Sergei Pashin: What crimes can a former president commit and still have nothing happen to him?

19 November 2020

Interview with Sergei Pashin, former judge, member of the Moscow Helsinki Group, and professor at the Higher School of Economics, by Dmitry Kokko for Free Press

Source: Moscow Helsinki Group [original source: Free Press]

A bill giving guarantees to a president and his family members once he has stepped down from his post has passed its first reading in the State Duma. The bill also sets out the procedure for impeaching former presidents. 

Under the bill, the status of immunity will be extended to cover residential and office spaces he is using as well as means of transportation and telecommunications. Documents, baggage, and correspondence will also be covered. 

According to the bill’s text, a former president will not be held responsible for either criminal or administrative violations, nor can he be detained, remanded in custody or subjected to searches, interrogations or frisks. This doesn’t mean criminal legal proceedings against a former president cannot be initiated however, as former judge, member of the Moscow Helsinki Group, and professor at the Higher School of Economics, Sergei Pashin, explains.   

“Criminal proceedings can be initiated, but proceedings initiated prior to an official verdict of impeachment won’t be able to find the president guilty of any crimes. This doesn’t mean investigations into said crimes aren’t possible, however,” Sergei Pashin emphasised. 

For a former president to lose his immunity status, two thirds of deputies in the State Duma must indict the president based on evidence of high treason or other serious crimes. Two thirds of senators in the Council of the Federation must then vote to impeach the president.  The Supreme Court should also give their legal opinion on the verdict, while the Constitutional Court should verify full compliance with the procedure for impeachment. 

From the legal text, we can draw the conclusion it won’t be legally possible to hold the former president responsible for administrative violations or criminal offences either minor or major in nature, including beatings or death through negligence (resulting from an accident or excessive self-defence, for example). 

“I think this is a premature statement”, noted Sergei Pashin. “No one can be granted the privilege to commit crimes without impunity. The whole question around this procedure is will it require an impeachment or not? Also, was the crime committed before this bill entered law or afterwards? The Constitutional Court could resolve this whole set of problems, if it interprets the relevant constitutional norms while accounting for law enforcement practice. The Criminal Code does not allow the guilty to go free, regardless of their position. This is the principle of equality before the law. 

At the very least, we can say holding the former president responsible for administrative violations or criminal activity will be a far greater challenge. Without the implementation of detailed procedures regarding the withdrawal of immunity, it will be impossible to hold him responsible. As the amendment says, this can only be done in a case where the crime was grievous in severity.” 

“That depends a lot on the interpretation of, in the first place, the Constitutional Court,” explained Pashin, an Honoured Jurist of the Russian Federation, “and, in the second place, the courts of general jurisdiction, if the necessity arises. But your understanding is a totally valid one. And if impeachment proceedings are needed for serious crimes, they also need to be brought for offences of low to medium severity. Regarding administrative law violations it is difficult to say, evidently it’s not about them.  Regarding offences of low to medium severity, it could be interpreted that impeachment proceedings also need to be brought.  But the law does not say that directly. Therefore, it can’t be ruled out that charges can be brought for lesser crimes without impeachment proceedings.

In Russia, senators and State Duma deputies, as well as former and current judges, have immunity. For members of the Federal Assembly, in contrast to presidents, the law sets out the procedures for bringing charges under administrative and criminal law based on the General Prosecutor’s recommendation of impeachment. The referral of the case to a court is possible only with the agreement of the appropriate chamber. 

The law under discussion on guarantees for ex-presidents emphasizes that a former head of state with legal immunity cannot be charged with administrative or criminal law violations or be the subject of investigations. 

“This interpretation is rather paradoxical,” thinks Pashin, “because bringing a former president to justice is now regulated by criminal procedural law and no impeachment is needed.  If the first article will be interpreted in this fashion, then impeachment will be required.”

Free Press: Sergei Anatolievich, is it often the practice internationally to give legal immunity to officials who have already finished serving their terms?

“I think examples can be found.  I also think that it is not a typical solution.  In Russia it began when they started to protect judges from criminal prosecution out of revenge.  So that they would not be prosecuted after they left office.  It is logical that this device should also be applied to the president.”

Free Press: What in general do you think about the initiative to give ex-presidents guarantees of immunity?

“The initiative arises out of the Constitution, which was adopted almost unanimously and with such pleasure.  Indeed, this law is not out of the ordinary.  It was foreseen for former presidents in amendments to the Constitution, therefore this law just makes certain things more concrete.”

Free Press: If everything is already described in the Constitution, why does a law need to be passed?

“It is always better to have a law that regulates these questions in greater detail. In practice you encounter problems because the Constitution does not describe everything in detail, which means you need some normative texts.  If it is not in the law, then the Supreme Court would have to issue a clarification or the Constitutional Court would have to issue a decree on the interpretation of the Constitution.”

Translated by Fergus Wright and John Tokolish

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