Приговор при свечах / Judgment in candlelight - Владимир Анатольевич Арсентьев

The historically nonlinear cumulative influence of Eastern and Western legal traditions shaped the elite culture of Russian criminal justice, bringing about side effects like power prevailing over law. This historical and legal trend, characterizing the internal politics of a closed society, found its expression in criminal procedure, particularly in the so-called special judicial procedure (as opposed to standard judicial procedure). This specific mode of criminal procedure, introduced in the early 21st century, is basically an opportunity to deliver a judgment of guilty without a trial.

The special procedure epitomizes the conservative ideology of inequality. It strives to change the modern society’s mass consciousness towards admitting that criminal justice can allow for a deal with the defendant if that person accepts the charges or agrees to cooperate. However, the defendant’s only reward in that case is reduced punishment not exceeding two thirds of the maximum sentence or penalty for the crime. Thus, criminal liability is forcedly relaxed by an actual mitigation of the sentence, whereas under standard procedure it can be imposed only after, not before an adversarial evidentiary process and a finding of guilt. Therefore, I regard the special procedure an extreme case of derogation from legal ideals. With very few exceptions, only a subjugated person with a crushed will, or someone under duress, would willingly agree to an inherently accusatory verdict. For this reason, the practice of special procedure appeals to the mass consciousness, in which personality is dissolved.

In the special procedure of trial and adjudication, the judge neither examines nor assesses any proof in the case. However, facts that characterize the defendant’s personality, as well as mitigating and aggravating circumstances, can still be analyzed.

The legislator suggests that the defendant should formally and subjectively agree with the charges, which may be interpreted as a confession. However, confession is not necessary to deliver a judgment under special procedure.

This legally formal procedure of sentencing relies on the assumption that the defendant is guilty as charged, which assumption, in turn, is due to the defendant’s agreement with the charges. Nevertheless, the criminal punishment that follows is very real. Perhaps this imbalance between defense and prosecution is a temporary “battlefield situation” or a transitional solution, in which intensified fight against crime is demonstrated through criminal justice but the administration of justice is simplified – ultimately, at the society’s expense.

In this context, the traditional culture of law is gradually losing its influence due to de facto denial of continuity and experience of prior generations. The will of the authorities, expressed in the law of criminal procedure enacted at the end of 2001, unveiled a parallel reality similar to the one that had emerged during the establishment of Muscovite Russia (14th—17th centuries). In that period, the idea of state independence was replaced by the imperial idea. This ancient type of culture has been borrowed and implemented in the modern legal form, resulting in a law that offers the one and only truth that does not require critical analysis or verification in adversarial proceedings. This truth is expressed in the charges put forward by the bodies of investigation on any acts or omissions they think are criminal.

Meanwhile, humanism is still the key function of culture in the legal reality, and the main principle of legal culture remains the same – to voluntarily obey the laws because they are rational and reasonable. This behavior is feasible if one has a real opportunity to make a choice in favor of unlocking the creative potential of the free personality, which aims to research the meaning of life and activity through critical thinking. Another prerequisite is social and governmental democracy and a culture that reflects the legal order.

Culture as the best time-tested method of social relations includes legal culture as a method of human survival through the “cult” of law. The “priests of law,” in this case, are government officials, including members of the judiciary. The opportunity to “hold services” is vested in them by the multi-ethnic nation of the Russian Federation, which is the bearer of sovereignty and the sole repository of power in Russia. It is the people that directly exercise that power, forming the law. The raison d’être and the objective of the culture of justice are the interests of people’s power, i. e. democracy, which are expressed in the universally recognized humanistic values, laid out in and guaranteed by the Constitution of the Russian Federation.

For example, the second chapter of the Constitution declares that all human and civil rights and freedoms are recognized and safeguarded in Russia in accordance with the generally recognized principles and norms of the international law. The fundamental rights and freedoms are inalienable and belong to every human from birth. If one exercises their human and civil rights and freedoms, that should not violate the rights and freedoms of other persons. The human and civil rights and freedoms are directly enforceable. They define the meaning, content, and application of laws, as well as the activities of all legislative and executive authorities and local self-government. They are upheld by the justice system.

The justice system of the Russian Federation must ensure:

– equality before the law and the court,

– every human and citizen’s right to life,

– human dignity, where nothing may serve as a basis for derogation thereof,

– every human and citizen’s right to liberty and security of person,

– the rights to inviolability of private life, private and family secrets, and the protection of honor and dignity,

– the right to living quarters and their inviolability,

– the right of everyone lawfully present in the Russian Federation to move around freely and choose a place of temporary or permanent residence,

– the right to leave and return to the Russian Federation without hindrance,

– the freedom of conscience and religious beliefs,

– the freedom of thought and speech,

– the right to organize, including the right to unionize,

– the right to assemble peacefully, without weapons,

– the right to participate