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. Last Updated: 07/27/2016

Of Retrials and Tribulations

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Imagine the headline: "Country's Human Rights Representative Calls for Tougher Punishment." Sound impossible?

Not anymore, now that the Russian Constitutional Court adopted a decision that allows for retrial in potentially any criminal case that ended in acquittal. Vladimir Lukin, Russia's human rights ombudsman, joined a group of claimants who were urging the court to limit "wrong" court decisions.

The new ruling on May 11 declared Article 405 of the Criminal Procedural Code unconstitutional. This article forbade creating "a turn for the worse" for someone who has been tried and acquitted.

The actual number of criminals who get off scot free is impossible to calculate, but anyone familiar with modern Russian court practice knows that the outcomes of most criminal cases can be effectively influenced. Plaintiffs who do not want this influence or simply cannot afford it often see offenders walk away unpunished.

Their frustration likely motivated this otherwise inexplicable move by the Russian Constitutional Court. And indeed, the main idea behind the claim to the Constitutional Court was to give the victims of a criminal act -- and, of course, the prosecutor's office -- the legal right to challenge any acquittal. This, in turn, opens the door to making the legal position of a previously acquitted person worse.

Of course, the option to reverse a mistaken judgment existed in Russian procedural law before the May 11 ruling. According to the general principle stated in the recently adopted and rather well-drafted Criminal Procedural Code, a valid court decision can be revised in order to eliminate a possible legal mistake when new, previously unknown facts related to the case surface or when a fundamental defect in procedure was allowed.

The Constitutional Court, moreover, upheld this principle as recently as July 2002. This prior ruling stated that the exceptions to the general prohibition of double jeopardy "may be permitted only as a marginal measure when failure to correct the court's mistake would affect the very nature of justice and the meaning of a court decision as act of justice."

Yet the problem with the May 11 ruling is that by opening up the possibility of making an acquitted person's position worse, the country's highest court, which is supposed to safeguard the constitutional rights of Russian citizens, has started down a slippery slope.

The prosecution could potentially use the ruling as a new tool for revising practically any acquittal or for gaining harsher sentences for those declared guilty. The ruling eliminates one of the fundamental principles that protects citizens before the state, and it throws the legal system off balance in favor of the prosecution.

Article 50 of the Russian Constitution nevertheless clearly states that "no one can be repeatedly tried for the same crime." This legal principle, known as "non bis in idem," came from Roman law and is now incorporated in the constitutional law of most democratic nations. The International Covenant on Civil and Political Rights, to which the Russian Federation is a party, forbids double prosecution, with only one specific exception reserved for a "fundamental defect" that affected the outcome of a court case. In France, acquittals can only be reversed only in a very limited number of situations. It is almost impossible under French law for a retrial to worsen the situation of a person who has already been acquitted. If the state made a mistake and wants to correct it, it should never be allowed to do so at the expense of its citizens.

Despite its disturbing implications, it is tempting to argue that the May 11 Constitutional Court decision is in fact much ado about nothing. Acquittals in today's Russia reportedly account for less than 0.5 percent of all court decisions in criminal cases, while in Western Europe the average rate is as high as 30 percent. Even in pre-revolutionary Russia, which was hardly a model democracy, the acquittal rate was 25 percent.

The recent ruling may still sound alarming for to those responsible for protecting the integrity of the legal system: The undermining of an important legal principle may lead to further erosion of the constitutional framework.

And the spirit of Russian Constitution must be protected. There is no doubt that the Constitutional Court judges and Ombudsman Lukin realize this. However, Russian citizens' rights cannot be protected using questionable tools, even if the intention is to restore justice.

Innokenty Alexeev and Sergei Sulimsky are international lawyers based in Moscow. They contributed this comment to The Moscow Times.