Russia will face Donetsk justice / Politics / Nezavisimaya Gazeta
The Soviet past has already been reanimated in the criminal procedure law of the DPR
The most popular slogan in Donbass is read both in one direction and in the other. Photo by RIA Novosti
Whether the republics of Donbass remain elected entities or become part of the Russian Federation, the question of the path of development of their legal systems will soon arise anyway. Like the election of Nezavisimaya Gazeta, the DPR and LPR have long been showing different approaches. If in Lugansk they basically copied the norms of the Russian Code of Criminal Procedure (CPC), then the Soviet model of jurisprudence is more in demand among the neighbors. Therefore, the construction of the principle of the presumption of innocence is streamlined, there is no trial by jury and the concept of the possibility of proof, the rights of lawyers are curtailed. individual cases suspect that “Donetsk justice” is an experiment, the results of which may be relevant for Russia as well.
Since September, the Russian authorities are starting to retrain lawyers with units of law enforcement agencies of the Russian Federation who were in Ukraine to the new legal standards (see “NG” dated 23.08.22). It turns out, however, that this will be an incredibly non-linear process. Perhaps one work will appear in Kherson, Zaporizhia and Kharkov regions, and, for example, in the DPR – several and several. It was this recognized republic of Donbass that most moved away from modernity into the Soviet past.
As lawyer Vyacheslav Golenev explained to NG, studying the differences between the laws of the Russian Federation and the DPR / LPR is “quite useful”, as events unfolded, the question of the standards of protection and consideration of the process that exist there inevitably arose. On the inevitability of such comparisons in the course of research attempts and in the study of the Lawyer’s Newspaper project. They follow, for example, on such a topic – they say, the current DPR in the sense of an “ideal model” for Russia in the near future. When analyzing the “Donetsk incident”, one can find that, perhaps, the expectations and prospects of Russia are expected “with complete exclusion due to the interest in the development of the media, a multi-party system, a developed advocacy and human rights organizations.”
By the way, these are all those institutions that are completely absent in the DPR or are formally designated.
According to Golenev, it is clear that the DPR has a more stringent Code of Criminal Procedure, leaning towards the former Soviet system, while the laws of the LPR are very close to public safety. For example, there, as in the Russian Federation, there is a presumption of innocence, but it is not spelled out in the Donetsk Code of Criminal Procedure, it follows only from the text of the Constitution of the Republic. As the NG expert said, this principle is set out in a “rather crooked form” in the arrival problem (Article 2 of the Code of Criminal Procedure). It says that one of them followed in that “not a single innocent should be punished.” In addition, there is no jury trial in the DPR; the Soviet model of people’s assessors operates there – two citizens from society in a professional court. How part of the population extracts and what their competence is, is not spelled out in the law. Golenev confirmed that, in fact, this is a return to the past – in the elected jury, “there are more people, and issues of fact, not law, are delegated to him.”
In addition to being used, the rights of lawyers are significantly narrowed in the Donetsk law, and some of its provisions allow encroaching on the guarantees of their independence. In particular, it is said that “the powers of the defense counsel in the case are certified by a warrant and an agreement”, during a press conference – this is a matter of attorney-client privilege. “This is exactly what our legal profession has been fighting for a long time,” Golenev recalled, emphasizing, however, that the security forces sometimes continue to ask the defenders of such parties, “although this requirement is not in the laws of the Russian Federation, and the courts have repeatedly pointed out its inadmissibility “. Or, say, the failure of a lawyer to appear at a trial immediately attracts him to the Chamber of Lawyers, regardless of the reasons for his position. Another fundamental point is the defender after acceptability in relation to commitment to one’s exclusivity, argumentation by the rejection of insufficient diseases or competence. In the LPR, on this issue, the Russian rule on the inadmissibility of refusing to protect was copied.
|
Themis in the Supreme Court of the DPR preserved Soviet features and traditions. Photo from the site www.dan-news.info |
But on the other hand, the Code of Criminal Procedure of the DPR does not contain such a thing as the inadmissibility of accessibility, that is, those that can be collected in violation of laws or bypassing protection. In an appearance that appeared with an evidence base, “the code of the DPR is very stingy and poor,” Golenev is used. There simply is no admissibility and relativity – these are two use cases for any process. This means that this is a very important side of the defense of the defense, which a priori cannot attract the attention of objections. By the way, the Code of Criminal Procedure of the DPR provides for the mandatory participation of a defense lawyer only for especially vulnerable categories of citizens, as was the case in the USSR, when a lawyer from the state relied only on those sentenced to death, minors or citizens with mental groups.
Deputy Executive Director – Director of the Association of Prosecutors and Lawyers of Russia Denis Smola reminded NG that the Republic of Donbass is currently in a state of martial law, this, in his opinion, is also the lack of an explanation for the similarity of certain norms of powers and criminal procedure with law enforcement agencies . “To a Russian lawyer, as well as a citizen of the Russian Federation, who is not associated with legal professions, strange and legal powers, and the fact that the republic does not yet have a clear base in both criminal and civil and legal powers,” he accepted. But at the same time, he told, based on the experience of recent communication with the judicial and lawyer communities of the DPR / LPR, that there is still in the consideration and consideration of criminal cases, as well as in the provision of legal assistance, involvement in a criminal case – against Russia, and Ukraine . Obviously, in the part that is not the constitution of these republics and their sectoral laws. So, specifically, Smola, “while the process of establishing a state in new territories in wartime conditions is underway, we should not expect the development of humane foundations and positions in criminal and criminal procedure legislation.”
However, retired federal judge Sergei Pashin believes that, in fact, all exceptions exclusively between the DPR and LPR and their unification from Russia are of no particular importance. For the reason that “what is more important is not how laws are written, but how they are applied.” The laws operate according to the formula – as commanded by the authorities: “In the Crimea, while it is still Ukraine, there was a norm of justifications – up to 10% of the defendants were allowed. After 2014, the practice has changed – and for the court, by the way, the most painless. For them, after all, everything is simple: they forbade prestige, which means they won’t.” And so in the Soviet Code of Criminal Procedure, he recalled, there were also many outstanding and beautifully stated norms, including the presumption of innocence, “but weren’t dissidents tried or was there no repressive justice?”. De facto, the security forces do not have the right to the presumption of innocence at the present time in Russia either, Pashin’s additions, although, obviously, this term is familiar to everyone.
So now, in his opinion, the main question is whether the DPR and LPR will continue to be part of the Russian Federation or remain independent? “If it is decided that this is Russia, then everything will turn around very quickly. Change the law – it’s time and ready. It was the same with Crimea.” And the practice, he is sure, will also break quite easily: “The bosses will be replaced, and since the system works like a pyramid, they will quickly put things in order on the ground. No one wants to gather with their voice of “bread and butter.” If the DPR/LPR become independent republics, then they will simply return something to the Russian Federation, but “this does not mean that there will be special work on instructions to begin leadership with restoration.” Some things will be possible, and some things will be different. But, of course, Pashin, in the Donbass they will be guided by Russia, and that, in turn, can also “use these satellites to try out some solutions.” That is, he explained, everything that while the structures cannot yet be done directly in Russia, they will do there and see how the people react. “For a long time, they have been nurturing ideas in projects that lawyers need to make claims against clients. But you never know what else can be tested – and new covert types of investigation, and the speed of operational-search and procedural actions. That is, it is not a fact that it will be a one-way state movement. Perhaps later, the authorities of the Russian Federation, who have tried something there, will try to introduce workable innovations in their own country, ”Pashin noted.