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[Second Issue of the Day]
#7
gazeta.ru
July 1, 2002
Buy a ticket and drink in peace
Sergei Ivashko, Viktoria Malyutina
On Monday, July 1, 2002, two crucial laws, affecting every citizen of Russia, came into effect. They are the new Code on Administrative Violations and the Criminal Procedure Code. Both documents considerably differ from their Soviet-era prototypes by enshrining the concept of 'innocent until proven guilty', and the right of suspects to legal counsel and a fair trial.
For decades the Code on Administrative Violations has been the most widely applied legal act in Russia, as the document defines the penalties imposed for violating traffic rules, fare dodging on public transport, and antisocial behaviour. According to lawyers, asked by Gazeta.Ru to comment on the new Code, the main achievement of the document is that it introduces the presumption of innocence in the sphere of administrative violations.
Everyone charged with an offence is considered innocent until his or her guilt has been established by the verdict of a court of law or by an authorized official. Moreover, no one is obliged to prove his or her innocence. The task of investigators is to establish the degree of guilt. The benefit of doubt is always in favour of the defendant. The authors of the new Code have also raised the age at which a person may be held accountable for an administrative violation to 16 years.
In addition, the Code has other provisions designed to make life easier for common Russians. For example, under the new Code drinking wine straight from a bottle in public (but not in transport) is no longer punishable. Such conduct is considered a violation of public order only if the liquor strength exceeds 12 per cent alcohol, or the drinker is in a state of intoxication.
So, now any person can walk in Red Square and even be drinking vodka, right in front of the Lenin Mausoleum, provided of course that no one sees what he is drinking. By hiding his bottle in a paper-bag the police cannot simply detain someone for drinking in a public place under the new Code. They will only be able to search the offender if they have reason to believe he has been drinking and, for instance, smells of vodka.
They will then have to conduct a search that is unlawful without the presence of witnesses. A policeman conducting the search must be of the same gender as the suspected offender, and moreover, the police are obliged to draw up a search report.
In exceptional cases, however, police will be allowed to conduct searches in the absence of witnesses, when they have sufficient grounds to believe that the person under suspicion is carrying weapons, drugs or explosives. And if they find nothing the person they have searched is then entitled to compensation for moral damage.
But then, even though the Code allows drinking in public places, one should not get too drunk. The Code contains an article envisaging penalties for 'appearing in public places in a state of intoxication' regardless of the strength of the consumed liquor.
If a person is detained for an administrative violation, any other person can testify in his favour if the detention was carried out with a breach of procedure. Unlike Soviet-era laws, the new Code also allows relatives of the suspect to act as witnesses during his or her detention. However, the presence of a relative will hardly exempt the offender from a fine for fare dodging on public transport. This is the only type of fine that may be collected on site. Moreover, under the new Code the fine has been raised from 10 roubles to 100 (1 minimum monthly wage).
July 1, 2002 also sees another vital law come into effect -- the Criminal Procedure Code, that deals with rules of procedure during criminal investigation and court examinations of criminal cases. In the opinion of many lawyers, the new law will substantially improve Russia's judicial system.
The key achievement of the new Code is the introduction of the ''adversarial'' system of legal procedure, in which allegations are made by the prosecution, resisted by the defendant, and determined by an impartial judge or jury. Thus, the prosecution and the defence enjoy equal rights and responsibilities in the trial.
In particular, a defence attorney will now be allowed to conduct independent investigation into his or her client's case. Under the old Code this was the prerogative of state authorities -- prosecutors and the police. The new law allows defence attorneys to question individuals, to request documents from various institutions, and to invite experts to court.
The new Criminal Procedure Code has considerably curtailed the powers of investigative authorities. In line with the new law, the prosecutor will no longer control the entire process of investigation. His role will be to represent the state prosecution in court, though a criminal case can only be instigated with the prosecutor's consent.
Under the new Code pre-trial detention will require judicial approval. The same approval will be required to extend the term of pre-trial detention or to send a suspect to hospital for forensic examination. Only a court of law will have the power to authorize phone tapping and searches in residential premises. And such activities will be authorized by court only if the person involved is suspected of having committed a particularly serious crime.
The Code puts an end to trials in absentia, and introduces plea-bargaining for offenses punishable by prison terms of less than five years. In such cases, charges may be dropped and the case closed if the offender and the aggrieved party reconcile, and the offender compensates the damage inflicted on the aggrieved party by the crime. The authors of the new Code hope that this provision will ease the workload of courts and allow judges to examine serious offences more closely.
The new Code will put an end to the practice of sending criminal cases 'for additional investigation'. If the prosecutor has signed an indictment act and the court has accepted the case for examination, the court can either pass a sentence, or close the case.
Also under the new Code prosecutors will no longer enjoy the right to appeal verdicts that have already come into effect. The verdict may be appealed only before it becomes effective and the initial punishment imposed on the offender cannot be made harsher.
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