Judge Is Accuser, Arbiter

About 60 percent of court cases in Russia are held without the participation of a prosecutor. He is replaced by judges who act as public prosecutors and chief arbitrators at the same time.

Moscow lawyer Sergei Zabarin told me that he had done everything possible to convince the court during a recent trial in which he defended Temuri Gabisoniya, a native of Georgia, who was charged with drug possession, that a prosecutor, and not the judge, should lead the prosecution.

This is in complete violation of Article 123 of the Russian Constitution, which says legal proceedings should be based on the ability of both parties to compete on an equal footing. Any democratic constitution guarantees such rights. Zabarin wonders how a lawyer can win a trial in which the prosecutor passes sentence on the accused. Sadly, this is the absurd reality of Russian legal proceedings. According to Article 35 of the Criminal-Procedural Code, judges personally consider all criminal cases with sentences of up to five years imprisonment.

In the above case, a conflict arose between the lawyer and the judge. The lawyer believes that the investigator made gross errors in drawing up the indictment, which was read by the judge at the trial.

"I can't enter into a fair argument with the judge, given that he combines two positions," Zabarin told me. "He was not competent to handle the case, because he became acquainted with the indictment just a few hours before the beginning of the trial, as it usually occurs in Russia, and did not examine thoroughly the case of Gabisoniya. In sum, the accused received an undeserved punishment, because I did not manage to explain to the judge that the Temuri Gabisoniya case was fabricated."

Gabisoniya says the drugs were planted on him by the Moscow Criminal Investigation Department. Moreover, one of the policemen was arrested and convicted for extortion and bribe-taking. Zabarin says he had truth on his side, but that the judge did not want to listen to him.

The lawyer then lodged a protest with the Prosecutor General's Office against the violation of the Russian Constitution in the case. But he got no response. According to Zabarin, this is because, first of all, the accused was not a Russian citizen, and second, not Russian. And the negative relationship in Moscow to people from the south, to so-called persons of Caucasian nationality, is well known. The protest went unnoticed.

After learning of the contradictions between the articles of the constitution and the criminal-procedural code, I decided to ask judges and prosecutors to explain why human rights in Russia are being violated. But it turned out that this was not easy.

In Moscow's Presnenskaya Municipal Prosecutor's Office, I was brushed aside when I raised the question of Article 123. I met with expressions of fear when I tried to get an answer to my question at the Presnensky Regional Court. Only thanks to journalistic cheek was I able to end up in the office of the chairwoman of the court, Irina Kupriyanova, and put my questions to her.

She told me, "A prosecutor must be present at trials only when it is a matter of people not answerable for their actions or minors, people under age 18."

When asked about the contradiction between the constitution and criminal code, she said that judges are so busy with cases and have neither the time nor power to call in a prosecutor for each trial.

Of course, I was extremely surprised by such a reply and decided to hear the opinion of the prosecutor's office. I spoke with Alexander Potapov at the Tverskaya Interregional Prosecutor's Office, who said, "A prosecutor must be present at legal proceedings when they concern grave crimes and the term of punishment is more than five years.

Judging from the passages of the criminal code that the prosecutor Potapov cited, Judge Kupriyanova is simply unaware of who should make up the court and how the trials should proceed. But she continues to decide the fates of hundreds of people, presiding every day over several trials and not understanding that a defense lawyer needs a prosecutor for an opponent and an absolutely impartial judge.

The constitution of the country has changed several times in the past decade. In particular, the last, so-called Yeltsin constitution, was adopted in 1993. The Criminal-Procedural Code was adopted in 1961, during the Soviet period. Prosecutors work on the basis of this code.

Unfortunately, judges today tend to take the side of the prosecution. Although a new criminal code is now being worked out. A version is being considered, however, that would give judges the possibility of giving the order for arrest of a citizen suspected of committing a crime. This would mean that he would both arrest and judge the suspect himself.

Legal proceedings would thus be made a complete absurdity. Potapov agreed with me on this point, but could not explain why Russian justice is once again turning into a repressive apparatus.

Russia is still far from being a law-based state. It will be a long time before a Russian citizen can calmly put himself in the hands of a court with the conviction that justice will be served. The only thing left to do is be wary not only of criminals, but of the people who by definition should be defending us. In Russia, however, everything is always the other way around.

The Moscow lawyer Sergei Zabarin continues to fight for his client.

Mumin Shakirov is a staff writer for Radio Liberty, Moscow. He contributed this comment to The Moscow Times.