Comparative Criminal Law and Enforcement: Russia

The criminal investigation in serious cases is divided into two stages: an informal inquest (doznanie), performed by the police (militsiia), and a formal preliminary investigation ( predvaritel'noe sledstviia), usually conducted by a legally trained investigator (sledovatel') who works for the Ministry of Internal Affairs but is subordinate to the procuracy. Less serious cases are investigated by the police and their reports are submitted in writing directly to the courts, bypassing the formal preliminary investigation. The investigator's role is similar to that of investigating magistrates in France or Spain, who are, however, part of the judiciary. The modern European trend, however, is to entrust the public prosecutor with the formal criminal investigation, this change having been made in Germany in 1974 and Italy in 1988.

The activity of the police during the inquest is supposed to be limited to arresting suspects, securing the crime scene, and taking initial statements from available suspects and witnesses. The police should inform the procuracy within twenty-four hours of the arrest of a suspect and the case should then be turned over to the investigator who decides whether to initiate a formal criminal investigation. The investigator's actions are limited by strict rules of evidence-gathering laid down in the CCP. All investigative acts are meticulously documented in writing and collected in an investigative dossier that follows the case into the courts and serves as a repository for vital evidence during trial and appeal. The procurator has forty-eight hours after notification to either issue an order of preventive detention or release the suspect.

Most suspects against whom a preliminary investigation is initiated remain in custody in preventive detention facilities until trial. Although the maximum time for pretrial detention is fixed at two months, many extensions are available up to a maximum of eighteen months. Detention is authorized if there is fear the defendant will not appear for trial, will destroy evidence, commit more crimes, or just because of the seriousness of the offense. A Special Rapporteur for the United Nations has found that Russia's eighteen-month limit on pretrial detention violates Article 9(3) of the International Covenant on Civil and Political Rights and that the rate of detention is excessive (from 30 to 50 percent of persons facing at least one-year imprisonment). The figure in France, for comparison, is around 10 percent. The population in Russia's preventive detention centers rose from 238,000 in 1994 to about 300,000 in 1999.

Article 22(2) of the Constitution states that deprivation of liberty, including preventive detention, is only possible with a "judicial decision" and that such decision must be taken within forty-eight hours of arrest. Unfortunately, the Russian legislature has never enacted legislation implementing this constitutional protection. A halfway measure was enacted on 23 May 1992, which provided for the first time in modern Russian history a mechanism to appeal the procurator's decision on preventive detention to the courts. A detained person's petition for release must be conveyed to the court and procurator within twenty-four hours. Documents relevant for the decision of the case must be transferred to the court within an additional twenty-four hours (Art. 220.1 CCP). The judge must then decide the issue within three days of receiving the aforesaid documents (Art. 220.2 CCP). Although judges began granting such motions for release, officials of the procuracy and the Ministry of the Interior, which controls the police and prisoner transport, flouted the law and often refused to produce the prisoner or the papers required to decide the issue within the statutory time limit. They would also often re-arrest persons released by judges before they could leave the courtroom. On 14 June 1994, President Yeltsin himself violated the Constitution by issuing an edict on "immediate measures to defend the population from banditry and other manifestations of organized crime" that allowed detention of suspects for up to thirty days without charges.

To protect suspects against being coerced to confess to crimes, a recurrent problem in Soviet times, a constitutional right to counsel from the moment of arrest or detention was introduced (Art. 48(2) Const. RF). In addition, Article 51 of the Constitution guarantees the right not to testify against oneself, and the Supreme Court has interpreted this to mean that the police, procurator, or investigator must advise a suspect of the right to remain silent and of the right to counsel before commencing an interrogation. Counsel will be appointed for the indigent. Unfortunately the police routinely coerce suspects into "waiving" their right to counsel. Even where investigators try to supply a suspect with appointed counsel, lawyers sometimes refuse to represent indigent defendants because of the low pay for court-appointed lawyers. If suspects refuse to give a statement they are often tortured. There have been estimates that around 40 percent or higher of all suspects are tortured, usually through beating, but also by asphyxiation or electric shock. Police give other inmates in the pretrial detention facilities special privileges to beat, rape, or otherwise force suspects into confessing. Just the veiled threat of torture induces suspects to confess, even sometimes to crimes they did not commit.

Article 23(2) of the Constitution requires a judicial decision for any invasions of the right to privacy in one's writings, telephone conversations, and postal or telegraphic communications, and Article 24 requires a judicial decision for invasions of the home. Despite this and comparable provisions in the European Convention of Human Rights, such searches and seizures may still be authorized by the procurator alone. To prevent crimes the 1995 Law on Operational Investigative Activities has also given the police broader powers than those enumerated in the CCP to engage in both open and secret investigative activities. The law includes provisions dealing with wiretapping, electronic interception of conversations, controlled deliveries and the use of undercover informants but lacks adequate guidelines for issuance of warrants, or notifying targets of the measures after they have been undertaken. Russia's failure to eliminate the procurator's power to authorize invasions of constitutionally protected citizens' rights, a power recognized as belonging exclusively to a judge in modern human rights documents, can be attributed to the procuracy's staunch opposition to all reforms aimed at undermining its power.

Created by Peter the Great in 1722, the procuracy came to be known as the "eye of the emperor" due to its exercise of oversight over all judicial and administrative bodies. Although the procuracy was stripped of these "supervisory" functions pursuant to the reforms of 1864, and restricted for the most part to the prosecution of criminal cases, the Bolsheviks resurrected the pre-1864 model of the procuracy in 1922, vesting it again with general powers to supervise the legality of acts of administrative officials and the courts. The Soviet procuracy was undoubtedly the most powerful institution in the administration of justice. When citizens complained of a violation of their rights, their remedy, ironically, was to appeal to the procurator, not a court, at a time when the procuracy itself was working closely with the Committee of State Security (KGB) in investigating, arresting, and prosecuting dissidents. The only success reformers have had in limiting the institutional power of the procuracy was the elimination of its oversight of the courts, which was accomplished by the Law on the Procuracy passed by the Supreme Soviet on 17 January 1992.

When the investigator determines that there is sufficient evidence to hold the accused to answer for trial he prepares an accusatory pleading and forwards it to the procurator for review. The accused and his counsel have, at this point, the right to full discovery of the entire contents of the investigative dossier. The procurator may dismiss the case, amend the pleading, or forward the case to the court for trial.