The news about how the State Duma had adopted draconian amendments to the Code of Criminal Procedure in the first reading on 23 November slipped by unnoticed.  Those who can suffer from them are the most self-sufficient and active members of society.  And Mikhail Khodorkovsky’s and Platon Lebedev’s lawyers consider that their clients may receive new terms under the new amendments. Specially for The New Times, lawyer Vadim Klyuvgant comments on the situation.

What is being spoken of is the repressive tendency of legislation, which is not exhausted by the adoption of the law on state treason and the return of the law on slander.  The amendments about which I now want to speak do not have as much resonance — they are being rushed through on the sly.  They emanate from very serious subjects of legislative initiative.  In one case from the government, and in two others — from the Supreme Court of the RF.

A turn for the worse

What was being spoken of in the draft law that was considered in the State Duma on 23 November was expanding the opportunities for a so-called “turn for the worse”.  According to the draft law, the opportunity is granted to revisit a case at any stage — within the confines of the statute of limitations and without any other restrictions.  Two grounds are being introduced.  The first — when new socially dangerous consequences have appeared.  The second — when new factual circumstances have been brought to light that give grounds to bring charges of a graver crime.

Let us imagine to ourselves:  a person has been robbed, the thief has been convicted for robbery or for fraud, he has served punishment and has been released.  But the injured party has all of a sudden gone and decided to cash in his chips with life, and has left a note stating that he still can not recover from the shock and the loss that had been caused to him by that robbery or that fraud.  Is this a new socially dangerous event or what?

At this time, there are sufficiently limited opportunities in the law for a “turn for the worse”.  But now, if the amendments are adopted, then the opportunities for such a turn are not going to be restricted by anything.  In the proposed wording, new socially dangerous consequences are anything that the comrades in uniform and in robes choose to call socially dangerous consequences.  As applies to any case.

Without jurors

Another draft law was introduced on 6 November by a decree of the plenum of the Supreme Court.  This draft redistributes the judicial jurisdiction of criminal cases.  All cases other than those with respect to which a death sentence or lifetime deprivation of liberty can be given are transferred to the district courts.  What does this mean?  It means that that very same conveyor belt in the district courts is being additionally burdened with the most complex cases.  The conveyor belt is going to be running even more rapidly, even more callously, even more mechanistically.  And in our district courts, the percentage of acquittal, according to the official statistics of the Judicial Department, comprises 0.2% for the past year.  If we then also take into account that a third of district court not-guilty verdicts are overturned in cassation, then we get 0.13%.  Now add this category here of the most complex and voluminous cases to that.

As we know, the participation of jurors in our country is possible only in courts of oblast level or those equal to them.  This means that only cases of intentional homicide with aggravating circumstances will remain within the competence of a trial by jury.  Because there are no other cases in which there can be lifetime deprivation of liberty.  All other accuseds are not going to have any chances for access to justice with the participation of a jury court.  But in our jury trials, acquittal comprises from 15-20%.

The eternal OCG

Falling into the number of the cases that are being transferred to the district level is the famous article 210 CC RF – an organised criminal association.  As is known, any economic case always contains within itself the feature of misappropriation in the composition of an organised group.  It is understandable why it is done so.  Entrepreneurial activity by its essence is an activity that is implemented in organised forms:  a company, in it are employees, bookkeepers, etc.  But today an organised group is not a separate crime; it is within the framework of a charge of theft, let us say.  Now, article 210 CC RF comes to the district courts, and this means it leaves the jury court.  That is, now this is already a stand-alone, separate charge — it is up to 20 years of deprivation of liberty.  And it, besides everything else, is not of an economic character, and this means that the restriction on pre-trial arrest does not extend to it.  So what happens now?  What happens now is that entrepreneurs need to be prepared to be charged not with theft in an organised group, but with the creation of a criminal association and only after that with theft.

A law-enforcement bacchanalia

And now let us turn our attention to the amendment that was proposed by the Supreme Court way back in April.  There is an article 159 CC RF — an article about fraud, famous for its dimensionlessness in application.  Six more paras are being proposed additionally to this article 159 CC RF, in which liability is prescribed for varieties of that same fraud in different spheres:  in investing, the internet sphere, etc.

The Supreme Court is saying that it wants to differentiate the application of article 159 and to specify it more precisely, but these new articles contain a huge quantity of vague, nebulous criteria by which they are going to be determining the presence of a corpus delicti.  Can you imagine what a bacchanalia awaits us!  If an investigator wants to he will choose the traditional “fraud”, and if he wants to he will make use of it in any combination.

Let us suppose they have convicted an entrepreneur for some kind of new variety of fraud, for example in the banking sphere.  He has served his term; the comrades in uniform come to him and say:  “You know what, it seems that we have got ourselves some new circumstances that have come to light.  In actuality it has turned out, that you have committed this here kind of fraud, and also this whole pile of crimes on top of that as well.  This means that you had an organised criminal association.  Here is a new charge for you on the basis of the new circumstances, here is article 210 for you”.

At this time they are afraid of imputing article 201 for “special order” cases, because for now cases of this sort can be heard by a jury court.  And they do not have full control in jury trials.

A state policy of repressions

We are not dealing here with proposals by some kind of exotic deputies.  The introduction of the amendments to legislation is being initiated by the Supreme Court, and this means that what is being spoken of is the realisation of state policy.

These amendments need to be regarded together, because this is exactly how they are going to be applied.

All three of these draft laws are aimed at expanding the space for arbitrariness.  This has been done so that at any moment, any person who is determined to be a sacrificial victim, unwanted, can be subjected to maximally strong repression — as simply as possible and with a minimal quantity of obstacles.

Who can suffer most of all from these legislative innovations?

It turns out that the most active segments of society can suffer — entrepreneurs and civic, political, and non-political activists who are trying to do something and to achieve some kind of socially significant aims.  It is obvious that these groups of people are regarded by the power as a danger, among other reasons because they are becoming ever more organised.

The original article in The New Times (in Russian)