Russian Criminal Code: Long Awaited Reform

Draft № 559740-5 of the Federal Law “On the Introduction of Amendments into the Criminal Code and Other Statutes of the Russian Federation” proposes such radical a change in criminal prosecution policy that experts are referring to it as a plan for the reformation of criminal punishment in general.

The draft softens punishments for misdemeanors and less serious crimes (i.e. those currently punished by less than 10 years of imprisonment). This includes reduced prison terms and the replacement of imprisonment by less severe sanctions. For that purpose the draft introduces a new type of criminal sanction intended to replace imprisonment – compulsory works.

It is proposed that the Russian Criminal Code will acquire a whole set of sanctions based on labor: the least severe are mandatory works (convicts who have a permanent place of work and residence are to perform socially significant works for the benefit of the community in their free time); corrective works (those who have no permanent employment will be assigned work by the relevant authorities at their place of residence); and the newly proposed compulsory works (for more serious crimes convicts will be sent for correctional labor to other regions and will be kept in conditions of limited freedom under the supervision of the authorities).

For economic crimes the draft proposes that wrongdoers with no previous criminal record who are able to pay damages to injured parties, or repay to the Treasury the illegally acquired income, and to pay to the Treasury a large fine (fivefold of the amount of the damages or the illegally acquired income) will not face criminal prosecution. In addition, many sanctions for economic crimes are significantly mitigated.

The necessity to materially amend the criminal prosecution system, especially for economic crimes, is recognized by almost all experts and the general public. Merciless statistics recently published in the mass media show that in recent years around 15% of officially registered entrepreneurs have been subjected to criminal prosecution (some sources say more than 40%). Criminal prosecution has become a “generally accepted” universal instrument of corporate raiding. The threat of criminal prosecution for any economically sane/productive activities is so high that around half of young educated people are ready or want to leave the country! A very significant part of the economically independent population has been in prison and a prison subculture has become normal among a broad layer of society; our nation is becoming more and more a nation of convicts. This alone shows that criminal prosecution is used excessively, and should be materially reorganized.

The mitigation of criminal punishment became a world trend long ago. In general, criminal punishment serves three objectives: retribution (the community retaliates for the infringement of its laws), general deterrence (discouraging people from committing similar crimes), and special deterrence (discouraging the wrongdoer personally from committing a crime). To attain all three objectives the severity of a punishment must correspond to the gravity of a crime. If the punishment is too severe, it will be viewed by people at large and the sentenced as excessive and unfair and will not deter anybody. If the punishment is too mild people will think that the criminal was unjustly spared punishment, and therefore it will neither retaliate, nor deter the criminal or others from further crime, as it will generate a feeling of impunity.

Observing this balance is most problematic when making a decision on the length of imprisonment. In general, the value of freedom, i.e. the set of benefits that are available only with freedom, is constantly growing, especially in developed countries. Moreover, the higher the social, educational and economic standing of an individual the higher the value of freedom for her or him; in other words, deprivation of freedom inflicts more pain. It is hardly necessary to keep a former top manager or a business owner incarcerated for years when even a month’s imprisonment becomes a life-long shock for such individual. By the way, this was very well understood even in pre-revolutionary Russia, when the Penal Code allowed incarceration calculated in months, and that was considered quite sufficient for socially advanced people. Unfortunately the October Revolution, abusing the idea of universal equality of rights, put an end to an individual approach when setting punishment, and Soviet courts assigned the same periods of imprisonment to educated engineers and to drop-outs, for whom conditions in freedom were hardly better than in prison. To a larger extent the modern Russian criminal justice still applies the same retaliatory approach.

The proposed changes in the Criminal Code are an attempt to materially change this approach of the courts to setting punishments, and thus to at least start the reformation of criminal prosecution.

However, among the legal community the draft received not only understanding and support, but also significant criticism. Many experts in criminal law say that expanding the scope of punishment alone (allowing significant judicial discretion when assigning punishment) will not bring the desired results, since the same judges will be deciding on the punishment. They go on to say that to protect economically active people from excessive/unwarranted criminal prosecution, it is necessary to materially change the design of the Criminal Code, the structure of economic offences, in order to disallow the very initiation of criminal prosecution in cases when an administrative sanction is sufficient. Moreover, according to them, the very system of criminal justice must be reorganized to shield the judiciary from external political and other influence, and to put an end to the notorious “telephone justice”. That means that the draft is only the beginning of the legislative work intended to modernize Russian criminal justice…