Russian Federation Criminal Procedure Code

Author: Translator: Su Fangdao / et al.
Editor-in-Chief: Zhang Buyong
Publisher:
Publishing Date: 1999-08-01
Features: On December 12, 1991, the dissolution of the Soviet Union did not lead the Russian Federation to declare the existing laws invalid; instead, they were continued to be applied. Regarding the Criminal Code, although it underwent multiple revisions and amendments after the dissolution of the Soviet Union, the structure and main content of the original Criminal Code did not undergo significant changes. The name of the Criminal Code still retained the abbreviation of the full name of the Russian Soviet Federative Socialist Republic before the dissolution of the Soviet Union, known as the "Criminal Code of the Russian Soviet Federative Socialist Republic," abbreviated as the "Soviet Russian Criminal Code," or translated as the "Criminal Code of the Russian Federation." This is a matter of linguistic habit. Therefore, the inheritance of the law is fully reflected. The current Criminal Code of the Russian Federation was adopted by the third session of the fifth Supreme Soviet of the Soviet Russian Federation on October 27, 1960, and came into effect on January 1, 1961. During the more than 30 years of its implementation, including both before and after the dissolution of the Soviet Union, it has undergone 54 revisions, with additions and deletions of certain provisions. Among them, from December 1991 to May 1995, 22 revisions were made, amending 90 articles and 131 sections, adding 47 new articles, and repealing 5 articles. After the dissolution of the Soviet Union, the Constitution of the Russian Federation, adopted by a nationwide referendum on December 12, 1993, has had a significant impact on the revision and improvement of the Criminal Code of the Russian Federation. Indeed, the 1993 Constitution of Russia after the dissolution of the Soviet Union shares many similarities in framework and content with the 1936 Constitution and the 1979 Constitution of the former Soviet Union, especially from the 1977 Constitution to the 1993 Constitution, most of the principles of criminal procedure have been retained. For example, "the right to adjudicate criminal cases can only be exercised by the court," "trial of criminal cases must involve people's judges and be conducted by deliberation," "judges are independent and only subject to the law," "proceedings in criminal cases must be conducted in the mother tongue," "ensuring the defense rights of criminal defendants," "courts must conduct trials publicly," "protection of personal liberty, residence, and communication secrecy," "principle of the rule of law," "principle of public interest," "principle of equality before law and court," "principle ofpresumption," "principle of criminal damage compensation," and so on. However, the 1993 Constitution of Russia has modified some of these principles,themmore scientific and democratic content, and has redefined others. At the same time, some new principles and procedures related to criminal procedure have been added. For example, regarding the principle ofpresumption, the 1977 Constitution of the former Soviet Union, Article 160, stipulated: "No one shall be considered a criminal or subjected to criminal punishment unless convicted by a court judgment and in accordance with the law." The 1993 Constitution of Russia after the dissolution of the Soviet Union, Article 49, not only made major changes to the wording of this provision but also specifically stipulated the derivative content of this principle within this article. The principle ofpresumption is defined as three points: "1. Every person accused of a crime is considered innocent until the procedure prescribed by federal law is applied to confirm the accusation and the court judgment confirming it has taken effect. 2. The defendant is under no obligation to prove their innocence. 3. A reasonable suspicion of guilt should be interpreted in favor of the defendant." The 1993 Constitution, Article 51, furtherthat "no one is under any obligation to testify against themselves, their spouses, or their close relatives, and the scope of close relatives is defined by federal law." Regarding the principle of ensuring the defense rights of criminal defendants, Article 48 of the Constitution adds the content of legal aid, stipulating: "Ensuring that everyone has the right to obtain high-quality legal assistance. Legal assistance is free under legally prescribed circumstances." Article 50 of the Constitution also clearly stipulates the legal effect of illegal evidence, namely "during judicial activities, evidence obtained in violation of federal law may not be used." Additionally, the 1993 Constitution of Russia has made new provisions and interpretations regarding the protection of human rights during proceedings, the application of coercive measures, the equality of the prosecution and defense sides during proceedings, the principle of double jeopardy, and criminal damage compensation, among others. The Criminal Code of the Russian Federation is based on the 1993 Constitution. By May 1995, it had undergone more than 20 revisions, with modifications and additions that prominently reflect the advancement of Russia's legal system and procedural mechanisms along the track of rule of law. In particular, the principle ofpresumption and other procedural principles in criminal procedure have been established as constitutional principles. In recent years, during the revisions of the Criminal Code, these principles and procedural aspects have been further expanded and improved in line with scientific and democratic requirements. For example, the protection of human rights during proceedings, the procedural rights of defendants and defense counsel, the establishment and application procedures of the jury system, the abolition of pre-trial proceedings, and the reform of trial procedures have all undergone significant changes and developments. This translation is based on the 1995 edition of the Criminal Code published by Libroso in Moscow, Russia. The progress of litigation civilization, the transformation of litigation concepts, and the impact of the development trends of criminal procedure laws in countries around the world have made the revisions of the Criminal Code of the Russian Federation, while reflecting its own characteristics, closer to the general provisions of criminal procedure laws in countries worldwide. The current Criminal Code of the Russian Federation is a continuation of the former Soviet Russian Criminal Code. The new law retains many general provisions that have been in effect for more than 30 years, such as the provisions on initiating criminal proceedings and the functions of the prosecutor's office in exercising legal supervision, the provisions on social organizations or groups applying for bail for defendants, and so on, which are unique to it and have been enriched and improved. However, while retaining its characteristics, the new law has modified unreasonable and unscientific provisions and has incorporated the strengths of the criminal procedure structures of both legal systems. As mentioned above, the provisions on strengthening the protection of human rights, increasing the confrontation mechanism between the prosecution and defense during trials, and adding the procedural system for jury trials have made the new Criminal Code more comprehensive and complete. The current Criminal Code of the Russian Federation consists of 10 parts, 39 chapters, and 466 articles. Part General Provisions, Part II Initiation of Criminal Proceedings, Investigation, and Inquiry, Part III Court Proceedings, Part IV Appeal Proceedings, Part V Execution of Criminal Judgments, Part VI Criminal Judgments and Decisions That Have Become Legally Binding, Part VII Proceedings in Cases Involving Minors, Part VIII Proceedings Involving Coercive Measures for Medical Purposes, Part IX Forms of Court Preparation Materials, and Part X Proceedings of the Jury Court. Reviewing the development history of the current Criminal Code of the Russian Federation, the following main characteristics can be summarized: First, frequent revisions. From January 1, 1961, to June 3, 1995, a total of 54 revisions were made; among them, 22 revisions were made during the three and a half years from December 1991 to June 1995, averaging more than six revisions and supplements per year. Moreover, with the adoption of the Criminal Code of the Russian Federation by the State Duma on May 24, 1996, and its approval by the Federation Council on June 5, 1996, and implementation on January 1, 1997, the current Criminal Code also faces the need for revisions. Frequent revisions are undoubtedly a characteristic of the current Criminal Code of the Russian Federation. Second, relatively stringent measures of criminal procedure supervision. The procurators at all levels of the Russian Federation, on the one hand, personally or under the direction of investigative and investigative agencies and officers, decide whether criminal cases should be prosecuted by the court, participate in court trials to support the prosecution; on the other hand, procurators have the right to supervise the investigation, investigation, and implementation of the law, to raise opinions on issues arising during court trials, and to supervise the legality of the execution of criminal judgments. It can be seen that the procurator general shoulders the functions of investigation, prosecution, and legal supervision, similar to the role and status of the procurator's office in criminal procedure in our country. However, the intensity and measures of litigation supervision are far beyond those of our country. In addition to the procurator's office supervising criminal cases at the stages of filing, investigation, prosecution, trial, and execution, higher courts also supervise the trial work of lower courts. This supervision is achieved by higher courts submitting appeals against the judgments and rulings of lower courts. Regarding the supervisory functions of the procurator's office, since 1993, there has been severe division in academic circles in Russia over what model of procurator's office should be constructed, with the debate focusing on whether to maintain, strengthen, or weaken the supervisory functions. Faced with these two opinions, a major legislative change was the adoption of a compromise stance by the 1993 Constitution, which, on the one hand, continued to affirm the centralized and unified supervisory mechanism of the procurator's office; on the other hand, it stipulated the procurator's office as part of the judicial power in the seventh chapter of the constitution, with the chapter titled "Judicial Power," acknowledging the central role of the court in criminal procedure in its content. Third, criminal defendants can choose the trial body. For criminal cases under the jurisdiction of district (city) people's courts, except those explicitly stipulated, "if the defendant agrees, the judge may try the case alone for crimes that may be sentenced to less than five years of deprivation of liberty" (Article 35). For criminal cases under the jurisdiction of regional, provincial, and city courts, defendants can apply for a jury trial composed of a judge and 12 lay judges. If the defendant does not apply or agrees, the trial will be conducted by a single judge and two people's lay judges or by a collegiate panel of three professional judges. Even if one defendant among multiple defendants in a single case applies for a jury trial while others oppose, or if a defendant applies for a jury trial for a specific crime among multiple crimes, it is permitted. This shows that criminal defendants have considerable freedom in choosing the trial body. After the dissolution of the Soviet Union, revisions to the Criminal Code have been the most important revisions in Russia since 1985. Although there were seven revisions during the period from 1985 to 1990, the changes were not significant. Therefore, the revisions from 1991 to 1995 reflect the important changes in the current Criminal Code of the Russian Federation. 1. Strengthening measures to protect the personal freedom of citizens. The protection of personal freedom is the core content of the protection of human rights of citizens. Article 11 of the new law retains the provision of the old law that "no one shall be arrested unless decided by the court or approved by the procurator general," while also stipulating that "the person arrested has the right to appeal and demand judicial review of the legality and justification of their detention" to prevent the infringement of citizens' personal freedom. Moreover, "the decision of the judge to release the detained person based on the results of the judicial review shall be implemented immediately." The addition of this provision is undoubtedly an important measure to protect citizens from illegal arrests and unjustified detentions and to restrain arbitrary behavior by judicial organs. When taking coercive measures, the investigators, investigators, procurators, and judges who make decisions and issue rulings must state their reasons and indicate the crime for which the person is suspected. Decisions and rulings shall be announced to the person subjected to coercive measures, and on this basis, the new law adds the content of "explaining the appeal procedure for coercive measures" to the person subjected to coercive measures (Article 92). The addition of this content greatly increases the transparency of coercive measures taken by judicial organs. This not only facilitates citizens in protecting their legitimate rights but also facilitates public supervision of judicial actions. This is an important sign of the democratization and legalization of litigation. For the appeals of citizens regarding the legality and justification of their detention, the new law has established a judicial review procedure. The entity authorized to conduct judicial review is the judge of the court where the person is detained. Within three days of receiving an application for judicial review of the detention, the judge conducts a judicial review of the legality and justification of the detention in an open court with the participation of the procurator general, the defense counsel, the person detained, and their legal representatives. After listening to the arguments of the applicant for the appeal and the opinions of other attendees, the judge makes a decision to rescind the detention and release the person detained or reject the appeal, depending on the circumstances. Judicial review is an important part of the litigation supervision mechanism and a specific embodiment of the provision in Article 2 of the Criminal Code that "no innocent person shall be prosecuted or sentenced." Through judicial review, a person who has been detained but lacks a legitimate basis is released in court, which not only helps to protect citizens' personal freedom from illegal deprivation but also strengthens the solemnity of law enforcement by judicial organs. This point is worth learning from in our country's criminal procedure. 2. Strengthening the protection of the procedural rights of criminal suspects and defendants. In the Criminal Code of the Russian Federation, a criminal suspect refers to a person arrested due to suspicion of a crime and a person who has been subjected to coercive measures before the indictment is filed (Article 52). The protection of the procedural rights of criminal suspects in the old law was far from sufficient. The new law, in addition to retaining the procedural rights of criminal suspects enjoyed under the old law, has granted them some important procedural rights, such as the right to know the reasons for suspicion, the right to present evidence, the right to know the records of investigative activities in which they participate, the right to apply to the court for judicial review and submit evidence materials regarding the legality and justification of their detention, the right to participate in the judicial review procedure, the right to request recusal, and so on (Article 52); in addition, Article 19 also stipulates