Wednesday, January 23, 2008

Window on Eurasia: Moscow Seeks to End Ban on Double Jeopardy Prosecutions

Paul Goble

Baku, January 23 – The Russian government has asked the Duma to approve a bill that would give prosecutors broad discretion to retry those people juries have found innocent or given sentences to that officials think are too lenient, thus effectively ending the existing ban on double jeopardy.
Not only does the measure threaten to restore the powers prosecutors had in Soviet times, but Russian defense lawyers and civil rights activists say that this attack on what some might view as only a procedural right opens the door to a situation in which officials may feel ever freer to ignore such “a petty thing” as law itself.
On Monday, the Russian government submitted a draft bill to the Duma that amends Article 405 of the Criminal Procedure Code. It would allow prosecutors to retry those whom juries had failed to convict or imposed lighter sentences on than the government had sought (
The draft measure specifies that prosecutors can do so, thus vacating jury decisions and undermining double jeopardy provisions, if they believe there has been an “essential” violation of the rights of those involved. But because the bill does not define the meaning of that term, lawyers say it opens the way for prosecutorial abuse.
Henrikh Padva, a Moscow lawyer, said that all attorneys with whom he had spoken opposed to the measure, viewing it as a return to the situation that existed in Soviet times. Genri Reznik, the president of the Attorneys’ Chamber in the Russian capital agreed.
The United Nations, he pointed out, now prohibits prosecutors from retrying someone a jury has acquitted, although he noted that the corresponding European Convention does allow for certain exceptions. But however that might be, he said, the government’s draft will reduce the number of acquittals in Russia.
A series of Russian court decisions have laid the groundwork for this new measure, several lawyers pointed out. In May 2005, the Russian Constitutional Court ruled that prosecutors could retry those juries had acquitted or given light sentences to if there had been “fundamental” violations of rights.
But just like the current measure, the Court failed to define what those rights were thus allowing prosecutors and officials behind them to ignore the ban on double jeopardy and thus threaten the rights Russian citizens have gained since the collapse of the communist system 1991
As much of a threat as this measure would be in and of itself to the rights of Russian citizens, one commentator, Yuri Gladysh, argues that the latest government proposal in fact represents something worse: “a bomb under the foundation” of the entire Russian legal system.
By sweeping away a procedural protection of a fundamental right, he suggests, Moscow is sending a signal to prosecutors and other officials that from now on they can do whatever they like without “paying any attention at all to such a petty thing as law itself.”
According to former justice minister and United Russia deputy, Pavel Krasheninnikov, the new Duma almost certainly will approve this measure, possibly opening the way for retrying prominent people like Khodorkovskiy as well as ordinary citizens (
Meanwhile, officials at the Russian interior ministry have come up with another draft law that also could threaten the rights Russian citizens are supposed to enjoy under the constitution. It would allow the police to conduct sting operations against anyone suspected of taking bribes, Gazeta reported (
The measure, which is already written and is expected to be considered at a ministerial collegium meeting on February 8 that President Vladimir Putin might attend, would drop existing safeguards against the abuse of such police practices, however politically popular they might be in the fight against corruption.
Indeed, remarks by Putin’s designated successor Dmitry Medvedev to the second Civic Forum in Moscow yesterday on the need to step up the struggle against corruption suggest that the country’s leadership is prepared to support almost any measure in this area (
Both defense lawyers and civil rights advocates in Moscow have already spoken out against such a step, one that has been anticipated by what the Interior Ministry calls “operational experiments” in this area. They say that it also opens the way to the violation of the Constitutional rights of Russian citizens.
And Yevgeniy Chernousov, a leading lawyer in the Russian capital, even pointed out that the European Court of Human Rights has demanded that the Russian government limit rather than expand the number of such “experiments” and of criminal charges brought on the basis of their findings.
For various reasons, including perhaps a fear that such measures could be directed against them or their friends in the bureaucracy, many members of the Duma are likely to react skeptically to any such proposal by the Interior Ministry should it reach them for consideration.
Gennady Gudkov, deputy chairman of the Duma Committee on Security, said yesterday that the government has failed to win support for similar measures several times over the last few years and may not this time. But others are not so sure that the new Duma will reject what the government wants now.
And that led Chernousov to warn that if the government and then the parliament do approve the elimination of existing limitations on the use of sting operations, there will be more of them and the civil rights of Russian citizens as a consequence will be further eroded.

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