Court and prison population

Print Sergey Pashin

You, Messrs. Crown judges, a lot of experience - my word is not for you: we should not remind you, but learn from you...

F. N. Plevako, from a speech in defense of Konshin workers on December 12, 1897

Fluctuations in the prison population in Russia bring to mind the school problem about a swimming pool and two pipes: a stream flows into one, a stream flows out of the other. The prison population dwindles with the next amnesty, but then, as if nature really abhors a vacuum, new additions populate the cells. In the last two decades, the number of prisoners has exceeded a million people, but has now stabilized at between 800 and 900 thousand, including pre-arrested persons who, until a court verdict, are not considered criminals and enjoy the status of innocent persons. In 1992, when judicial reform in the country, based on the Concept [1] approved by the resolution of the Supreme Council of the RSFSR on October 24, 1991 , was just gaining momentum, 425.1 thousand of our fellow citizens were behind bars, and in 1996 - already 745, 6 thousand, and the growth trend continued [2] . As of September 1, 2007, 886.4 thousand people were kept in penal institutions, of which 156.2 thousand were in pre-trial detention centers, 11.8 thousand were minors in educational colonies; there were 63.7 thousand convicted women in the colonies [3] .

The Great Break

Apparently, the humane motives of human rights activists and some government officials who want to reduce the zone of unfreedom in the Fatherland are faced with powerful and constant opposition, nullifying all their efforts. When did this unfavorable factor arise? The surge in repressions and, accordingly, an increase in the number of prisoners by more than an order of magnitude occurred during the years of Soviet power. If in 1898 there were 66 prisoners for every 100 thousand inhabitants, then in 1930 - 106, and in 1941 - already 120, in 1950 - 1400 [4] .

The explanations for such a monumental change in punitive practice are obvious: firstly, after the October Revolution, the reason for repression was not a person’s actions, but his class origin and disloyalty to the regime (“thought crimes”, as defined in Orwell’s dystopia “1984”); secondly, the modernization of the economy was carried out through robbery, displacement of the wealthy (and poor) population from their homes and the attraction of millions of people to slave labor.

Of course, having broken the old state machine, the Bolsheviks purposefully designed punitive bodies that replaced it, adequate to state policy. Including the courts. “We deny... the possibility of the existence in the state of any special judicial policy in contrast to the national policy,” argued the prominent theorist and practitioner of socialist “justice” A. Ya. Vyshinsky [5] . Class justice, fulfilling state orders, forming one whole with “allied partners” from state security agencies, the police, the prosecutor’s office, and partly the bar, has given rise to certain technologies of criminal prosecution and specific demagoguery. Prominent party leader and Soviet prosecutor N.V. Krylenko wrote: “The punitive policy of the proletarian state must be built primarily on the steady implementation of the class principle. This beginning should be really felt at all stages through which the fight against the criminal takes place, from the moment the act is committed until the moment the sentence is served" [6] . Explaining the procedure for applying the resolution of the Central Executive Committee and the CHK of the USSR of August 7, 1932 “On the protection of the property of state enterprises, state farms and cooperation and the strengthening of public (socialist) property”, colloquially referred to as the “law on spikelets” or “law seven-eight”, N. V. Krylenko admonished his lower-ranking colleagues in terrorism: “Anyone who encroaches on public property, if he comes from a hostile environment, will be shot. If he is involved in a kulak company... an individual farmer or a collective farmer - 10 years’ imprisonment.” [7] .

Of course, the system of bloody suppression was supported not only by the ferocity of the “law enforcement officers,” but also by means of ideological support, one of which was Soviet jurisprudence. The books of the red professors emphasized the political nature of the legal profession, reduced law to the will of the state (regime), substantiated the need to apply special measures to enemies of the people, promoted the idea of ​​the inevitability of criminal liability, denounced the “reactionary essence of the bourgeois criminal process,” and demagogically posed the unrealistic task of “re-education” criminals while isolating them from society [8] . The successes of zombification were amazing, and they were especially clearly manifested not even in the monographs of scientists and coursework of their students, not in the verdicts and decisions of lawyers of the new type, but... in the camp folklore of the 30s of the 20th century. Everyone knows the lines from hopeless prisoners’ songs: “Damn you, Kolyma, / What is called a wonderful planet! “Today there is only Kolyma left, / Nearby is the Sea of ​​Okhotsk. / Sadness, loneliness, camp, prison / And boundless grief.” But among the political and criminals who erected miraculous monuments to the Gulag, there was also an enthusiast who put into circulation the following song: “I live near the Sea of ​​Okhotsk, / Where the Far East ends, / I live without melancholy and without grief, / I’m building a new town for the country!”

Stalin's times seem to have long since sunk into oblivion, but changing people's consciousness, power structures and technologies is not as easy as throwing out old calendars and updating coats of arms and flags. Punitive bodies independent from the people and their traditional methods of “producing truth”, which boil down to the widespread use of agents and extorting confessions; courts dependent on the authorities and pursuing the policy of the top, controlled by bureaucratic methods, like any other division of the state apparatus, and therefore not formed into bodies of the judicial power; an accusatory bias in the activities of courts that turn a blind eye to the falsification of evidence by “subcontractors” - investigators, interrogators, prosecutors; the infrastructure of captivity (prisons, colonies, civilian settlements crowded around the prisons) - all this is undoubtedly a legacy of Soviet times, which is shameful to preserve, but “a shame to throw away.” Only the corruption of judges is not so much an inherited as an acquired quality of the modern judicial system [9] .

Interest of right and right of interest

Having declared their commitment to universal human values, and then, in the Constitution of the Russian Federation of 1993, to the principles of natural human rights, the Russian authorities did not dismantle the mechanisms of suppression and the ideological institutions that served them, including Soviet legal science and the system of higher legal education, in particular the “forge of personnel » for law enforcement agencies. There is a gap, like a crack left by an earthquake, between what Russian lawyers say and what they do for the authorities out of fear, out of habit, for career or loyalty reasons.

There are 532 prisoners per 100 thousand population in Russia - a figure comparable to the USA (714), Cuba (487), Turkmenistan (489), Belarus (532) [10] . The invisible stream that has been turning the legal millstones since the turbulent Soviet times has not yet weakened. Why? The simplest answer is on the surface. In Russia, a huge number of people feed on the revealing and guarding professions (not counting voluntary and paid informers). The staffing level of the penal system is 355.3 thousand people; their medical care is provided by 47 health care institutions - rehabilitation centers, hospitals, sanatoriums; Personnel for the penal system are supplied by five departmental universities and seven branches, two colleges; they accumulate and distribute two research institutes; the correct range of reading is provided to them by a joint editorial office that publishes two magazines and the newspaper “Kazenny Dom” [11] . There are 58,521 people serving in the prosecutor's office alone, of which 3,500 are investigators, not counting the military [12] . And also hundreds of thousands of investigators and detectives, lower ranks of police, investigators of internal affairs agencies, the FSB, drug control, tens of thousands of judges and employees of the Judicial Department. As cynical as it may sound, all these officials provide themselves with work, and the number of prisoners cannot be radically reduced without dismantling and compressing the repressive system to reasonable limits. shi us. But the penal system has 766 correctional and 62 educational colonies, 216 pre-trial detention centers, 2,442 penal inspections, not to mention 602 of its own factories! [13] As with the transfer of the defense industry to a peaceful footing, a conversion of the legal and penitentiary spheres is needed, but this has not yet begun.

In the United States, where some states have very punitive policies (for example, in California, a third conviction for a serious crime is punishable by life imprisonment), the tone is set by lobbyists acting in the interests of prison equipment manufacturers and private prison owners. In Russia, lobbying in favor of these groups is not sufficiently developed, but the economic interests of people in uniform and robes are strictly observed, and they are not left without a special contingent.

We also cannot discount the political reason that contributes to maintaining the number of prisoners at a high level. The presence of closed extensive systems like the army and the zone makes it possible, on the one hand, to ensure strict control over the most energetic part of the population, to bind its protest activity, and on the other hand, to instill in citizens the habit of lawlessness from a young age and wean them from being “picky” in everyday life. Those who do not fit into the existing rules of the game and are potentially disloyal to the regime end up in colonies and are excluded from the ranks of the electorate. Having left the gates of a unit or zone, its former inhabitants are faced with familiar orders and take them for granted. It is significant that in the judgment of July 24, 2003 in the case of Smirnova v. Russia, the European Court of Human Rights stated: “... In their daily lives, Russian citizens have to identify themselves unusually often, even when carrying out such simple transactions as exchanging currency or buying train tickets." We have become accustomed to circumstances that cause bewilderment among citizens of enlightened democracies. “Whoever was not there will be, and whoever was there will not forget,” says a prisoner’s joke.

The population of Russia is poor; poverty and poverty are the eternal companion of our people. Of course, more than half of the registered crimes (over 1.7 million) are motivated by self-interest: these are thefts, robberies, and, less often, assaults. Since, as a rule, there is nothing to take from the perpetrator except freedom, it is taken away. In the overwhelming majority of cases, more than a third of defendants are sentenced to imprisonment, and about 45% are given a suspended sentence. The share of property sanctions (fines, correctional labor) applied by courts in criminal cases is small (in the best post-Soviet years, about 15%), but the court has the right to replace them with imprisonment.

In a rule-of-law state, the court protects the interests of law and human freedom. Under totalitarian or authoritarian regimes, the activities of the court have no content different from the will of the ruling stratum. “The authorities, unlike the people,” noted former judge O. Kudeshkina based on her own experience, “are not interested in establishing an independent and independent judiciary. Because she herself often disrespects the law and laws, and sometimes directly violates them. As practice shows, the government always seeks to subjugate the courts and law enforcement agencies, using them as a tool to achieve its political, economic and personal goals...” [14]

Crippled Justice

So, the criminal justice system, flesh and blood of the regime, turns hundreds of thousands of people into prisoners every year with the wave of a judge’s gavel. Justice in Russia is justice without excuses. In 2007, trial courts found 931 thousand people guilty and acquitted 10.2 thousand defendants (0.8% of the total number of sentences); Moreover, 37% of acquittals by district courts were overturned on cassation [15] .

Perhaps an ordinary judge does not think about the meaning of his everyday occupation, but the technologies of this evil “magic” are certainly familiar to him.

The most common mechanisms for increasing the number of prisoners in the country are torture, denial of justice, and formal, rather than free, as proclaimed by law, assessment of evidence in adversarial proceedings. And one more thing: the already mentioned frequent reversal of acquittals. Although this factor does not have a significant impact on the size of the prison population: the number of convicts is too large, the proportion of those acquitted is too small.

Torture

Torture in Russia was officially abolished by a decree of September 27, 1801, signed by Alexander I after the discovery of the innocence of a man executed in Kazan for crimes to which he confessed, unable to bear the torture. The Emperor ordered the Senate to “confirm throughout the entire empire that nowhere, under any guise, neither in the highest nor in the lower governments and courts, should anyone dare to do, nor allow, nor carry out any torture under pain of inevitable and severe punishment” and that “finally, the very name of torture, which brought shame and reproach to humanity, was erased forever from people’s memory” [16] .

After the Bolsheviks seized power, the Central Committee of the All-Union Communist Party (Bolsheviks) allowed the use of the “method of physical influence ... against obvious and undisarmed enemies of the people”, which was already widely used after the October Revolution, in 1937, which was confirmed by circulars dated January 10 and 20, 1939 [ 17] . Interrogations under torture and extorting confessions by force continue to flourish to this day. On May 16, 2004, the Committee against Torture, having considered the 3rd periodic report of the Russian Federation and the Alternative Report of human rights defenders, recognized the existence in our country of “a stable system of impunity for torture and other ill-treatment.” The facts of “numerous and constant allegations of widespread torture committed by law enforcement officials” were noted; “the actual refusal of judges to take into account the evidence presented by the accused of the use of torture and ill-treatment, resulting in the general practice of the lack of investigation and prosecution of such cases.” From a sociological study conducted in 2005 in five regions of Russia, it is known that more than 50% of respondents (in St. Petersburg - 47.6%, in the Komi Republic - 62.6%) consider it “quite likely” that they or their loved ones will need protection from torture; to the question “Are you more afraid of criminals or the police?” 11.9% of respondents answered - police, 40.9% - criminals, 36.7% - equally18. A special report was published on torture in the Moscow region19.

Torture can take the form of both physical and psychological pressure - in particular, threats to prosecute an innocent person and imprison a suspect.

At the court hearing in Sh.’s case held in St. Petersburg on November 23, 2004, witness Alexey P. testified: “The investigator called. He said that he was Dudkin. He put two protocols in front of me - the accused and the witness. He says: “If you give evidence, you will be a witness, if not, you will be an accused.” ...They told me that you will sit until the trial is over” 20.

In the old days, a defendant’s statement about the use of torture against him was considered by judges as “slander of the investigation”, “an attempt to evade responsibility”21. Now it is “checked” in two main ways: either an investigator is called in for questioning, who, of course, denies the “slander”; or the prosecutor (representative of the prosecutorial power!) is instructed to verify the defendant’s statement about torture. The ineffectiveness of both methods is obvious22.

In a jury trial, the defendant and his defense attorney are strictly forbidden to talk about the beatings in the presence of representatives of the people, under pain of the acquittal being overturned.

In the ruling of the Cassation Chamber of the Supreme Court of the Russian Federation dated February 24, 1998 in the case of K., the defense was reproached for the fact that “... during the trial the defendant repeatedly drew the attention of the jury to what, in his opinion, were violations in the receipt and consolidation of evidence in the case.” Meanwhile, as the Cassation Chamber indicated, “if the defendant

about illegal actions of the investigator that influenced the content of the evidence obtained, the procedural issue that has arisen must be resolved exclusively by a professional judge without the participation of a jury. ...The procedural aspects of interrogation of the suspect and the accused do not relate to the actual circumstances of the case and, therefore, cannot be the subject of research with the participation of a jury.”

This position of the Supreme Court of the Russian Federation still serves as the most important reason for the abolition of acquittals handed down by a jury.

Canceling the acquittal of the St. Petersburg City Court by a cassation ruling dated November 2, 2006, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation pointed out, in particular, that the defense had incorrectly conducted the interrogation of the accused O.A.: “...The latter, responding to lawyer M.’s question about the reasons for the discrepancies in his testimony, stated that at the time of his interrogation at the preliminary investigation, he had confusion in his head, he didn’t care what to say and write, he would have confessed to the crucifixion of Jesus Christ.”

The use of torture is perceived by torturers not only as a way to satisfy sadistic inclinations, but also as a state necessity, as a form of “goodness with fists.” A criminal investigation officer interviewed by V. Kuzemko rants: “Even the most democratic and most humane government is unthinkable without violence... The state is hypocritical. It knows that we are forced to do things in the name of correctly or falsely understood sovereign interests, but it does not want... to stop us, plugging all the holes in the social structure with our rigidity and cruelty... If we get caught, the same state machine that we We serve, he will mercilessly trample us and throw us in the trash as unnecessary. Therefore, there is no need to get caught. Cunning cops-bosses, blind in some cases prosecutors and crafty judges are not specifically interested in catching us, unless we ourselves are left behind...” [18]

Denial of justice

The Constitutional Court of the Russian Federation, by rulings dated June 18, 2004 No. 261-O and July 15, 2004 No. 282-0, declared in the spirit of the best Soviet traditions that the legislator “realizes the political will of the state by adopting the relevant federal laws” and the courts should not interfere with the sphere of expression by the state of its political will. It was about returning nationalized real estate to the owners; these people were effectively left without judicial protection.

However, even in criminal cases, judges are required to not only faithfully serve the ruling elite, but also sense new trends in judicial practice. Guessing what your boss wants is the path to career growth. Not the least important role in the art of pleasing is played by the ability to evade justice in the interests of law enforcement agencies. This approach increases the number of prisoners.

In 2007, district courts considered 247.5 thousand requests from investigators and interrogators to apply a preventive measure in the form of detention, of which, as in 2006, 91% were satisfied; then, 1.4 thousand arrest orders (0.6%) were canceled by cassation [19] . The percentage of motions satisfied by judges is slightly higher than the rate of arrests sanctioned by prosecutors in previous years, when judicial control over the legality of choosing the most severe preventive measure was not introduced.

The procedure for judges to consider requests for detention and extension of detention is conveyor belt in nature. But the most important thing: judges are prohibited from “entering into a discussion of the issue of a person’s guilt in the crime charged to him” [20] . Finding Russia guilty of violating the Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court consistently emphasizes that “the existence of reasonable suspicion that the detained person has committed a crime is a sine qua non [21] condition for the legality of extending the period of detention” and “ initial detention”, that the usual references by Russian judges to the gravity of the charge and the risk of escape of the suspect (accused) are not enough to keep a person in custody. It is this principle that is reflected, for example, in the decisions of the European Court of Human Rights in the cases of: February 8, 2005 Panchenko v. Russian Federation; dated March 2, 2006 Dolgova v. Russian Federation; dated October 26, 2006 Khudobin v. Russian Federation; dated May 24, 2007 Soloviev v. Russian Federation and many others. But in courtrooms these precedents are not taken into account [22] .

Russian judges’ avoidance of considering important aspects of the issue of detention, ignorance of the merits of the case, unwillingness to check the evidence presented by the prosecution at this stage of the process and to declare invalid materials obtained in violation of the law become the reasons for the issuance of truly Kafkaesque decisions.

Thus, having considered on December 27, 2005 the complaints of the accused arrested in Yakutia, the judicial panel for criminal cases of the Supreme Court wrote in the cassation ruling: “The arguments of the cassation appeals of the accused about the lack of evidence confirming their guilt in committing crimes, as well as about the presence of an alibi, are not may be the subject of consideration in a cassation court when checking the legality and validity of the judge’s decision to extend his period of detention..."

In other words: the absence of evidence of guilt does not exclude arrest. It is very characteristic that an increasing number of criminal cases are resolved in courts without conducting a full-fledged judicial investigation, without direct and cross-examination of witnesses, i.e. in the form of a “special trial procedure.” In 2006, compared to 2005, the special procedure was used one and a half times more often - namely: in 47% of cases under the jurisdiction of magistrates; for 37.5% of cases referred to the jurisdiction of district courts; for 3.9% of cases heard in regional (territorial) courts. In 2007, “19.2% more criminal cases were considered under special procedure than in 2006” [23] .

Formal assessment of evidence

The formal assessment of evidence, which dominated domestic legal proceedings until the judicial reform of 1864, without going into tedious details, meant the following. Firstly, the evidence had a predetermined strength, and the judge, who had not received a confession (and confession is the queen of evidence, “the best evidence of the whole world,” perfect evidence), added up the strength of the remaining testimony, documents, red-handed evidence and decided whether their combined strength had reached level of perfect evidence. Secondly, the question of guilt was not answered as simply as the presumption of innocence requires: “yes, guilty” or “no, not guilty.” If the total strength of the evidence was equal to perfect evidence, a guilty verdict was pronounced; if there was no evidence at all, an acquittal was pronounced; if there was little incriminating evidence, the defendant (attention!) was either left “under suspicion” or subjected to punishment proportional to the strength of the available evidence. If there was a lack of evidence, a “witch” in medieval Germany was not burned, but also not released, but was sentenced to imprisonment, or public flogging, or wearing the disgraceful “San Benito” attire.

The modern theory of free evaluation of evidence, on the contrary, boils down to the following: firstly, evidence is evaluated by judges according to their inner conviction and does not have a predetermined force; secondly, the guilt of the defendant, which has not been absolutely proven (“beyond reasonable doubt”), is equal to his proven innocence.

No matter how much representatives of the domestic procedural theory repeat about the establishment of objective (“material”) truth in the course of criminal proceedings, an analysis of many court verdicts allows us to assert that the production of truth in Russian courts is carried out in a very specific way.

First of all, Russian judges respond to a lack of evidence not with an acquittal, but with a guilty verdict with a relatively mild (sometimes suspended) punishment.

When constructing the circumstances of a past event, judges sin by attributing motives and simplifying the picture of the world and human relations. For example, the defendant’s refusal to confess, given during the investigation, is interpreted as a desire to evade responsibility; the statement of his acquaintances about the alibi is dismissed because it comes from people who care about the accused. In some ways, the methods of the search for truth adopted by our judges are similar to the methods of some Pushkin scholars and Stratfordian Shakespeare scholars. They absolutize isolated facts and little things, gradually passing off their guesses as actual events [24] .

The Irkutsk Regional Court, in a verdict dated December 21, 2006, convicted three people of attacking a guard at a timber cutting plant and stealing a tractor. Defendant Sh. was also found guilty of murdering the watchman. Sh. and one of his accomplices were armed with sawed-off shotguns , but in the verdict not only is there no reference to the expert opinion regarding the weapon from which they shot the guard in the back of the head (by the way, at first the doctors decided that the man had been stabbed and not shot), but the court I didn’t even check which barrel was in whose hands. Meanwhile, the sawn-off shotguns were memorable: one was painted black, the other was wrapped in tape, and there was an eyewitness who could tell what kind of weapon each of the potential killers had. The results of identification of the sawn-off shotguns given to the suspects are not mentioned in the verdict, but it is assumed that it was with these weapons that the attack was carried out.

In some cases, judges forget themselves to the point that they include circumstances justifying the defendant in the list of facts confirming his guilt.

Thus, in the verdict of the Obninsk District Court dated November 25, 1999, which convicted him under Part I of Art. 328 of the Criminal Code of the Russian Federation for evading conscription for military service, citizen H., his membership in the Anti-Militarist Radical Association was cited as evidence of his lack of convictions incompatible with military service.

According to the chairman of the Moscow City Court O. A. Egorova, “some judges, when passing sentences, simply scan pieces from the indictments... Even pieces of texts with grammatical errors are included in the sentence” [25] . This, in the literal sense of the word, is the material expression of the connection between the criminal prosecution authorities and the court, which in modern Russia, generally speaking, performs a related function.

As expected according to the canons of the formal theory of evidence, courts give primacy to the evidence of the prosecution. Strictly speaking, the materials presented by the defense to the investigator or judge (for example, a private protocol of interviewing an eyewitness, a specialist’s opinion) are not evidence until the procedural opponent (investigator, interrogator) or the court attaches them to the case [26] ; The defense attorney does not have the right to order an examination. The capabilities of the defense, which does not have the means to conduct a parallel investigation, are further constrained by the courts.

Thus, in 2001, the acquittal verdict of the Rostov Regional Court in the case of B. was overturned in cassation, since, in particular, “the lawyer during the debate of the parties in his speech, despite the fact that the expert opinions examined in the case were recognized as admissible evidence, put under doubt... the expert’s qualifications.” Meanwhile, the conclusion may be admissible evidence, but unconvincing due, for example, to the expert’s lack of sufficient experience in conducting such examinations, and then we are talking about the reliability of the expert’s conclusions, which the jury is called upon to evaluate.

Canceling on February 4, 2004 the acquittal of the Stavropol Regional Court with the participation of jurors in the case of T., accused of murder, the Supreme Court gave the following reasons: “... the lawyer gave a subjective comment, his interpretation of a detailed photograph of the traces recorded at the crime scene, with the purpose of imposing one’s opinion in order to change the objective attitude of the jurors and influence their adoption of a fair, legal verdict. ...The defense attorney made repeated attempts to give his subjective assessment of the evidence presented in this criminal case, calling them into question...”

It is clear that the assessment of evidence cannot be free if the court knows in advance the correct, “objective” assessment of the materials coming from the investigator and the prosecutor, if the judge speaks in the voice of the prosecutor.

Servants of the law?

Having experienced from experience what the technologies of domestic justice actually are, replacing the adversarial process proclaimed by law and undermining the chances of the defense, some passionate lawyers say to the judges’ faces the words that are on the tip of other legal defenders’ tongues.

Thus, speaking on December 25, 2006 at a meeting of one of the district courts of Moscow in the debate of the parties with a speech in defense of the accused of fraud I., the capital’s lawyer K. called the court “biased”, requiring, contrary to logic, only a guilty verdict, which, in the opinion of the lawyer , has already been “made on the merits, and not on the form, even before the start of the consideration of the case.” Despite the fact that the lawyer sharply reproached the court for bias and interest in the outcome of the case, the qualification commission of the Moscow Bar Chamber and the Council of the Bar Chamber did not see any fault in the lawyer’s behavior and the disciplinary proceedings against him were stopped [27] .

What makes judges act in an inhumane manner, play along with the prosecution, even at the risk of receiving a rebuke from a colleague in the legal profession?

The judicial system is managed as a subdivision of the bureaucratic apparatus, and court chairmen are by no means, as in the West, first among equals, but seriously call themselves “leaders.” Court chairmen are the imperious conductors of state policy, and, in mathematical terms, they are “denominators” that significantly reduce judicial independence in the numerator of the fraction.

The true mechanism of power within the judicial corporation is revealed when high-ranking judicial officials, confident in the strength of their position, open up in their circles or with journalists. For example, the chairman of the Moscow City Court, not having the right to hire and fire his fellow judges, authoritatively declares: “I fired some of the judges...” [28] . On February 28, 2008, the Constitutional Court of the Russian Federation issued Resolution No. 3-P in favor of deprived judges from all over Russia; some of them were expelled for criticizing the judicial authorities. The Constitutional Court noted “the special role of court chairmen in the procedure for bringing judges to disciplinary liability”, “in the formation of qualification boards of judges”, and the fact that they have “organizational and administrative powers in relation to other judges”. The terrifying power of court chairmen is based on three pillars: the distribution of cases among judges; the right of disciplinary prosecution and inspections; opportunities to influence a judge’s career growth and the receipt of privileges.

Judges who fear their sentences and rulings will be overturned are being made clear what decisions are expected. It is known that acquittals are overturned 18 times more often than convictions, and the cancellation and change of a sentence is a defect in work, which is indicated in the characteristics of an applicant for the next qualification class or position. You can pay a serious price for being soft on your fellow citizens and making decisions that are objectionable to law enforcement agencies.

It is written on paper that “a judge... cannot be held liable in any way for the opinion expressed by him in the administration of justice and the decision made by the court...” (Clause 2 of Article 16 of the Law of the Russian Federation of June 26, 1992 “ On the status of judges in the Russian Federation"), but there are many known cases of reprisals against judges precisely for humane, just decisions.

Thus, the powers of the judge of the Dorogomilovsky District Court of the mountains. Moscow M. were terminated in 2004, in particular, for “insistence in explaining the right to reconciliation” to the defendant and the victim; as further noted in the decision of the qualification board of capital judges, “the practice of imposing sentences in criminal cases also indicates the obvious dubiousness and strange leniency of a number of sentences and other decisions of the judge...”; Judge M. was also reproached for leaving several accused at large while deciding on the use of detention as a preventive measure against them.

The Supreme Court, in a ruling dated September 20, 2006, agreed to impose a penalty in the form of a warning on the Moscow judge for “refusing the request to extend the period of detention” of the accused. Gatchina judge V. did not please the leadership by releasing the accused twice, although he “did not indicate what circumstances taken into account when choosing a preventive measure ... had changed” since the initial arrest [29] . The powers of Judge V. were terminated on defamatory grounds. What is interesting here is not only the punishment of the judge for his decision, but also the train of thought of his senior colleagues. It turns out that the judge does not have the right to show mercy, but must, like an automatic machine, extend the period of a person’s stay in custody if the charge has not been softened since the day of the previous extension of this period.

Such objective lessons are learned, and those who are slow-witted and stubborn are cast out by the system.

As we see, our judgment is weighed down not only by the past, but also by the abuses generated by the most recent period of Russian history. But it is the court that draws the line dividing the country into two worlds - freedom and convoy necessity. Prisons will begin to empty no sooner than truth and mercy reign in courtrooms.

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[1] Cm.: Concept of judicial reform in the Russian Federation / Comp. S. A. Pashin. M .: Republic, 1992.

[2] Zubkov L.I. Punitive policy of Russia at the turn of the millennium. M.: PRI, 2000. pp. 18-19.

[3] Statistics of the penal system of Russia // Nevolya. 2007. No. 13. P. 31.

[4] Prison population in Russia and other countries: Problems and trends / Comp. V. F. Abramkin. M.: Center for Assistance to Criminal Justice Reform, 2003. P. 26.

[5] Vyshinsky A. Ya. Judicial organization in the USSR. M., 1936. P. 117.

[6] Krylenko N.V. All-Russian Congress of Soviet Justice Workers: Key Points //

Law and life. 1924. No. 3-4. P. 113.

[7] Cm.: Sov. justice 1933. No. 3. S. 26.

[8] Art. 43 of the Criminal Code of the Russian Federation of 1996 mentions among the purposes of punishment “correction of the convicted person,” but not his re-education. However, the Supreme Court of the Russian Federation continues, by inertia, to demand from lower courts sessions of demonstrative justice, which has an “educational effect” on the population (clause 3 of the resolution of the Plenum of the Supreme Court of the Russian Federation of February 7, 1967 No. 35; clause 18 of the resolution of the Plenum of the Supreme Court of the Russian Federation of September 17 1975 No. 5, etc.) Both decisions referred to are set out in the wording of the Plenum Resolution No. 5 of February 6, 2007, i.e., they are not “legends of ancient times.”

[9] As a result of a sociological survey conducted at the initiative of the Supreme Court of the Russian Federation, it was found: “22 percent of respondents are convinced that the courts are corrupt, 42 believe that judges take money, but not from everyone, and only 13 percent of optimists still believe in the integrity of the servants of Themis.” (Sharov A. They want to declassify judges 11 Rossiyskaya Gazeta. 2007. April 26. P. 7).

[10] Prison population in the countries of the world (6th edition) // Captivity. 2007. No. 13. P. 35-45.

[11] Statistics of the penal system of Russia // Nevolya. 2007. No. 13. P. 31-32.

[12] See: Clause 3 of Decree of the President of the Russian Federation of August 1, 2007 No. 1004 “Issues of the Investigative Committee under the Prosecutor’s Office of the Russian Federation.”

[13] Statistics of the penal system of Russia // Nevolya. 2007. No. 13. P. 31. For a long time, the top five most powerful economic departments of Soviet Russia included the Ministry of Internal Affairs, which supplied free labor and had its own enterprises; Today, this factor in the growth of the prison population has lost its former importance.

[14] Kudeshkina O. Open letter to the President of the Russian Federation V.V. Putin. M.: Epicenter, 2005. pp. 20-21.

[15] Review of the activities of federal courts of general jurisdiction and justices of the peace in 2007 // Russian Justice. 2008. No. 3. P. 62, 64.

[16] Cm. also: Cheltsov-Bebutov M.A. Course of criminal procedure law. Essays on the history of court and criminal proceedings in slaveholding, feudal and bourgeois states. St. Petersburg: Publishing house "Alfa"; Publishing house "Ravena", 1995. pp. 719-722.

[17] See more details: Stetsovsky Yu. I. History of Soviet repressions. T. I. M.: Glasnost, 1997. P. 159.

18 Gilinsky Ya. Sociology about torture in modern Russia // Captivity. 2006. No. 10. P. 22, 23, 25, 27.

19 Torture and other gross violations of human rights in the Moscow region (preliminary independent report) / Comp. A. Babushkin, V. Gabisov et al. M., 2004.

20 Protocol of the court session cit. by: Gefter V.M., Levinson JI. S., Pashin S.A. Abuse of procedural norms in the administration of criminal justice: Practices, analysis, search for antidotes / Institute of Human Rights. M., 2006. P. 9.

21 See: Stetsovsky Yu. I. Judicial power. M.: Delo, 1999. P. 15-16.

22 The methodological recommendations “Participation of the prosecutor in the study of evidence in court proceedings” distributed with the letter of the Deputy Prosecutor General of Russia dated March 12, 1993 No. 12/13-93 correctly stated: “In recent years, the practice of interrogation in court as witnesses of the investigator and operational police officers, whose violation of the law the defendant refers to, and their testimony is then cited in the prosecutor’s indictment speech and in the verdict to confirm that the confession during the investigation was reliable.

...The interrogation of these persons as witnesses is not based on the law and their negative answer to the question of whether they allowed unlawful pressure on the accused has no evidentiary value.” What was said was correct, but this position did not have a tangible impact on judicial and prosecutorial practice.

[23] Kuzemko V. Torture in the police 11 Index. 2007. No. 27. P. 41.

[24] Review of the activities of federal courts of general jurisdiction and justices of the peace in 2007 11 Russian justice. 2008. No. 3. P. 62.

[25] Paragraph 2 of paragraph 4 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 5, 2004 No. I “On the application by courts of the norms of the Criminal Procedure Code of the Russian Federation.”

[26] Mandatory (lat.).

[27] It is interesting that in paragraph 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated October 10, 2003 No. 5 “On the application by courts of general jurisdiction of generally recognized principles and norms of international law and international treaties of the Russian Federation”, courts are ordered to take into account “the presence of reasonable suspicion” in a person has committed a crime, but lower courts did not accept this position, especially since in the resolution of March 5, 2004 No. I, the Plenum actually abandoned the principle formulated a year earlier.

[28] Review of the activities of federal courts of general jurisdiction and justices of the peace in 2007 // Russian Justice. 2008. No. 3. P. 62.

[29] Thus, analyzing the statements of Shakespeare scholars M. M. Morozov (1947), A. A. Smirnov (1957), A. A. Anikst (1964) regarding the nature of the relationship between the actor William Shakespeare and the high-born Lord Henry Risley, the scientific secretary of the Shakespeare Commission at the Russian Academy of Sciences I. M. Gililov stated with surprise: “One can notice how gradually, from book to book, the conjectural nature of the narrative disappears, acquiring more and more certainty, features of authenticity” (Gililov I. M. The Game about William Shakespeare, or The Secret of the Great Phoenix. 2nd ed., revised and supplemented. M.: International Relations, 2000. P. 133).

[30] Sokovnina. “Do you even read your sentences?” The Chairman of the Moscow City Court found errors in the letters of the law // Kommersant. 2008. February 12. S. 3.

[31] This conclusion follows not only from the content of the law, but is also confirmed, in particular, by the Constitutional Court of the Russian Federation in its ruling dated March 4, 2004 on Pronya’s complaint.

[32] Cm.: Bulletin of the Moscow Bar Association. M., 2007. Issue. No. 8-9. pp. 48-58.

[33] Serkov D. Your Honor: interview with O. Egorova // Results. 2006. December 18. P. 20.

[34] Cm.: determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated December 12, 2006 No. KAC 06-451.

Prison trial