The New Russian Code of Criminal Procedure: The Next Step on the Path of Russia's Democratization

Russian legislation in the field of criminal procedure has recently undergone changes aimed at strengthening the fights and liberties of Russian citizens. Implemented 1 July 2002, the new Code of Criminal Procedure contains innovations that distinguish it from the previous code, adopted in the 1960s, but that have given rise to controversy and debate among lawyers, prosecutors, investigators, and judges. Some practitioners have called the new code a "revolution in the Russian system of justice." For several decades, the communist regime used the criminal code to apprehend and arrest both ordinary criminals and persons who did not agree with the policies and practices of the Soviet regime, so-called dissenters or dissidents. The Russian Criminal Code contained special statutes mandating punishments for dissidents who "undermined the government" or "defiled the Soviet social order" by spreading information critical of the Soviet regime. For example, statutes on anti-Soviet agitation and propaganda directed that "anticommunists" and "enemies of the communist regime" could be imprisoned for anywhere from six months to ten years. (1) Commencement of Prosecution (Opening of a Criminal Case) Under the new code, investigators of law-enforcement branches such as the police, FSB (Federal Security Service), Tax Police, Customs, Border Guard, and Procuracy have the authority to open a criminal case, subject to the procurator's later approval. (2) Previously, criminal cases could be commenced only with a prosecutor's consent. After a prosecutor deemed the case worthy of investigation, police investigators would do the groundwork, collecting evidence and building the case, while the prosecutor supervised. This system created a lot of tension between investigators and prosecutors because, in the investigator's view, prosecutors would periodically look over the case materials, interrupt the course of the investigation, and demand certain things of the investigators. Under the new code, prosecutors are required to study all of the documents related to the criminal case and to work directly with the investigators on a day-to-day basis. Under Article 146 (4) of the code, the procurator must still approve the initiation of the criminal case. Even the new code, however, cannot put an end to corruption within law enforcement agencies. There are still many instances when criminal groups blackmail corrupt officers and investigators to initiate cases against their business competitors. For example, an investigator may open a case against a "disagreeable businessman" using false documents or evidence. The businessman may be arrested and all his commercial documents seized. Not only does the criminal case severely disrupt the business's operations, but bad publicity harms its image. Therefore, the criminal investigation alone can be enough to bring about the demise of a business. In other instances, corrupted investigators and officers threaten the accused and demand money in exchange for closing the case against them. Normally, the accused will agree, and the bribe takers receive their cash. Arrests, Private Correspondence, and Telephone Conversations For many decades in the Soviet Union and today in Russia, prosecutors have had the authority to arrest suspects, give permission for a person to be arrested, read private correspondence, and tap telephone conversations. Under the old code, in most cases arresting a suspect consisted of two stages. First, at the beginning of an investigation an investigator could hold the suspect for seventy-two hours in a guarded cell. In the Soviet era, if the prosecutor sanctioned the arrest, the suspect was placed in a pretrial detention center, where he could remain for mouths and sometimes years. The length of his stay would depend on the course of the investigation and the date of his trial. Often innocent people were arrested, but these procedures were acceptable to state law-enforcement and police systems. …