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'Fair trial standards' in document 'Russia - Criminal procedure code'

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More information about the document 'Russia - Criminal procedure code'
The relevant provisions of implementing legislation: [1] [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16] [17]
The Relevant Provisions of the Rome Statute

RELEVANT SECTIONS OF THE IMPLEMENTING LEGISLATION

Part One. General Provisions

Section I. Basic Provisions

Chapter 2. Principles of the Criminal Court Proceedings

Article 8. Administration of Justice by the Court Alone

1. Justice on a criminal case in the Russian Federation shall be administered only by the court.

2. Nobody shall be recognized as guilty of committing a crime and subjected to a criminal punishment other than under the court sentence and in accordance with the procedure, established by the present Code.

3. The man on trial cannot be deprived of the right to the consideration of his criminal case in that court and by that judge, under whose jurisdiction it is referred by the present Code .

Part One. General Provisions

Section I. Basic Provisions

Chapter 2. Principles of the Criminal Court Proceedings

Article 9. Respect of the Person's Honour and Dignity

1. During the course of criminal court proceedings shall be prohibited the performance of actions and the adoption of decisions, degrading the honour of the participant in the criminal court proceedings, and treatment humiliating his human dignity or creating a threat to his life or health.

2. No one of the participants in criminal court proceedings shall be subjected to violence or torture or to other kinds of cruel or humiliating treatment, degrading his human dignity .

Part One. General Provisions

Section I. Basic Provisions

Chapter 2. Principles of the Criminal Court Proceedings

Article 10. Immunity of the Person

1. No one can be detained on the suspicion of committing a crime or put under arrest in the absence of the legal grounds for this, envisaged in the present Code. Pending the court decision, no one can be detained for a term of over 48 hours.

2. The court, the prosecutor, the body of inquiry and the inquirer are obliged to immediately relieve any person, who has been illegally detained or illegally deprived of freedom, or illegally placed into a medical or psychiatric stationary hospital, or has been held in custody over a time term in excess of that stipulated by the present Code.

3. The person, with respect to whom was selected the measure of restriction in the form of being taken into custody, as well as the person detained on suspicion of committing a crime, shall be maintained under conditions precluding a threat to his life and health .

Part One. General Provisions

Section I. Basic Provisions

Chapter 2. Principles of the Criminal Court Proceedings

Article 11. Protection of the Rights and Freedoms of Man and Citizen in Criminal Court Proceedings

1. The court, the prosecutor, the investigator or the inquirer are obliged to explain to the suspect, the accused, the victim, the civil claimant and the civil defendant, as well as to the other participants in the criminal court proceedings their rights, responsibilities and liability, and to guarantee the possibility of exercising these rights.

2. If persons possessing witness immunity consent to give evidence, the inquirer, the investigator, the prosecutor and the court shall be obliged to warn the said persons that their testimony may be used as the proof in the course of the further proceedings in criminal case.

3. If there is sufficient data, testifying to the fact that the victim, the witness or other participants in the criminal court proceedings, as well as their close relatives, relations or their near persons are threatened with murder, violence, destruction or damage of their property, or with other dangerous illegal acts, the court, the prosecutor, the investigator, the body of inquiry and the inquirer shall take within the scope of their competence with respect to the said persons measures of security, stipulated by the ninth part of Article 166, by the second part of Article 186, by the eighth part of Article 193, by Item 4 of the second part of Article 241 and by the fifth part of Article 278 of the present Code .

4. The damage inflicted upon the person as a result of a violation of his rights and freedoms by the court or by the officials conducting the criminal prosecution, shall be subject to recompense on the grounds and in accordance with the procedure, established by the present Code .

Part One. General Provisions

Section I. Basic Provisions

Chapter 2. Principles of the Criminal Court Proceedings

Article 14. Presumption of Innocence

1. The accused shall be regarded as non-guilty until his being guilty of committing the crime is proved in accordance with the procedure, stipulated by the present Code, and is
established by court sentence, which has entered into legal force.

2. The suspect or the accused is not obliged to prove his innocence. The burden of proving the charge and of refuting the arguments cited in defence of the suspect or of the accused, shall lie with the party of the prosecution.

3. All doubts concerning the guilt of the accused, which cannot be eliminated in accordance with the procedure established by the present Code, shall be interpreted in favour of the accused.

4. The verdict of guilty cannot be based on suppositions .

Part One. General Provisions

Section I. Basic Provisions

Chapter 2. Principles of the Criminal Court Proceedings

Article 15. Parties' Adversarial Nature

1. The criminal court procedure shall be conducted on the basis of the adversarial nature of the parties.
According to Resolution of the Constitutional Court of the Russian Federation No. 13-P of June 29, 2004, recognized the second part of Article 15 of the present Code as not contradicting the Constitution of the Russian Federation, since in accordance with their legal constitutional meaning in the system of norms of the criminal procedural legislation the provisions, contained in it, as not presupposing a restriction of the operation of the constitutional principle of competitiveness, do not relieve the official persons of the state bodies, who are participants in a criminal court procedure on the side of the prosecution, from the discharge of the constitutional duty, involved in protecting the rights and freedoms of man and citizen, including from an illegal and an unsubstantiated accusation, conviction or another restriction of the rights and freedoms of man and citizen in the investigation of crimes and in the criminal court proceedings on criminal cases

2. The functions of the accusation, of the defence and of the resolution of a criminal case are set apart from one another and cannot be imposed upon one and the same body or upon one and the same person.

3. The court shall not be seen as a body of criminal prosecution, it shall not come out either on the side of the prosecution or on the side of the defence. The court shall create the necessary conditions for the parties to discharge their procedural duties and to exercise the rights, granted to them.

4. The parties of the prosecution and of the defence shall enjoy equal rights before the court .

Part One. General Provisions

Section I. Basic Provisions

Chapter 2. Principles of the Criminal Court Proceedings

Article 16. Guaranteeing the Right to the Defence for the Suspect and for the Accused

1. For the suspect and for the accused shall be guaranteed the right to defence, which they may exercise themselves or with the assistance of a counsel for the defence and/or of their legal representative.

2. The court, the prosecutor, the investigator and the inquirer shall explain to the suspect and to the accused their rights, and shall guarantee to them the possibility to defend themselves while resorting to all ways and means, not prohibited by the present Code.

3. In the cases stipulated by the present Code, obligatory participation of a counsel for the defence and/or of the legal representative of the suspect and of the accused shall be provided for by the officials, conducting the proceedings on the criminal case.

4. In cases stipulated by the present Code and by other federal laws, the suspect and the accused may make use of the advice of a counsel for the defence free of charge .

Part One. General Provisions

Section I. Basic Provisions

Chapter 2. Principles of the Criminal Court Proceedings

Article 18. Language of the Criminal Court Proceedings

1. The criminal court proceedings shall be conducted in the Russian language, as well as in the state languages of the Republics - the members of the Russian Federation. The proceedings on criminal cases in the Supreme Court of the Russian Federation and military courts shall be conducted in the Russian language.

2. To participants in criminal court proceedings who have no command or just a poor command of the language in which the proceedings on the criminal case are conducted, shall be explained and guaranteed the right to make statements, to give explanations and testimony, to lodge petitions and complaints, to get acquainted with the materials of the criminal case and to take the floor in the court using their native tongue or another language, of which they have a good command, and to make use free of charge of interpreter's services in accordance with the procedure, established by the present Code.

3. If, in conformity with the present Code, the investigation and the trial documents are subject to obligatory presentation to the suspect and to the accused, as well as to the other participants in the criminal court proceedings, said documents shall be translated into the native tongue of the corresponding participant in the criminal court proceedings or into the language of which he has a good command .

Part One. General Provisions

Section II. Participants in the Criminal Court Proceedings

Chapter 7. Participants in the Criminal Court Proceedings on the Side of the
Defence

Article 46. The Suspect

4. • 1) to know of what he is suspected, and to get a copy of the ruling on the institution of a criminal case against him, or a copy of the custody report, or a copy of the ruling on the application towards him the measure of restriction ;

2) to give explanations and evidence concerning the suspicion moved against him or to refuse giving the explanations and the evidence. If the suspect agrees to give evidence, he/she has to be warned that his/her evidence may be used as proof in a criminal case, and likewise in the event of his/her subsequent denial of this evidence, save for the instance provided for by Item 1 of Part Two of Article 75 of this Code ;

3) to avail himself of the advice of the counsel for the defence from the moment stipulated by Items 2 and 3 of the third part of Article 49 of the present Code, and to have a private and confidential visit from him before the suspect's first interrogation ;

4) to furnish proof;

5) to enter petitions and to file recusations ;

6) to give the evidence and the explanations in his native tongue or in the language, of which he has a good command;

7) to make use of an interpreter's services free of charge ;

8) to get acquainted with the protocols of investigative actions carried out with his participation and to submit comments on them;

9) to take part with the permission of the investigator or of the inquirer, in the investigative actions carried out at his own petition, at the petition of his counsel for the defence, or of his legal representative ;

10) to lodge complaints against the actions (the lack of action) and decisions of the court, of the prosecutor, of the investigator or of the inquirer ;

11) to defend himself using the other means and ways, not prohibited by the present Code .

Part One. General Provisions

Section II. Participants in the Criminal Court Proceedings

Chapter 7. Participants in the Criminal Court Proceedings on the Side of the
Defence

Article 47. The Accused

3. The accused shall have the right to defend his rights and lawful interests and to have enough time, as well as an opportunity, to prepare for the defence .

4. The accused shall have the right:
1) to know with what he is charged ;
2) to receive a copy of the ruling on bringing him to trial in the capacity of the defendant, a copy of the ruling on applying towards him the measure of restriction, a copy of the conclusion of guilt or of the bill of indictment;
3) to object to the accusation, to give evidence on the charge brought against him, or to refuse to supply evidence. If the suspect agrees to give evidence, he/she has to be warned that his evidence may be used as proof in a criminal case, and likewise in the event of his/her subsequent denial of this evidence, save for the instance provided for by Item 1 of Part Two of Article 75 of this Code ;
4) to furnish proof ;
5) to enter petitions and to file recusations;
6) to bear evidence and to express himself in his native tongue or in a language, of which he has a good command;
7) to make use of an interpreter's services free of charge ;
8) to resort to the assistance of the counsel for the defence, including free of charge in the cases, stipulated by the present Code ;
9) to have private and confidential visits from the counsel for the defence, including ones prior to the first interrogation of the accused, without restriction of their number and duration ;
10) to take part with the permission of the investigator in investigative actions, carried out at his own petition or at the petition of his counsel for the defence or of his legal representative, to get acquainted with the protocols of these actions and to submit comments on them ;
11) to get acquainted with the ruling on the appointment of the court examination, to put questions to the expert and to get acquainted with the expert's conclusion;
12) after the preliminary investigation is completed, to get acquainted with all materials of the criminal case and to write out of the criminal case any information and in any volume;
13) to make copies of the criminal case materials at his own expense, including with the use of technical devices;
14) to lodge complaints against the actions (the lack of action) and decisions of the inquirer, of the investigator, of the prosecutor or of the court, and to take part in their examination by the court ;
15) to object to the termination of the criminal case on the grounds, stipulated by the second part of Article 27 of the present Code;
16) to participate in the legal proceedings on the criminal case in the courts of the first, the second and the appeals instance, as well as in the examination by the court of the issue of selecting with respect to him a measure of restriction and in the other cases, mentioned in Items from 1 to 3 and 10 of Part Two of Article 29 of this Code;
17) to get acquainted with the protocol of the court session and to submit comments on it;
18) to file an appeal against the sentence, the ruling or the resolution of the court and to receive the copies of the decisions he appeals against ;
19) to receive the copies of the complaints and the presentations, lodged on the criminal case, and to file objections to these complaints and presentations;
20) to take part in the examination of the questions, involved in the execution of the sentence ;
21) to defend himself while resorting to the other means and ways, not prohibited by the present Code .

Part One. General Provisions

Section III. Proof and Proving

Chapter 12. Detention of the Suspect

Article 92. Procedure for the Detention of the Suspect

4. The suspect shall be interrogated in conformity with the demands of the second part of Article 46 and of Articles 189 and 190 of the present Code. Before the interrogation starts the suspect at his request shall be provided with an opportunity to meet his defence counsel in private and confidentially. Where it is necessary to commit procedural actions with the participation of the suspect, the duration of a meeting exceeding two hours may be limited by the inquirer, investigator and prosecutor with obligatory preliminary notification of the suspect and his/her defence counsel on it. In any case the duration of the meeting may not be less than 2 hours .

Part One. General Provisions

Section III. Proof and Proving

Chapter 13. Measures of Restriction

Article 109. Time Terms for Holding in Custody

1. Holding in custody during the inquisition of crimes shall not exceed two months.

2. If it is impossible to complete the preliminary investigation within a term of up to two
months and if there are no grounds for changing or for cancelling the measure of restriction, this term may be extended by the judge of the district court or of the military court of the corresponding level in accordance with the procedure, established by the third part of Article 108 of the present Code, for a term of up to six months. Further extension of the term may be effected with respect to the persons, accused of committing grave and especially grave crimes, only if the criminal case is of a particular complexity and if there are grounds for selecting this measure of restriction, by the judge of the same court upon application from the investigator, filed with the consent of the procurator of the subject of the Russian Federation or of the military prosecutor equated with him, for up to twelve months.

3. The term of holding in custody for over twelve months may be extended only in exceptional cases, with respect to the persons accused of committing especially grave crimes, by the judge of the court specified in Part 3 of Article 31 of the present Code, or of the military court of the corresponding level at an application from the investigator, filed with the consent of the Procurator-General of the Russian Federation or of his Deputy, for up to 18 months.

4. A further extension of the said term is inadmissible. The accused, who is held in custody, shall be subject to an immediate release, with the exception of the cases mentioned in Item 1 of the eighth part of this Article .

Part Two. Pre-Trial Proceedings

Section VIII. Preliminary Inquisition

Chapter 23. Bringing to Court the Accused. Bringing the Charge

Article 173. Interrogation of the Accused

2. At the beginning of the interrogation, the investigator shall find out whether the accused recognizes himself as being guilty, whether he wishes to give evidence on the merits of the charge brought against him and in what language. If the accused refuses to give evidence, the investigator shall make a corresponding entry into the protocol of his interrogation .

Part Three. Court Proceedings

Section IX. Proceedings in a Court of the First Instance

Chapter 35. General Conditions for the Judicial Proceedings

Article 244. Parties' Equality

The parties of the prosecution and of the defence shall enjoy in the court session the same rights in entering objections and petitions, in submitting proof and in taking part in the study thereof, in taking the floor in the judicial debates and in proposing written formulations on the questions mentioned in Items 1-6 of the first part of Article 299 of the present Code, and in dealing with the other questions arising in the process of the judicial proceedings .

Part Three. Court Proceedings

Section IX. Proceedings in a Court of the First Instance

Chapter 35. General Conditions for the Judicial Proceedings

Article 247. Participation of the Defendant

1. Judicial proceedings on a criminal case shall be conducted with an obligatory participation of the defendant, with the exception of the case, stipulated by the fourth part of this Article.

2. If the defendant does not appear, the examination of the criminal case shall be put off.

3. The court shall have the right to subject the defendant, who has not come without any serious reasons, to a forcible bringing, and to apply towards him or change for him a measure of restriction.

4. Judicial proceedings in the absence of the defendant may be permitted, if the defendant files a petition on a crime of a minor or a medium gravity for an examination of the given criminal case in his absence .

Part Three. Court Proceedings

Section IX. Proceedings in a Court of the First Instance

Chapter 37. Judicial Investigation

Article 278. Interrogation of Witnesses

3. The first to put questions to the witness shall be the party, on whose petition he was summoned to the court session. The judge shall put questions to the witness after the latter has been interrogated by the parties .

RELEVANT ROME STATUTE PROVISIONS

Article 55
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

Article 63
Trial in the presence of the accused
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.

Article 66
Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.