Volume 9 Number 4

Fall 2000

Feature

How the Constitutional Court is Reforming Criminal Procedure: The Nikitin Case
     Elena Barikhnovskaya

The Russian Code of Criminal Procedure is a piece of Soviet-era legislation. Adopted in 1963 and amended many times, it is still better suited for the suppression of an individual by the state than for granting equal rights to prosecution and defense. It was designed to guarantee the success of the prosecution.

Adoption of a new code was one of the steps urgently needed to bring Russian legislation into compliance with international standards. A draft code, submitted to the Duma for consideration in the early 1990s, has never been adopted. The main reason seems to be the preponderance of political interests among Russian lawmakers. In addition, an objective obstacle exists. The constitutional principles reflected in the code are so demanding that their consistent implementation is impracticable, given Russia’s current low level of economic development.

For example, Art. 22 of the Constitution, which states that everyone has the right to liberty and security of person and that a person can be arrested only on the basis of a judicial decision, limits detention to 48 hours. In theory, this means that a detainee must be brought before a judge within two days. But this is unenforceable in today’s Russia, with its vast geography, underdeveloped transport system, and the lack of resources available to law enforcement agencies. Many towns and villages lie too far from the nearest courts. Even in European countries much smaller than Russia, analogous periods of detention are longer than 48 hours. Currently, in any case, this provision is not in force. According to Sec. 2 of the Constitution, which refers to "transition period provisions," the legal basis for arrest and period of detention will come into force only after the adoption of a new code.

Because a new code has not been adopted, the Constitutional Court, from time to time, amends the old one. The Court typically reviews cases involving compliance of normative acts with the Constitution based on individual petitions. Normative acts or their provisions found unconstitutional by the Court cease to be in force. The scope of constitutional review is construed narrowly and is limited to the facts of the particular case on which a petition is based. As a result of Constitutional Court decisions, the existing code is gradually being brought into compliance with due-process standards. The procedural rights of prosecutor and accused, though far from equal, are less unbalanced than before, while the bench itself is losing its accusatory functions, typical of the Soviet system. The cumulative results of the Constitutional Court’s creative work amount to serious procedural innovations.

Nikitin’s counsel took advantage of such innovations. It also added new techniques and is currently working on the creation of others. The very defense of Nikitin by Yuri Schmidt became possible because of a Constitutional Court decision. In Decision No. 8-P of March 27, 1996, the Court recognized as unconstitutional, and abolished, the system whereby defense lawyers had to secure special permission to act in cases that involve classified information. After Nikitin’s arrest, investigators initially refused to deal with Yuri Schmidt, whom Nikitin had asked to be his counsel. Instead, FSB investigators named a lawyer of their own choosing to act on Nikitin’s behalf. This FSB-appointed lawyer, it was later revealed, was a former KGB officer. This practice, based on the relevant provisions in the laws regarding state secrets, was common practice in the Soviet Union. It allowed the FSB to decide whether a specific lawyer could be admitted as a defense counsel to a particular case or not, depending on whether the lawyer was supposedly reliable enough to have access to classified information. As a result, no outsiders (in other words, those who were outside the KGB/FSB network) were ever allowed to conduct the defense in political cases.

In its decision on Nikitin’s petition, the Constitutional Court recognized that Art. 21 of the Law on State Secrets (Law No. 5485-1 of July 21, 1993), requiring special permission for a citizen to gain access to classified information, cannot be applied to defense counsel in a criminal procedure. It ruled that not allowing a lawyer to conduct the defense in a criminal case on the basis of the absence of such permission is unconstitutional since it contradicts the right to legal advice (Art. 48 of the Constitution) as well as the principle of competitiveness in judicial procedure (Article 123.3). The notorious Soviet system of keeping political trials completely secret from anyone outside the KGB was thus outlawed by this decision.

Another procedural innovation used in the Nikitin case concerned the right of an accused and his counsel to challenge a court’s interim decision. Defense counsel appealed the court’s decision to send the case back for further investigation and, while this appeal did not bring success, the creation of an additional opportunity for appeal is important in and of itself.

The prevailing situation, prior to the Nikitin case, was as follows: the code granted the prosecution a right to initiate cassation review of interim decisions by the court of first instance, including a decision to return the case for further investigation, but deprived defendants of a similar right. (Cassation review is carried out by the court one level higher than the one that made the decision. An appeal for cassation review must be made within seven days of a lower court’s decision. The Criminal Procedure Code provides cassation of final decisions and of some interim decisions.) By its decision No. 20-P of July 2, 1998, the Constitutional Court ruled that Art. 331 of the code, setting forth the inequality of the parties to a criminal case in appealing interim court decisions, was unconstitutional. (The Constitutional Court decision concerned interim decisions on the appointment of a hearing date; on return of a case for further investigation where such decisions would be connected with compulsion of some sort; and on extending degrees of compulsion, such as periods of detention.)

The return of a case for further investigation is a specific Soviet concept. (In fact, it may not exist in any other developed democratic society.) According to Art. 332 of the currently valid code, a judge may abstain from rendering a verdict in a criminal case under consideration and send it back for "further investigation" if, for instance, he or she deems the investigation "incomplete." In practice, this may mean, simply, that there is not enough evidence for an indictment. (It is worth mentioning that the Constitutional Court ruled, at a later date, that the right of criminal courts and their judges to send back a case for further investigation on their own initiative was unconstitutional [Decision No. 7-P of April 20, 1999]; further investigation can occur only at the instigation of a prosecutor—or, theoretically, on the initiative of a defendant, a rather less likely eventuality.)

On October 29, 1998, the Saint Petersburg City Court sent the Nikitin case for further investigation on its own initiative. This decision was appealed both by the prosecution, which argued that the court already had enough evidence to evaluate the accusation, and by Nikitin and his defense, who argued the court should have acquitted the accused under the existing circumstances. Both appeals were denied, and the case was investigated for another year and a half. After this additional investigation, the case was again sent to the court with the same indictment. This new consideration, or reconsideration, ended in an acquittal on December 29, 1999.

Now that the case is over, and Nikitin’s exoneration in the eyes of the law is final, since it was confirmed by the highest judicial authority in Russia—the presidium of the Supreme Court—a petition to the Constitutional Court filed by Nikitin and his defense is awaiting consideration. The decision in this ancillary case may introduce additional important changes to the code. The petition is directed against the potential for "double jeopardy," implicit in the procedure of reviewing court decisions that have already entered into force.

Currently, any judicial decision under criminal, as well as civil, procedure that has entered into force can be reviewed by certain high courts. According to Art. 371 of the code, such a review can be opened at the initiative of certain higher judicial authorities and high-level prosecutors on the basis of an official act known as "a protest." Review of a protest, directed against an acquittal or against a sentence considered too lenient, is limited to one year after a judgment goes into effect (there is no limitation on the time period for reviewing other protests). Nikitin, through his defense team, seeks to declare as unconstitutional two aspects of such review: (1) the right of a prosecutor to issue a protest against an acquittal; and (2) the right of judicial review of acquittals that have already entered into force. In effect, any review that has resulted in a different (and more severe) outcome would be tantamount to being tried and punished twice for the same crime.

Elena Barikhnovskaya is a lawyer in the Saint Petersburg office of Salans Hertzfeld & Heilbronn and is a member of the Russian Lawyers Committee in Defense of Human Rights.

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