Legal Aspect: Amnesty

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Y.ROZOVA: My name is Yana Rozova. I am accompanied by the author of the Legal Aspect program Yury Pilipenko – Managing Partner of the Law Firm "YUST", Vice President of the Federal Chamber of Advocates of Russia, and our today’s guest Tamara Morschakova, former Judge of the Constitutional Court and a member of the Presidential Council on Human Rights.

T.MORSCHAKOVA: Good afternoon.

Y.ROZOVA: And Victor Zvagelsky - Deputy Chairman of the State Duma Committee on economic policy, innovative development and entrepreneurship.

V.ZVAGELSKY: Greetings!

Y.ROZOVA: I remind that we in our program discuss the events of the political, economic and social life from the legal point of view. Besides, it is also an excursion to the history of the advocacy. The today’s subject is Amnesty. The motive – the project of the amnesty prepared by the Human Rights Council under the President.

Y.PILIPENKO: Good afternoon, all you in the studio, and good afternoon to the dear audience. Amnesty is such a rich and resounding word for a Russian ear. Amnesty has recently become quite a theme for the public and political space in our country. Unless I am mistaken, Mr. Titov, the business ombudsman, attempted to initiate the amnesty for the first time in 2013.

According to his initiative, approximately 100 thousand persons convicted under the so-called economic articles of the Penal Code of the Russian Federation were to be released.

However, the President of the Russian Federation Vladimir Putin upheld the initiative, making many amendments to it. And we now have the amnesty, under which approximately 900 people have already been set free. Still, the President thought it possible to raise the subject once again. And in this connection, I would like to hear the opinions of our guests on what exactly amnesty is and how it is different from pardon. Is confession required to apply amnesty to the convicted person? How unique is this institution to our country, is it encountered in other legal systems? Also, I would like to speak some words, if possible, on the most significant amnesties of the 20th century, in my opinion. It is the so-called Beria’s amnesty of 1953, when approximately 1200 thousand convicts were released, a part of whom had to be re-imprisoned the same year – the cold summer of 1953. It would also be good to discuss the amnesty of 1994, the one called “political and economic amnesty”, under which the members of the State Committee on Emergency and the White House defendants were released from criminal liability.

Y.ROZOVA: Shall we probably give some background and then continue?

Y.PILIPENKO: Yes.

FOR REFERENCE:

14 amnesties were held in Russia during the last 20 years. 5 times – in connection with the North Caucasus events, 4 times – on the occasions of anniversaries, including the anniversary of the Victory in the Great Patriotic War. Three amnesties were applied to socially handicapped groups of persons, economic and political – once each. Amnesty and pardon are different things, as the former is applied to a number of persons belonging to a certain group, and the latter, as a rule, is only received by a single person. Amnesty may also be declared due to the lack of space in the correctional facilities. Approximately 800 thousand people are currently imprisoned.

Y.PILIPENKO: Dear Tamara Georgievna, I’d like to hear your opinion first on the issues to be discussed today in our program.

T.MORSCHAKOVA: Very important matters. I think they matter not only to those, who are currently in prisons, but for the entire society. The society needs to understand the situation our penitentiary system is in, how our law enforcement agencies function, what exactly in the activities of those agencies and the correctional system makes us think about amnesty and pardon. Note that we think about those things not only when great or merely significant anniversaries approach. In fact, if we recall the old times and the amnesty of 1953, we may find analogies as well as differences, as the year of 1953 and the amnesty arrived after a long period of horrible repressions. And, naturally, the reaction to that had to be that of amnesty, or there would be no legal peace in the society nor any understanding of what had happened during those years. And the people, who suffered in the years of repressions, would be unable to rejoin the society and be socially accepted.

There may be many causes for the amnesty – not only the cases of political repressions but the general situation in the penitentiary system, when it cannot be relied on to act efficiently and accurately. I think that the society today has serious doubts that what we have as the entire mass of inmates, who are punished, are convicted for sufficient reasons. And an amnesty of this kind might be beneficial for the penitentiary system itself, in order to restart, so to put it, from scratch and to, perhaps, redirect its activity.

Y.PILIPENKO: Tamara Georgievna, and how often should we restart from scratch? Does the amnesty have its own political, economic and social utility?

T.MORSCHAKOVA: You know, an amnesty is a humane act, an act of pardon, and we should think whether the customs and manners of our society favor the forms of such humane conduct. I believe that the society is actually quite ruthless, and such amnesty acts are needed in order for everyone to understand what is happening in connection with the penitentiary activities. The system gives no guarantee of correction. I’d say, quite the contrary, it has a completely different goal – it hurts the convicts and hurts the entire society, since very many persons work in the penitentiary system, who do not behave as modern, civilized people. This is a problem for the entire society.

V.ZVAGELSKY: I’d like to add… Tamara Georgievna was absolutely correct. However, if we mention the famous amnesty of ’53, I would not consider it an act of humanism. That amnesty was an example of a completely political, in the negative sense, amnesty that, of course, had completely different objectives. The country leadership was not in the least preoccupied by what kind of persons and why would be set free. Why they would be set free was what really mattered. That is why I will probably speak more on the economic aspect. The amnesty, mainly the latest amnesty that is being talked about – you, Yury, said that the initial number was approximately 100 thousand and was later corrected. But there has never been 100 thousand. We do not have that many convicts for economic crimes. The initial number was of approximately 12 thousand. So, when the press started talking about 100 thousand, that included all those who had committed no violent crimes and somehow, in some way, were involved with economic offences. Therefore, the correction took the following form: the odious economic articles were removed, those that do not…

Y.PILIPENKO: Forgive the interruption – which articles do you consider odious?

V.ZVAGELSKY: Odious articles are those cases, where facts of bribery taking or accepting, or deliberate bankruptcies of ventures were proven. We speak about those economic articles, where it is difficult to forge a case, while it is actually clear that, in our situation and taking into account the work of our law enforcement system, anything can be forged. However, those articles are rather transparent and have room for few deliberate frame-ups. That is to say, frankly, I again go back to what Tamara Georgievna has said – we are talking about a certain humane act. Because, if we finally study the number of cases, when people went to prison under purely economic articles, there will probably be 15 per cent or less of those, who were put there deliberately, for some corporate disputes etc.

Y.PILIPENKO: Still, there are some.

V.ZVAGELSKY: Right. Well, this happens everywhere in the world, even if at not such a large scale. One can see that, in most cases, the very fact of threat of prison expires as early as during the investigation stage, and a deal occurs or some other matters are settled here. Thus, there are positive and negative moments here. Positive moments – we once again recall the economic component, which happens for the first time in the history of the Russian State – when it gave such a positive impulse for the world community. This is because, while the society is evil – I agree – not so kind, which is shown even by the polls. Even when the economic amnesty was declared, only 30% or so of people accepted it: such is the attitude towards business and entrepreneurship in Russia…

Y.PILIPENKO: Lamentably, that attitude is quite negative.

V.ZVAGELSKY: Negative, right. But still, the State has given such an impulse that the general opinion towards entrepreneurship seems to be improving.

Y.ROZOVA: You know, I, a dilettante that I am, would like to go back some. I am interested in the procedures flowed by those who fall under the amnesty.

Y.PILIPENKO: How unique is this institution to our country, is it encountered in other legal systems anywhere in the world?

T.MORSCHAKOVA: This institution is certainly not unique in any way, just like the majority of legal institutions in effect in our law. They exist in other legal systems as well. I might mention Germany, for instance, where there is a special branch of law called “the pardon law”. In fact, this name encompasses all legal grounds – applications of pardon to a certain person, who is or has been brought to criminal liability, as well as such acts as the act of amnesty, the acts of general pardon – they fall within the same category. The acts of general pardon always require legislative decisions. It is recognized that the acts of general pardon cannot be done otherwise, because it would be contrary to the respect towards the court judgment and its legal force, which can only be terminated in relation to certain groups of people only by will of the law makers.

Y.PILIPENKO: Tamara Georgievna, how do the confession and the application of amnesty correlate?

T.MORSCHAKOVA: Confession never correlates with amnesty of pardon. A pardon is simply impossible – not only due to the fact that, unlike amnesty, it is related to a certain person – a pardon, according to the foreign law, cannot be applied to persons, who are not yet convicted by a court sentence.

Y.PILIPENKO: At what stage of criminal proceedings amnesty may be applied? This question has become very topical recently.

Y.ROZOVA: I’m sorry – what exactly does the act of amnesty set free from?

T.MORSCHAKOVA: I repeat that this depends on the lawmakers’ decision. In principle, the act of amnesty should eliminate all negative legal consequences of conviction. But I must say that amnesty in foreign law encompasses other spheres besides criminal liability. There are amnesties in the sphere of disciplinary liability, administrative liability, even the kind of liability we call ethic under the professional codes. However, as far as criminal liability is concerned, the acts of amnesty may eliminate any legal consequences connected with the sentence.

Y.ROZOVA: That is to say, those acts completely free the convicts of…

T.MORSCHAKOVA: This is not obligatory, as only some consequences of conviction may be eliminated, and most amnesties are formulated in that precise way.

V.ZVAGELSKY: You know, I will resort to a non-lawspeak for a moment, but I, for instance, do not quite agree with the encumbrances that the current economic amnesty – the one planned for the 20th anniversary of the Constitution – creates. First, the current encumbrance of compensation of damages – this seriously impedes people from being set free. Why? Because there are objective reasons. The person, who is imprisoned for an economic offence, either has no money at all and is thus unable to leave the prison…

Y.PILIPENKO: Lost all his assets.

V.ZVAGELSKY: Or he did not want to give them back, and went to jail because of it. Thus, the current encumbrance leaves some 80% of people in jail. And this is not fully legal from the viewpoint of juridical practice. As far as the future amnesty is concerned, it should encompass a large number of people imprisoned for certain deeds not connected with any political activity, possibly not fully legal, and confession would be an encumbrance for them – this is not quite correct either. Therefore, many people will have to renege on some of their principles in order to have the criminal case closed or go to jail.

T.MORSCHAKOVA: Permit me to voice my support of what has been just said. Non-confession and non-compensation of damages are not among the acceptable conditions for amnesty that are internationally recognized. Quite the contrary, such conditions are completely out of question. Also, when the amnesty is held – actually, there are many principles – the condition, when the legislative authority that decides on the amnesty rules that the amnesty will also apply to the members of that authority, is excluded and impossible. An entire set of the amnesty principles has been elaborated, which make it an act of non-arbitrary rule. This is essential.

Y.ROZOVA: A news break, and then we continue.

NEWS

Y.ROZOVA: I remind that I am accompanied by the author of the Legal Aspect program Yury Pilipenko – Managing Partner of the Law Firm "YUST", Vice President of the Federal Chamber of Advocates of Russia, and our today’s guest Tamara Morschakova, former Judge of the Constitutional Court and a member of the Presidential Council on Human Rights, and Victor Zvagelsky - Deputy Chairman of the State Duma Committee on economic policy, innovative development and entrepreneurship. Today’s subject is amnesty.

Y.PILIPENKO: I’d like to remark that amnesty is always a very complicated political and practical process. I will explain by the example of the amnesty of 1994. I was the defense counsel for a member of the State Committee on the Emergency Situation, namely – Vladimir Kriuchkov, the chairman of the KGB. They were in freedom then but still under court investigation, and I remember that procedure of concurrence, apparently in private – whether or not the SCES members would accept amnesty. Apparently they informed in an informal way about their readiness to accept amnesty. Only one person, General Varennikov, refused amnesty and was acquitted several years later. But I today am completely sure that, had all SCES members been solidary with General Varennikov and refused amnesty, would the amnesty apply to them? And in this connection, I’d like to ask a question: to what extent the today’s topical criminal cases may influence the adoption of a certain amnesty format?

T.MORSCHAKOVA: You know, this question is asked by a lawyer, but is not actually about law.

Y.PILIPENKO: I agree and won’t argue.

T.MORSCHAKOVA: I am strongly disinclined to discuss this aspect. I simply act on the principle premises – we speak about what should be and not what is – and those premises comprehend that such moments should have no influence. If we discuss the concrete suggestion by the President to develop, in an initiatory way – the Council also suggested that – the amnesty project, that project’s paradigm has been defined in the way it could be defined precisely according to the normative content, to the normative essence of those deeds, for which our State is ready to amnesty the convicts or those, whose case has not yet been tried.

Y.ROZOVA: Approximately how many people the amnesty may apply to?

T.MORSCHAKOVA: I can’t tell while there is no project of the amnesty, while certain corpuses delicti have not been considered. The point is that those, who have not committed any grave violent crimes, be subject to amnesty. Of course, this scope is very wide for now, it needs some serious corrections, but to allow the moments you mention means to allow certain arbitrariness, because amnesty is different from pardon. The person, who is authorized to apply the pardon, may fail to apply that act of mercy to anyone without explanations. Of course, though, one has to acknowledge that such deed may appear not very nice and not very logical. But the amnesty is applied to all those, who fall within the provisions stipulated by the amnesty resolution, without discrimination.

Y.ROZOVA: By the laws.

T.MORSCHAKOVA: Or by the law, because a resolution is tantamount to a law. This is the way it is everywhere, in all countries.

Y.PILIPENKO: Still, we as well as our audience are interested in what is as well as in what should be. I’d like to give another historical example. A political amnesty due to the 300th anniversary of the Romanov dynasty was proclaimed in Russia exactly 100 years ago. By the way, we may use that anniversary for the coming amnesty too. And it contained a very interesting reservation: political emigrants were permitted to return to Russia, but only those, who left before 1890. My guess is that that was the way to separate some undesirables. Therefore, Victor, I’d like to hear your opinion regarding the current situation. How interesting, diverse or special in any way may the format of the future amnesty be?

V.ZVAGELSKY: And again, I cannot completely agree that the amnesty must – forgive the term – encompass all those, who committed non-violent crimes, without exception. A huge number of persons, who committed non-violent deeds, even those, who are very distant from any economic article, cannot be generally pardoned a priori. That is why, once again, the figure of 100 thousand that is being voiced, I think, if we employ the gender criterion – women, children – may go down some 10 times. In any case, it is undesirable that that amnesty should become a discharge for some political motives only. I have been reading many materials on the suggestions given also by deputies, because the event has gained much PR, and everyone wants to be involved.

Y.PILIPENKO: Forgive my interruption, but Pussy Riot is mentioned; the so-called “Bolotnaya Square prisoners” are mentioned; the YUKOS case convicts are mentioned.

V.ZVAGELSKY: This is because those cases are celebrated. However, if we talk about the format of non-violent crimes, they certainly fall within that category. This is no matter of pardon – this is a matter of certain articles of the Penal code, to which the amnesty will or not be applied. And here is the question that is rarely asked: I, by the way, keep telling Mr. [unintelligible] that if we continue with the theme of economic amnesties, we keep forgetting about a very important aspect, that of immense funds that have been exported from Russia and do not circulate in Russia. Because the laws in the West are very strict. Never mind the funds, but I have spoken to a great many people, who would like to bring their money back. They say: “Today we bring the money back, and tomorrow we will be waiting for the next economic amnesty in jail”. That is why, if, besides the subject raised by the President, that of the 20th anniversary of the Constitution, we suppose that there is probably a reason to amnesty the capital, we will get a serious economic effect from the money that will return here.

Y.ROZOVA: But one thing does not impede the other.

V.ZVAGELSKY: Well, that’s understandable. It just seems to me that we probably should not get carried away on a heap of amnesties in a short historical period. That is to say, everything should produce some effect.

Y.PILIPENKO: There have been few amnesties in our country before 2013.

V.ZVAGELSKY: Well, we are about to have three, perhaps. It is important to implement them.

Y.ROZOVA: Tamara Georgievna, please tell us, what expressions would you resort to in order to persuade the President to hold an amnesty involving certain persons, who are perhaps unsympathetic to him, or in order to have him make a certain decision for himself?..

T.MORSCHAKOVA: I don’t think that any special expressions are needed for the President. He is a lawyer, and he fully understands the difference between amnesty and pardon. If he supports the suggestion and the initiative to hold an amnesty for those, who committed non-violent crimes, this means that he understands that the amnesty cannot be selective towards the deeds that will be listed in the law as subject to…

Y.ROZOVA: What if this happens after all?..

T.MORSCHAKOVA: Well, that is not a legal matter.

Y.PILIPENKO: Political will, in all probability.

T.MORSCHAKOVA: It is political will. The law must formulate the general rule. If political will exists beside the law, this is a different aspect, and should be regarded separately. It should not be evaluated in the general analysis of the amnesty held or the planned amnesty. This will be abnormal. Abnormality, forgive me, is always arbitrariness.

Y.ROZOVA: When do you plan to deliver the project of the amnesty to the President?

T.MORSCHAKOVA: The deadline for the instruction is October 15. The Council will keep its discipline. I believe that it is capable of completing the task.

Y.ROZOVA: Pursuant to the law, how soon the President needs to consider the project?

T.MORSCHAKOVA: The President needs no time at all, pursuant to any law, to consider it. The President’s only authority concerning the amnesty act is that he as a subject of legislative leadership may suggest that the legislative body of the country, the Parliament, should consider and implement it.

Y.ROZOVA: And after that? Is it the State Duma’s discretion again?

T.MORSCHAKOVA: The State Duma should adopt the amnesty act according to the common procedure, in three readings. By the way, we have a very good example of holding amnesties under the current Constitution – the amnesty of 2000 in connection with the Victory in the Great Patriotic War, which aspires to be one of the most complete.

V.ZVAGELSKY: I’d like to add. A very long work preceded the accelerated regime of adoption of that amnesty – the Duma resolved the matter in two weeks. Each article was discussed time and again and approved during various councils. I think, Tamara Georgievna, you also took part. That is why I expect, in this case and in connection with the variety of articles that the amnesty could involve, main complications with the course of the second reading as there will be many those, who would want to expand those articles. However, there will be a sufficient number of qualified lawyers, who will prove and give reasons for the precise possibility to…

Y.ROZOVA: How much time do you think it will take?

V.ZVAGELSKY: In my opinion, if the draft is submitted to the State Duma in October or November, we should pass the three readings by mid-winter, unless there is a will to do this as ASAP.

Y.PILIPENKO: I have a different idea of the subject. Apparently, of course, if the initiative comes from the President of the Russian Federation, the Duma will likely adopt the amnesty even before the 20th anniversary of the Constitution. Even more so that we have examples of prompt adoption of federal laws. Not always successful, though. But the amnesty is a whole different story. The State should be cruel but also merciful. And amnesty is just the motive for the State to show mercy towards its citizens that have already received the inevitable punishment.

Y.ROZOVA: It was the author of the Legal Aspect program Yury Pilipenko – Managing Partner of the Law Firm "YUST", Vice President of the Federal Chamber of Advocates of Russia, and our today’s guest Tamara Morschakova, former Judge of the Constitutional Court and a member of the Presidential Council on Human Rights, and Victor Zvagelsky - Deputy Chairman of the State Duma Committee on economic policy, innovative development and entrepreneurship. Goodbye!