Comparative Criminal Law and Enforcement: Russia

The de-sovietization of criminal law began during the latter years of perestroika when the Penal Code of 1960 was heavily amended to eliminate offenses such as anti-Soviet agitation, defaming the Soviet State, and parasitism, alleged violations of which had sent hundreds of thousands of Soviet citizens to the Gulag. But the code was also obsolete, especially due to the profound economic changes triggered by the massive privatization of state property and the move to a capitalist market economy. The 1996 Criminal Code is divided into a General Part, containing general principles relating to criminal responsibility and assessment of punishment, and a Special Part, listing the various offenses and the punishments threatened for the commission thereof. Although Russians continue to define crime, as in Soviet times, as a "socially dangerous act," the "goals" of the code and the interests it protects are no longer related to "the socialist legal order" as was the case under the old code. In most Western countries neither a substantive general definition of crime, nor a list of protected interests is provided. A purely formal notion prevails, whereby any act punishable in the criminal code is a crime. The new Russian code incorporates universally recognized principles of criminal law such as that of no punishment without a written law, no retroactive laws, and so on.

The general part. Persons are subject to the criminal law when they reach the age of sixteen years for normal crimes, and fourteen years for murder and other grave crimes. Persons who are insane at the time of commission of a crime may not be convicted thereof. A person is insane under the Russian Criminal Code if he or she "could not understand the factual character and social dangerousness of his acts (omissions) or control them as a result of chronic psychic disturbance, temporary psychic disturbance, imbecility or any other sick state of the psyche" (Art. 21 CC). Though Soviet criminal law did not recognize any form of diminished criminal responsibility for those who suffered from mental illness but were not legally insane, this has been included in the new code, but only as a mitigating factor in sentencing. Due to the staggering rate of alcohol-induced violent criminality throughout Russian history, being intoxicated has never been admissible to diminish criminal responsibility or mitigate punishment. While this remains true under the new code, being drunk is no longer an aggravating circumstances in sentencing as it was under the old code.

The new Criminal Code introduces some new factors that exclude guilt to go along with traditional justifications such as self-defense or necessity, or excuses such as duress. These include "innocent infliction of harm," by persons who, due to objective or subjective (mental) circumstances, could not have appreciated the dangerousness of their acts or have prevented the harm (Art. 28 CC), or who inflict harm while taking a socially useful justified risk (Art. 41 CC). Other innovations are that first-time offenders who commit less serious crimes can be freed of criminal responsibility if they engage in "active remorse" in the form of turning themselves in, aiding in the solving of the crime, or making restitution (Art. 75 CC). Reconciliation with the victim (Art. 76 CC) or a change in conditions that has caused either the offender or the crime to no longer be socially dangerous (Art. 77 CC) will also lead to release from criminal responsibility. Prosecutors have used these provisions to fashion bargains with offenders to work with the authorities in exchange for a dismissal, practices that compensate for the lack of statutorily recognized plea bargaining and a relative lack of prosecutorial discretion.

The goal of punishment under the new code is the re-establishment of social justice, the rehabilitation of the convicted person, and the prevention of the commission of new crimes (Art. 43 CC). The widely used Soviet punishment of banishment was abolished toward the end of the perestroika period, but the 1996 Criminal Code still includes the death penalty and other common forms of punishment: fine, prohibition to engage in a profession, confiscation of property, and deprivation of liberty among others. The death penalty can only be imposed for especially grave crimes against life and may not be imposed against women, men under eighteen years of age at the time of the commission of the offense, or men over sixty years of age at the time of judgment (Art. 59 UK). Whereas fifteen years was the maximum period of imprisonment under the old code, the 1996 code introduces life imprisonment as an alternative to the death penalty, and a maximum imprisonment of twenty years for noncapital crimes and thirty years if a person is sentenced for multiple crimes.

The death penalty. Although Empress Elizabeth was one of the first monarchs to abolish the death penalty in 1753, the ban remained in force only for a short time. Besides the extrajudicial murders of millions by Soviet authorities during its rule, death sentences were handed down by Soviet courts often and not only as punishment for murder. Because the Soviet Union did not publish criminal justice statistics it is difficult to know how many people were judicially executed until the glasnost reforms instituted under Mikhail Gorbachev. Executions decreased during the perestroika years from 770 in 1985 to 195 in 1990. It was only in 1991 that the death penalty was eliminated for economic crimes, such as theft of socialist property, bribery, and illegal currency transactions, and not until 1994 that it was eliminated as a punishment for counterfeiting. The number of executions during Yeltsin's presidency fluctuated depending on presidential politics. In 1992 the president established a Clemency Commission that commuted 337 of the 378 death sentences submitted to it. Suddenly, however, Yeltsin proclaimed a tougher policy in the fight against crime and only five of 129 death sentences were commuted, and fifty-six persons were executed in 1996 after Russia had declared a moratorium on executions as a condition of its entry into the Council of Europe. Russia was strongly criticized by the Council of Europe and no executions have apparently taken place since August of 1996. The Sixth Protocol of the European Convention of Human Rights declares the death penalty to be a violation of the right to life.

Between 1989 and 1992 most of the former socialist countries of non-Soviet Europe abolished the death penalty. With respect to the successor states to the Soviet Union, Latvia declared a moratorium on executions in 1996 and finally eliminated the death penalty in 1999. The Lithuanian Constitutional Court struck down the death penalty in 1998 and eliminated it from its Criminal Code in 1999. Both countries, as well as Estonia, which has declared a moratorium on the death penalty, are full members of the Council of Europe. Like Russia, Ukraine agreed to a moratorium on executions as a condition of entering the Council of Europe, but outraged that body by secretly executing thirteen people in 1997. The Ukrainian parliament finally eliminated the death penalty in February of 2000. Membership in the Council of Europe has also pushed Moldavia (1995), Georgia (1997), and Azerbaijan (1998) to abolish the death penalty and Armenia to abide by an unofficial moratorium. Belarus, which has still not been accepted into the Council of Europe, executed thirty persons in 1997 and still enforces the death penalty. In Soviet Asia, Kyrgystan declared a moratorium (December 1998), though courts continued to impose death sentences as of January 2000. Turkmenistan executed around four hundred persons in 1996 and sentenced seven hundred to death in 1997, mostly for drug-related crimes. In 1999, however, it also declared an official moratorium. In 1996 Kazakhstan executed forty-two persons and made a reduced number of offenses punishable by death in its new Criminal Code, which went into effect 1 January 1998. Death sentences continue to be imposed and executed in Tadjikistan and Uzbekistan as well, six having been executed in the latter republic in January 2000. All Soviet Asian states with the exception of Kyrgystan still impose the death penalty for drug trafficking.

Even after Russian executions stopped in August 1996, trial courts continued to sentence people to death in aggravated murder cases and these sentences were often affirmed by the Supreme Court. On 2 February 1999, however, the Constitutional Court declared that the death penalty could no longer be imposed on equal protection grounds. Inasmuch as Article 20 of the Constitution guarantees the right to trial by jury for anyone facing the death penalty and the jury system only functions in nine Russian regions and territories, the Court held that no death sentences could be imposed anywhere until trial by jury was available throughout Russia.

The special part of the criminal code. The Criminal Code contains a typical list of crimes against the person (homicide, sexual offenses, assaultive conduct), but also includes an offense punishing the transmission of venereal diseases or the HIV virus (Arts. 121–122 UK). Chapter 19 of the Criminal Code punishes violations against "the constitutional rights and freedoms of the person and citizen," among them acts infringing on the inviolability of one's private life, correspondence, and dwelling or on the liberty of confession or assembly, rights that went unprotected in Soviet times.

Among the most radical changes in the 1996 Criminal Code are those contained in Section VIII relating to "Crimes in the Economic Sphere." Under Soviet Law all types of private enterprise were illegal and, at times, severely punished. Theft of state property was considered a more serious crime than theft of private property. Entrepreneurial activity is now protected by the Constitution and regulated in the criminal law, with offenses punishing the hindering of legal entrepreneurial activity, but also engaging in illegal business dealings such as money laundering, restricting competition, false advertising, securities or credit fraud, fraudulent bankruptcy, tax evasion, and consumer fraud. Drafters of these provisions used the American Model Penal Code as a model. New provisions punish "ecological crimes" and "crimes in the sphere of computer information," including hacking and creating viruses (Arts. 272, 273 CC). Russia has suffered disastrous ecological consequences from the near complete absence of laws regulating defense and heavy industry during Soviet times. The new code punishes seventeen separate environmental crimes, some relating to general violation of rules, others to improper handling of dangerous substances such as biological agents or toxins, still others protecting distinct resources such as water, the atmosphere, the sea, the continental shelf, the soil, the subsoil, and flora and fauna (Arts. 248, 250–262 CC).

The new code punishes incitement to national, racial, or religious hatred (Art. 282 CC), an important provision in a racially, ethnically, and religiously diverse country with a history of conflict among the various groups. Chapter 30 punishes abuse of public office, bribery, and so on (Arts. 285–293 UK). Despite the rampant corruption at all levels of Russian government there have been no prosecutions during the Yeltsin years of the ruling political elite connected with the corrupt privatization of Soviet industry and the granting of sweetheart export and customs privileges. Nor have the provisions of Chapter 31 relating to "crimes against the administration of justice" (Arts. 294–316 CC) been enforced, despite the open refusal of executive organs of the administration of justice to abide by judicial decisions and the increase of violent attacks on judges.

Finally, the 1996 Code has aimed to strengthen the provisions designed to fight organized crime. The general part of the code provides for aggravation of sentences if a crime is committed by a group of persons pursuant to a conspiracy, by an organized group or criminal organization (Art. 35 CC). Chapter 24 punishes individual "crimes against social security" such as terrorism, taking hostages, organizing an illegal armed group, and formation of a criminal organization. In 1998, 28,633 crimes were committed by organized groups or criminal organizations (including 152 contract killings).