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Constitution to the consequence of a hindrance
Leading Lev Roitman

Lev Roitman:

In February of this year, the Constitutional Court of Russia practically imposed on the law of death sentences. On March 23, the Constitutional Court made another most important decision: he recognized two articles of the Code of Criminal Procedure, which stipulated that complaints about the actions of the bodies of inquiry and investigation, as well as the actions and decisions of the prosecutors themselves, can be brought only by the prosecutor’s vertical, and not in court. In other words, the law inherited from Stalin, the investigative and prosecutor’s circular bail, was torn, she completely led to the grave violations of the rights of the accused. One of the initiators of this decision was lawyer Sergei Shyshkin, he participates in our program. Other participants: lawyer, publicist, writer Arkady Vaxberg and Leonid Nikitinsky, foreman or head of the guild of law reporters of Russia.

Sergey Dmitrievich Zamshkin, you are the lawyer of Valery Monastretsky, Major General, the former head of the financial and economic department of the Federal Agency for Government Communications and Information, but our listeners are more clear by the reduction in FAPSI. So, they accuse Monastyretsky, in particular, for theft and receiving a bribe, but we will not touch the essence of his business, however, what kind of actions of the investigation and prosecutor’s office in the Monastoretsky case, here you are, your client, brought to the attention of the Constitutional Court as illegal, as violating the Constitution of Russia.

Sergey Zamshkin:

The case against my client was opened on April 3 of the 96th year, that is, more than three years ago. He spent a year and a half in custody, was released, and all these three years we are insisting that Monastyretsky is not guilty that the case against him is fabricated and demanding that he make a legal decision: either to terminate the case, or send him to court. But since investigators do not want to do this, they are in every possible way delay the decision and the law helps them in this - our Criminal Procedure Code does not limit the terms of the investigation in the case. Since in our case all decisions, including the extension of the deadlines, were made by the deputy general of the prosecutor and there was simply no one to appeal his action, the district court in whose territory the General Prosecutor's Office refused to accept my complaint. Therefore, it was decided to appeal to the court not the actions of the deputy general of the prosecutor, but the law itself. And here we are, in addition to the article, which limits the investigation, we decided to approach the case radically. We appealed the same two articles that suggest the possibility of appealing the actions of the investigator only to the prosecutor, and the actions of the prosecutor only to a higher prosecutor. We motivated our appeal to the current constitution, in particular Article 46, which suggests that the action of any official can be appealed to the court if it affects the constitutional rights and freedoms of citizens. The Supreme Court made a decision for a long time, for more than a month, as a result, he still decided: to recognize article 218 and 220 of the Code of Criminal Procedure, which, in fact, we wanted.

Lev Roitman:

Thank you, Sergey Dmitrievich. Your client, his case, as you say, is not transferred to court, but managed to sit during the preliminary investigation for a year and a half. And in this regard, Leonid Nikitinsky, the former acting Prosecutor General Ilyushenko, also managed to sit out for a very long time, we again do not concern the absolutely question of his actual guilt or innocence, to judge (sorry for the tautology) the court, but he has already managed to serve a significant term, there will be no verdict, there will be a case by the court or not the case or not. He will act, but imagine that in the department where he worked, his persecutors are located, his enemies are in the same prosecutor's office, they already punished him. From your point of view, is this an exceptional, unique case in Russian investigative and prosecutor's practice?

Leonid Nikitinsky:

This business is by no means unique, it is completely ordinary, even in this sense it would be more indicative to be quite an ordinary business about the robbery of some kind of stall, where, perhaps, for two or three years in a Butyrka in a common cell, no one is known to no one well-known Ivanov. In fact, this is the way of the action of our investigators, which is inherited from the Soviet order. If you think in this way, it is best that the case sits in preliminary conclusion, then I can not rush anywhere, and there I will someday achieve something. Many times the question has been raised that it is not necessary to apply a preventive measure in the form of detention, including because the insulators are filled so often. Nevertheless, these measures are applied almost automatically with reference to the dangerous nature of the crime, although often, if we return to the conversation about large ones, let's call their economic or economic affairs, then most often the suspect does not strive to hide anywhere, nothing can take any action and so on. But it is the same automatically, as it is customary to express it in investigative insulators, is closed. But, perhaps, the decision of the Constitutional Court is certainly not tomorrow, maybe in six months later, in a year, with the emergence of a corresponding practice, it may finally somehow affect the investigators who will understand that it is necessary to work with some more smart, cunning means, and not what to close all in a row, put to prison and investigate the matter.

Lev Roitman:

Thank you, Leonid Nikitinsky. Both to get into prison, and investigate the cases, and in any case, no matter how this investigation ended, the person served his own, he was already punished. Arkady Iosifovich Vaksberg, due to what Leonid Nikitinsky said, in this regard, “can be”, in Russia, excretional sentences in the courts are very rare, in Russia successful complaints about the actions of the prosecutor's office and investigation that can be brought in court, there are also such categories of complaints. From this point of view, this is the theoretical assignment of the judicial order of the actions of investigators, prosecutors and decisions of prosecutors, will this lead to a real improvement in the situation, that is, to a real judicial control over the investigation?

Arkady Vaxberg:

As you know, the right to appeal in a court of actions of officials was established by the last Soviet, the so-called Brezhnevskaya, the constitution, but it remained a dead letter, since the constitution did not have a direct action, and this norm did not receive any concretization in any other law. As a result, in a typically Soviet manner, we had a good decorative principle that had nothing to do with reality. But the current Constitution has a direct action, that is, it can and should be a really applicable law for all law enforcement agencies. And the fact that some provisions of the Archaic Soviet Criminal Procedure Code of forty years ago, still, still acting in a radically different state, that they are in contradiction with the constitution, it would seem, is decided by the simplest way - priority has a constitution, not the CPC. So, in accordance with Article 46 of the Constitution, which Sergei Dmitrievich already spoke of, the judges were obliged to me, by virtue of this constitutional norm alone and without any additional clarification, to consider complaints about both the actions of the investigator and the actions of the prosecutor, since they are officials and the actions of all officials allow a judicial verification of complaints of interested parties, if this is rejected by their constitutional rights and freedoms. But our judges, by the way, are not only judges, still an indestructible Soviet mentality, as it is now fashionable to speak, is simply not able to understand that the constitution does not exist for decoration, but for direct execution. Therefore, I agree with Sergey Zamoshkin, who called the decision of the Constitutional Court in one of his publications revolutionary, although I really do not like the word, but I understand what he had in mind, so I agree with him, but only in a broader, fundamentally important sense. The judges received a visual lesson of what the direct action of the Constitution was explained to them, they were indicated that the CPC exists, because the Constitutional Court cannot cancel it, and it is necessary to be guided by the Constitution if the Code of Criminal Procedure or any other law contradicts them. That is, if our legislators, the panic of the panic of guarantees for citizens and protect their freedoms from a repressive machine, still do not dare to part with Soviet restrictive laws, the Constitutional Court overcomes and will overcome their resistance by other means of influence on law enforcement practice and introducing it into the constitutional direction.

Lev Roitman:

Thank you, Arkady Iosifovich. Sergey Dmitrievich Zamshkin, you said that you intend to appeal the actions of the deputy general of the prosecutor, but you did not name him, as far as I can imagine by the official painting of the General Prosecutor's Office, you mean Mikhail Katyshev, Deputy Yuri Skuratov. So the question is: what complaints of those that you brought were not considered or rejected, perhaps Mikhail Katyshev, and maybe Yuri Skuratov, who, incidentally, also had recently experienced that in a rule of law a more pleasant to live than in the wrong.

Sergey Zamshkin:

In general, then all three years that the investigation is being carried out, not one of the complaints of Katyshev’s actions was simply considered by Skuratov. Apparently, the Prosecutor General believes that he should not supervise his deputy. In the only case, Katyshev himself agreed that his decision is unreasonable, this is when he changed the measure of restraint to my client of Monastyrek. I would like to note such a problem, because, in fact, our Supreme Court has repeatedly spoke about the direct action of the Constitution in its decisions, the chairman of the Supreme Court Lebedev constantly speaks of this, but nevertheless, those very judges, people's judges still do not notice the constitutions, and still do not want to apply it themselves. In this sense, the decision of the Constitutional Court is important precisely as a tool for applying the constitution in the hands of citizens, but also, accordingly, their defenders.

Lev Roitman:

Thank you, Sergey Dmitrievich. And I want to ask you a passing, so to speak, the question: as far as I know, maybe I am mistaken, you will correct me in this case, you yourself are a former investigator of the prosecutor's office or a former prosecutor’s office, from your point of view, this is the decision that makes an appeal of actions, decisions of the investigating authorities, bodies of inquiry, prosecutors not according to the prosecutor’s vertical, but how much it is, how much it is infringing, I am not saying the right, but the presentation of prosecutors about their rights and powers?

Sergey Zamshkin:

Yes, I have been an investigator for 5 years and 15 years supervised the investigation in the police and of course I have an idea of ​​the investigation procedure, but probably about the psychology of the investigator. I can say that when I went to the bar in 90, namely, lawyers began to participate in the preliminary investigation, this is only 9 years old, keep in mind, then everyone also believed that the admission of a lawyer to the stage of the preliminary investigation would completely violate the possibility of revealing the crime, and to prove the guilt of a person. But this did not happen, everyone is used to it and everyone understands that there can be no accusation without protection. Two years after this, the right to appeal the arrest of a citizen to the court was legally introduced, and then there were moans from the prosecutor’s office, the special services that this would completely destroy the investigation system would also not make it possible to prove the guilt of the investigation. And it also turned out that this itself does not have any impact on the investigation, and by itself the realization of the citizen’s right to appeal his arrest through the court of execution did not damage the special services themselves. I think that although psychologically, of course, the courts and prosecutors and investigators will not immediately perceive this decision of the Constitutional Court, but in practice, after a fairly short time, they will understand that it is absolutely necessary and that, I repeat, there can be no accusation without a full -fledged protection, this is not a struggle.

Thank you, Sergey Dmitrievich. Leonid Nikitinsky, will they understand?

Leonid Nikitinsky:

I would like, starting from what Sergey Dmitrievich said, to take a position that there is no one to deceive of course. Including Sergey Dmitrievich, as a lawyer, spoke about the participation of lawyers in the first parts of the investigation, at the time of preventive measure and the appeal of a preventive measure to the court. Yes, at first the courts endured somehow, at the very least, sometimes decisions on changing the preventive measure, but gradually this ended, investigators have somehow adapted, the judges agreed, now these decisions are extremely rare. That is, the adoption of this decision in itself is very important, and I really like our conversation, which is in a more theoretical plan, starting from human rights. In a practical sense, it does not mean that in a month everyone will turn, appeal and free everyone - nothing of the kind will happen. But it may be in a practical sense, and Sergey Dmitrievich will confirm my words, because now the investigator who is conducting the case and makes some kind of decision very important from the point of view of the rights of human rights and the rights of the investigation, say, about the extension of the investigation or the terms of detention, he practically does not give any motives to the surface, he thinks something about himself there, neither the accused, nor the lawyer can appeal to these actions in a normal way, because they do not even know argumentation. Here is the fact that now these investigative actions can be appealed in court will lead to at least the fact that the investigator will be obliged to explain his position in court, what exactly he means that he present, what evidence he has. That is why, it seems to me that the progress will be a little bit, not that everything is tomorrow. Of course, on the one hand, Sergei Dmitrievich is in the sense that the investigation is gradually getting used to it, it understands the need, it is possible, so to speak, but it is possible in a different way that the investigation gradually develops its antidemios, often illegal, and against the early stages of protection, it will also develop against remarkable innovations that arise from the decisions of the Constitutional Court.

Lev Roitman:

Thank you, Leonid Nikitinsky. Step by step, gradually, slowly, as Chekhov said - to squeeze a slave out of himself, drop by drop from the Russian system of justice, obviously, the method is true and the only one. Arkady Iosifovich, this is the squeezing of lawlessness, as we see, is happening today in line with the decisions of the Constitutional Court of Russia, how do you evaluate its activity?

Arkady Vaxberg:

At our discussions, I have repeatedly noted at our discussions at a round table that the Constitutional Court sequentially does everything that is available to him to build a legal state and civil society, and against the backdrop of the most good events that we, alas, are taking place, this trend, clearly manifested in the decisions of the Constitutional Court in issues that have a direct concingence to the most important rights and freedoms of citizens, deserves to me, I think that everyone seems to me respect, inspires hopes. But I still like Leonid Nikitinsky, I would like to go down a little on the sinful land, I put this question in front of myself: how to ensure that this decision of the Constitutional Court practically was carried out by all courts throughout the country? I do not think that this is an idle issue, we know such fundamentally important, we can say the most important decisions of the Constitutional Court that have not received practical implementation, and the Constitutional Court can already do anything about it. Let us recall, for example, a decision on the illegality of the institution of registration in any of its options, at least under the brand of the so -called registration - Moscow, not only the Moscow authorities did not obey this decision. I have no firm conviction that such or such a fate will not befall and the decision of the Constitutional Court of March 23, at least, as they say, far from Moscow. But the very fact of the decision is immensely relate and it cannot be underestimated in any case.

Lev Roitman:

Thank you, Arkady Iosifovich. Well, ending this transfer, I will express the hope that the Constitutional Court will go a little further and recognize the Institutional, perhaps such a complaint will be in court, and perhaps it is somewhere there in the channels of consideration of complaints in the Constitutional Court, and recognizes such a phenomenon as the departure of cases from the court for pre-investigation, since Article 46 of the Constitution, which in this case, referred to the constitutional court, referred to the Constitutional Court. гласит: "Каждому гарантируется судебная защита его прав и свобод", но положения о том, что следствию гарантируется судебная защита его некомпетентности, в Конституции России нет.