A sign of strength, a sign of weakness


‘The degree of civilization in a society’, wrote Fyodor Dostoevsky, ‘can be judged by entering its prisons’. We tend to understand this famous quote as a reminder of our moral responsibility for those we incarcerate. With some 850,000 in jail, Russia has a higher percentage of its population, locked up than any other country, with only the USA ahead of it. Yet the number of people behind bars is just a fraction of the problem.

What is fascinating about Dostoevsky’s outburst is that it remains true in a very pragmatic, unsentimental sense. Society can be recognised in its penal system just as women regard their countenances in a mirror.

Jail is expensive. Russia spends more money on a prisoner than on a typical civil servant, twice that of an average pension and three times as much as it assigns on higher education for one student. Still, some people argue that the system doesn’t work. Within three years after release most inmates re-offend. Children with a parent in prison are seven times more likely to go to jail at some point in their lives than their peers from prison-free families. Instead of improvement in life-style, incarceration produces new crimes and more accomplished criminals.

To a larger extent the modern Russian criminal justice still applies the retaliatory approach. The proposed changes are an attempt to change this and at least start the reformation of criminal prosecution.
Evgeny Reyzman
Counsel, Baker & McKenzie

It is hardly surprising that the Kremlin wants fewer people in jail. In 2010 President Medvedev changed criminal legislation to this effect at least twice. He tried to restrict the usage of pre-trial arrests for economic crimes and required medical assessment before prisoners could be placed in isolation cells. Then he eliminated the minimum term of imprisonment for petty crimes, such as minor thefts, so that judges had more discretion and viewed imprisonment as the last resort. Thus, around 80,000 - or nine percent of Russia’s prison population - were set free.

Recently Dmitry Medvedev announced an even more radical step. White-collar criminals will be able to buy their way out of trouble. Instead of a prison term a first-time offender will have to pay the government five times the amount of damages inflicted. The bill covers economic crimes where the damage does not exceed 3 million roubles ($115,000). The payment to the state, then, could exceed 15 million roubles ($575,000).

It may be hard to believe but Russia’s criminal law is not that harsh. Large scale tax evasion, for instance, is punishable by up to three years behind bars or, if this is a corporate fraud committed by an organised group, up to six years with the right to early parole. Those who get caught for the first time can avoid imprisonment at all by paying the tax, interests and penalties.

Bernie Madoff with his 150-year sentence for running a Ponzi scam, in Russia would have been imprisoned, if at all, for 5-6 years. Valentina Solovyova, a typical example, the founder of a financial pyramid ‘Vlastilina’, defrauded thousands of investors for 500 billion roubles ($120 million), spent five years in prison, then set up a new scam, was arrested again and sentenced to another four years in jail.

Though most white-collar crimes - like stock market abuse, illegal bankruptcy or corporate governance fraud - are in the Criminal Code, real prosecutions are rare and lenient.

Granted, white-collar criminals may get off lightly because they are hard to catch and they can usually afford good lawyers. Yet statistics on violent crime goes along similar lines. In 2004 - 2009 for example, life sentence was imposed on only 0.2% of those who committed premeditated murder and less than 4% were sentenced to 25 years behind bars. Only 2 of 234,000 found guilty of causing grievous bodily harm, including incidental death, got the maximum term, and 37% of the convicts received a suspended sentence - effectively, no sentence at all.

‘Even those who receive the maximum term do not get upset,’ says General Vladimir Ovchinsky, former head of the Russian Bureau of Interpol, ‘They are released on parole after serving half their sentence. Therefore, the entire contingent of the 1990s, which, as we thought, had been locked up for a long time is now free’.

The problem with criminal justice in Russia is not the law. With not-guilty verdicts in around 0.5% of all cases considered in courts, the sentencing power shifts from judges to prosecutors. Even the smallest entrepreneur caught for smuggling or tax evasion has enough to trigger numerous charges in related crimes like money laundering, illegal business or fraud. He can be arrested and put in pre-trial detention centres, sizos, where conditions are harsher than in prisons for convicted criminals.

Those ‘correctional’ facilities are so cruel - every tenth prisoner in Russia has tuberculosis or HIV - that being there, even for a few months, can be fatal. Locked up in sordid overcrowded cells, innocent people plead guilty. Every year some 400 people die in custody still awaiting trial. In law they remain not guilty. Sergey Magnitsky, a Russian attorney, was one of them. He died after 11 months in pain. He had been moved to more and more gruesome sections of the prison and denied medical help which could have saved his life.

The Russian criminal justice has many flaws. It locks up innocent people but those who belong behind bars are left free. It criminalises acts that need not be criminalised but doesn’t see obvious fraud and deceit. But above all, it is so cruel, so opaque, so ponderous that it is almost not justice at all. Russia may, as Dmitry Medvedev suggests, patch up the system by trying to keep some people out of its reach. Any change is good. Yet one day Russians will have to take courage and look into this dark side of their life, which, if Dostoevsky was right, is just a mirror.

picture: KMT - Fotolia.com



Russian justice system needs reform, not leniency