12 December 2020
Pictured left: Genri Reznik, lawyer, vice-president of the Russian Federal Chamber of Lawyers, a member of the Moscow Helsinki Group and a member of the Presidential Council for Civil Society and Human Rights
At a recent meeting with the Human Rights Council, the president made ambiguous comments about the prospects of establishing investigating magistrates within the country’s legal system. Vladimir Putin said that such an institution existed in the 19th century, ‘but did not take root’. Earlier, the head of state twice promised human rights defenders that he would ‘look into’ this issue. The vice-president of the Federal Bar Association, Genri Reznik, is certain that the president’s words should not be considered a directive to stop working on the creation of an organizational framework for investigating magistrates.
Vladimir Putin’s annual meeting with the Council for Civil Society and Human Rights was held on 10 December in an online format. As in previous years, one of the Council members suggested discussing the prospects for introducing the institution of investigating magistrates in Russia. But if previously this issue was raised by active supporters of the initiative – ex-Constitutional Court judge Tamara Morshchakova and Federal Bar Association vice-president Genri Reznik – it was the former investigator for especially important cases Evgeny Myslovsky who voiced his opinion this time. He expressed doubt that the institution of ‘watchdog for watchdogs’ by itself can have an impact on the numerous violations that are committed during the preliminary stage of an investigation.
Human Rights Council member Evgeny Myslovsky: It is clear that our proposals for reform via the introduction of an investigating magistrate or special prosecutor will not solve these problems. This is because … they are once again built into the Russian Criminal Code and are completely dependent on institutional conditions and the so-called human factor. Furthermore, these people will have to be recruited from the same cohort of officials at the Ministry of Justice.
He added that the reform ‘requires a lot of time,’ and has ‘quite substantial financial costs’. As an alternative, Myslovsky proposed creating a different institution: ‘As practice shows, the structure of a Russian human rights court would be best suited for the “external watchdog”’.
As Advokatskaya Ulitsa previously wrote, the discussion regarding the creation of an investigating magistrates institution in Russia has been underway for more than eight years. Currently, the very same judge can handle a case at two different stages: during both the investigation and the trial. It often turns out that the judge sends a person into custody, prolongs their detention many times – and then decides on the question of their guilt. Many experts believe that this system affects the impartiality of the judge: if they make the decision to arrest someone, then it will later be difficult for them to acknowledge the innocence of that same person. An investigating magistrate will have to oversee the work that is carried out during an investigation: to review and assess the evidence presented by the parties, to ensure equal rights for the defence in proving their case. But the case will essentially be examined by another judge – one who has not previously met with the defendant.
At the meeting, Vladimir Putin said that an institution of investigating magistrates cannot become a ‘panacea’ for ‘negative developments in the field of investigation and inquiry.’ ‘There will also be violations, and collusion is possible between different authorities, different people,’ he complained. The President shared some historical information: he said that such an institution already existed under Aleksandr II. ‘But it didn’t take root with us, this institution. It gradually became less relevant and ultimately failed,’ said Vladimir Putin. Later, the president again spoke ambiguously about the initiative – apparently confusing it with another. ‘Your idea of creating a Russian court for human rights – just needs to be worked out. You rightly said that institutions such as a judicial magistrate and so on require funding and changes within a certain system,’ the president said.
Nevertheless, the vice-president of the Federal Bar Association, Henri Reznik, in conversation with Ulitsa said he did not hear a negative assessment of an institution of investigating magistrates in Vladimir Putin’s words. Furthermore, he suggested that the president might have been misinformed regarding the legal powers of investigating magistrates and judicial investigators.
Genri Reznik, vice-president of the Federal Bar Association: Unlike forensic investigators—whom we indeed had in the past — investigating judges do not conduct investigations and do not bring charges. Rather, they monitor the observance of the law in order to ensure that the constitutional rights of the individual are not violated and that the adversarial principle is observed.
Genri Reznik argues that assigning these functions to the investigator and the prosecutor—both of whom represent the side of the prosecution—violates the principle of the adversarial process. It follows that only a formally independent authority —an investigating judge—can effectively monitor the observance of human rights during the course of an investigation.
The expert recalled that a proposal to create this institution had earlier been supported by the Supreme Court. “The deputy chair of the Supreme Court, Vladimir Davydov, said that the number of complaints being considered by judges in accordance with Article 125 of the Code of Criminal Procedure (‘Appealing against the actions of an investigator’—AU) had almost doubled,” Reznik said. “Therefore, we need a special judge who could consider these matters. Someone without a predominantly accusatory attitude.”
Reznik acknowledges that setting up such a body of investigating judges would mean changing the legislation currently in force, and that the initiative has provoked a heated debate. But he does not consider these obstacles to be insurmountable and hopes that discussion of the project will continue. “I don’t think the project is finished. The President himself said that we need to think about it and to discuss it further,” the lawyer said. “We need to work out how these processes will develop in the field of legal proceedings. As experience shows, ideas can take years to develop.”
As Ulitsa wrote earlier, in 2012 the chairof the Constitutional Court Valery Zorkin spoke of the “urgent need” for such an institution. Zorkin argued that this would increase “the effectiveness of judicial oversight during the investigation and the objectivity of the trial,” as well as help to break the “accusatory link” between the investigation and the court.
Two years later, former Constitutional Court judge Tamara Morshchakova made a similar argument at a meeting with the President and the Presidential Council for Civil Society and Human Rights. “At present, everything is done by one and the same individual: he or she exercises poor control during the investigation, and then they deal poorly with the case in court,” Morshchakova later commented to Ulitsa. “If these functions are divided up, then the judge, who considers the case on its merits, will not feel obliged to confirm his own decisions, and that will relieve him of bias.”
The President instructed the Supreme Court “to study the proposals.” But the law-enforcement agencies opposed the project.
In 2018, the chair of the Supreme Court, Vyacheslav Lebedev, spoke of the need to introduce the institution of investigating judges. The following year, Reznik spoke of this at a meeting of the Human Rights Council with the President, and Putin again instructed the Supreme Council to consider the feasibility of introducing this institution. At a meeting of judges of the courts of general jurisdiction and the commercial courts on 11 February 2020, Lebedev said he considered it possible to create such a mechanism. The Supreme Court should have presented its findings by 1 June.
Note: In an inquisitorial legal system, an investigating judge (also known as examining magistrate), is a judge who carries out pre-trial investigations into allegations of crime and in some cases makes a recommendation for prosecution. (Source: Wikipedia) An inquisitorial legal system is one in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an impartial referee between the prosecution and the defence. Inquisitorial systems are used primarily in countries with civil legal systems, rather than in common law systems (source: Wikipedia). The adversarial system is a legal system used in the common law countries where two advocates represent their parties’ case or position before an impartial person or group of people, usually a judge or jury, who attempt to determine the truth and pass judgment accordingly. It is in contrast to the inquisitorial system used in some civil law (Source: Wikipedia). Advokatskaya ulitsa (Advocate Street) is a website of independent journalists: https://advstreet.ru/about/