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I am stressing my attitude to the word “sacrifice” –
you do not sacrifice people’s rights
we are talking about the constitutional right
to liberty and security of person
or sacrifice even the stipulations of the Code of Criminal Procedure,
because it rules out with its language the possibility of applying
without grounds measures of restraint in the shape
of arrest in such cases.
Vladimir Kara-Murza: Mikhail Khodorkovsky is studying
the Russian judicial machinery from the inside.
He has recently published an article, “Legalized Violence,”
where he has analyzed its maleficent defects.
Do you think his ideas are consonant
with the ideas of those who are trying to reform
the Russian system of judicial procedure?
Tamara Morshchakova: I think they are fully consonant,
but something else is important.
What is important is not that they are nothing new,
but that they require, from my point of view,
immediate elimination of the defects.
No state can be considered a rule-of-law one
unless its practices ensure that personal dignity is honored,
first of all, in criminal-prosecution procedures.
The Constitutional Court wrote in its time in one of its decisions
that recognizing every person a subject, not an object,
in mutual relations with the state is an essential principle
for eliminating arbitrary rule.
Everything we are talking about,
all these negative phenomena we are discussing in connection
with the organization of criminal prosecution in our country
are the result of that a person is considered as an object
in the activities of the state, not an equal-rights subject
in the relationship with state power.
While the status quo is not overcome,
the constitutional slogan, which is a good and correct one,
that Russia must be a rule-of-law state is unrealizable.
Vladimir Kara-Murza: Every three months, the detention in custody
of Khodorkovsky and Lebedev is extended under this new,
second case to enable them to be present in court.
Do you think this can be considered as a violation
of the rights of the defendants,
because they have been sentenced to serve their term
in a minimum-security colony
but have in fact been held for more than a year now
in maximum-security conditions?
Tamara Morshchakova: Yes, of course.
When the procedure of obtaining a judicial decision on arrest
was being introduced in the Code of Criminal Procedure,
very many hopes were pinned on it,
but courts have failed to justify the hopes,
because they, in essence, carry out no monitoring function
with respect to organs
that conduct prosecutorial activity in criminal cases.
Undoubtedly, there can be no such trials
where arrest lasts indefinitely,
all the more so in cases with respect to which it has been recognized
that this is an inadequate measure, cases
where people are charged with crimes
in the sphere of economic and business activity.
Could judicial practice have corrected that, you will ask?
I think it could.
Law puts no obstacles to that, as I have said,
but what does put obstacles to that is the formed,
I would even say, cemented traditions of this judicial practice,
dictated, I will put it in general terms, from above.
And what does it mean, “from above,” you will ask?
“Above,” of course, includes higher judicial bodies,
the Supreme Court of the Russian Federation,
which explains how norms of criminal procedure
on the selection of such a measure of restraint as arrest should be applied;
it may also mean a direct order from those organs
of executive power which have in fact generated the charge.
Vladimir Kara-Murza: And has the Yukos Affair revealed the imperfection
of legislation on trial by jury?
In the case of Aleksey Pichugin, for example,
the jury was changed three times to finally achieve the guilty verdict
and, by contrast, although the acts of Khodorkovsky and Lebedev
have been deemed especially dangerous, it was decided not to try them by jury.
Tamara Morshchakova: Those are not defects of jury trial;
those, again, are defects of the law-enforcement practice
in the use of jury trial;
the jurors are not to blame for the repeated changes
of the jury in one and the same case.
Again, we are talking about the fact
that the meaning of the effective rules on jury trial
is distorted by organs of public prosecution,
which work in the sphere of competence of jury trial,
or, if you want, not only of public prosecution
but also maybe the special services as well,
because this influence on jurors,
as already is known from the results of many trials,
is mainly exerted precisely through the special services,
and forms of that influence vary greatly.
They may include all sorts of threats
and reprisals and criminal liability.
They may be threats relating to eventual negative impact
on the people’s businesses or their work situation.
Trial by jury in its normal shape is an institution
that makes it possible for Russian courts to avoid pressures
more than any other procedural forms.
Apparently, it is precisely for that reason that trial by jury
is now ruled out even pursuant to law –
its competence has been reduced by recent statutory acts,
when in fact it needs to be expanded.
Before the 1917 revolution,
almost simultaneously with the Emancipation Reform of 1861,
the institute of trial by jury was introduced.
It proved to be so efficient that in the very first years
of its use the share of not-guilty verdicts reached up to 40 percent.
The lack of a grounded charge leads the jury to the conclusion
that the man cannot be convicted.
The institute of trial by jury ensures
not only much greater objectivity of the sentence
but also much greater independence for professional judges.
Therefore, precisely this institute needs to be cherished
and cared for, and assigning greater scope
to jury trials must be strived for in modern Russia.
Vladimir Kara-Murza: What do you think is the showing of Russian civil society
in the Yukos Affair?
It is known for a fact that thanks to its efforts the fates
of Vasiliy Aleksanyan and Svetlana Bakhmina
were alleviated, when signatures in their support were collected.
Are our fellow citizens regaining clear sight?
Tamara Morshchakova: I think they are.
Yes, precisely those examples show vividly
what must not be present in Russian courts.
Vladimir Kara-Murza: Thank you very much for this interview.
I remind our viewers that our guest today
was Tamara Georgievna Morshchakova, a retired judge
of the Constitutional Court of the Russian Federation,
who was the court’s deputy chairperson in 1995-2002.
I am Vladimir Kara-Murza. Take care.