March 22, 2015 by AK
Russia’s infamous Investigative Committee is pushing a bill to make judges in criminal cases search for “objective truth” rather than merely weigh arguments put forward by the prosecution and the defense. To that end, judges would be allowed – and encouraged – to call witnesses and otherwise conduct their own investigation during the trial.
Russian legal experts may call it a revolution, and I would call it a counterrevolution in Russian criminal justice. For this would be a throwback to the inquisitorial system of the Brezhnev decades – as the Investigative Committee’s lobbyist happily admits, inveighing against the pernicious influence of the alien Anglo-Saxon system.
Does it matter at all – Russian courts are readily copypasting from indictments to verdicts anyway? It matters still: with a vigorous defense by a well-connected lawyer and a bit of luck, an innocent defendant may get off with a suspended sentence. The bill would give even more power to judges, by default friendly to prosecutors, further emasculating the defense.
In its essential lawlessness, the state has to operate through channels of legal procedure. These have bottlenecks that may occasionally obstruct the Leviathan’s pursuit of its victims. Removing them would only empower the state against the individual.
If the bill passes, winning an acquittal in a Russian court will become even harder as the last vestiges of reasonable doubt as grounds for acquittal will be removed. The explanatory note by the bill’s sponsor makes it clear:
The legal fiction of presumption of innocence, which presupposes that irremediable doubt should be interpreted in favor of the defendant, may only be applied when it is impossible to reach an objective truth in the case, and only after exhaustive measures to establish it have been taken.
The prominent Russian lawyer Henry Reznik explains further:
This proposal in unconstitutional since it would eliminate two constitutional principles at once, presumption of innocence and adversariality.
Why is the Investigative Committee getting so itchy about it? It’s simple: they want to do away with acquittal for unproven guilt… Presumption of innocence, which this Duma deputy dislikes so much, equates unproven guilt with proven innocence. When one’s guilt has failed to be proven and all the avenues [for proving it] have been exhausted, innocence is recognized.
For example, investigators have put together elements of proof for months, perhaps a year, to provide evidence of guilt to the prosecutor. Once they have collected evidence of guilt and put together an indictment, the prosecutor decides whether there is enough evidence to insist on a conviction in court. Then it turns out during the trial that the evidence is faulty and cannot convincingly establish the defendant’s guilt. In this case, an acquittal is warranted because this doubt is interpreted in favor of the defendant.
What is the Duma deputy suggesting? If it turns out that the prosecutor has failed to provide the necessary proof, the court should not acquit but should order further investigation based on the incompleteness and should say: “Guys, you’ve done a bad job digging, go dig up some more!” Then the court stops being a body dispensing justice and takes the prosecution’s side.”
Since Russian courts can be safely presumed to be on the prosecution’s side most of the time, the bill would further consolidate this unholy alliance. And immediately comes the thought of the high windows in Mediterranean palaces of (in)justice, for Italy has already dispensed with that irksome notion, that insufferable legal fiction, presumption of innocence. I suspect I’ll never tire of repeating the maxim uttered by Italy’s supreme court in support of annulling an acquittal:
[I]t is not possible to come to a result, be it conviction or acquittal, characterized by coherence, believability and reason.
Reasonable doubt should mean one thing, acquittal, plain and simple. To argue against that is to advocate for tyranny.