Приговор при свечах / Judgment in candlelight - Владимир Анатольевич Арсентьев

in government affairs, except for citizens deemed legally incapable by the court or held in places of detention in accordance with a court sentence,

– the right to participate in the administration of justice,

– the right to private property, including land,

– the right to work and remuneration for work,

– the right to social security,

– the right to healthcare and medical aid,

– the right to a favorable environment,

– the right to education,

– the right to intellectual property, freedom of creation, and access to culture,

– the protection of human and civil rights and freedoms, as well as the right for all people to defend their rights and freedoms using any means not prohibited by law,

– the right to be tried by the court and judge that have legal jurisdiction over the case,

– the right to qualified legal assistance,

– the right to be considered innocent until one’s guilt is proven in accordance with the corresponding federal law and until the court verdict duly enters into force; the defendant shall not be obliged to prove their innocence; any insurmountable doubts regarding the defendant’s culpability shall be interpreted in favor of the defendant (presumption of innocence),

– the right to appeal a sentence to a higher court and the right to request a pardon or a reduced sentence,

– and the right to not testify against oneself, one’s spouse, or close relatives.

These and other provisions, enshrined in the second chapter of the Constitution, are fundamental for the legal status of a person in the Russian Federation. They cannot be changed save in the manner specified in the Constitution.

The special procedure does not implement the general principles and norms of the international law, but only allows technically delivering a judgment of guilty. This legalistic process, operating in its pilot phase, was historically able to generate imperial ideas. In the procedurally critical situation, as soon as the accused person agrees with the investigation’s charges or consents to cooperate with the bodies of investigation, that citizen refuses to protect themselves with the whole legal package used in the study of evidence – which includes the presumption of innocence. Officially, the reasons of such failure to defend oneself are unknown, because under special procedure, the judge does not even need to explain the presumption of innocence to the defendant.

From the historical, philosophical, and legal points of view, this phenomenon discredits the culture of justice as a humanistic value system. It also warns those participating in the so-called bargains with justice that violations of human rights come with inevitable consequences. Besides, this phenomenon is a dangerous element of human coexistence that harms the society as a whole.

Perhaps the secret beginnings of the special procedure lie in the utilitarian thinking that positively does not allow for less obvious crimes to be solved without confession, the “queen of proof.”

Let us look at an example. An innocent man was arrested on a tip provided by two drunk women who hadn’t ever seen him or known him. The man was held in a detention facility for sixty days and nights so that he would confess that he had murdered a friend of those women. The operational investigations unit didn’t even look for the murderer or the victim’s body, because they believed they have already solved the case by capturing the man without delay. For two months, law enforcement was trying to elicit information from the detainee regarding the body and the evidence to the murder, while the accused hadn’t committed any crime in the first place. This prison-and-office investigative method, unsurprisingly, failed to yield any information on the victim’s body, so the proof was later sought for by the court – in regard to a differed person, the actual murderer. This was the very reason why the detainee was released from custody – not because the case file contained no evidence to his guilt. In the end, no one was held liable except for the actual murderer who was sentenced to long-term imprisonment. In fact, the murder was solved by another woman – let’s call her Claudia, who followed her hunch and then accurately figured out who was guilty. Claudia’s critical thinking was completely independent from the law enforcement preoccupied with the innocent citizen.

Speaking of citizens’ trust in the authorities, Claudia did not want to reveal her identity and wrote an anonymous letter to the law enforcement. During the trial, however, Claudia exposed the murderer on her own initiative and told the court she was the author of the letter. To prove it, she articulated its contents, previously undisclosed to the public due to the source’s anonymity. Thus, Claudia’s testimony formed the basis for the guilty verdict. This unexpected event at trial prompted the murderer, an extremely dangerous recidivist, to confess his guilt and testify on the merits.[137]

Briefly described above was a bogus method of pre-trial investigation, leading to a situation where the wrong person was considered the murderer – so the ends did not justify the means. We see that utilitarian thinking has had an influence on the law enforcement activity. Besides, it can explain why the legislator had to lift of the ban on delivering a guilty verdict without an assessment of the proof, an evidentiary process, and a standard trial procedure. In doing so, the state defines the person as a mere vehicle to achieve the penal policy’s objectives in combating crime, as one agrees with the charges or consents to cooperate, aiding the investigation to solve the crime, expose and prosecute accomplices, or trace criminally acquired property.

We find a conspicuous paradox here. Utilitarian thinking ignores the inevitable and unpredictable consequences of human rights violation, as it does not trust them despite its duty to respect them. Under the special procedure, the court – part of the judicial branch – has received a new function, namely, direct, active, and effective involvement in the political struggle against crime alongside the bodies of law enforcement of the executive branch. Meanwhile, courts cannot have such a function