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"Letter of the Law": Supreme Court: Criminal procedure to be state mechanism for rights protection of citizens, not a lottery drum…"

3 Jan 2011

Has placement in detention always been lawful? What is “detention sufficiency”? Why have the appeals to change the measure of restraint been so rarely sustained? Has the house arrest been used in our practice?  How much does release on bail “cost”? These and some other questions have been answered within the frames of the author program of Denis Aleinikov, Senior Partner of Law Group “Argument”, by Valery Kalinkovich (Валерий Калинкович), Deputy Chairman of Supreme Court of Belarus, chairman of the judicial chamber for criminal affairs of Supreme Court.

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In accordance with the official statistics, while imposing penalties not connected with imprisonment, more than five thousand people are released from preliminary detention on yearly basis. On the one hand, it is quite good for them to be released, on the other hand, if they are released, has their detention been reasonable then? May be, it was necessary to apply any other measure of restraint? Has this issue been inspected by Supreme Court and what does Supreme Court do in this respect?

The topic of our today’s discussion has not much to do with the New Year, unfortunately.  In theory, we would prefer doing something more pleasant on the eve of the New Year holidays instead of discussing the detention issue or anything else in its connection. Yet, the issue is topical and the important one.

This year, under instruction of the President of the Republic of Belarus, we studied the issue of effectiveness of restraint measures applied in respect of the suspects and the accused of committing crimes.  There are several of them in our Criminal Procedural Code, and the most severe of them are detention and house arrest. We’ve got abundant materials to submit certain amendments to the legislation in force. The principal reason that motivated us to submit this issue for the session of the Plenum of Supreme Court was that in the course of study and generalization of the judicial practices we had determined a number of problems in the activities of the courts which demanded efficient interference and giving to the courts particular clarifications regarding enforcement matters. 

What issues are you talking of?  

Including the one you have just mentioned, Denis. We should be aware of the fact that each person who has come across the sphere of criminal legal proceeding has his or her own destiny, his or her own motives that got him or her run into it, and the fate of each person who has been caught in area of our activities, shall be determined strictly individually. The same shall be applied towards the individuals who have been arrested prior to the court and sentenced to the penalty not connected with deprivation of freedom.

Yet, this is just one of the reasons. The case study shows that the majority of the accused taken into custody every year still during the preliminary investigation, have been accused of committing crimes referred to the category of misdemeanor or crimes of medium gravity for which an alternative penalty has been stipulated by the criminal law.  Certainly, we’ve got interested in the question, why has it been practically preferred to apply the most severe measures of restraint, and the second question is not least interesting either. The law today contains a supplementary constitutional guarantee – that is the possibility for the individual to defend his or her rights in court, if he or she considers his detention to be illegal or insufficient. Special chapter in the Criminal Procedural Code has been devoted to the ways and means of enforcement of that right of an individual, but it turns out in practice that the suspects and the accused exercise this right quite seldom.

Do you mean the right to appeal against the measure of restraint?

Yes, the right to appeal in court against the measure of restraint in form of house arrest or detention – the right to appeal against it due to its illegality or insufficiency. This right has been exercised quite rarely. 505 such appeals were received in 2008, 491 – last year, and 333 in the first half of the current year.

And how many appeals have been sustained?

For the start I should say that about 60 thousand criminal proceeding have been heard in the country every year and in about 20 per cent out of them the accused are placed under detention. So, you can make conclusions on your own about the way our people exercise their right to take legal action – it’s a scanty percent. Just 8 out of 333 appeals have been sustained. They have been sustained basically due to the reasons connected with the breach by the criminal prosecution authorities of the criminal procedural law while applying the measures of restraint.

Just 333 appeals have been filed during half a year, 8 of them have been sustained. What is that – either the attorneys fail to know that it is possible to carry out a court review as regards the legality and sufficiency  of the measures of restraint applied, or it is the individuals that just fail to trust the court review and thus avoid filing appeals?

When we are making use of the term “court review”, we should be aware of the fact that in accordance with our laws, it does not have a random or total nature. In each case the reason for verification of the legality or sufficiency of the applied measure of restraint is the appeal of the person having right to file it: the suspect, the accused, their defenders or legal representatives. The scope of such persons has been determined very clearly. Each person out of the above 333, in respect of which the courts have carried out such review, has his or her own fate. The criminal procedural law has the provision stipulating that if a person has been suspected or accused of committing a grave or especially grave offence, such measure of restraint as placement in detention may be applied due to bare gravity of suspicion or accusation. It regards the accusations of the extremely serious crimes – as a rule, in case of charging of violent crimes, crimes connected with direct corruption, illegal drug trafficking. The court review results in respect of appeals against such measures of restraint give evidence that on the whole, the measure of restraint for such charges categories has been applied correctly.

Coming back to the five thousand people being held in custody and then released from it due to the conviction, in view of penalties not connected with deprivation of freedom, we may say that the issue is more complex. People among those five thousand are absolutely different: there are those who have occurred in place of detention for the first time, and those who had already had criminal records, have been charged with different crimes and committed crime actions again. There are people there who failed to have been placed in detention at first, but then escaped from criminal prosecution authorities or trial. Finally, determining the type and the amount of penalty, the court shall take into account the nature of what has been done, and the personal data of the individual who has committed a crime, the circumstances to be considered as aggravating as well as extenuating ones. On the other hand, the person who has occurred in custody, in any of the above situations, preserves the right of choice: first of all, it is his own subjective perception of justice in view of the way to what extent he or she has been treated correctly.

What might the person do – to file an appeal or not to do that?

Whether to file an appeal or not, to file it to the higher level prosecutor or to the court in order to launch the court review mechanism for detention legality and sufficiency. It is the individual, first of all, who has to determine it, or his defender or the legal representative of the juvenile.

The regulation stipulating the right of the court to check sufficiency of the applied measure of restraint came into force this year. According to statistics, Minsk City Court has not even once revoked the measure of restraint applied by the investigator during the current year, in spite of the court’s right and the filed appeals. You have done big work during preparation for the Supreme Court Plenum upon that issue. What is the reason? Is it still the court’s inertness, or its unwillingness to get in contact with the investigator and revoke his decision?

The thing is that in any sphere of human activity, whether it is jurisprudence, medicine or education, people working there have certain level of breeding and sense of justice. We all are the product of our society. No specialist has been grown up in a bed, everybody shows up in a natural way. Speaking about that matter, it comes out that the court review has been restricted by merely formal legality aspect for the period of over ten years. Moreover, the majority of those who have just started their career as investigator, prosecutor, judge had studied the criminal procedure which did not contain the approaches appeared in 2010, such as sufficiency check up for the applied measure of restraint.  It is natural that in order to formulate by the court any explanations and to give the right direction to the court practice, for the laws to be applied uniformly, it was necessary for Supreme Court   to work out amendments to the law, so that a more or less significant practice could appear, upon which we could make any conclusions. It turned out that in a number of cases upon studying the proceeding decisions made by the judges, the sufficiency criterion for the applied measure of restraint failed to get due consideration. Yet, general conclusion has indicated some progress in this respect. For example, Gomel Region Court has refused prolongation of the measure of restraint in form of detention in relation to the accused of a quite respectable age who had suffered from a number of serious diseases. Notwithstanding the fact, that he was accused of committing a grave offence, the court has come to the absolutely correct conclusion that further keeping that person in penal institution would be insufficient, due to the necessity of serious treatment he needed, and in view of his state of health, he would not be able to escape or otherwise interfere with the further investigation of the case. The public prosecution has then agreed with such a decision.

It is coming out that gravity of the incriminated clause is not a priori an obstacle for selection of any other measure of restraint or for appeal against detention as applied measure of restraint, isn’t it?

Right, indeed, articles 143, 144 of CPC (Criminal Procedural Code) contain single criteria for court review, its legality and sufficiency. The procedural order provided by these regulations is also universal, irrespective of which official person or what court has applied that measure of restraint. Legality and efficiency of decisions on prolongation of restraint measures are also subject to court review.  Even if the accused has filed an appeal to the court against the applied measure of restraint and the court has dismissed the appeal, this person has not been deprived of the right to appeal against the prolongation of that measure of restraint provided it has been done after a certain period of time.

May be, for the benefit of business and development of court review institute, we could now make clear, what legality and efficiency of detention shall be. What is the difference between them? Why has detention legality check always existed, and efficiency check has just appeared this year?

I would omit legal discussions upon that issue, because they have also taken part. A certain number of lawyers considered that legality and efficiency shall be one and the same notion and they should not be divided. But this is the topic for a scientific symposium. I would appeal to the text of resolution of Plenum of Supreme Court, adopted on December 23, which shall be published soon upon established procedure.

Decision on detention upon the criminal proceeding may be made only by the authorized official. While applying this measure of restraint the right of the accused to defense shall be observed. There is a separate resolution of Plenum of Supreme Court to this topic, which was adopted a year ago. It contains, to my mind, quite comprehensive interpretations, upon which any person, including those who failed to read the Criminal Procedural Code, shall be able to imagine what the right to defense is and how to exercise the latter. While reviewing the detention legality, the court shall check, whether the accusation presented against the person in the official order corresponds to the content of the resolution on application of measure of restraint. 

One more issue to be included to the legality aspect: whether there is no any infringement with the terms established by the laws for the persons held in detention, under house arrest, or with the procedural order for prolongation of such actions? The law has established the terms during which the person may be kept in detention.

These are legality criteria for detention. Let’s talk about the things that have been introduced from this year. What is detention sufficiency?

For the detention to be not just formally legal but also sufficient, as well as for the other measures of restraint, Criminal Procedural Code contains special provision – article 117, where the legislator presents general grounds for applying measures of restraint. Being guided by them the prosecution authorities, the prosecutor, the court shall finally determine to what extent it is necessary to apply the measure of restraint in general, and if necessary, then which one exactly from the number of those stipulated by the law. In order to determine the sufficiency, the whole range of circumstances shall be taken into account. First of all, the nature of suspicion or of accusation itself: violent or non-violent, grave offence, misdemeanor, other category. Assuming that if the law does not stipulate deprivation of freedom for the committed crime, the accused may theoretically be detained but subject to the fact of having escaped from prosecution authorities or the court – there are some restraints there stipulated by the law. Personal data are also of great importance and may be significant for making a decision on the necessity of applying these measures of restraint. The data on the past, social status of the person, presence of dependants, non-adults, disabled and any other circumstances are included there, which may influence on the benefit of which party the appeal shall be considered by the court.

Lets’ speak of other measures of restraint. Has bail been used?

Actually yes, but unfortunately, in some separate cases.

How many such cases have there been during the year? 

Only a few, and there is something to think about. It is necessary for this measure to be applied in larger segments, so much the more, if we talk about the non-violent crimes, economic crimes and crimes against property. During the session of Plenum, by the way, one of the speaking judges was giving an interesting example, when the court has settled a claim on a measure of restraint for the person detained for a small theft. The court has said that this measure of restraint was applied insufficiently and released him. After having been released, the person indemnified material and moral damage to the complainant, and the criminal case was withdrawn due to reconciliation of the accused and the complainant. This is a visual example showing us that upon reasonable interference of the court during pre-trial stage social conflict has been resolved by means of a rational approach towards choice of the measure of restraint.

So, if a person is positive in all respects, could this serve as an argument for him to avoid applying detention  as the measure of restraint?

Including without limitation. The sphere of research there is quite broad: how the person behaved after committing a crime provided he does not plead unguilty. 

And what if he does not admit his guilt? Cannot the measure of restraint be changed?

For God’s sake. But I have demonstrated the situation for you, when the person on his own free will was ready to eliminate the consequences of the committed crime as much as possible. This is positive and normal, and our law allows it for the vast number of crimes, in case of reconciliation of the accused and the complainant, to release the person who has committed a crime from the criminal responsibility. There is a number of conditions to be observed, and our courts have come to such a decision in respect of over one and a half thousand people for the period of six months of the current year. As a result, the person who has revealed actual repentance, corrected own mistakes, remains with pure biography because of absence of records of conviction. And that is right, and it should be further promoted in our practice.

We’ve got some questions from the users to the program: “I am asking for help. My husband has been convicted under article 233 part 3 for three years imprisonment of medium security.  Additionally to that, there was a suit. He had worked for a commercial company for a year and a half upon the employment agreement, having nothing but the salary in amount of 150 c.u. He had been treated in the case as a witness for three years, and then he became the accused. In September this year he was convicted, and I stayed alone with two children – 7 years old and a baby of 9 months. I am on maternity leave. We have filed a cassation appeal to the municipal court. There has been no any reply for almost four months. Where shall we seek after truth? The children are suffering”.

I am not able to say to what extent conviction of this woman’s husband is sufficient. I can come to a conclusion upon her letter, that the sentence has not taken legal effect yet. I am asking the author of this letter to describe the situation in more details to the official requisites of Supreme Court, indicating the court and the date of rendering the sentence. I promise to carry out a check upon this fact, and if red-tape really takes place, we shall take measures without interference with the merits of the case, so that the legality and sufficiency of this sentence are checked due to the established procedure.

One more question: “A friend of ours has been kept in detention upon article 201 part 4. A year and 7 months have passed, yet he has neither been convicted, nor justified. The regional court has completely revoked the decision of the district court and sent back the case for a new consideration, saying that the state official’s status does not provide any grounds for conviction upon corrupt article. Petition to the procurator’s office and the court to change the measure of restraint have given no result. Please, give us a piece of advice of what shall we do. Is it actually possible today to at least change the measure of restraint and who can render assistance upon the matter?”

I have also got interested in that message and made enquires. Actually, there is such a case in one of the district courts, and it has been reconsidered after revocation of the initial sentence. Correspondingly, no one is able to say now about eventual prospects of this case outcome, because it is within the exclusive jurisdiction of the district court to resolve all issues about guiltiness or innocence.  Nonetheless, it is possible to answer the question asked within the frames of our topic. The thing is that according to the procedure established by the Criminal Procedural Code, which has just recently been discussed during the session of Plenum, it is possible to claim legality and sufficiency of application to the higher court or prolongation by the court of duration period of the measure of restraint. If this accused supposes to be kept in detention illegally or insufficiently, he has right to address an appeal to the higher court, which shall be considered in accordance with the procedure established by the law. By the way, the law stipulates in fact a two-phase check of consideration of such appeals. For example, a person has been arrested with the prosecutor’s approval, and then he filed an appeal to the district court at place of preliminary investigation. Let’s assume that the court has rejected the appeal. This court’s resolution may be appealed to the higher court, which performs in practice the same work according to its procedural scope as the first-instance court. If the appeal has been dismissed, and the resolution has come into legal effect, this person preserves the right to appeal against these decisions up to the Supreme Court, but in accordance with judicial supervision procedure, which acts, inter alia, also in situations when the criminal case has already been in court. By the way, some of the accused make use of this procedure.

Should this procedure be used by the accused, and should he write directly from place of detention, or can it also be done by the relative, the attorney? To what extent is it real to implement this right to appeal?

The person who has been arrested or detained, his defender or legal representative, if the accused is under age, have naturally the right to appeal. If the appeal shall be filed by the person who has been detained and kept in custody, administration of this establishment shall file an appeal, first to the authority investigating the case or to the court. Then this authority shall attach to the appeal all necessary documents concerning application of this measure of restraint, and shall file them to the competent court. It shall be carried out within three days – the terms are very short in order to avoid continuous and insufficient detention of the person. If we talk of the defender, he shall file this appeal directly to the authority performing investigation, or to the court. Further the action plan shall be the same: to compose a set of documents and attach them to the appeal, which shall be sent then to the competent or to the higher court. The law does not prescribe any strict requirements to the form and content of the appeal itself. In order to provide the court with a certain field of action, it is advisable to report in plain language about the date of the person’s detention and the reason why he considers his arrest or detention illegal or insufficient.

Detention is probably the most wide spread measure of restraint today. If we refer to the European practice, it shall rather be the exclusive measure of restraint: such forms as bail, house arrest, recognizance not to leave are widely spread in Europe. Why have we chosen the way to practice detention?

Talking about this issue, the most widely spread measure of restraint we have is recognizance not to leave and good behavior bond which unfortunately have been avoided by some unconscious people and who let themselves in for trouble.

Why are there just single cases when bail and house arrest shall be applied? What is the reason for that?

Until recently, the previous wording of Criminal Procedural Code stipulated the minimum bail amount of 500 basic units. Investigation practice has indicated that there were very few people ready to pay such money. In the recent past the minimum amount of money bail was reduced up to 100 basic units. As far as I understand, application of this measure of restraint also depends on the accused himself and on the persons ready to pay bail for him: if there are no such persons, no one shall stand bail.

Have there been any cases when some persons were ready to stand bail, but they were told that the measure of restraint shall be detention?

I have never had such cases in my practice. There have been some cases when the bail was gone, but then we could not find the people. Therefore, bail as any other measure of restraint, shall be applied on individual basis. I don’t think that the house arrest is a universal measure of restraint.

In what way shall the house arrest be implemented? How does it look like in practice?

The person shall be guarded during the day and the night, but at home. It is actually a round-the-clock safe-keeping. The regime of its implementation depends on the kind of person and the level of behavior restraints settled for him. This measure of restraint is not a cheap one.

You should understand it is not the end in itself to put someone away and not let him out. To make it in the optimum way and that it does not cost a pretty penny for the state, we do work inter alia on legislation improvement. In the lawyers’ environment we may hear some suggestions to remove the public nature from the criminal proceeding, and there are permanent suggestions to make the criminal proceeding self-accounting, for the accused to pay all costs in connection with the investigation upon his case.  But we should be very careful with such issues, because criminal legal proceeding is the state mechanism of protection of citizens’ rights and interests and not a lottery drum.

Have there been any private prisons anywhere in the world?

There are some private prisons. In a number of European countries appeal from judgement to the second instance shall entail serious procedural expenditures which shall be charged from the accused, if he has lost the appeal. And the amounts are far from being small.  

In some countries special bracelet shall be used instead of being guarded under house arrest. Have there been any serious considerations of such a matter in our country?

Such an option has been worked through, but it is necessary to count money because such bracelets also have some value. But the problem lies not only in the measures of restraint. I have already mentioned that the law provides quite broad options for the law-abiding citizens to release them from responsibility for petty offence in the future, if they reveal desire to correct the made mistake. Such options shall be used to a maximum. They can be also used during pretrial stages, in the court.

I know that Supreme Court has been interested in obtaining unbiased opinion of citizens about the performance level of the judicial system and you have a message to the issue…

In view of the monitoring being performed by Supreme Court in relation to the activity of the judicial system, we are asking you to express your opinions about the work of ordinary courts in the republic (district courts, regional courts, Minsk City Court, Supreme Court of the Republic of Belarus).

We will be very grateful to you for the objective assessments and constructive proposals in respect of improving the judicial activity. It is significant for us to know your estimation of what you find positive in the justice and what is, to your mind, does not contribute to implement rights of each citizen to legal recourse and obtain prompt and qualified judicial protection.






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