Moscow Times
May 17, 2007
It's Not Over When the Gavel Drops
By David Nowak
Staff Writer
The Constitutional Court ruled Wednesday that cases against convicted criminals can be reopened and their sentences made more severe if new evidence comes to light.
The ruling severely restricts already limited protections against double jeopardy being tried or punished twice for the same offense in Russian criminal law.
"Through a decree here and an amendment there, Soviet repression is returning," said Igor Trunov, a lawyer who represents the relatives of people who died in the 2002 Dubrovka theater siege.
"Little about the judicial system has changed since the Soviet era because we are still being ruled by the Soviet generation," Trunov said.
In comments on Ekho Moskvy radio, lawyer Mikhail Barshchevsky said the decision "looks like the start of a period of counter-reforms."
"It is injustice when a convict pays for the mistakes of judges or prosecutors," Barshchevsky said.
The court declared unconstitutional provisions in the Criminal Procedural Code that prevented the reopening of criminal cases or reviewing of court decisions in the presence of new evidence indicating that the offense was more severe than initially thought.
The court gave the parliament six months to amend the Criminal Procedural Code in line with Wednesday's ruling.
Moscow lawyer Dmitry Udaltsov said civil law allowed the reopening of cases in light of new evidence and that there were no legal obstacles to prevent this provision from being applied to criminal law.
"If the latest decision by the Constitutional Court is not a political ploy aimed at a specific person, then why not?" he said. "New evidence might not necessarily lead to harsher punishment; it may in fact soften it."
Yury Shmidt, a lawyer for former Yukos CEO Mikhail Khodorkovsky, who is serving a eight-year jail term for fraud and tax evasion, said he did not think the ruling would be applied against his client.
"Prosecutors can easily dream up new charges against Khodorkovsky," Shmidt said. "And they have already squeezed the maximum sentence from the previous charges."
Shmidt declined to comment on the specifics of the court ruling because he had not seen the full text.
Yelena Vinogradova, the Federation Council's representative to the Constitutional Court, told Interfax after the ruling that the list of circumstances in which criminal cases can be reopened should be extended.
Wednesday's ruling came in response to an appeal from the Kurgan regional prosecutor's office, Interfax reported.
The appeal focused on the case of Yelena Akimova, who was convicted in the Kurgan Regional Court of causing grievous bodily harm to her husband. At the time of the sentencing, however, the court was unaware that Akimova's husband had died one month after the incident.
Prosecutors asked the regional court's presidium to sanction the reopening of the case in light of this fact. The presidium denied the request, finding that a sentence could only be reviewed when new exculpatory evidence is presented.
In the Constitutional Court, Kurgan prosecutors argued that the state's inability to reopen cases against convicted criminals in light of new incriminatory evidence was a distortion of the principle of justice.
The court's ruling does not seem to violate the European Convention for the Protection of Human Rights and Fundamental Freedoms, which Russia is obliged to observe as a member of the Council of Europe.
The convention prohibits double jeopardy in cases where a defendant "has already been finally acquitted or convicted in accordance with the law and penal procedure" of the country in question.
It goes on, however, to stipulate that this protection "shall not prevent the reopening of the case in accordance with the law and penal procedure of the state concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings."
Russian prosecutors already enjoy broad powers to appeal cases that end in acquittal.
In one controversial case, Captain Eduard Ulman is currently on trial for a third time following two acquittals in April 2004 and May 2005 on charges of killing six civilians in Chechnya in 2002. In each of the earlier trials, Ulman was acquitted by a jury.
Staff Writer Nabi Abdullaev contributed to this report.