Comparative Criminal Law and Enforcement: Russia

In Russian criminal trials, the victim ( poterpevshiy) has rights equal to the defendant and prosecutor to attend the trial, make a statement, summon witnesses, examine witnesses, argue at the time of sentencing, and even prosecute the case (in jury trials) if he or she disagrees with the procurator's motion to dismiss. As in other European countries, the victim, or anyone else suffering a loss as a result of the allegedly criminal acts of the defendant, has the right to file a civil suit for monetary damages or restitution that will be heard along with the criminal case. The civil party may then join civil defendants other than the accused to answer the claim, such as an insurance company or guardian of the accused.

In jury cases, the trial judge summons twenty prospective jurors selected at random from the jury lists to appear in court on the trial date. The judge questions the jurors to make sure they are qualified and the parties (including the victim) may submit questions in writing to be posed by the judge to determine whether the jurors are biased and thus subject to challenge. The prosecution and defense each have two peremptory challenges that may be used to exclude jurors without cause. The jury is composed, in the end, of twelve jurors with two alternates.

After the reading of the accusatory pleading the defendant is then asked to enter a plea. If the defendant pleads guilty, this does not end the case as it does in the United States. A guilty plea is just considered to be a piece of evidence and the procurator must present other evidence to corroborate the guilty plea. In jury trials, however, upon an admission of guilt by the defendant, the court may then proceed to closing arguments if there is no dispute about the evidence and the defense and prosecution agree. Legislation was proposed in 1998 to extend this procedure to normal trials but it was defeated in the State Duma. In the late 1990s much interest was shown in introducing some kind of pleabargaining to reduce court caseloads.

After entry of a plea the defendant is given an opportunity to make a statement. Before doing so, the judge advises the defendant of the constitutional right to remain silent. While defendants usually give their testimony at the beginning of the trial (this is common practice in continental European countries), some judges in jury cases have allowed the defendant to testify later in the proceedings. After the defendant makes a statement (they rarely remain silent), the witnesses and experts testify. In standard inquisitorial fashion it is normally the judge who calls the witnesses and asks them to narrate what they know about the facts that are the subject of the criminal charge. This is quite different from the question-and-answer format followed in direct examination in common law trials. Only after the judge finishes asking follow-up questions to the witnesses, do the other parties have a chance to formulate questions. In Russian mixed courts the lay assessors may also ask questions of the defendant and witnesses, but rarely do. In jury courts, the jurors may submit written questions to be formulated by the presiding judge. The new principle of adversary procedure has led, especially in jury trials, to the judge taking a more passive role and allowing the parties to summon witnesses and do the bulk of the questioning. The 1995 Draft CCP also provides for party control of the summoning and questioning of witnesses.

During Soviet times the presumption of innocence was considered to be "bourgeois nonsense" inconsistent with the inquisitorial nature of Soviet criminal procedure. Although Article 49 of the Constitution now guarantees the presumption of innocence in criminal cases certain old practices persist that seem to contradict such a presumption. One is having the defendant speak first. Another is the provision requiring the trial judge to review the entire investigative dossier before trial to determine whether there is sufficient evidence to convict the defendant. In nonjury cases this ensures that the judge, whether deciding the case alone or as the dominant force in the mixed court, will be practically unable to give the defendant the benefit of a presumption of innocence when the trial begins. For this reason Italian judges are not permitted to read the investigative dossier. The most problematic procedural rule, however, is the power of the trial judge to return the case to the investigator to perform supplementary investigative acts after the trial has begun, in a jury case requiring dissolution of the jury. In Soviet times this rule enabled judges, in cases where there was insufficient evidence to convict, to avoid having to acquit the defendant and thereby impugn the integrity of the investigative organs. On 20 April 1999, the Constitutional Court ruled that this practice violates the constitutional presumption of innocence and the right to adversary procedure. The Constitutional Court indicated that courts should acquit the defendant in such situations.

When all the evidence has been presented, the parties give their closing summations. The last word in the trial is always personally that of the defendant. In jury trials the judge also instructs the jury on the law that is to be applied in the case and must summarize all the evidence that supports both the prosecution and defense theories of the case. It is reversible error for the judge to in any way indicate his or her opinion as to the guilt or innocence of the defendant in doing so.

In cases before the mixed court, the professional judge and the two lay assessors retire to deliberate together, where they must collegially decide all questions of law and fact relating to guilt and sentence. A majority vote is sufficient, whereupon the professional judge formulates a written judgment including the reasons for the findings on guilt and sentence. Prior to deliberation in jury cases the judge formulates a list of questions that the jury must answer. The list must minimally contain questions dealing with whether the acts constituting the crime were committed, whether the defendant was the person who committed them, and whether the defendant is guilty of their commission. Questions are asked separately as to each defendant and some judges formulate separate questions relating to all relevant conduct charged against the defendant as well as to all excuses or justifications raised by the defense and all aggravating or mitigating factors. In one case over one thousand questions were asked of the jury. Such "question lists" were typical in continental European jury systems during the nineteenth and early twentieth centuries and were meant to give the professional judge the possibility of formulating a reasoned judgment after a jury verdict. Guilty verdicts or answers unfavorable to the defendant require seven votes; not guilty verdicts or answers favorable to the defendant require six votes to be valid. After the jury reaches a verdict, the presiding judge evaluates the legal sufficiency of the jury's answers to the questions and enters a judgment of guilty or not guilty as to each charge. The Supreme Court has ruled that the jury must only decide questions of fact and has reversed many cases because the trial judge has formulated questions that call for legal conclusions.

The shakiness of the presumption of innocence in Russian criminal trials is reflected by the fact that acquittals are almost nonexistent. They occurred in only 0.36 percent of all cases in 1998. During the perestroika years the Soviet public was shocked by many stories of innocent people having been convicted due to coerced or tortured confessions and this was one reason why reforms were pushed, among them, that of returning to trial by jury. Indeed, juries have acquitted substantially more than nonjury courts, anywhere from 18–22 percent of the time. A disturbing development has been the refusal of law enforcement organs to accept acquittals. For instance, in November 1999 in Moscow, officers of the Federal Security Service, the successor of the KGB, entered a courtroom in camouflage uniforms and black masks and re-arrested two defendants who had been acquitted at trial by a military court. Such occurrences are not rare.