5 April 2020
Leonid Nikitinsky, columnist for Novaya gazeta, member of the Presidential Council for Human Rights, laureate of the Moscow Helsinki Group Prize
A hybrid amnesty: society, not the president, should put pressure on investigators and judges
At the moment, when most of us are in self-isolation, it’s easy to imagine what house arrest is like – if you add a ban on using the internet and communications. And now imagine you’re surrounded not by relatives and friends, but strangers – right up close – many of whom annoy you, just as you annoy them: this will be a jail cell or barracks in a prison colony.
Various proposals, including a petition launched in Novaya Gazeta, boil down to transferring some of those in prison to house arrest. Or cancelling the rest of their sentence and releasing them into self-isolation. This can be done (or rather, could have been, as time for such a decision is rapidly running out) in a standard way, if the State Duma had two weeks ago adopted a resolution on a special amnesty in connection with the epidemic. Such proposals were discussed, but were not brought to the point of actualisation – the Liberal Democratic Party faction had a proposal for an amnesty related to the 75th anniversary for VE day, which is a different matter.
The president has the right to issue pardons in individual cases, but Putin, unlike his predecessor, has used this right very sparingly. In extraordinary circumstances the presidential apparatus could prepare a hundred or two hundred draft pardons, but this is a drop in the ocean. In a strictly legal sense, the president cannot do what the petition asks of him: “order the release of those who have been consigned to parole”, and furthermore to “empty the pre-trial centres, transferring those under investigation to house arrest”. Judges and investigators have the right to take such decisions, but they are procedurally independent figures – the president has pointed this out many times, it’s true, in a different context.
But this is if we take a formal view of the question. Of course the presidential administration could issue some informal direction to the courts, the Investigative Committee and the Ministry of Internal Affairs. Another question, two actually:
how would the powerful law enforcement lobby react to this? And to what extent would the hundreds of judges and investigators across the whole country be ready to carry out the instructions – in this case the “signal” would have acquired an optional and, crucially, non-standard character, and it’s hard to imagine there being control over its implementation.
Therefore, in general, those who align the logic of the proposals (including those mentioned in Novaya gazeta’s petition), with the logic of the amnesty – although the result is an undeclared ‘hybrid’ – are right; that is, they are trying to give this logic the charateristics of law.
And here it is best to focus on the project which Professor Tamara Morshchakova prepared in March, based on a proposal by human rights activist Valentin Gefter. On the initiative of Eva Merkacheva, members of the Presidential Council for Civil Society and Human Rights discussed and supported the project through correspondence, but the only result was a statement of a general nature by the Council’s chair – most likely Fadeev did not meet with understanding in the Presidential Administration.
And yet the draft prepared by a self-isolating Morshchakova follows exactly the same approach as the petition, merely adding an extra layer of clarity and detail. Its scope covers only individuals on remand, but extending its scope to cover inmates of penal colonies as well would be nothing more than a technicality. The draft suggests that criminal proceedings for crimes that attract a maximum term of three years or less in prison should be discontinued, and that proceedings for non-violent crimes or crimes attracting a term of up to five years in prison should merely be suspended for a period of no less than three months, with mandatory consideration of the possibility of modifying or postponing the pre-trial restrictions. It was suggested that the same mechanism for suspending proceedings should be applied to individuals remanded in connection with more serious crimes if they fell into any of the following categories:
- those aged 60 or above;
- persons with disabilities and those diagnosed with tuberculosis;
- individuals diagnosed with a serious medical condition (based on a list of medical conditions);
- those aged 17 or below;
- pregnant women, mothers and single fathers with children aged under 18 or children diagnosed with a medical condition.
The arrangements outlined in the draft are noteworthy because they take account of the need to carry out coronavirus and tuberculosis tests on those released from detention and moved to house arrest, and to obtain their consent to undergoing self-isolation. An amnesty of this kind would undoubtedly be a blessing and would ease the pressure on pre-trial detention facilities.
Only the first of these suggestions – the one concerning the discontinuation of proceedings for minor crimes – would need to be approved by the State Duma, although investigators already have a suitable weapon in their arsenals in the form of Article 14(2) of the Criminal Code; “The commission of an act […] formally constituting a crime pursuant to this Code but, by reason of its insignificance, not representing a risk to society […] shall not be deemed a crime.”
It is of course also true that this vitally important legislative provision has been not merely forgotten, but deliberately ignored by our country’s courts and investigators until now (whenever it was decided that someone should be put behind bars for purely political motives, for example).
Discontinuing judicial proceedings in response to a pandemic is not only a useful and lawful measure; it is already happening in many cases to protect the investigators and judges, but on a selective basis, and according to inscrutable criteria – which is of course unavoidable, since there are no clear rules.
The appeal to the President in the petition drawn up by Novaya gazeta is therefore significant. His “instructions” (or rather those of his apparatchiks) to the courts and investigators would be unlawful, like all of the behind-the-scenes instructions that have undoubtedly been “sent down from on high” up until now, but would nevertheless be expedient given the pandemic we are currently facing. Compliance with these instructions would depend on the robustness of the hierarchical relations in question.
Leaving to one side the susceptibility to corruption of such decisions, it is clear that the actual implementation of a “hybrid” amnesty of this kind would in any case be carried out at grass-roots level. For a start, the current penitentiary system differs even from the Soviet one in that it has long since worked on the basis of the motto “the worse the better”, and become part of the “administration of justice” (including at the investigation stage) and geared towards exposing crimes (real or otherwise) through confessionary evidence. The conditions in the institutions operated by the Federal Penitentiary Service are ideal for these self-denunciations, since they constitute torture in and of themselves.
The institutions of the Federal Penitentiary Service have not yet confirmed cases of coronavirus infection and have closed their metal doors to all independent monitors – primarily members of the Public Oversight Commissions. The Penitentiary Service will do its utmost not to admit to cases of this particular virus for fear of riots and mass protests, a fear that is becoming very real.
The way that such riots are suppressed is awful and rarely without casualties. So an amnesty in connection with the epidemic would not just be an act of mercy, but also a reasonable measure that would help ease the tension in places of detention – if only to reduce overcrowding and blow off a little steam. I think that the Federal Penitentiary Service understands this too now, or its staff at the grassroots level, at any rate.
In any system, including in courts and in the prison service, you will find people at different levels who turn out to be reasonable and humane in their own decision-making. And the mechanisms listed above (except, perhaps, for Article 14, Section 2, of the Russian Criminal Code, which is just too unusual and at risk of being misunderstood after the lockdown is lifted) are already being used in practice, albeit in an unsystematic manner. Yet the epidemic could also be used as a pretext for putting additional pressure on some prisoners and people under investigation.
My opinion is that the moment to declare a statutory, rather than a “hybrid”, amnesty has not yet passed; it would be an act of political will. So far, however, we have only talked about abstract “categories of people”. When (and if) it comes to the release of specific people, especially given the spread of the epidemic, it will create big problems and corruption opportunities for investigators and judges. With a more or less mass release from prison colonies, decisions will have to be made blind, based solely on testimonials that the administration does not always give objectively to prisoners. But, in any case, only the administration, and probably the “overseers”, that is, the “self-governing bodies” in pre-trial detention centres and prison colonies, know who can be “trusted” and will follow the rules, and who will be a danger to the public if released.
First and foremost, this applies to those in prison, including those needlessly imprisoned, for drug-related crimes, and they’re the ones who make up the lion’s share of the prisoners in general regime prison colonies.
Public opinion about an amnesty, be it statutory or “hybrid”, has not been gauged recently, but it can be supposed that the traditional maxim of “we don’t imprison people for nothing” has changed as a result of the “Moscow Case” and other sentences that are clearly equally unfair. The profound crisis and danger that the whole of society has found itself in should knock some sense into people, especially those in the employ of the prison system, including law enforcement officers.
Investigators and judges should not be pressured by the president, who possibly does not have the strength for it anyway, but by the society in which we will all be living once the pandemic is over. And, on this basis, you should sign Novaya gazeta’s petition.