Russia

Criminal Law Reform in the 1990s

In the mid-1990s, several efforts were made to pass a Criminal Code of the Russian Federation to replace the inadequate and antiquated Criminal Code of the RSFSR, which was passed in the 1960s and had remained the fundamental law of the land, with numerous amendments, since that time. In December 1995, Yeltsin, heeding MVD objections to certain articles, vetoed a code that had been developed by his own State Law Directorate and passed by parliament. No amended code was expected until after the presidential election of July 1996. Meanwhile, Russia lacked laws on organized crime and corruption under which mafiya and economic crimes could be prosecuted.

In the absence of a comprehensive overhaul of the Criminal Code, Yeltsin responded to the growing problem of crime by enacting measures that broadly expanded police powers. In June 1994, he issued a presidential decree, Urgent Measures to Implement the Program to Step Up the Fight Against Crime. The decree included major steps to increase the efficiency of the law enforcement agencies, including material incentives for the staff and better equipment and resources. The decree also called for an increase of 52,000 in the strength of the MVD Internal Troops and for greater coordination in the operations of the Federal Counterintelligence Service (FSK), the MVD, and other law enforcement bodies. Control over the issuing of entry visas and the private acquisition of photocopiers was to be tightened. The decree also mandated the preparation of laws broadening police rights to conduct searches and to carry weapons.

Yeltsin's anticrime decree had the stated purpose of preserving the security of the society and the state; however, the system of urgent measures it introduced had the effect of reducing the rights of individuals accused of committing crimes. Under the new guidelines, individuals suspected of serious offenses could be detained up to thirty days without being formally charged. During that time, suspects could be interrogated and their financial affairs examined. The secrecy regulations of banks and commercial enterprises would not protect suspects in such cases. Intelligence service representatives have the authority to enter any premises without a warrant, to examine private documents, and to search automobiles, their drivers, and their passengers. Human rights activists protested the decree as a violation of the 1993 constitution's protection of individuals from arbitrary police power (see Civil Rights, ch. 7). Already in 1992, Yeltsin had expanded the infamous Article 70, a Soviet-era device used to silence political dissent, which criminalized any form of public demand for change in the constitutional system, as well as the formation of any assemblage calling for such measures.

Meanwhile, the Russian police immediately began acting on their broad mandate to fight crime. In the summer of 1994, the Moscow MVD carried out a citywide operation called Hurricane that employed about 20,000 crack troops and resulted in 759 arrests. A short time later, the FSK reported that its operatives had arrested members of a right-wing terrorist group, the so-called Werewolf Legion, who were planning to bomb Moscow cinemas. Although crime continued to rise after Yeltsin's decree, the rate of crime solving improved from its 1993 level of 51 percent to 65 percent in 1995, assumedly because of expanded police powers.

Although the Russian parliament opposed many of Yeltsin's policies, the majority of deputies were even more inclined than Yeltsin to expand police authority at the expense of individual rights. In July 1995, the State Duma passed the new Law on Operational-Investigative Activity, which had been introduced by the Yeltsin administration to replace Article 70. The law widened the list of agencies entitled to conduct investigations, at the same time broadening the powers of all investigatory agencies beyond those stipulated in the earlier law.

The 1995 draft Criminal Code included an article specifically prohibiting "conspiracy with the aim of seizing power and forcibly changing the constitutional form of government," an activity subject to a sentence of up to life imprisonment. The new law opened the concept of conspiracy to broad interpretation by state authorities, varying from a meeting held by the leadership of an opposition party to a simple telephone conversation between two citizens.

The draft code also broadened the law on violations of civil rights on the basis of nationality or race, which carries a maximum sentence of five years. As in the case of conspiracy and political statutes, the ambiguity of the nationality and race law opened the door for serious abuses of individual rights. Prosecutors and judges were granted wide latitude in deciding what constitute "acts directed at incitement of social, national, racial, or religious hostility or discord." Such a charge could be leveled easily in a society with a huge variety of ethnic and religious groups, particularly groups with existing claims of autonomy or traditions of hostility toward one another (see Ethnic Composition, ch. 4).

Many legal experts considered the new draft Criminal Code, which is a synthesis of presidential and State Duma proposals, to be a significant improvement over the old code. But, unlike Western states, Russia does not have a tradition of respect for legal rights or a well-established, balanced system of justice to interpret and administer the laws. Many of the laws adopted in the early 1990s concern crimes whose investigation is delegated to the security police, which have a history of human rights abuses and were not placed under effective oversight by the reforms of the early 1990s. Thus, in the atmosphere of relative political pluralism and freedom of expression in the first years of the Yeltsin administration, security agents still sometimes take advantage of the law to employ KGB-style tactics.

Despite a lack of sympathy for personal liberty, in the early 1990s the Yeltsin administration made some reforms in the legal system to protect the rights of the individual. In June 1992, the Code of Criminal Procedure was amended to give a detainee the right to legal counsel immediately, rather than, as in the past, only after initial questioning. A detainee's right to demand a judicial review of the legality and grounds for detention also was recognized. In practice, however, these changes often have been offset by other laws intended to protect the state at the expense of the individual. The clearest example is Yeltsin's sweeping anticrime decree of 1992, but other instances have followed. In March 1995, Yeltsin issued a decree against fascist organizations and practices, which gave the security police broad new authority to arrest and investigate suspects. Under the 1995 draft Criminal Code, a person under arrest could not appeal to the courts to protest his or her confinement, but only to the procurator. The president also could appoint a special prosecutor to bring "highly placed individuals" to justice, thus undermining the principle of independent judges. The new code also extended the maximum period of internment of suspects without formal charges from three to seven days, although the counsel for the defense could not become acquainted with the materials of the criminal case until after the preliminary investigation had been completed.