Of course, one concern is that successful bartering arrangements could lead to an economically self-sufficient prison that might in turn lead to the exploitation of the prison population (Piacentini, 2004).
It should be pointed out that several policies have been introduced in recent years in an attempt to humanize the correctional system. For example, inmates are no longer required to have their heads shaved; they can wear athletic clothing and running shoes; they can use their own bedding from home; they are permitted to wear watches; and restrictions have been lifted on purchases from prison stores, that is, assuming the store is able to stock items (which has been difficult).
It should also be noted that Russian prisons are housing more dangerous inmates than in the past. Most of the political prisoners of old have been released. Many white-collar criminals and petty criminals are diverted to other forms of sanction. It has been suggested by some accounts that more than 40 percent of the prison population consists of people convicted of murder, rape, or robbery. In addition, almost 45 percent are considered very dangerous, and many of these are mentally disturbed. The living conditions are already in a serious state of disrepair. If the living conditions remain the same or deteriorate further because of a lack of funding, the threat of violence and riot will inevitably escalate.
It is important to offer a further note on the living conditions of the various facilities. While the conditions listed here are common throughout the correctional system, the remand prisons, which hold people who are awaiting trial, are in a considerable state of neglect. It is important to remember that of the people incarcerated in correctional facilities, hundreds of thousands are being held in remand prisons. These are some of the older facilities within the correctional system. Various groups, among them Amnesty International, have commented on the overcrowded conditions. Rooms that were designed for 20 people now hold five times that number. The cells are pest-infested and lack adequate lighting and ventilation. Because of the severe overcrowding, there is a lack of beds and bedding. As such, people sleep in shifts. Food is inadequate and medical care infrequent. In addition to tuberculosis, a number of inmates suffer from various kinds of skin disease. Through grants of amnesty, the government has released some people from these appalling conditions. For the most part, these people had been sentenced or were awaiting trial for minor offenses. Unfortunately, because of the crime problem, the overcrowded space of the beneficiary of an amnesty is quickly filled by a new arrival awaiting trial.
Finally, with the establishment of the Russian Federation with its new Constitution and the creation of a Constitutional Court, inmates in the prison system have become emboldened to a degree to complain about their plight. In 2010, the Moscow Center for Prison Reform indicated that inmates sentenced to a life sentence had several concerns. These included the lack of access to stationery, stamps, and envelopes; the inability to review laws, various legal decisions, and legal rulings, including those of the European Court; and the inability to obtain copies of documents on their cases. On this last point, inmates are entitled to receive such copies free of charge. It has been suggested that the courts are apparently not able to handle the volume of such requests (Moscow Center for Prison Reform, 2010).
The most recent inquiry into the state of Russian correctional facilities suggests that the problems cited above continue. Once again, the central reason for many of the institutional problems is a lack of resources caused by an inadequate budget. Although there has been a decline in the number of people incarcerated, overcrowding, access to drinking water, inadequate nutrition, medical shortages, sanitary and hygiene problems, and poor ventilation have been cited in condemnation by the European Court of Human Rights.
It is important to remember also that many of these facilities are located in Siberia and near the Arctic Circle, far from the inmates’ families, which makes visitations infrequent, if at all, and enhances the inmates’ sense of isolation and abandonment. Moreover, the cells are collective cells. Single cells are reserved only for high-security inmates or those placed in solitary confinement. As such, the overcrowding in the collective cells facilitates the abuse, violence, corruption, and extortion within the correctional system (ACTA-France, 2013).
Parole
Inmates who were considered model prisoners were eligible for parole after they had served at least one-half of their sentence. In the past, this type of release was not available to certain types of offenders, but in 1977, parole opportunities were expanded. While the number of offenses that were deemed outside the parole scheme was reduced, new candidates were required to serve up to three-fourths of their sentence.
The 1977 legislation also created another type of conditional release that differed from the regular parole regulations. Under this scheme inmates could be released early, provided that they secured employment in the community as a method of furthering their socialization process. Requests for parole or conditional release usually were made by the administrators of the correctional facility. The actual granting of such a release was made by the court.
At the beginning of 1988, another change was introduced in the form of an experiment at 52 correctional labor colonies. A scheme was devised in which model inmates who produced beyond the norm of their work assignment would have days subtracted from their sentence. For example, three days would count as four, two as three, and in exceptional cases, one as two. Under this scheme the model inmates still had to serve at least one-third of their sentence, but they could then either be released or serve the rest of their sentence under an easier regimen. Authorities maintained that this was a practical illustration of perestroika being adopted in the correctional system.
One might expect that a society priding itself on its collective work ethic would endeavor to find employment for inmates eligible for release. However, experts have indicated that the local executive committees responsible for work placement were frequently slow and at times unresponsive to the needs of parolees. Thus, the Soviet parole scheme suffered from the same impediment found in the West, that is, the public’s unwillingness to assist in the reintegration of the ex-offender.
Parole remains an option in the Russian Federation. The opportunities for parole have been expanded for first-time offenders, older inmates, inmates with disabilities, and inmates who had served in the defense of the country. According to the 1996 Criminal Code, a court determines if the original period of incarceration can be reduced and not have an adverse impact on an inmate’s efforts at reform. A person deprived of his or her freedom must serve a minimum of six months of his or her sentence. Other than that stipulation, Article 79 states that a convicted person must serve “(a) not less than half of the term of punishment assigned for a crime of minor or average gravity; (b) not less than two-thirds of the term of punishment assigned for a grave crime; (c) not less than three-quarters of the term of punishment assigned for an especially grave crime.” If granted, the court can place some standard restrictions on the individual. These include not changing one’s residence or place of employment or study without informing the authorities; avoiding certain places; when appropriate, undergoing treatment for such conditions as alcoholism or substance abuse; and providing material support for one’s family.
Noninstitutional Sanctions
For those offenders not sentenced to a term of deprivation of freedom, there are several noninstitutional sanctions available. In some cases, a person serving time in prison or in a correctional labor colony may also receive a noninstitutional sanction. Usually, the offender meets the obligations of the noninstitutional sentence upon release from a correctional facility.
The 1996 Criminal Code introduced a new noninstitutional sanction called obligatory tasks. A more familiar term to describe this sanction is community service. A convicted person performs work during his or her free time through an agency of local government. The amount of time that a person must complete is between 60 and 240 hours. Offenders are not permitted to perform more than four hours of community service per day.
Correctional tasks make up another sanction that is served at the offender’s regular place of employment. The sanction can be imposed for a term of two months to two years. The court further orders that part of the wages of the offender be deducted and paid to the state. The amount can range from 5 to 20 percent of the person’s gross pay. In addition, the time served while working under this sanction is not included when determining the person’s eligibility for vacation time, benefits, salary raises, and job seniority. An offender who displays exemplary work habits may gain some of these benefits back if the local organization petitions the court to do so.
Confiscation of property entails the transfer of all or part of the offender’s property to the state. Only items that are not deemed necessities for the offender and his or her dependents are included in this sentence. This sanction is limited to crimes against the state and certain kinds of mercenary crimes identified in the special part of the Criminal Code.
Limitation of freedom involves sentencing a person to a halfway house. There is a degree of confinement, but the person is not isolated from society. It is a sanction designed for the first-time offender. If the person was convicted of an intentional crime, the terms of the sentence would be between one and three years. If the person was convicted of a crime through negligence, the terms of the sentence would be between one and five years.
Fines are designated for specific offenses under the special part of the Criminal Code. In imposing this penalty, the court considers both the gravity of the offense and the offender’s ability to pay. Deprivation of the right to occupy certain offices or to engage in certain activities may be imposed for a period of one to five years. This form of sanctioning implies that the offender’s environment is a factor that has encouraged or enabled the person to commit a specific type of crime.
If a person is convicted of a particularly serious crime, the court can also consider the personal history of the individual and deprive them of special, military, or honorary titles; class rank; or a State award that they had previously earned. With regard to the military, the Criminal Code provides two sanctions that specifically address military service. A limitation in military service authorizes a deduction of 20 percent in military maintenance of convicted service personnel. This deduction is paid to the state for a period of between three months and two years. In addition, the person cannot be promoted in office or rank during this time period. Another military sanction is confinement in a disciplinary military unit for a period of between three months and two years.
In the past, the Soviets placed a good deal of blame for their crime problems on bourgeois influences. Both before and after the 1917 Revolution, they argued that there were whole generations tainted by capitalism and that these people passed on those beliefs, motives, and drives to their children. Hence, crime existed because the remnants of capitalism were too pronounced to be eradicated in such a short period of time. Moreover, a number of historical events—largely beyond the control of the authorities—further enhanced the prospects for the commission of delinquent acts. Famines in the early 1920s, late 1920s, and early 1930s caused a large number of people, including orphans, to move to urban centers. The large number of orphans was largely the result of World War I, the civil war in Russia, and the Great Depression. World War II not only increased the orphan population but also was a factor in the post-war baby boom, which occurred in most countries and has been identified as a variable in the rise of juvenile crime in the early 1960s.
Despite the fact that most Russians had never lived in a capitalist society, the Soviets did not totally abandon their claim that their problems of crime could be attributed to capitalistic influences. For several years, they alleged that the West had waged a form of psychological war on their young people by exposing them to Western decadence. Foreign news and entertainment broadcasts and the availability of Western literature and material goods on the extensive Soviet black market were identified as the principal sources of this type of attack. Although the Soviets continued to blame capitalist influences for their level of crime, they gradually admitted that there were factors indigenous to the Soviet regime that contributed to the crime and delinquency problems. They had to make this admission in light of the fact that only Soviet citizens in their mid-seventies and older were born before the Revolution and, therefore, could possibly have been exposed directly to capitalist influences.
Given this line of reasoning, it should come as no surprise that a number of Soviets believed that the underlying causes of crime were social. Two developments in particular had been identified as contributing factors since the end of World War II. They were the extensive developments throughout the country toward urbanization and industrialization, and the resulting dislocation, alienation, and disintegration of the family. In recent years, a third factor (an outgrowth of the other two) also troubled the Soviet leadership. It was that young people experienced a relatively peaceful and comfortable lifestyle. Whereas war and deprivation tempered the expectations of previous generations of Soviet citizens, the young people were impatient with the degree and tempo of change, and their expectations for consumer goods and leisure time had been enhanced further by parents deferring their own personal gratification for that of their children. The Soviet leadership recognized that if glasnost and perestroika were going to have any long-term impact, it was the youth of the country that would have to play a pivotal role in its success. As a result, the initiatives for many social policies and programs were specifically directed at this group. It naturally followed that a concern for juvenile delinquency was an ever-present and prominent feature of this total agenda (McClellan, 1987).
Among some Soviet researchers, it was believed that people between the ages of 14 and 18 commit 8 to 15 percent of all crime. If one considered that one-third to one-half of all juvenile cases were dropped or handled by a commission of juvenile affairs (and thus never reached a court), the total number of delinquents was probably between 15 and 20 percent. Moreover, it was estimated that 9 to 20 percent of juveniles recidivated and that, among the adult recidivists, 60 percent started their criminal careers as juveniles (McClellan, 1987).
Both Soviet and Western experts on the Soviet system were basically in agreement as to the indigenous causes for juvenile delinquency in Russia. As was the case with adult offenders, a significant percentage of delinquent acts were committed while the perpetrator was under the influence of alcohol. The Central Committee of the CPSU passed a resolution in 1985 that attempted to grapple with this problem. One of the specific goals was to reduce drastically the production of alcoholic beverages. Another was to curtail the distribution of such beverages by reducing the number of off-license establishments, curtailing the hours of sale, and restricting sale to people over the age of 21. A final goal was to change the drinking habits and patterns of people by increasing the fines both for public intoxication and for driving while under the influence. In addition, adults who encouraged minors to drink alcohol were subject to prosecution. The media became involved in the educational campaign to discourage young people from drinking alcohol. Finally, rehabilitation centers were established at locations that facilitated the continuation of a person’s employment (Partanen, 1987).
Government officials had also acknowledged that they underestimated the problem of abuse of other drugs as well. While they claimed that it did not reach the epidemic proportions found in some countries of the world, they recognized that they were not exempt from this dangerous trend. Moreover, they estimated that 80 percent of the hemp and poppies used to manufacture illicit drugs for use within the country were grown in the Soviet Union. While it was illegal to use and sell drugs, senior government officials had tried to emphasize a policy of treating the drug user as a victim of a sickness rather than as a criminal (Anonymous, 1988). In line with that reasoning, the Statute on Educational-Treatment Facilities for Those Ill with Drug Addiction was passed in 1986. In addition to the Ministry of Internal Affairs and the procuracy, healthcare and educational officials had a central role to play in the organization and administration of these facilities (Levitsky, 1988).
The deterioration in the home and family environment was also recognized as a principal cause of delinquency. Some children were abused by parents suffering from alcoholism, and in a society in which most adults work, the young were often left unattended. Because people had achieved a degree of mobility, the days had long passed when a grandparent or other relative might live with the family and care for the children. As a result, there was a new initiative to provide family counseling services—especially in urban areas.
Although unemployment was extremely low in the Soviet Union, it was not unusual to find people underemployed. Moreover, children who dropped out of school had difficulty finding a job that would ensure self-sufficiency. Underemployment, however, was only part of the problem. Soviet authorities claimed that about two-thirds of all delinquent acts were committed by people who were employed or in school and that these crimes were generally committed during the offender’s leisure time. Thus, the government suggested that greater efforts be directed at initiating more leisure activities. An effort was under way to establish more facilities for this purpose.
The authorities also blamed part of the delinquency problem on deficiencies in the Soviet educational system. Many delinquent youths had a history of problems in school or had simply dropped out. Part of the criticism was leveled at teachers who failed to encourage the students, but the authorities focused much of their attention on the lack of stimulation in the home—a factor that had been shown to have a significant impact on both the child’s interest and willingness to learn.
The Soviets commenced a thorough reform of their school system in 1984. Plans called for extending the number of mandatory years of schooling from 10 to 11 years, as well as building more schools and vocational training centers. Raising teachers’ salaries by 40 to 50 percent was part of the reform, along with recruiting new people to the profession. Curriculum revision was another important component of the reform efforts. This included the introduction of a universal vocational training component; classes in technical areas, such as computers, to meet the needs of the modern workplace; and an expansion of offerings in college preparatory courses (McClellan, 1987).
The Soviets had also been committed to improving citizens’ understanding of law for several years. Because it had been recognized that many juveniles failed to understand the consequences of their delinquent actions, legal education became a significant component in the regular school system and in special educational programs for juveniles convicted of criminal behavior.
Finally, peer pressure was recognized as another cause of juvenile crime. The Soviets argued that in the Soviet Union this took a form different from that found in the West. Whereas capitalist countries were noted for their organized gangs of delinquents, the Soviets alleged that they did not have that kind of problem. Although gangs of youths often committed offenses, they did not do so as a formally organized group. The emergence of gangs was more spontaneous in that the participants had only a casual relationship with one another.
All the aforementioned causes for juvenile delinquency in the Soviet Union have been further enhanced in the Russian Federation. From the earliest days of the country, the social structure has been in disarray, with the demise of the socialist system and the initial development of an economy based on market forces. The Ministry of Internal Affairs has contended that the nature and dimensions of juvenile crime are associated with the moral well-being of the country. At a time when the social system had been turned upside down, many young people were confronted with a lack of standards and disrespect for authority. The economic problems confronting the country are similar to those facing most Russian families. As a result, there is a good deal of resentment. For some, it is a resentment directed at the old order; others are bitter about the new rules.
There are several notable concerns that have been identified by the authorities. For example, there has been an increase in the number of juveniles leaving school, a significant rise in the number of homeless children on the streets of urban areas, and an increase in the number of children being reared in children’s homes and single-parent families.
The authorities also have identified a growing trend for criminal enterprises to utilize juveniles. To illustrate, young people are being used to fence stolen goods, to sell illegal drugs and weapons, and to participate in various extortion schemes. In addition, juvenile gangs are largely responsible for the proliferation of robberies, burglaries, and auto thefts. Of particular concern is the number of juvenile gangs that are assuming the attributes of professional criminal operations.
According to the Ministry of Internal Affairs, there was an increase in the number of juvenile offenders by 50 percent by 1994 over the course of the previous five years. It also was reported that juvenile crime is increasing at a rate 15 percent higher than that of adult crime, and every third person involved in a group-related crime is a juvenile. Of the most serious crimes, such as murder and serious injury, juveniles commit one out of every six offenses. The Ministry also has indicated that they have identified about 360,000 problem teenagers throughout the country. They have been quick to acknowledge that the real number of potential juvenile offenders is significantly greater than the number registered. In 1997, the Ministry issued a report on crime data collected for the previous year. They concluded that juvenile delinquency is “an exceptionally dangerous phenomenon,” and pointed out that 80 percent of the crimes committed by juveniles are felonies. The prospects of seeing these statistics reduced are not promising. Of particular concern, cited by the Ministry, is the fact that so many young people are neglected or left unsupervised. They become easy targets for organized crime in its efforts to identify new recruits.
In 1999, legislation was passed that is designed to emphasize a more protective rather than a punitive approach to juveniles. It is designed to restrict the role of the politsia in dealing with juvenile offenders and to enhance the role and responsibility of social welfare agencies. The law also calls for the establishment of two kinds of temporary shelters: for youths who are simply homeless and for juvenile offenders. For the juvenile offenders, these institutions are both opened and closed facilities.
Juvenile Adjudication Process
One of the factors mentioned in Soviet studies on delinquency was the failure of some juveniles to understand the consequences of their actions (Minkovsky, 1976). Before the adjudication process for juveniles is described, it is important to explain the age of criminal responsibility for juveniles in the Russian Federation.
Age of Responsibility
Although the age of criminal responsibility varies with the kind of offense, young people who have reached 16 years of age are subject to criminal responsibility according to the Criminal Code. While people under the age of 16 are generally not subject to criminal responsibility, there are a number of exceptions made to this rule. Young people who have attained the age of 14 and have committed certain serious crimes may be prosecuted. The crimes for which a young person may be prosecuted include homicide; intentional causing of grave harm to health; intentional causing of average gravity of harm to health; stealing a person; rape; forcible actions of sexual nature; open stealing; assault with intent to rob; extortion; unlawful taking possession of an automobile or other means of transport without the purpose of stealing; intentional destruction or damaging of property under aggravating circumstances; terrorism; taking a hostage; knowingly making a false communication concerning an act of terrorism; hooliganism under aggravating circumstances; vandalism; stealing or extortion of a weapon, ammunition, explosive substances, or explosive devices; stealing or extortion of narcotic means or psychotropic substances; and the destruction of transport or railways into unfitness. As mentioned earlier in the section on law, hooliganism refers to violations of public disorder that are associated with threats to people and the destruction or damage to property. It is an offense that existed under Soviet law and has been retained in the 1996 Criminal Code.
According to the Code of Criminal Procedure, it is imperative that a preliminary investigation be conducted in cases involving juveniles. Although a police investigator is likely to conduct the investigation, a procurator controls the actual inquiry. Whereas early representation of defense counsel is a relatively recent development for adults, it has long been provided for juveniles, specifically, as soon as an accusation has been presented. Juveniles awaiting trial are usually released into the custody of their parents or guardians. In exceptional cases, they may be detained, but assurances must be given that the confined juvenile will not associate with adults or with minors who have already been convicted. The nature of the offense in addition to the person’s arrest record and behavior are the principal factors used to determine if the juvenile should be prohibited from release into custody.
Personnel
The Russians have not established a single court in their judicial hierarchy to handle juvenile cases. Instead, they have developed a dual tracking system. If the offense is serious and the age of the offender warrants such a procedure as stated in the code, the juvenile may be required to appear before a justice of the peace or in a district court.
In all other cases, the procurator turns the matter over to a commission on juvenile affairs. These commissions have been in existence since 1918. Although they are not technically considered a judicial body, they provide a number of judicial functions. Members of a commission are appointed by local officials for a two-year term. Members come from a variety of walks of life, such as jurists, police, teachers, trade union members, factory workers, and housing representatives. Their selection is based on their interest in juvenile affairs.
Jurisdiction
The law considers a young person under the age of 18 to be a minor. Either a justices of the peace court or a district court can adjudicate those cases in which the offender is at least 14 and the offense is considered very serious in nature. As previously indicated, these crimes are identified in the code. A commission on juvenile affairs handles cases for less serious offenses committed by young people above the age of 14 as well as for all crimes committed by juveniles younger than 14.
The responsibility of a commission on juvenile affairs is not limited to handling individual cases of delinquency. The commissions play a significant role in general approaches to delinquency prevention: in supervising various institutions that are responsible for young people, such as the police, special vocational schools, and corrective labor settlements for minors; in the organization of programs to prevent child neglect; and in the protection of the rights of all minors. All of this requires a good deal of coordination between various government authorities who are specifically responsible for the maintenance, supervision, and protection of young people, and those citizens who are willing to assist voluntarily in the work of delinquency prevention.
Procedures
The procedures in a justices of the peace court or a district court are similar to those in force when an adult stands trial, but if the person is under 16 the court may prevent the public from attending the hearing, as long as it states its reasons. The child’s parents are not required to attend. Under Russian law, however, parents can be interrogated as witnesses during trials. In addition, representatives from the offender’s school or place of employment must be notified of the proceedings and may attend the hearing and offer testimony.
At a criminal trial, a juvenile above the age of 14 is financially liable for damages caused in the commission of an offense. Thus, juveniles are treated like adults. Because many young people are unable to pay damages, their parents are liable because they are viewed as sureties. Moreover, parents can be fined by the court for failing to supervise their children properly.
The procedures of a commission on juvenile affairs are more informal than a trial. They are not as concerned with establishing the legal guilt of the juvenile as they are with determining a specific preventive measure that will assure that the conditions leading up to the offense will be eliminated.
Disposition
Both the justices of the peace courts or the district courts and the commissions on juvenile affairs have the authority to impose a sanction on a juvenile found guilty of a criminal offense. Because the Russians view the underlying causes of crime as social in nature, their rationale for sentencing an offender is based on the dual purpose of rehabilitation and deterrence. Rehabilitation is designed to reeducate the offender to the “correct views” and “proper habits” of a citizen. The Russians also adhere to the notions of specific and general deterrence. Specific deterrence is directed at the individual offender through reeducation and the elimination of the conditions that cause such deviant attitudes. General deterrence is designed to encourage crime-prevention measures throughout society. Furthermore, in the course of imposing a sentence on a young person, Article 89 of the Criminal Code calls upon the sanctioning authority to consider “the conditions of his life and nurturing, level of mental development, other peculiarities of the personality, and also the influence of older persons.”
When sanctioning a juvenile, the sentencing authority utilizes a number of penalties that are available for the adult offender. There are some exceptions, however. The death penalty, for example, cannot be imposed on an offender who committed the offense before the age of 18. Deprivation of freedom is an acceptable sanction, but the maximum sentence cannot exceed 10 years for a person under 18.
It is estimated that more than one-half of the juveniles found guilty in a court are sentenced to a term of deprivation of freedom with the time being served in an educational colony. As was the case with the adult system, there are various kinds of regimens in these colonies, but all emphasize manual labor. Few juveniles receive the maximum sentence to an educational colony. It has been suggested that the average term is approximately three years. Few inmates serve that full term, though; they are usually released on parole after having served less than one year.
As mentioned earlier, there are 46 juvenile colonies designed for incarcerated young people. A concern reported by the Moscow Center for Prison Reform is that a consideration is under way to reduce the number of juvenile colonies to 33. Part of the logic for this recommendation is based on the fact that the population at such facilities has been declining. It has been further suggested that those facilities vacated by juveniles would be made available as colonies for women. The Moscow Center has expressed its opposition to this strategy. It maintains that juvenile colonies should be increased in number rather than reduced. The Center has suggested that the new facilities should be designed to house between 30 and 40 offenders in order to enhance the benefits of an institution’s treatment program. The Moscow Center has also suggested that the prison service for juveniles should be transferred from the Ministry of Justice to the Ministry of Education (Moscow Center for Prison Reform, 2010).
There are other common methods of sanctioning a juvenile, and some of these are somewhat abbreviated versions of sentences that can be imposed on adult offenders. The term “arrest” is used in the 1996 Criminal Code to describe a short period of confinement. In the case of young people, it can be imposed only on those who have reached the age of 16. The period of confinement is from one to four months.
A fine can serve as a method of punishment as long as the young person has the means, either through earnings or property, to pay the fine. Obligatory tasks or community service can be imposed for a period of 40 to 160 hours. Correctional tasks are another sanction that can be imposed on a young offender for a period of no more than one year. In this instance, the court can order that part of the wages of the offender be deducted and paid to the state. The amount can range from 5 to 20 percent of the person’s gross pay. In addition, the time served while working under this sanction is not included when determining the person’s eligibility for vacation time, benefits, salary raises, and job seniority. It should also be pointed out that most first-time offenders receive a suspended sentence.
Recently, a collaborative study on youth at risk was undertaken by teams of Canadian and Russian researchers to identify best practices that should be employed in the field of juvenile or youth justice. Various projects were identified that could transform juvenile justice in Russia for the better (Juvenile Justice in Russia, 2009). A central feature of this research was to place children’s rights as key to evaluating the services provided by the various components of the justice system and the ancillary agencies associated with the care of young people. The report acknowledged that young people in Russia were living at an extraordinary time in the country’s history, with the unprecedented uncertainty confronting all people during the stressful transition from the ideology of the Soviet Union to the emerging policies of the Russian Federation. A number of negative social trends had been exacerbated during this lengthy transition period. For example, young people were increasingly turning to the use of tobacco, alcohol, and illegal drugs. Each of these substances was not only contributing to youth crime but also reducing the life expectancy of the age group at a time when the number of young people was already in decline because of the low birthrate.
Child poverty, neglect, and homelessness were identified as serious problems. It was estimated that more than 730,000 children lacked parental care. Moreover, 6 million were living in “harsh social and economic conditions.” As such, approximately 1 million juvenile offenders were being brought before the authorities. This has led to the country having the highest rate of incarceration for juvenile offenders in the world. Once released from a juvenile facility, the young person frequently reoffends, as the recidivism rate is high. Obviously, this suggests the need to develop alternative forms of sentencing that emphasize effective supervision. In addition, attention should also be directed at broadening further the support that other youth agencies provide regarding delinquency prevention.
A number of issues were addressed by these researchers. They created pilot projects that were designed to focus on specific flaws in the current juvenile system. Once again, a key factor of each project was to integrate young people’s rights as central to the services provided not only by the various components of the justice system but also by the ancillary agencies associated with young people.
Brief mention is made of some of the areas where the researchers directed their efforts. Taken together, each effort illustrates the need for a comprehensive overhaul of the manner in which juvenile justice is administered in Russia. One project focused on early prevention and conflict resolution by establishing a school peer-mediation program. Another project established an employment service designed for young people at risk and for youthful offenders.
Projects were also developed that illustrated the importance of youth justice agencies collaborating with the community to provide effective programs for youth at risk. Also recognized was the need for greater emphasis at providing support and supervision for youths released from correctional facilities. To facilitate that endeavor, there is a need for significant change in the approach toward youthful incarcerated offenders. Presently, the emphasis appears to be a punitive incarceration regimen rather than a focus on rehabilitation and reintegration into society.
Those critical of juvenile justice in Russia, both from within and outside the country, agree that the essential transformative feature to reform juvenile justice should be the establishment of a separate system of juvenile courts. In fact, there is an obligation under international law to provide such a system. While the Russian federal government has been attentive and supportive recently to various reforms for the care of youths at risk, it has not directed efforts to establish such a court system.
This chapter has offered an introduction to the criminal justice system of the Russian Federation. The major components of the system—the police, judiciary, law, corrections, and juvenile justice—were described, and an overview of the political system was presented. A brief history of some of the components of the system was presented; the organization and administration were described; the various roles of the practitioners were explained; the legal process was examined; and reference was made to some of the areas of concern within the system.
The dissolution of the Soviet Union and the establishment of the Russian Federation has obviously had a profound impact on the region. Since 1991, every event in Russia has served as an illustration of the leadership’s attempt to transform the old order into a new order. The old order was dominated by the Marxist–Leninist philosophy that encouraged governance based on ideological principles and established a highly centralized planned economic system. Presently, the country is in a state of transition. At times, that transition can best be characterized as democratization, a process by which proponents of democracy aspire to establish a democratic form of government but as yet have not achieved their goal. At other times, the country has appeared to be in a chaotic state. This is largely the result of either the inability or lack of will to introduce the measures necessary to establish a free market economy. While both situations impact criminal justice, it is chaos that has troubling implications for the criminal justice system—the principal source for law enforcement and order maintenance in a civil society.
For the most part, the leadership and people of the Russian Federation are grappling with two central features of the democratization process. One is the establishment of a market economy, which is having a striking impact on all people throughout the country. The other key feature is recognition of the importance of government by rule of law. It is this feature that is having such a profound impact on the country’s criminal justice system.
What students of comparative criminal justice should be aware of is that such a massive transformation in the social order will inevitably cause a good deal of disorder. The country has already witnessed examples of this, and these cases have had an impact on the justice system. Thus, people in the West can and should be encouraged by reforms adopted in the Russian Federation, but they should also realize that lasting change will only occur gradually over an extended period of time. Five years, 10 years, or even 50 years is not a long time in the establishment of a new order for a country with such an extensive history.
