Guilty-oriented justice

The chances of being declared not guilty by a Russian court are as low as 0.15%. There are only three exceptions: charges against law enforcers, trials that involve a jury, and private prosecution

Many have heard that Russian courts only absolve defendants in about 1% of cases. This “leniency” hasn’t been a thing for quite a while now: the proportion of not-guilty verdicts decreased many-fold since it peaked in 2011. These days, only one person in 670 could hope for an acquittal (0.15%). This “productivity goal” has become somewhat absurd as there are now judges who are appointed to issue guilty verdicts only. Elena Yurishina, an analyst with Crew Against Torture, explains why Russia’s justice system is so guilty-oriented and whether there are any exceptions to this trend.

This piece was originally published by our partners from the To Be Precise project.

Only 0.15% of defendants are acquitted

The Judicial Department of Russia’s Supreme Court revealed the statistics for the year 2022 in mid-April. These stats show that only one person out of 676 has a chance for a not-guilty verdict. And this is as little as 0.15% rather than 1% of all the accused. 80% of the remaining defendants become convicts.

What happens to the other 20%

A trial does not always end in a verdict. The second most common outcome is when a case becomes dismissed due to reasons other than exoneration, such as expiry of limitation period, defendant’s death, reconciliation with complainant, and so on. Only a fraction of verdicts has exoneration reasons allowing for case dismissal (0.13%).

Another 1% is split between two options:

• medical coercive measures are being applied to a defendant if they are diagnosed with mental disorders requiring treatment, or a crime was committed in a state of insanity;

• the case returns to the prosecutor to address shortcomings: in this situation, the case may end up in court later again.

The proportion of people convicted by Russian courts has been growing slowly but steadily in the past 15 years, while the share of acquitted defendants is shrinking. At the same time, the number of people who were taken to court each year has dropped by 40% in absolute figures during the same period. Russia’s courts were closest to the 1% in 2011 when the proportion of acquittals stood at 0.81%.

However, there are certain cases that may significantly increase one’s chances of acquittal.

Officials and law enforcers are acquitted most often

Among the five articles of Russia’s Criminal Court with the largest share of acquittals and dismissals on exonerating grounds, at least three are articles involving officials or law enforcement officers.

Article 286 is at the top of the ranking and deals with people in authority. The range of punishable acts includes bribery, embezzlement, public funds violations, the use of violence, and prison torture.

If you take the total number of cases considered by courts (about one million each year), verdicts under this article are a drop in the ocean. However, they are especially important since the people in the dock at such trials are those who were granted exclusive status and authority unavailable to helpless regular citizens. The justice system is especially lenient in cases where the state is put against “its own kind”.

The gravest third part of Article 286 is most often used against servicemen (46% of all people convicted in 2021–2022) and law enforcers: detectives, prosecutors, and other employees of various law enforcement agencies (44%). Thus, it is fair to say that the article with most not-guilty verdicts is strongly associated with law enforcement personnel.

However, the judicial system has become harsher even on representatives of the state in recent years: the Article’s most severe rule, paragraph C, used in case there are grave crime consequences, shows the same tendency to reduce acquittals. The proportion of acquittals under this article has been gradually rising from 12% in 2019 to 5% in 2022.

But more and more often are convicted participants of hostilities in Ukraine being exempted from criminal liability, and those under investigation avoid prosecution for what the Russian state believes to be valid reasons. This kind of a change was unimaginable even a few years ago. What we see now is the formation of new privileged groups of people the system is especially loyal to.

Jurors pronounce not-guilty verdicts 100 times more often than judges

Another option that increases one’s chances for a positive outcome in court is the jury. In modern Russian history, this institution was created in 1991 as amendments were made to the 1978 Soviet Constitution, and were retained as the new Russian Constitution was adopted. There is a list of crimes that allows defendants to petition for their case to be considered by jurors. A jury trial recently became available to everyone, including women and sometimes even underaged defendants.

This type of court hearings was spreading throughout Russia step by step as it took over 20 years for this option to be available in all Russia’s regions since it was introduced. The last region to introduce jury trials was Chechnya in 2010.

In 2018, jury trials were reformed: jurors were allowed to review a wider range of crimes, and the number of cases they were involved in started growing.

Russia’s statistics show that the proportion of acquittals in primary courts is a hundred times higher than usual if a jury was involved. This phenomenon, although not in such a strong form, is also relevant for other countries: for example, in the US and Argentina, juries are also more likely to pronounce a not-guilty verdict than judges. This difference may be due to the jurors’ tendency to be more guided by the values, sentiments, and ideas that have developed in society than by formal legal norms.

However, in Russia, “excessively lenient” jury verdicts are much more likely to be overturned in appeals courts. Ekaterina Khodzhayeva, a research fellow with the Institute for the Rule of Law, has calculated that in 2022, the ratio of acquittals overturned by higher courts stood at 61% (against 35% for all other verdicts).

Higher courts still cancel out three acquittals out of five. For example, the rate of such cancellations is at least six times lower in Spain and does not exceed 10%.

Most often, Russian courts list formal violations as grounds for annulment, and state representatives use all sorts of strategies to prevent acquittal.

Moreover, when the jury delivers a guilty verdict, professional judges impose a significantly higher punishment than if the case was heard without a jury. The system sort of hints to other potential defendants that jurors are not very welcome in the current judicial infrastructure.

Only half of private charges end up in a verdict

The third option with a higher rate of acquittal is the simplified private prosecution procedure. Such cases show the smallest ratio of conviction: in 2022, less than 50% of defendants were eventually punished by verdict.

This happens because some private prosecution cases do not involve state supervision. For example, if a complainant believes that they were libelled, and they know exactly who did it, they may apply directly to a magistrate’s court, collect the evidence independently, and act as a prosecutor in their own trial.

WHAT IS PRIVATE PROSECUTION?

The Russian criminal litigation has three types of charges: private ones, semi-private ones, and public ones. The difference is in how much state bodies are involved in initiating or closing investigations.

With private prosecution, the trial normally starts with the complainant’s application and may be closed if the parties achieve reconciliation. Semi-private charges also require the victim’s application, but there is no option to close the case due to reconciliation. A textbook example of a semi-private prosecution case is non-aggravated rape: the state may formally do nothing before the victim files an application. With public charges, the case is opened regardless of the victim’s will.

In this case, a public hearing is not preceded by a thorough preparation of the case for the trial stage. On the one hand, an ordinary citizen has fewer prosecution options than the state machine that stamps out criminal cases on an assembly line; on the other hand, the collection of evidence by a non-professional increases the risk of error (for example, if the complainant has mistaken their defendant for someone else or could not prove the corpus delicti). All this increases the likelihood of an acquittal.

Despite the fact that the share of convictions for such crimes has almost doubled over the past 15 years, private prosecution is becoming less popular: in absolute terms, the number of people who went to court has decreased fifteen-fold over the years. In addition, in two out of three occasions, a private prosecution case comes to court along with an indictment from law enforcement agencies rather than directly from the victim. Then the picture changes dramatically: there are twice as many convictions, and ten times fewer acquittals.

In today’s Russia, only three offences can be prosecuted privately: causing minor non-aggravated bodily harm (Part 1 of Article 115 of the Russian Criminal Code), non-aggravated libel (Part 1 of Article 128.1) and repeated beatings (Article 116.1). At the same time, in the case when the victim tries to prove libel against them in court, the probability of a positive outcome for the defendant increases manyfold, probably because it is much more difficult to prove the slanderous nature of the words spoken than to demonstrate bruises, and the number cases dismissed due to exonerating reasons indirectly confirms this.

The Institute for the Rule of Law explains that when the court issues an acquittal in cases of private prosecution, there are no “productivity goals” for law enforcement officers, and this shows the fundamental role of such goals in Russia’s law enforcement and judicial system.

Why the state is not interested in acquitting people

Analysing statistics on jury trials and private prosecution, one may draw the following conclusion: the less the state is involved in criminal proceedings, the higher are the defendant’s chances of an acquittal or exonerating termination.

In the case of a jury trial, the role of the state is reduced at the stage of making the final decision: a professional judge, when passing a sentence, will be restricted by the verdict of the jury that determines the fate of the case. In the case of a private prosecution, there is no state at the other end: the trial is often not preceded by a lot of work from the investigating authorities to collect a huge case file.

In all other cases, when the trajectory of the case is set solely by the agents of the state, an acquittal is both statistically and practically an inexplicable anomaly and a very rare case. Why does it happen this way?

The situation is pretty much similar in the countries where the criminal procedures are historically alike the Russian ones.According to Eurostat’s data for 2020, the ratio of convicted and acquitted defendants in Spain was 89.5% and 10.5% respectively, 95.1% and 4.9% in France, and 96.1% vs 3.9% in Germany. These figures are significantly higher than Russian ones, but still, the proportion of acquitted people does not exceed 5%.

The German Federal Statistical Agency provides more detailed information:

in 2017, out of almost 700 thousand cases received by the court, only 557 thousand ended in conviction. This is basically more or less the same 80% of negative outcomes Russian courts have.

Russia’s criminal procedures and their logic can be most easily explained by the number of “filters” each case passes through from the moment a crime becomes known to the final verdict.

Such filters were explained in detail by the Institute for the Rule of Law in its showpiece research on sociology of law. Its authors proceeded from the UN methodology which allows assessing the law enforcement work of different countries through the ratio of numerical indicators at different stages from reporting a crime to a court verdict. The wider the bottleneck is, the more liberal the country’s justice system is considered.

Using statistics from various sources for 2014 as an example, the authors show that out of almost 30 million applications filed by citizens, only 12.4 million crime reports were registered, of which just over 2 million became criminal cases. About 900 thousand cases were transferred to the prosecutor, and 871 thousand went to court. It turns out that each stage ensures that only cases with a great likelihood of a guilty verdict go to court: the system forms the strongest case files possible. At the same time, obviously innocent people simply do not reach the court.

But such a system of filters and the proportion of acquittals is not the most important indicator. If the bottleneck’s goal is to punish the guilty and sieve away the innocent by one way or another, even the lowest proportion of acquittals may be fine.

However, the Russian system has a well-known specificity: the influence of the “productivity goals” and institutional affinity of different law enforcement agencies that work together for the sake of judicial “success” make random things at the last stage of a trial very irrelevant. Given that there are so many filters, if the court issues a not-guilty verdict, for an ordinary person that would mean that the system is not working as it should, over-encumbered and incapable of correcting its own mistakes. And from the POV of a harsh boss, a drop in performance or an acquittal serve as a signal that someone did not work well and that somewhere there will be an internal dispute and someone is going to be punished. It turns out that the Russian judicial system fights against potential acquittals at every stage possible, because a guilty verdict is an indicator that the law enforcement agencies have done an efficient job.

When quantity serves as the method to maintain discipline and assess efficiency, the quality of work will be harmed. The fear of acquittal can reach the point of absurdity: a few years ago, researchers found evidence that specific judges were allocated for acquittals in courts, and sometimes a collective brainstorm of representatives of the Investigative Committee, the prosecutor’s office, and the Ministry of Internal Affairs was needed to withdraw charges in court: a public prosecutor is not allowed to do so independently without any coordination.

Many countries keep official records of cases and publish open judicial and law enforcement statistics. The similarity of the guilty and not-guilty verdicts ratio is achieved through the same filtering at different stages, but, unlike Russia, it is not driven by the logic of creating a sure-to-win case, but by considerations of a more humane nature such as to prosecute perpetrators and protect victims.