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Statements made by Vadim Kluvgant ‘Jurisdiction over the case will be estimated by authority’. Kommersant, 12 November 2018

Statements made by Vadim Kluvgant ‘Jurisdiction over the case will be estimated by authority’. Kommersant, 12 November 2018

The CC authorized trials of accused influentials in other regions.

In order to ensure an impartial trial the Constitutional Court (CC) authorized the Supreme Court (SC) to refer cases of accused persons who had certain ties and authority within the certain territory to courts of other constituent territories of the Russian Federation, following the request from Office of the Procurator General of the Russian Federation. The former mayor of Vladivistok Igor Pushkarev filed a complaint concerning the change of jurisdiction over the case. Experts believe the legal control of this issue ‘will remain a gray area’.

The former mayor of Vladivistok Igor Pushkarev, his brother – the former Director of Vostokcement LLC – Andrey Pushkarev and the former Head of Municipal Unitary Enterprise Roads of Vladivostok Andrey Lushnikov whose case concerning bribes, abuse of authority and commercial bribery is being heard in the Tverskoy District Court of Moscow and not in Vladivostok, litigated in the CC the practical application of Article 35 Changing the Territorial Jurisdiction of a Criminal Case of the Criminal Procedure Code of the Russian Federation (CPC RF). It allows to change jurisdiction of a criminal case without consent of the accused in two instances: when all the judges of the court in which the case is to be heard are subject to challenge, and when the case is associated with seven articles of the Criminal Code (banditry, conquest of power and etc.), and the accused threaten the trial participants’ life and health. Contrary to the applicants’ objections the Supreme Court changed jurisdiction of their case without reference to the CPC: Office of the Procurator General insisted because Igor Pushkarev – the former mayor and senator of the Federation Council – had ‘communication with representatives of the government bodies of the Primorsky Territory, possibility to control commercial enterprises the through family members, and by means of the devoted media to distribute information designed to discredit investigative authorities. In the complaint presented to the CC it is written that the case was transferred to Moscow in the absence of the CPC ‘reasonable cause and regulations for determination of the competent court.’ In 1998 the CC declared this practice unconstitutional.

By now the CC referred ‘the possibility of the accused to influence the affairs of state and public institutions and public opinion within the territory under the jurisdiction of the court, to arouse distrust to legitimacy of the would-be-court-decision and to call the impartiality of judges into question’ to the ‘extraordinary cause’ for changing jurisdiction of a criminal case. In practice persons who ‘held senior positions in the government authorities or enjoyed wide ties in the government bodies, business communities or criminal world’ have influence of the kind, and ‘existence of direct or indirect cause’ to doubt the impartiality of local judges is enough to change jurisdiction of the cases, as it is according the decision of the CC which recognized the SC controversial practice as constitutional.

‘The legal reasons of the CC decision lead to the opposite conclusion of unconstitutionality of changing jurisdiction of a criminal case in terms of the unproved fact of illegal influence of the accused on the state and public institutions but only under possibility,’ states Vadim Klyuvgant, the partner of the Pen & Paper Attorneys-at-Law. According to the advocate, public appeal and influence on the public opinion as a consequence is an essential right of any person that directly appears from Article 29 of the Constitution and Article 10 of the European Convention for Human Rights.The CC was due to lay the legislative body under the obligation to introduce a new cause for changing jurisdiction into Article 35 of the CPC and directly determine the court the case shall be transferred to, otherwise it can reflexively result in violation of the constitutional right for the lawful judgment, states the Head of Litigation Unit at the Institute for Law and Public Policy Grigory Vaypan. He believes that the legal regulation of this issue ‘will remain a gray area where the prosecution is provided with the widest range of opportunities for the forum shopping (the opportunity for the disputing parties to choose the place of proceedings in order to gain the most favorable outcome. Kommersant), and criminal cases can move from one court to another for more-than-a-thousand kilometers beyond the will of the accused and the victims’.

The SC put the accused in non-violent crimes under the circumstances that are much more severe than for those committed an armed rebellion or a conquest of power, and whose cases can only be transferred to a military court at the site of a crime, and only when there is a real threat to life of other persons, stated the lawyer Alexander Gukanov. According to the Head of the Criminal defense practice of the Infralex law firm Artem Karakasiyan ‘The CC more likely has created an area for the abuse of power other than provided for guarantees of independence of the judicial authorities, because it has not directly determined criteria of changing jurisdiction of a criminal case.’ The question concerning instruments of proof necessary ‘to define such an ephemeral subject as somebody’s authority’ also remained undetermined. The expert pointed out that only the Office of the Procurator General can apply for a change of jurisdiction. It has not been specified by the CC what actions can be undertaken by the accused when there are any doubts about the impartiality of the court due to the senior position of the victim, for example, cases of slander against the leaders of regions. The CC pointed out the necessity ‘to ensure the principle of access to justice’ when choosing the court, and recommended the legislative body to make amendments, in particular, those allowing local judges to consider the case in other constituent territory of the Russian Federation or judges of another region to come to the region of original jurisdiction. ‘However, Vladivostok case of immense complexity with the great number of participants engaged for some reason is being considered in Moscow,’ pointed out the managing partner of Bartolius law firm Yuliy Tai.

Vadim Klyuvgant, vice-president of the AC of Moscow, deputy chair of the Commission of the Council of the FAC, partner, co-head of the criminal-legal practice of Pen & Paper