Lame Themis: in the DPR people continue to be judged according to the criminal procedure code of the 60s

Recently, I spoke with several relatives of those who have been kept behind bars for 7-8 years and are awaiting trial in the same Donetsk pre-trial detention center. They are accused of various crimes: economic, against a person, property, etc. According to our data, about a thousand people are kept in the pre-trial detention center in Donetsk.

But it seems that some prisoners were simply forgotten. At some point, it seemed that the relatives as a whole resigned themselves to the fate of their loved ones. “So what to do? Such laws,” they answered me with a shrug.

Why such laws? Does the relic Code of Criminal Procedure continue to operate on the territory that Russia considers its own?

“So we scold our Russian laws, although from a purely procedural point of view they fully comply with all modern standards, and in the same Donetsk they lived according to the Criminal Procedure Code of hardly Stalinist times. How could this be? Did the Russian codes come into force here automatically last fall? – I ask the lawyer Oleg Muravyov. (In 2017-2018, it was with him that we worked on the former militias, who, in accordance with international law, Ukraine demanded to extradite through Interpol. Although our officials then did not care much about their fate, many of these people, by the way, managed to defend then. – Auth.)

– The fact is, – answers my interlocutor, – that in accordance with Art. 4 of the Federal Constitutional Law of 04.10.2022 N 5-FKZ “On the admission of the Donetsk People’s Republic to the Russian Federation and the formation of a new entity within the Russian Federation – the Donetsk People’s Republic”, the normative legal acts of the DPR are valid on its territory until the end of the transition period or until the adoption the relevant regulatory legal act of the Russian Federation and (or) the regulatory legal act of the Donetsk People’s Republic.

Bill No. 246425-8 “On the application of the provisions of the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation in the territories of the Donetsk People’s Republic, the Luhansk People’s Republic, the Zaporozhye Region, the Kherson Region”, submitted to the State Duma by deputies from the Liberal Democratic Party, was considered in the first reading.

– But it’s been almost six months since then. where is the second and third reading?

– Until they are gone. You see, here we still need to separate the legislation of the Donetsk and Luhansk republics. Unlike the Code of Criminal Procedure of the LPR, which was already an almost exact copy of the Russian one, the Code of Criminal Procedure of the DPR did not always comply with the Constitution of the Russian Federation – it was a monument of Soviet legislation, in many respects it duplicated the Code of Criminal Procedure of the RSFSR of 1960, and without taking into account the progressive changes made in the 80s and aimed at protecting the rights of the individual from unjustified criminal prosecution.

– Wait, but it was specifically mentioned that the normative legal acts of the DPR, which contradict the Constitution of the Russian Federation, will not be applied?

– Yes, it is so proclaimed, but it is not always observed.

Let’s start in order. For example, the Code of Criminal Procedure of the DPR lacked such a basic institution and principle of criminal proceedings as the presumption of innocence of the accused, although there are separate references to it in the Constitution of the DPR.

According to the Code of Criminal Procedure of the DPR, the court was not a judicial body, but a criminal prosecution body and was empowered to initiate criminal cases. The Code of Criminal Procedure of the DPR lacked such concepts typical for the Russian criminal process as the alibi of the accused, the rehabilitation of the person brought to criminal responsibility, and clear criteria for innocence were not spelled out.

That is, even if a decision was made to stop criminal prosecution against a person, he did not have the right to reimbursement of costs from the state. The detention of any suspected person was allowed for up to 72 hours. In Russia – 48 hours.

The measure of restraint was chosen by the prosecutor, and not by the court, as in the Russian Federation. And, although the choice of a measure of restraint was allowed in the category of criminal cases, which provides for punishment in the form of imprisonment for a term of more than three years, however, in fact, it was possible for any crime, including minor ones.

– In Russia, there are such concepts as a written undertaking not to leave, house arrest, a ban on certain actions – for example, to communicate with certain people, leave the house at a certain time, use means of communication, telephone and the Internet.

– Unfortunately, there were no alternative preventive measures in the Code of Criminal Procedure of the DPR, including for purely technical reasons.

– How long could a person be held in detention?

– There are no clear criteria for extending the terms, only the gravity of the charge was taken into account, which Russia has long abandoned. Also, there were no such evaluation criteria as complexity, multi-episode nature, and some others used in Russian courts. The extension of the measure of restraint was carried out by prosecutors for up to 4 months, by the deputies of the Prosecutor General – up to 12 months, by the Prosecutor General – up to 18 months on the basis of only the decision of the investigator, in Russia only the court can do this.

– I have been talking to relatives of people who have been in detention centers awaiting trial for many years!

– The fact is that the time for familiarizing the accused and his defense counsel with the materials of the criminal case when calculating the period of detention as a preventive measure was not taken into account and began to be calculated again if the prosecutor recalled the case from the court (it happens), while the grounds for recalling the case from the court by the prosecutor were not registered. Thus, the terms of guard and investigation could be extended again and again.

– But they couldn’t send a person to jail without a trial or investigation, could they?

– The problem is that even formal control over how the investigation was conducted could not be: for example, there was no supervision over the conduct of searches in dwellings, listening to communications and mailings.

The Code of Criminal Procedure of the DPR allowed for the transfer to court of criminal cases in which the place of the crime was not established, which is the basis of the accusation in the Russian Code of Criminal Procedure and the subject of proof by virtue of Article 73 of the Code of Criminal Procedure of the Russian Federation. This practice simply made it impossible for the accused to declare his alibi, that is, his absence at the time of the crime at the scene of the crime.

In the courts of the DPR, cases could not be considered at the place of the crime, if the place of the crime could not be determined, they were transferred to the courts at the place of the preliminary investigation, it was possible to transfer them to any court in order to “best ensure the educational role of the trial”, for example, to the court according to place of residence or work of the accused.

The requirements for the decision to bring a person as an accused did not contain mandatory requirements for a description of the person’s actions with the establishment of the place, time, method of committing the crime and were set out to the extent that they are known to the investigator.

– But at least there were lawyers in the DPR? Do they exist now?

– At the moment, there is still no lawyer’s monopoly on conducting criminal cases in the republic. For the implementation of the defense in a criminal case, at least until recently, any legal specialist who provides an agreement for the provision of legal assistance is allowed.

The Code of Criminal Procedure of the DPR recognized the mandatory participation of a defense lawyer only in a certain category of criminal cases – for which the death penalty could be imposed, for which there is no moratorium in the republic, or life imprisonment, as well as if minors were involved. In all other categories of criminal cases, there might not have been lawyers.

– What were the rights of lawyers in the DPR all these years?

– They are quite limited. For example, the defender had the right to make copies of the materials of the criminal case only with the permission of the investigator or the court in charge of the criminal case, in other cases he could only make extracts. The defender could also recuse himself, and for an absolutely fantastic reason from the point of view of any legislation: to declare that he is incompetent. Meetings of the accused with the lawyer were held only with the actual permission of the investigator, and he could not give it.

– Yeah. Say, if the suspect refused to admit his guilt, then let him sit without a defense counsel? I heard that there are still few local lawyers in Donetsk itself, Russian lawyers come from Rostov – clutching their heads: they do not understand how and what to do in such conditions…

– At the same time, the law excludes the possibility of being a defender for a person against whom a criminal case has been initiated, as well as a person who, abusing his rights, prevents the establishment of the truth in the case, delays the investigation or trial of the case; a person who violates order in a court session or does not follow the instructions of the presiding judge during the court hearing. In general, any active position of a lawyer could become the basis for a criminal case to be initiated against him, and he refused to defend himself.

What rights did the state prosecution have?

– During the trial, the prosecutor had the right to correct the charge both in the direction of reducing its volume and increasing it. And according to the Code of Criminal Procedure of the Russian Federation, the prosecutor has the right to change the amount of the charge brought, only if this does not worsen the position of the defendant. This is if very briefly.

– So at least the jury in this state of affairs has already begun to work?

– No. There is currently no jury trial. It will be from 2027.

– As far as I understand, if the crime was committed after October 16, 2022, then, most likely, the Code of Criminal Procedure and the Criminal Code of the Russian Federation will still be applied to the suspect. Although the transition period is planned to be completed only by 2026. But what about those who are already in jail for a long time awaiting trial? Will anything change for them?

– Yes, during the transitional period, the Prosecutor General’s Office of the Russian Federation creates on the territory of the Donetsk People’s Republic prosecutor’s offices of the DPR, which have the status of the prosecutor’s office of a constituent entity of the Russian Federation, and other territorial prosecutor’s offices in accordance with the legislation of the Russian Federation on the prosecutor’s office.

At the same time, in accordance with part 7 of article 10 of the Federal Law on the admission of the DPR to the Russian Federation, criminal cases are subject to consideration provided that the accusation is supported by the prosecutor of the relevant territorial body of the prosecutor’s office of the Russian Federation on behalf of the Russian Federation.

That is, when investigating most cases, Donetsk investigators will, I hope, proceed from the laws of the Russian Federation, otherwise not a single competent Russian prosecutor will sign the indictment. still remains open. In a good way, an urgent revision of the criminal cases of all those who are in the Donetsk pre-trial detention center is needed.

… What can be said about this? The State Duma passes a huge number of laws. Often very important and certainly necessary. It also happens that some are accepted at once in three readings in a few days. So why procrastinate?

The transitional period is a transitional period, but behind it lies the lives and freedom of hundreds of citizens whom Russia considers its own.