nazarov-a-d_disser

163

Code for the accused, the suspect, if there is sufficient evidence giving grounds to reasonably

suspect the person in the act incriminated and believe that the accused, the suspect:

1)abscond from the inquiry, investigation or trial;

2)may continue to engage in criminal activity;

3)may threaten a witness or other parties to the criminal proceedings, destroy evidence or

otherwise obstruct criminal proceedings.”

“Article 99. Circumstances to be considered when determining a preventive restrictive

measure.

The court within the powers granted thereto may study the materials of the criminal case

when determining a preventive restrictive measure.

When deciding on the need to determine a preventive restrictive measure for the suspected or accused of committing a crime and determining the type thereof subject to the grounds provided for in Article 97 of this Code, legitimate and reasonable qualification of the act incriminated

to the alleged suspect or the accused acts and, accordingly, the severity of this crime, information about the identity of the suspect or the accused, his age, health, marital status, occupation and other circumstances.”

To amend and alter Article 108 of the Code of Criminal Procedure of the RF ‘Detention’ as follows:

To supplement Part 1 after the first sentence (from the words – ‘measures of preventive restriction’) with a new sentence: “The detention to a person prosecuted for the first time is applied only in the case of proven violations of the conditions of house arrest, bail or other less stringent measure of preventive restriction, except cases of criminal responsibility for grave and especially grave crimes against the person, as well as the crimes set forth in article 100 of this Code where it is necessary to take into account the nature of the act incriminated to him and the personal data”.

In Part 1 the words ‘factual circumstances’ to be replaced with the word ‘evidence’.

In Part 3, instead of the word ‘materials’ to use the phrase ‘criminal case materials’.

Article 63 of the Criminal Procedure Code of the Russian Federation ‘Prohibition of re-

engagement of the judge in the criminal case’ to be supplemented with part 4 as follows:

4. ‘The judge who made a decision on the detention of the suspect or the accused, the house arrest, an extension of detention and house arrest at the pre-trial stage, considered the appeal, cassation or supervisory complaints or motions for the detention, house arrest, an extension of the detention and the house arrest at the pre-trial stage, may not participate in consideration on the merits of the case in the court of the first and second instance or under the cassation and supervision.”

164

When dealing with serious issues which include the detention of the suspect, the accused with the presumption of innocence in effect, it is relevant not to simplify the procedure but to make it responsible enough and comprehensively balanced. Here, like nowhere else, the guarantees of legality rise not under a single judge but under collegial trial of the situation vital for the individual when the question of restricting the constitutional right to freedom is addressed307.

The prominent legal scholar A.D. Boykov wrote: ‘Special studies of the Research Institute of the General Prosecutor's Office, conducted in the mid-1990s, showed that the single judge justice tends to simplify the procedural form, to privately (in the judge's chambers, privately) conduct the proceedings, leads to the emergence of unmotivated sentences often imposed without questioning witnesses and examining the evidence’308. His position on the effectiveness of collegial trial of cases is not only relevant for the judicial stage, but for pre-trial stages as well.

A.V. Besedin agrees with the above309.

For the judge it is more difficult to make a sole decision on the application to the suspect, the accused of a preventive measure more lenient than detention as in the case of the accused absconding from the investigation and trial, committing new crimes, influencing the other participants in the proceedings, the judge associates these negative consequences of their ‘humane’ solution to their failures and errors and sometimes there is a reluctance of judges to enter into a confrontation with the investigative and operational agencies, as a rule, interested in obtaining the approval for the arrest of the suspect, to look ‘ambiguously’ in the eyes of certain persons as ‘prone to corruption’, etc.

Yet it is necessary to be aware that in the present conditions it is organizationally and financially impossible to provide for all criminal cases the collegial decision on detention, extension of detention, even in respect of persons first-time subject to criminal prosecution or committing grave and especially grave crimes.

In our opinion, in the current Russian practice of ‘arrest’ control it is necessary to efficiently use the approach prevailing adjudicating the detention and extension of detention, as well as the house arrest and bail: consideration of the materials submitted with the participation of the prosecutor (namely – the prosecutor, not the public procurator) who can rationalize the interests of the state in resolving the issue of isolating an individual from society reasonably and legitimately (the prosecutor as ‘a speaking judge’); the participation of the defense counsel whose

307 See also: Nazarov A.D. Procedural safeguards against investigative, prosecutorial and judicial errors in the Criminal Procedure Code of the Russian Federation // Current issues of struggle against criminality in the Siberian region. Krasnoyarsk, 2002. P.98–102; Nazarov A.D., Zhelezniak N.S. Some issues of improving the institution of judicial review // Legal policy and legal life. 2012. №2. P.58–63.

308Boykov A.D. Court. Fast, but not very much so. Fair, but not quite fair. Gracious, equal for everybody?.. // Russian justice. 2002. №9. P.13.

309Besedin A.V. Protection at the stage of execution: Diss for Cand. Jurid. Sciences. Saratov, 1995. P.83.

166

The statistic data in empirical studies of V.V. Volkov are quite indicative: the court

‘approval’ of motions for detention and the percentage of successful ‘cassationing’ when appealling against arrests in Russia for 2004–2010 was as follows: 2004 – 90.8% (11.2%); 2005

–91.4% (10.8%); 2006 – 91.4% (9.8%); 2007 – 91% (6.4%); 2008 – 90% (5.8%); 2009 – 90.1% (5.6%); 2010 – 89.9% (6%)311.

According to our study, in 2010–2015 in Russia the percentage of the court approvals of motions of bodies of preliminary investigation for the detention of the suspects, the accused was 90.59%312. And the percentage of the court approvals of motions of bodies of preliminary investigation for extension of the detention for the accused over these years on average was as high as 98.23%313.

It is important to emphasize, in our opinion, the trend: denying the bodies of preliminary investigation of the detention, gradually the courts increasingly apply the house arrest. Thus, the house arrest was used by the court 1345 times in 2011, in 2012 – 1508 times, in 2013 – 2366 times, in 2014 – 2 632 times, in 2015 – 3133 times. At the same time the application of bail as an alternative to detention by courts decreases in the years considered: in 2011 – 447 times, in 2012

–347 times, in 2013 – 303 times, in 2014 – 327 times, in 2015 – 199 times314.

On our view, the provided above statistical picture, at least, suggests the repressive orientation, prosecutorial bias of the court in terms of determining on the preventive restrictive measure for the accused, and as a maximum, provides more information about the court with at the suggestion of the investigator, as well as often enough and at the suggestion of the prosecutor who supported the petition of the investigator being able not to detect investigative errors, sometimes fundamental ones.

The above thesis can be supported by the fact that in 2010–2015 in Russia per the cassation procedure, and since 2013 – in appeal, courts reversed an average of 4.04% of decisions of courts of the first instance on the detention of the suspect, the accused and revised on average 4.98% of decisions of courts of the first instance to detain the accused in custody315. During these years, the court of the first instance decisions on the extension of detention of the accused were reversed per cassation, and in 2013 – per appeal, in on average 2.5% of cases, revised in an average of 3.47% of cases316. With the prevailing repressive approach of judges to arresting the accused, these

311How judges make decisions: empirical studies of law / Ed. V.V. Volkova. M.: Statut, 2012. P.32.

312Appendix № 8.

313Appendix № 9.

314Appendix № 8.

315Appendix № 24.

316Appendix № 25.

167

seemingly not very high percentages indicate that judicial control ‘skips’ investigative errors when determining strict measures of prevention.

In our opinion, the transfer of ‘arrest’ control to the prosecutor would not change the occurrence of errors related to preventive measures for the worst but (it is possible) would change it for the better, as the prosecutor would delve into both ‘questions of law’ and ‘questions of fact’. However, this does not mean that we support such a transfer. With all the problematic issues of the judicial procedure of arrest, as noted above, in principle, it is not only more democratic, more open, but also more comprehensive than ‘the prosecutor's arrest’ (the court hearing involving the parties, the trial minutes recorded, and so forth).

Of course, in matters the ‘arrest’ judicial review, Russia can borrow all the valuable experience the European (‘continental’) jurisprudence. For example, in Germany there are no such investigative judges. But there is a ‘judge for the inquiry’, which is not the investigative judge in the full sense of this mission. ‘The judges for the inquiry’ do not adjudicate criminal cases. They issue an arrest warrant, but this necessarily requires the motion of the prosecutor: no motion from the prosecutor – no arrest warrant. This same judge examines complaints of the parties to criminal proceedings with regard to the person's conditions of detention; it decides the question of release from detention. Moreover, detention periods are not statutory in Germany: the detention period is not the matter of the time period, but the matter of preconditions for such detentioon.

Complaints with regard to detention in Germany are considered collegially: this is a panel of three judges in Oberlandsgericht (the Highest Regional Court) or five judges in the Supreme Court of Germany. In other words, in Germany, the question of substantial restriction of constitutional human rights involves a complex (associated with the collegiality) form of resolution of this issue. In Russian practice, this trend in the increasing complexity of the form is unlikely to be accepted for obvious reasons (already mentioned herein), although, of course, the best option to resolve issues related to the detention of the suspect, the accused in custody, extension of his detention appears to lie in the increased complexity of the criminal-procedural form317.

The second kind of judicial review at pretrial stages of criminal proceedings,

‘procedural’, is provided for in articles 23 and 25 of the Constitution of the RF.

Article 29 of the Code of Criminal Procedure of the RF specifies a list of investigative and other procedural actions, which are based on a judicial decision due to the fact that they

317 On the theoretical basis of complex forms of criminal procedure, see: Yakimovich Y.K., Lensky A.V., Trubnikova T.V. Differentiation of criminal proceedings. Tomsk, 2001. P.13.; Yakimovich Y.K. The concept, function, differentiation of criminal procengs. The principles of criminal justice. – Tomsk: Tom. Un. Publishing House, 2015. P.51–93.

168

infringe on the rights and freedoms of the man and the citizen protected by the Constitution

of the Russian Federation.

In accordance with Article 23 of the Constitution of the RF, restrictions on the human right to the privacy of correspondence, telephone conversations, postal, telegraph and other communications may be based solely on the judgment. Article 25 of the Russian Constitution enshrines the right to inviolability of the person residence.

Reasonable arguments in defense of the existing decision-making procedures of investigative actions are provided by N.A. Kolokolov, believing that ‘... the analysis of the efficiency of justice should begin with ... not assessing the statistical results of the judicial activity, but studying the reasonableness and validity of vesting a particular subject matter jurisdiction with the courts’318.

The judicial procedure for making decisions about certain investigative and remedial actions was introduced in criminal proceedings in order to strengthen the guarantees of individual rights. However, over time it has become apparent that the introduction of this institution has not led to a significant increase in the level of protection of individual rights in the preliminary investigation of criminal cases.

The opinion is expressed by V.V. Kalnitsky, V.M. Bykov, S.B. Rossinskiy, A.S. Karetnikov and K.A. Arzamastseva319, who questioned the need for the court involvement in decisions on the investigative actions.

Proponents of this direction of judicial activity have also been forced to admit that the level of protection of individual rights in criminal proceedings with the introduction of this institution has not increased320.

The opponents of the modern judicial review configuration have believed that one of the objectives of the judiciary reform Concept was the purpose of the release of the court from participation in the prosecution. It started to be realized in the rulings of the Constitutional Court of the Russian Federation during the time of effect of the Criminal Procedure Code of the

318Kolokolov N.A. The constitutional right to the privacy of home: on the issue of the effectiveness of preventive judicial review // Russian judge. 2010. № 6. P. 13–16; №7. P. 4–8.

319Kalnitsky V. ‘Authorization’ and judicial review of the legality of investigative actions in the course of pre–trial proceedings are ineffective // Criminal Law. 2004. № 1. P. 73 – 75; Bykov V.M. Judicial review of the preliminary investigation // Criminal Procedure. 2007. № 1. P. 84; Bykov V.M. Current issues of criminal proceedings. Kazan, 2008, pp. 208 – 209; Rossinsky S.B. Do we need a preliminary judicial control of investigative actions in the home? // Russian judge. 2009. № 8. P. 17 – 21; N 9. pp. 19 – 22; Karetnikov A.S., Arzamastseva K.A. The permission of the court for investigative actions. Access from ref. legal system ‘Consultant Plus’; Lazareva V.A. Proof in criminal proceedings. M., 2009. P. 60; Kovtun N.N., Suslova E.N. The effectiveness of immediate judicial review // Criminal proceedings. 2010. № 3. P. 6–14.

320Vasin V.V. On the issue of judicial criminal procedural cognition // Bulletin of Tomsk State Pedagogical University. 2006. Vol. 11. p. 82.

169

RSFSR321. Part 3 of Article 15 of the Code of Criminal Procedure of the RF stipulates that the court is not a body of criminal prosecution. But it was not possible for the legislator to completely release the court from this activity. It manifests itself in different directions of activity.

For example, I.L. Petruhin believed that the panel of judges, giving consent to the initiation of criminal proceedings against a separate category of persons, performs the function of criminal prosecution322.

A.S. Karetnikov and K.A. Arzamastseva believe that the court in the exercise of its powers under Art. 165 of the Code of Criminal Procedure of the RF does not provide any judicial review323. The investigator motions to the court because he does not have the authority to decide on an investigative procedural action. At the time of the approval of its application by the court there is no decision, the legality and validity of which the court could review – there is no subject of control. It will only appear after the judge’s decision (positive or negative). The procedure of approving the motion of the investigator implies the judge making his own decision on investigative or other procedural actions but authorizing decisions of the investigator. Decisions made by the judge in accordance with Art. 165 of the CCP of the Russian Federation are decisions providing the procedural activity of the criminal prosecution324. The investigator and the investigator are implementers of the court decisions.

All this gives grounds to believe that the court is engaged in criminal prosecution325. Thus, the court with its decisions ‘moves’ the process of investigation of the criminal case,

being a direct participant at the stage of preliminary investigation326. And most often it is the

‘movement’ in favor of the prosecution, when a criminal case is not in the court, but in the hands of the investigator, the inquirer.

N.A. Kolokolov refers to the experience of Germany, where a decision on conducting a search and other investigative actions to limit the rights and freedoms is also taken by the court327.

321Mikhaylovskay I. Judicial policy: the role of the Constitutional Court rulings in the reform of criminal judicial proceedings of the Russian Federation // Constitutional Law: East European Review. 2001. № 3. P. 167–172.

322Petruhin I.L. Conceptual bases of the criminal proceedings reform in Russia // State and law. 2002. № 5. P. 27.

323Karetnikov A.S., Arzamastseva K.A. Are the court activities with regard to hearing and adjudicating petitions of preliminary investigation officials judicial control? // Russian justice. 2010. № 4. P. 66 – 69.

324Kuzmin GA The legal and organizational basis for decision–making in criminal proceedings (pre–trial stage): Abstract. Dis. for Cand. Jurid. Sciences. M., 2002, pp. 15 – 16.

325Antonova E.E. Functional characterization of pre–trial proceedings in Russian criminal proceedings: Author. Dis. for Cand. Jurid. Sciences. Omsk, 2006, p. 8; Ryzhykh A.N. Implementation of the court authority to prosecute at the pre–trial stages of criminal proceedings // Russian legal journal. 2007. № 3. pp. 154 – 156; Haliulin A. Nazarenko V. From the prosecutor's supervision to judicial review // Legality. 2004. № 1. P. 28.

326Lazareva V.A. Peculiarities and forms of judicial power exercise in criminal proceedings // Bulletin of the Nizhny Novgorod State University n. N.I. Lobachevsky. 2001. № 2. P. 152; Chezhdemov Z.T. The role of the court in ensuring the rights and freedoms of citizens in pre–trial proceedings under the Code of Criminal Procedure: Ab. Dis. for Cand. Jurid. Sciences. M., 2003, pp. 22 – 23; Azarov V.A. Tarichko I.Y. Judicial review function in the history, theory and practice of Russian criminal proceedings. Omsk, 2004. P. 137.

327Kolokolov N.A. Op. cit. Part 2. P. 7.

170

However, the overall list of decisions which it takes at the pretrial stage is insignificant in contrast to the impressive list of decisions that the court in Russia takes at pretrial stages. In this respect, the German experience of ‘judges for inquiry’ mentioned above may be relevant for Russian criminal proceedings.

The European Court of Human Rights as the court considers the bodies authorized to make, in the prescribed manner by the application of legal norms, decisions on disputes between the bearers of rights and responsibilities328. Accordingly, the jurisdiction of the court may not cover the case in which there is no legal dispute. This rule is contrary to the powers of the court under Art. 165 of the Code of Criminal Procedure, as the court shall exercise them in the absence of a legal dispute. The argument that in these cases there is a potential legal dispute329 is a weak argument to justify such powers by the court. However, the position of the ECtHR is that there is to be a court sanction.

To have an objective situation of the judicial review mechanism, it is reasonable to once again turn to the statistical data.

In 2010–2015, the average percentage of court approvals of preliminary investigation petitions:

–on inspection, search and withdrawal in the housing totaled 95.44%330;

–on personal search – 96.4%331;

–on withdrawal of objects and seizure of documents containing information about deposits and accounts in banks and other credit institutions – 97.35%332;

–on seizure of correspondence, permit to inspection and seizure in communication institutions – 97.62%333;

–on review and recording of telephone and other conversations – 96.46%334;

–on the seizure of assets, including funds of individuals and entities at bank accounts and in deposits or deposited in banks and other credit institutions – 86.58%335.

It is worth noting that in the period under review the average percentage of court approvals for requests submitted by operational-search agencies to limit the constitutional rights of citizens:

328Entin M. Fair Trial under the law of the Council of Europe and the European Union // Constitutional Law: East

European Review. 2003. № 3 (44). P. 86.

329Kovtun N.N. Judicial control in criminal proceedings: concept, types, nature and content // Bulletin of the Nizhny Novgorod State University n. N.I. Lobachevsky. 2001. № 2. P. 122. Series ‘Law’; Kovtun N.N. Judicial review in the criminal judicial proceedings of Russia. Nizhny Novgorod, 2002. P.38 – 40.

330Appendix № 10.

331Appendix № 11.

332Appendix № 12.

333Appendix № 13.

334Appendix № 14.

335Appendix № 15.

171

–for privacy of correspondence, telephone conversations, postal, telegraph and other messages via telephone networks amounted to 98.73%336;

–for inviolability of the home – 96.41%337.

We agree with the opinion of respected legal scholars338 that there has been no fundamental change in the legitimacy and the quality of preliminary investigation in connection with the transfer of a number of procedural powers of the prosecutor to the court.

The court has taken the prosecutor’s responsibilities to authorize certain procedural actions and decisions. The judge acts as a registrar, i.e. rule solely, taking into account only the procedural aspects of the submitted to him certain copies (not originals) of the materials of the criminal case. The prosecutor, the investigator, the inquirer are not required, but only entitled to participate in the consideration of such question. Other participants (the accused, his defense counsel, etc.) are not indicated in part 3 of Article 165 of the Code of Criminal Procedure of the RF. With the current approach to the consideration of such appeals and in the absence in Russian of the institute of investigating judges, from the standpoint of the efficiency of detection, correction and prevention of investigative errors, it would be more efficient to transfer the powers not peculiar to the judiciary authority to the prosecutor as the organizer of the criminal prosecution, as in this case:

–the prosecutor would be able to efficiently work not with copies of the materials of the criminal case but with the original, bound and numbered procedural documents of the criminal case, which would increase the efficiency in decision-making;

–federal judges would not be diverted to the execution of functions not inherent to them and could in the case of applications of persons interested to consider complaints according to Article 125 of Code of Criminal Procedure of the RF with respect toot the consequences of the proceedings and the decisions which have been sanctioned by the prosecutor and the investigator, the inquirer.

In our opinion, in the context of international legal standards for fair trial, ‘procedural’

judicial review should be left for the court to adopt the ‘classic’ decisions on home inspection in the absence of the consent of the persons residing in it, search warrant, and (or) the withdrawal in the housing, on the monitoring and recording telephone and other conversations. Authorization of other investigative and procedural actions referred to in Article 165 in the context of Art. 29 of the Code of Criminal Procedure should, in our opinion, be carried out by the prosecutor. And this is

336Appendix № 16.

337Appendix № 17.

338In the estimations of practitioners, judges approve the vast majority of motions filed by investigators: an obvious prosecutorial bias – ‘phenomenon which has been consistently denied by the bodies of preliminary investigation, prosecutors and judges’. See: Kolokolov N.A. The prosecutorial bias of investigation and trial when adjudicating economic violations // Criminal Proceedings. 2012. №2. P.38.

172

not just the replacement of judicial review for the prosecutor supervision: it is strengthening of both judicial review and the prosecutor's supervision, as in this case the decision of the prosecutor may be appealed by the parties involved in criminal proceedings to a senior prosecutor (in compliance with article 124 of the Criminal Procedure Code of the Russian Federation) or the court (in compliance with article 125 of the Criminal Procedure Code of the Russian Federation). Consequently, strengthening of this type of judicial review as ‘control over complaints’ happens simultaneously. Moreover, there is every reason to believe that these proposed novelties in the criminal procedure legislation will allow more effectively identify, correct and prevent errors in criminal cases.

The third kind of judicial review t pretrial stages of criminal proceedings, i.e. ‘control over complaints’, is provided for in art. 46 of the Constitution of the RF, which requires the court to consider complaints about any actions and decisions of public authorities which violate the rights and freedoms of citizens.

Article 29 of the Code of Criminal Procedure of the RF states that during pre-trial proceedings the court is entitled to consider complaints against the actions (omissions) and decisions of the prosecutor, the investigator, the body of inquiry and the inquirer in the cases and in the manner provided for by Article 125 of the Criminal Procedure Code of the RF.

Article 125 of the Criminal Procedure Code of the RF contains an open list of actions, omissions and decisions to be appealed to the court but it is very important that all of them are related to the violation of constitutional rights and freedoms of participants in criminal proceedings or impede the access of citizens to justice.

The judge considers the complaint in a court session with the participation of persons interested.

It is noteworthy that during 2010–2015 in Russia, the average percentage of complaints subject to Article 125 of Code of Criminal Procedure of the RF from parties to criminal proceedings against actions (omissions) and decisions of officials responsible for criminal proceedings approved by the court amounted to only 8.79%339. The results of our study are confirmed in other scientific studies devoted to this issue340.

Naturally, the fact itself does not indicate any problems. However, the law enforcers have many questions concerning the appeal procedure under Article 125 of Code of Criminal Procedure of the RF and related to studying factual circumstances of the criminal case. It is no accident the

339Appendix № 18.

340See, for example: Noskova E.V. The procedure for court processing of complaints according to Article 125 of the Criminal Procedure Code of the RF. – S.Pb.: Publishing House ‘Juridical Center’, 2014. P.245–250.