Russia

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Additional Resources

Background

The Russian Federation is the biggest country all over the world, with its territory of 17 million sq. km. and 139.4 million of people, Moscow is its capital. Following the Russian revolution 1917, Russia became the largest and leading constituent of the Soviet Union, the world's first constitutionally socialist state and a recognized superpower. The Russian Federation was founded following the dissolution of the Soviet Union in 1991, but is recognized as the continuing legal personality of the Soviet state. Russia is a permanent member of the United Nations Security Council, a member of the G8, G20, the Council of Europe, the Asia-Pacific Economic Cooperation, the Shanghai Cooperation Organization, the Eurasian Economic Community, the Organization for Security and Cooperation in Europe (OSCE), and is the leading member of the Commonwealth of Independent States.

Type of system

The legal system of the Russian Federation is civil – legal system inspired by Roman law, the primary feature of which is that laws are written into a collection and codified. The judiciary in Russia is split into three branches: the regular court system with the Supreme Court at the top, the arbitration court system with the High Court of Arbitration on top, the Constitutional Court and constitutional (charter) courts of the subjects of federation as separate bodies. Criminal cases are heard by magistrates’ courts, courts of districts, courts of federal subjects (states), Supreme Court depending on the severity of a crime.

Sources of Defendant's rights

Constitution

Some fundamental defendant’s rights are guaranteed by the Constitution of Russian Federation adopted 12 of December, 1993. Moreover, the universally-recognized norms of international law and international treaties and agreements of the Russian Federation are a component part of its legal system. It means that after ratifying a treaty Russian Federation has an obligation to integrate the treaty’s norms into national legislation.

  • article 20 – right to have the case examined by jury trial;
  • article 22 – time limitation of the detention without the court’s decision;
  • article 23 – right to privacy of letters limited only by court warrant;
  • article 24 - ensure right to discovery for everyone;
  • article 25 – privacy of the home;
  • article 46 – guarantee judicial protection of freedoms and rights, the right to appeal to international bodies;
  • article 47 - the right to the consideration of the case in competent court;
  • article 48 - the right to qualified legal assistance, the right to receive assistance of a lawyer (counsel for the defense) from the moment of detention, confinement in custody or facing charges;
  • article 49 – the presumption of innocence;
  • article 50 – double jeopardy, the right to appeal against the judgment of a lower court decision to a superior court;
  • article 51 – the right not to give self-incrimination evidence or against husband/wife and close relatives;
  • article 54 – Ex Post Facto.

Statutory

The Code of Criminal procedure (CCP) of 2001 contains the variety of defendant’s rights at all stages of the criminal process.

Other Sources

Russian law implements the rights provided by following the most important international documents: International Covenant on Civil and political Rights (ratification - 1973), International Covenant on Economic, Social and Cultural Rights (ratification - 1973), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (ratification 1987), European Convention on Human Rights and its Five Protocols (ratification – 1998), the Convention on the Rights of the Child (ratification - 1990), United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) (ratification - 1973), the Convention on the Elimination of all Forms of Discriminations Against Women (ratification - 1981).

Protections from police

  • Article 13 of the law “On the police” contains grants and limits of the rights of the police.
  • Article 53 of the law “On the police” - the right to appeal against police officer’s actions in violation of the rights and lawful interests of citizens.
Identity Checks

The police have a right to check identity documents of citizens, if there is a reason to suspect them of committing a crime or belief that they are wanted.

Stop and Frisks

The police have a right to carry out personal searches of citizens and their property, when there is evidence that these citizens have a weapon, explosive devices, drugs, psychotropic substances.

Right to silence
  • Article 51 of the Constitution guarantees the freedom from self-incrimination.
  • Article 47 of the CCP - the accused has the right to give evidence, not an obligation that means he may deny giving it.
  • Article 173 of the CCP - if the accused refuses to give evidence, the investigator should note it.
Right to counsel
  • Article 48 of the Constitution - everyone is guaranteed the right to qualified legal assistance. If the defendant cannot provide a lawyer for himself, he/she may ask the state for legal assistance and it is free. Any person detained, taken into custody, accused of committing a crime have the right to receive assistance of a lawyer (counsel for the defense) from the moment of detention, confinement in custody or being charged.
Confessions

See the right to silence.

Chapter 40 of the CCP contains a special order of judicial proceeding when the accused agrees with the charge brought against him and asks for passing a sentence without conducting the judicial proceedings. There must be consent of the public or of the private prosecutor and of the victim as well.

Search and seizure
  • Article 182 of the CCP: making a search is allowed if there is a sufficient data to believe that the person may keep in the place the instruments of crime, objects, documents and valuables. The search is to be performed on the basis of an investigator's resolution. The search in the living quarters is to be effected on the basis of a judicial order.
  • Article 183 of the CCP: the seizure is allowed if it is known exactly where certain objects and documents are and who is keeping them. The seizure is to be performed on the basis of an investigator's resolution. The seizure of the accounts and other bank documents is to be effected on the basis of the judicial order. Before the start of the seizure, the investigator suggests the subject to the seizure to be given out voluntarily, and if not, he makes the seizure under coercion.
Arrest

The police protect everyone's right to liberty and security. Before the court's decision the person may not be detained for more than 48 hours.

  • Article 14 of the law “On the police” provides the police’s right to arrest persons under the specific circumstances. In each case the officer must explain the person detained his right to counsel, right to an interpreter, the right to inform relatives or close persons of the fact of his detention, the right to refuse to give an explanation.

During detention

Freedom from prolonged pre-trial detention
  • Article 94 of the CCP - after an expiry of 48 hours from the moment of detention, the suspect is to be released. There are two exceptions: if the court issues an order for taking into custody or the court extends the term of detention.

See more in pre-trial detention (police procedure).

Freedom from punishment
  • Article 49 of the Constitution guarantees the presumption of innocence. A defendant facing criminal prosecution is considered innocent until proven guilty.
Right to counsel
  • Article 48 of the Constitution - any person detained, taken into custody, accused of committing a crime shall have the right to receive assistance of a lawyer (counsel for the defense) from the moment of detention, confinement in custody or facing charges accordingly.
  • Article 49 of CCP - the counsel for the defense takes part in the criminal case as from the moment of the actual detention of the person suspected of committing a crime.
Right to habeas corpus

There is no right to habeas corpus.

Right to medical care
  • Article 17 of the federal law “On the detention of persons suspected or accused of committing crimes” - suspects and accused have the right to receive free health-care provision.

Rights at trial

Double jeopardy
  • Article 50 of the Constitution guarantees that no one may be convicted twice for one and the same crime.
  • Article 6 of the Criminal Code of the Russian Federation states that no one may bear double criminal jeopardize for one and the same crime.
Legality principle
  • Article 7 of the CCP – The court and officials cannot apply laws contradicting to the CCP. The rulings of the court, the resolutions of the judge, of the prosecutor, the investigator and the inquirer must be lawful, substantiated and motivated.
  • Article 15 of the Constitution - If there are contradictions between CCP and universally recognized principles and norms of international law and international treaties of Russian Federation, the latter are applied.
Presumption of innocence
  • Article 49 of the Constitution of the Russian Federation guarantees the presumption of innocent. Everyone accused of committing a crime is considered innocent until his guilt is proved according to the rules fixed by the federal law and confirmed by the sentence of a court which has come into legal force. Furthermore, the accused is not obliged to prove his innocence and irremovable doubts about the guilt of a person are interpreted in favor of the accused.
  • Article 14 of CCP adds that “the burden of proving the charge and of refuting the arguments cited in defense of the suspect or of the accused, is on the prosecution”.
Standards of proof and standards for conviction
  • Article 75 of the CCP - the proof, obtained with a violation of the demands of the CCP, is qualified as inadmissible. Inadmissible proof are deprived of legal force and cannot serve as a basis for the accusation or be used for proving any one of the circumstances subject to proving.
  • Article 14 of the CCP - the verdict of guilty cannot be based on suppositions.
  • Article 5 of the Criminal Code (CC) contains the principle of guilt - a person is to be brought to criminal responsibility only when his guilt has been established. According to article 24 of the CC, there are two forms of guilt – intent and negligence. An act committed negligently is recognized as a crime only in cases where this is specially provided for by the relevant article of the special part of the code.
  • Article 25 of the CC - clear intent: the person realized the social danger of his actions (inaction), foresaw the possibility or the inevitability of the consequences, and willed such consequences to ensue. Indirect intent: the person realized the social danger of his actions (inaction), foresaw the possibility of consequences, did not wish, but consciously allowed these consequences.
  • Article 26 of the CC – thoughtlessness: the person foresaw the possibility of the consequences of his actions (inaction), but expected without valid reasons that these consequences would be prevented. Carelessness: the person did not foresee the possibility of the consequences of his actions (inaction), although he could and should have foreseen these consequences.
Right to compulsory process
  • Articles 47, 53 of CCP - accused and his defense council have the right to present evidences and make a motions, including the calling a witness to the court.
  • Article 231 of CCP – in preparation for the trial the judge decide a question of calling people on the list submitted by the parties.
  • Article 271 of CCP - the court may not dismiss the motion to interrogate as a witness the person came to the court on the initiative of the parties.
  • Article 56 of CCP – a witness may not default when summoned by investigator, prosecutor or the court.
  • Article 253 of CCP – measures for subpoena and bringing those who failed to appear in the court.
Right to confront witnesses
  • Article 278 of CCP – the party, at whose request a witness had summoned to trial, ask question the first. The judge asks questions after his interrogation by the parties.
Right to counsel
  • Article 248 of CCP - the defendant's defense counsel takes part in the study of the proof and file petitions and express his opinion to the court on the merit of the accusation and on its proving, on the circumstances mitigating the defendant's punishment or acquitting him, on the measure of the punishment and also on the other questions, arising in the course of the judicial proceedings.

If the counsel for the defense fails to come and it is impossible to replace him, the judicial proceedings is postponed. If the counsel for the defense is replaced, the court gives time for the counsel for the defense who has joined the criminal case proceedings anew, to get acquainted with the criminal case materials and to prepare for the participation in the judicial proceedings. At the request of the counsel for the defense, the court may repeat the interrogations of the witnesses, of the victims and of the experts, or the other judicial actions.

Right to a fair trial

Neither Constitution nor Code of Criminal Procedure states this right, however, there are some provisions that ensure the right.

  • Article 19 of the Constitution - all people shall be equal before the law and court.
  • Article 46 of the Constitution – guarantee judicial protection of freedoms and rights, the right to appeal to international bodies.
  • Article 47 of the Constitution - the right for the competent court and judge.
  • Article 49 of the Constitution - the presumption of innocence, alongside with irremovable doubts about the guilt of a person shall be interpreted in favor of the accused.
  • Article 241 of the CCP - the judicial proceedings on criminal cases in all the courts are open, with the exception of the cases pointed out in the code.
Right to notice of charges
  • Article 172 of CCP - A charge is brought against a person not later than three days from the day of passing the resolution in the presence of his counsel of the defense, if the latter is taking part in the criminal case.

The defendant has the right to ask for council for the defense from the moment of accusation. She/he may also file a motion for guaranteeing the participation of a counsel for the defense by the investigator.

If the accused refuses to sign the resolution, the investigator notes it. The investigator hands in to the accused and to his counsel for the defense a copy of the resolution on taking the given person to the bar in the capacity of defendant.

Right to non self-incrimination
  • Article 77 of the CCP - admission by the accused of his guilt in committing the crime can serve as the foundation for the charge only if his guilt is confirmed by the aggregate of the proof, existing on the criminal case.

See more in the section “Right to silence”.

Right to a speedy trial

Neither the Russian Constitution nor the CCP guarantee the right to a speedy trial.

Right to trial by jury
  • Article 47 of the Constitution - the accused of committing a felony has the right to the examination of his case by a court of jury.
  • Section 12 of CCP contains specifics of the proceedings in a court with the participation of jury.
Right to impartial judge
  • Article 120 of the Constitution - judges are independent and submit only to the Constitution and the federal law.
  • Article 5 of the federal constitutional law “On the judiciary in the Russian Federation” - the right to impartial judge.
  • Article 61 of the CCP - the provision about the circumstances precluding the participation in proceedings in a criminal case.

The right to file a motion includes the motion for judge recusation.

  • Article 65 of the CCP - The recusation filed against the judge examining the criminal case on his own, or the petition of the application of the measure of restriction or of the performance of investigative actions, or the complaint against the resolution on the refusal to institute a criminal case or to terminate it, shall be resolved by the same judge.

Sentencing

Capital punishment
  • Article 20 of the Constitution - “capital punishment until its complete elimination may be envisaged by a federal law as an exclusive penalty for especially grave crimes against life, and the accused shall be granted the right to have his case examined by jury trial.”
  • Article 49 of Criminal Code of the Russian Federation includes the provision that capital punishment, as an exclusive penalty, may be imposed only for especially grave crimes encroaching on human life. Capital punishment shall not be applied to women, nor to persons who have committed offences at below 18 years of age, nor and to men who have reached 65 years of age by the time of adjudication.

April 16, 1996 Russia signed the protocol number 6 to the European Convention on Human Rights and Fundamental Freedoms concerning the abolition of the death penalty. February 2, 1999 Russian Constitutional Court passed Resolution № 3-P, which declared unconstitutional the possibility of the death penalty in the absence of jury trials in all regions of the country. On January 1, 2010 jury trials were to begin to act in the latter the subject of the federation, where they still were not - in the Chechen Republic. In this regard, the Supreme Court inquired about the possibility of the death penalty from that point to the Constitutional Court. November 19, 2009 the Russian Constitutional Court acknowledged the impossibility of the death penalty in connection with its obligations under the protocol number 6.

Ex-post facto punishment
  • Article 54 of the Constitution - no one may bear responsibility for the action which was not regarded as a crime when it was committed.
Freedom from cruel or unusual punishment
  • Article 7 of Criminal Code of the RF - Punishment and other legal measures applicable to a person who has committed a crime may not pursue the aim of causing physical suffering or debasement of human dignity.
  • Article 21 of the Constitution - no one shall be subject to torture, violence or other severe or humiliating treatment or punishment.
Freedom from torture
  • Article 21 of the Constitution - no one shall be subject to torture, violence or other severe or humiliating treatment or punishment.

A person who is under investigation in the criminal case, file a complaint on the use of torture. The complaint is checked by the investigator. Investigator on the basis of the results of preliminary verification institutes criminal proceedings or refuses to initiate criminal proceedings.

  • Article 148 of CCP - The refusal may be appealed in court. If the court found the refusal reasonable the court makes an appropriate decision. In these cases, the applicant may appeal to a higher court.

See more about bringing witnesses at section “Right to compulsory process” and about evidences section “Exclusionary Rule”.

Right to appeal
  • Article 46 of the Constitution guarantees the right to appeal, according to international treaties of the Russian Federation, to international bodies for the protection of human rights and freedoms, if all the existing internal state means of legal protection have been exhausted.
  • Article 50 of the Constitution - everyone convicted for a crime have the right to appeal to the superior court, as well as to ask for pardon or a mitigation of punishment.
Right not to be fined excessively
  • Article 46 of the Criminal Code - the amount of a fine is determined by a court depending on the gravity of the crime and the property status of the convicted person and his family, as well as on the convicted person's ability to receive a wage or any other income. With regard for the same circumstances a court may impose a fine payable in installments for a term of up to three years.

Rights in prison

Conditions of confinement

The conditions of confinement depend on the type of correctional facilities, regime there and conditions.

  • Article 82 of the Penal Code – the principle of the separation of different categories of convicts.
  • Article 87 of the Penal Code - within a single colony sentenced to imprisonment may be a conventional, lightweight, and strict conditions of confinement.
Immigrant detention
  • Articles 46, 47 of CCP - suspects and accused have the right to give the evidence and the explanations in his native tongue or in the language, of which he has a good command; to make use of an interpreter's services free of charge.
Right to medical care in prison
  • Article 12 of the Penal Code - convicted have the right to health, including the receipt of primary care and specialist care as an outpatient or inpatient setting. Health care facilities (hospitals, specialized psychiatric and tuberculosis hospitals) and medical units in the penal system are organized. Administration of correctional facilities is responsible for fulfilling sanitary and epidemic control requirements to ensure the health of convicts. In more details the right to medical care can be find in house rules of prisons.
Mental health care
  • Article 12 of Penal Code provides alongside with the right to medical care the right to mental health care. Convicted have the right to psychological assistance provided by the employees of the prison psychological services and other persons entitled to such assistance. Participation of prisoners in activities related to the provision of psychological care is carried out only with their consent.
Restriction of rights

To obtain legal assistance to convicts on their applications granted meetings with attorneys and other persons entitled to legal aid. Visits are provided in private, out of earshot of third parties, without the use of technical means of listening. The number of visits is not limited, they are held up to 4 hours in the off hours for the convicted, and only during the hours from the time of getting up to lights-out.

Women's rights in prison
  • Article 9 of the Constitution - man and woman enjoy equal rights and freedoms and have equal possibilities to exercise them.
  • Article 177 of the Penal Code – to the convicted pregnant women, women with young children, serving a sentence in a penal colony, a court may grant a deferment sentence until the child reaches the age of fourteen.
  • Article 80 of the Penal Code – the separation of convicted men and women is established in correctional facilities.
  • Article 100 of “House rules of prisons” - children’s home may be organized for women with children. The necessary conditions for normal life and development of children are provided in children's homes. Convicted women may place children under three years old in the orphanage of correctional facilities, to communicate with them in their spare time without any restrictions. They may be allowed to live together with their children.

Supervision and searches of convicted women are conducted by female staff.

Ways to protects rights

Motions

  • Article 119 of the CCP – the defendant, his council for defense have the right to file a motion for the performance of the procedural actions (ask for examination, call for witness, bring witness to the court) or for passing the procedural decisions (exclude evidence from the list, recusation of the judge, expert). It is the first remedy to protect and means of realization of defendant’s rights.

Exclusionary Rule or Nullity of Procedure

  • Article 75 of the criminal procedure Code - the proof, obtained with a violation of the demands of the CCP, is qualified as inadmissible. Inadmissible proof are deprived of legal force and cannot serve as a basis for the accusation or be used for proving any one of the circumstances subject to proving.
  • Article 235 of the Criminal Procedure Code - the parties are entitled to file a petition for delisting any evidence presented at trial.

Civil Action

  • Article 44 of the CCP - the notion of civil plaintiff. There must be an official order to recognize a person as the civil claimant. The civil claimant may file a civil claim for the material compensation of the moral damage, alongside of the material. A civil claim may be presented after the institution of criminal proceedings and up to the end of the investigation in court of the first instance.
  • Article 230 of the CCP – the right to ask to take action to ensure compensation for the harm caused by crime or possible confiscation of property.

Police Procedures

Complaint/information

  • Article 141 of the CCP - A report on a crime may be made either verbal or in writing. A written report on a crime is signed by the applicant. A verbal report on a crime is entered into the protocol, which is signed by the applicant and by the person who has accepted the given report. The applicant is warned about the criminal liability for a deliberately false denunciation. An anonymous report on the crime cannot serve as a reason for the institution of a criminal case.
  • Article 144 of the CCP - the inquirer, inquiry body, investigator must check the information of any offense committed or imminent crime and within the competence to take action on it no later than three days after the receipt of the information. Refusal to accept reports of crime may be appealed to the prosecutor or the court.

Arrest, search and seizure laws

Stops and Frisks
  • Article 13 of the law “On the police” - the police has a right to carry out personal searches of citizens, the inspection of the premises of things with them, as well as inspection of their vehicles when there is evidence that these citizens have a weapon, explosive devices, drugs, psychotropic substances.
Arrests

The police protect everyone's right to liberty and security. Before the court's decision the person may be not detained for more than 48 hours.

  • Article 14 of the law “On the police” provides the police’s right to arrest persons under the specific circumstances. In each case the officer must explain the person detained his right to counsel, right to an interpreter, the right to inform relatives or close persons of the fact of his detention, the right to refuse to give an explanation.
Pre-trial detention
  • Article 108 of the CCP says about taking into custody as a measure of restriction. It is a pre-trial detention. Taking into custody is applied: a) through a court decision towards the suspect or the accused of committing crimes for which the law establishes b) the punishment in the form of the deprivation of freedom for a term of over two years, c) if it is impossible to apply a different, milder measure of restriction. For choosing a measure of restraint in the form of detention, the concrete circumstances are to be indicated in the judge's ruling which served as the grounds for the judge to adopt such a decision.
  • Article 109 of the CCP - time restrictions of pre-trial detention. Holding in custody during the inquisition of crimes may not exceed two months. This term may be extended by the judge for a term of up to six months. Further extension of the term may be effected with respect to the persons, accused of committing grave and especially grave crimes, only if the criminal case is of a particular complexity and if there are grounds for selecting this measure of restriction, by the judge of the same court upon application from the investigator, filed with the consent of the head of investigative body, for up to twelve months. The term of holding in custody for over twelve months to eighteen months may be extended only in exceptional cases. A further extension of the said term is inadmissible. The accused, who is held in custody, is a subject to an immediate release.
Searches
  • Article 182 of the CCP: making a search is allowed if there is a sufficient data to believe that the person may keep in the place the instruments of crime, objects, documents and valuables. The search is to be performed on the basis of an investigator's resolution. The search in the living quarters is to be effected on the basis of a judicial order.

Lineups and other identification procedures

No.

Interrogation

Before formal charge in court
  • Article 46, 47 of the CCP – the right to have meetings with counsel in private and in confidence, including before the first interrogation of the accused/suspects.
  • Article 94 of the CCP - Before the interrogation starts the suspect at his request is provided with an opportunity to meet his defense counsel in private and confidentially. Where it is necessary to commit procedural actions with the participation of the suspect, the duration of a meeting exceeding two hours may be limited by the inquirer, investigator and prosecutor with obligatory preliminary notification of the suspect and his/her defense counsel on it. In any case the duration of the meeting may not be less than 2 hours.
After defendant is formally charged
  • Article 173 of the CCP - the investigator interrogates the accused immediately after the charge is brought against him. At the beginning of the interrogation, the investigator finds out: a) whether the accused recognizes himself as being guilty, b) whether he wishes to give evidence on the merits of the charge brought against him and c) in what language. If the accused refuses to give evidence, the investigator notes it in the protocol of his interrogation. A repeated interrogation of the accused on the same charge, if he has refused to give evidence at the first interrogation, may be conducted only at the request of the accused himself. At every interrogation of the accused, the investigator compiles a protocol.
Enforcing the rules (procedures to protect against illegal interrogation)
  • Article 189 of the CCP contains general rules of conducting the interrogation.
  • Article 173 of the CCP - at each interrogation of the accused investigator writes a protocol.

If these requirements are not met, the evidence can be excluded, according to article 75 of the CCP (“Evidence obtained in violation of the CCP, are inadmissible. Inadmissible evidences have no validity and cannot be used as a basis for prosecution”).

Right to counsel

  • Article 46, 47 of the CCP – have meetings with counsel in private and in confidence, including before the first interrogation of the accused/suspects.

Court Procedures

Pre-trial

Initial Court-Appearance

No.

Charging instrument
  • Article 171 of the CCP - if there is a sufficient proof, comprising a basis for bringing a charge against the person for the perpetration of a crime, the investigator passes a resolution on taking the given person to the bar in the capacity of the defendant.
  • Article 171 of the CCP - a charge is brought against a person not later than three days from the day of passing the resolution on taking him to the bar in the presence of the defendant, of his counsel, if the latter is taking part in the criminal case.

The investigator notifies the accused about the day of bringing the charge and simultaneously explains to him his right to invite a counsel for the defense on his own or to file a petition for guaranteeing the participation of a counsel for the defense by the investigator. The accused, who is held in custody, is informed about the day when the charge is going to be brought through the administration of the place where he is held in custody.

The investigator, having identified the person of the accused, announces to him and to his counsel for the defense, if the latter is taking part in the criminal case, the resolution on taking the given person to the bar in the capacity of defendant. In this case the investigator explains to the accused the substance of the presented charge, as well as his rights.

If the accused or his counsel for the defense does not appear at the time fixed by the investigator, and also if the place of location of the accused is not established, the charge is brought on the day of the actual appearance of the accused or on the day of his being brought forcibly on the condition that the investigator has provided for the participation of a counsel for the defense.

The investigator hands in to the accused and to his counsel for the defense a copy of the resolution on taking the given person to the bar in the capacity of defendant.

Preliminary hearing
  • Article 229 of the CCP contains the grounds for conducting a preliminary hearing.
  • Article 234 of the CCP - a preliminary hearing is conducted by the judge on his own in a closed session with the participation of the parties. Upon a petition from the accused, a preliminary hearing may be carried out in his absence. The non-appearance of the other timely notified participants in the procedure on the criminal case is not seen as an obstacle to conducting a preliminary hearing.
  • Article 235 of the CCP - When considering a motion to exclude evidence, claimed by the defense on the grounds that the evidence was obtained in violation of the CCP, the burden of rebuttal arguments presented by the defense rests with the prosecutor. In other cases, the burden of proof is on the party which filed a motion.
Pre-trial motions
  • Article 235 of the CCP - the parties have the right to enter a motion for the exclusion of any proof from the list of proof, presented during the judicial proceedings. If a motion is filed, its copy is to be handed over to the other party on the day when the petition was lodged with the court.

The judge has the right to interrogate a witness and to enclose to the criminal case the document, mentioned in the motion.

If the basis of the exclusion of a proof is that the proof was obtained with a violation of the demands of the CCP, the burden of refutation of the arguments rests with the public prosecutor.

If the court has taken the decision on the exclusion of proof, the given proof loses its legal force and cannot be laid into the foundation of the sentence or of another court judgment, or be studied and made use of in the course of the judicial proceedings.

If the criminal case is examined by a court with the participation of jurors, the parties or the other participants in the court session have no right to inform the jurors about the existence of proof that has been excluded by the decision of the court. When considering the criminal case on the merits, the court has the right, upon a motion from a party, to once again examine the question about recognizing the excluded proof to be admissible.

Discovery
  • Article 217 of the CCP - the investigator presents to the accused and to his counsel materials of the criminal case. The demonstrative proof and any enclosures to the protocols of the investigative actions also are to be submitted for acquaintance.

The accused and his counsel cannot be restricted in the time necessary for familiarization with the materials of the criminal case. If the accused held in custody and his/her counsel clearly temporize the familiarization with the criminal case materials, then on the basis of the judicial decision a definite term for familiarization with the materials is to be fixed. If the accused and his/her counsel have not familiarized themselves with the materials of the criminal case within the time period fixed by the court without sound reasons for doing so, the investigator is entitled to decide on termination of the given procedural action.

Then the accused and his counsel decide what kind of motions they are going to file. For example, what witnesses, experts and specialists are to be summoned to the court session for an interrogation and for the confirmation of the position of the party of the defense.

Trial

Nature of the trial
  • Article 123 of the Constitution - court addressed the constitutional provision on the implementation of the legal proceeding on the basis of competition and equality of parties is extended to all stages of criminal proceedings.
  • Article 15 of the CCP - specifically dedicated to the consolidation of the normative principle of the adversarial.

The construction of Article 15 of the CCP is quite successfully reflects the most important properties of these principles, namely that "criminal proceedings based on the adversarial" (part 1), that "the prosecution and defense are equal before the court" (part 4), that court " is not be seen as a body of criminal prosecution, it does not come out either on the side of the prosecution or on the side of the defense" but only "create the necessary conditions for the parties to discharge their procedural duties and to " (part 3).

Chapter 35 of CCP - general conditions for the judicial proceeding: directness and verbal nature, openness, invariability of the court composition, parties’ equity (articles 240, 241, 242, 244).

Most scholars attribute the Russian criminal procedure to a mixed type. Mixed process is characterized by signs of a compound of investigative process for the preliminary investigation (almost complete lack of transparency, limiting the possibility of the accused to defend themselves, writing, production, etc.) and to an adversarial judicial debate (public meetings, to ensure the defendant's right to protection, assessment evidence of judges on their inner conviction, etc.).

Defendant
  • Article 47 of CCP - legal status and rights of accused.
  • Article 247 of CCP – obligatory participation of the defendant. If the accused failed to appear at the court, the trial is to be postponed. Trial in the absence of the defendant may be allowed if the defendant solicits for hearing of his criminal case of small or moderate gravity in his absence. In exceptional cases the trial of criminal cases of grave and especially grave crimes may be held in the absence of the defendant, which is located outside the Russian Federation and (or) refuses to appear in court, unless that person has been prosecuted in a foreign country on the criminal case. The participation of council for defense in this case is obligatory. The defendant invites the defender. The defendant has the right to invite a few defenders. In the absence of the defendant’s counsel for defense is appointed by the court.
Lawyers
  • Article 49, 51 of the CCP – the status and rights of the council for defense.
  • Article 248 of CCP - the defendant's defense counsel takes part in the study of the proof and file petitions and express his opinion to the court on the merit of the accusation and on its proving, on the circumstances mitigating the defendant's punishment or acquitting him, on the measure of the punishment and also on the other questions, arising in the course of the judicial proceedings.

If the counsel for the defense fails to come and it is impossible to replace him, the judicial proceedings is postponed. If the counsel for the defense is replaced, the court gives time for the counsel for the defense who has joined the criminal case proceedings anew, to get acquainted with the criminal case materials and to prepare for the participation in the judicial proceedings. At the request of the counsel for the defense, the court may repeat the interrogations of the witnesses, of the victims and of the experts, or the other judicial actions.

Expert witnesses

Russian legislation distinguishes an expert and a specialist.

  • Article 57 of the CCP – the expert is the person, possessing special knowledge and appointed for carrying out the court examination and for issuing the conclusion. Article 58 – the specialist is the person possessing special knowledge and invited to take part in the procedural actions in the order for rendering assistance.

Chapter 27 of the CCP is devoted to carrying out a court examination.

  • Article 198 of the CCP – the rights of the defendant in appointment of the court expertise:

a) to acquaint with the resolution on the appointment of the court expertise;

b) to challenge an expert or solicits for the execution of the court expertise by other expert agencies; c) to solicit for the appointment certain experts or the execution of the court expertise in a particular institution;

d) to solicit for inclusion of additional question to the expert;

e) to attend the execution of the court expertise with the permission of the investigator and to give explanations to the expert;

f) to acquaint with the expert report or with the statement that it is impossible to give an opinion, as well as with the protocol of expert’s interrogation.

  • Article 204 of the CCP – If the expert finds the circumstances that are relevant to the criminal case, but about which no question was posed to him, he may point them in his report.
  • Article 282 of the CCP - upon the parties' motion or at its own initiative, the court has the right to summon for interrogation the expert who has issued the report in the course of the preliminary inquisition, for him to explain or extend the report he has given.
Judges
  • Article 119 of the Constitution - judges may be citizens of the Russian Federation over 25 years of age with a higher education in law and a law service record of not less than five years. The federal law may introduce additional requirements for judges of the courts of the Russian Federation.

The law “On the status of judges” contains requirements before a judge, order to empower, some principles, responsibility and termination of the power.

Chapter V of the CCP contains provision about the court, its legal powers, composition and jurisdiction.

Victims
  • Article 42 of the CCP - the victim is a natural person, upon whom physical, property or moral damage was inflicted by the crime, as well as a legal entity, if his property and business reputation were damaged by the crime. The decision on recognizing a person to be a victim is to be formalized by the resolution of the inquirer, investigator or prosecutor, or of the court.

Sentencing

Chapter 39 of the CCP.

  • Article 299 of the CCP – contains questions resolved by the court in passing the sentence. The main one among them are whether it is proved that the action, the perpetration of which is incriminated to the defendant, has actually taken place; whether it is proved that the action was committed by the defendant; whether this action is a crime; whether the defendant is guilty of committing this crime; whether the defendant is subject to a punishment for the crime he has committed; whether the circumstances, mitigating or aggravating the punishment exist; what punishment is to be meted out to the defendant; whether the grounds for an adjudgement of a sentence without prescribing a punishment or for a relief from the punishment exist.

Appeals

  • Section 13. Article 354 of the CCP - The judicial decisions, which have not come into legal force, may be appealed against. A complaint against the sentence of the first instance court may be filed by the parties in the course of ten days from the day of the proclamation of the sentence, and the convicts held in custody - within the same term from the day of handing in to them a copy of the sentence.
  • Article 359 of the CCP – filing a complaint suspends the execution of the sentence.
  • Article 360 of the CCP - The court examining a criminal case checks the legality, the validity and the justness of the sentence and of another judicial decision in the part in which it is appealed against. Considering a criminal case on appeal the court may mitigate the punishment, but may not enhance punishment, as well as to apply the criminal law on a more serious crime.

The convict and his counsel for the defense, as well as the public prosecutor have the right to file a motion on revising the court sentence, ruling or resolution, which have come into legal force.

Right to counsel
  • Article 354 of the CCP - The right to appeal against a court decision belongs to the convicted and to the acquitted persons, to their counsels for the defense and their legal representatives, to the public prosecutor or to the superior prosecutor, the victim and his representative.

QUICK FACTS

  • In 2012, the Russian prison population comprises 741,600 individuals, including pre-trial detainees and remand prisoners. The prison population rate is 519 per 100,000 of national population.
  • Pre-trial detainees and remand prisoners represent 15.5% of the prison population.
  • In 2009, the official capacity of the prison system was 949,445. So the occupancy level rate was of 91.0%.
  • The Russian Federation has 1,040 establishments for incarceration, composed of 757 corrective colonies, 230 pre-trial 'SIZO's, 7 prisons, and 46 juveniles colonies.


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