Plea Bargaining Russian Style
Solomon, Peter H., Jr., Demokratizatsiya
Abstract: In 2001 Russia introduced a type of plea bargaining, known as "special procedure court hearings," that is now widely used. Just why this form of plea bargaining became so popular is not clear, since the benefits that accused persons obtain from the procedure appear to be limited. Only a minority of them receive more lenient sentences as a result. The procedure has increased court efficiency, but has not helped the 2001 Criminal Procedure Code's larger goal of making the criminal judicial process more adversarial.
The Russian criminal justice system has been transformed over the past decade through the widespread application of a kind of plea bargaining practice known as "special procedure court hearings." (1) Less than ten years after its introduction in the 2001 Criminal Procedure Code, 63.9 percent of convicted persons used the procedure in 2010. The procedure allows defendants not to contest charges, in effect admitting their guilt and waiving an evidentiary trial review. (2) The absorption of this special procedure into Russia's formerly neo-inquisitorial criminal justice system happened as part of a reform to make the system more adversarial. (3) Ironically, the realization of an adversarial trial with lawyers presenting the evidence orally is less advanced than the special procedure aimed at efficiency, a practice seen as inquisitorial by some observers. (4)
The riddle is how and why this special procedure has become the most common way of handling criminal charges in Russia. The rules in the Criminal Procedure Code (Chapter 40, Articles 314-317) do not by themselves make the option attractive. The defendant, in consultation with a lawyer and in his presence, must accept the charges in writing, petition for conviction without trial, and waive the right to appeal based on the facts of the case. Opting for the procedure normally takes place at the end of a pretrial investigation (when the defendant first sees the dossier prepared by the investigator), but the accused has the right to make the choice at a later stage, such as during the preliminary hearing or at the start of the trial. Both a procurator (after reviewing the file) and the victim must consent to the special procedure. Finally, the judge must review the motion, ensure that the defendant understands what he or she is doing and has acted voluntarily, and verify that the charges are supported by the evidence in the file. If the judge agrees, there will be no trial on the evidence; instead, there will be a short hearing on sentence, with the exclusion of the upper third of the normal sentencing range? Under these circumstances, the federal government covers the cost of defense counsel provided by the police or the courts if the accused elects to rely on such services.
To be clear, this special procedure in Russia does not by definition involve explicit plea negotiations, but resembles what criminologists call "implicit plea bargaining." (6) Opting for the special procedure and agreeing not to contest the charge (the functional equivalents of confessions or guilty pleas) by themselves lead to the avoidance of a trial and structural concessions in sentencing. This does not preclude deal making in the form of explicit agreements about charges, sentences, or sentencing recommendations, but such practices are not inherent to the procedure itself.
In Italy, where procedural options similar to those adopted in Russia became available in the early 1990s, the initial response of lawyers and accused was restrained, and the percentage of defendants using the procedure was limited to single digits. Since then there has been some growth in its use following a change in the procedure for one option in 2000 and a broadening of eligibility for another in 2001. In 2005, 25 percent of accused persons used one of the shortened procedure forms and by 2010 as many as 35 percent. (7) But this is still a small share compared to Russia's. …