How eliminating private prosecution will help domestic violence victims in Russia
Russia’s Supreme Court has submitted a draft law to the State Duma on eliminating so-called “private prosecution,” wherein criminal proceedings are launched by victims, who are then expected to gather evidence and lay charges in the case themselves (as opposed to law enforcement agencies doing it for them). Currently, Russia has three felony statutes that allow private prosecution, two of which often apply to domestic violence incidents. To find out more about how this amendment will affect the prosecution of domestic violence cases and whether it will help protect victims, Meduza spoke to the lawyer Maria Davtyan, the co-author of a bill on preventing domestic violence.
Since the early 2000s, human rights defenders and international organizations have said that felony domestic violence cases shouldn’t be resolved through private prosecution. This is a big mistake. What’s the problem with this system? In essence, all of the responsibility for the criminal prosecution is shifted to the injured party.
The injured party is responsible for gathering evidence themselves and supporting the prosecution in court, either personally or through a representative. Moreover, if the victim refuses to testify or fails to show up in court without a valid reason, the case will get thrown out.
If these cases are transferred to private-public prosecution, law enforcement agencies will also have to prove the defendant’s guilt, and a preliminary inquiry becomes mandatory. In court, a public prosecutor represents the prosecution, and the evidence is gathered by law enforcement agencies.
We can see how this works — even in non-domestic violence cases. Let’s say Ivanov is beaten up by a neighbor in a stairwell and his rib is broken during the fight. Most often, in practice, a fractured rib is qualified as minor bodily harm and dealt with in private prosecution. In this case, Ivanov will run around and collect the evidence himself. But if, for example, Ivanov had a broken arm, this would be moderate bodily harm and lead to public prosecution. Accordingly, Ivanov simply writes a statement, and the police will have to do everything themselves. As it turns out, the criminal prosecution system depends on the particular bone you’ve broken — this is unreasonable, at the very least.
In addition, in private prosecution, the injured party has to write not only a statement to the magistrate, but also fill out a particular form that actually requires you to bring legal charges against another person; in other words, to reveal all of the evidence of the crime. To do this properly, you need more than a legal education, you need to be a specialist in the field of criminal law and criminal procedure. Even my colleagues who work on civil proceedings can’t do this on the first try. They are lawyers, but they’re lawyers with different expertise.
Moreover, the court has rather broad powers when it comes to rejecting these cases. And judges often use them. The first time you submit one of these applications, in the vast majority of cases it gets rejected. They simply don’t want you to do this and they blow you off.
I’m convinced that the private prosecution system itself is stupid. An ordinary person shouldn’t do the work of a prosecutor. We basically have a problem with the illegal refusal to initiate criminal cases. And not just for domestic violence cases. This is a systemic problem: criminal investigations are only initiated on the basis of applications in 16 percent of cases. Are the remaining 84 percent lying or what? Of course not. It’s just that no one scolds or punishes the security forces for this — they refuse again and again. We won’t solve this problem by eliminating private prosecution, but at least we’ll solve a different one.
At the same time, the option for reconciliation won’t go anywhere. Yes, private prosecution had a conciliation procedure. But even if private prosecution is eliminated, we will still have a general rule in criminal proceedings allowing the parties — if its a minor or moderate crime — to reconcile.
Why in practice do nearly half of domestic violence cases end in reconciliation? Because the victims don’t have the strength to go any further. The process itself is grueling and exhausting. All of the onus is on you, while the state doesn’t have to protect you from repeated incidents of violence, stalking, and so on. And how do you stop all of this? You simply make peace with the accused.
If the situation changes, and private prosecution is eliminated, the state will start to do its job and take it upon itself to prosecute those who commit assault and cause minor bodily harm — this burden will be lifted off of the victim. More people will make it to the end.
This law does not in any way repeal the anti-domestic violence bill that’s still pending. The state has four types of responsibilities. The first is the responsibility to prevent domestic violence. The second is protection in a broad sense, not only legal, but also physical. The third is criminal prosecution and punishment. And the fourth is the restoration of the injured party’s rights. Now, we have “piecewise” resolved the issue related to criminal prosecution. But all of our other unresolved issues remain unresolved. There’s no protection for you, there’s no support, there’s no prevention.
It seems to me that the domestic violence bill and the proposal to eliminate private prosecution are unrelated. The real issue here is that Russia has to report back to the European Court of Human Rights on the case of Valeria Volodina. There are a lot of complaints about the Russian legal system. The topic of private prosecution is one of them. They need to somehow fix it quickly. But there are still a whole bunch of problems. How they will account for everything else remains unclear.
Currently, the situation surrounding the law on preventing domestic violence is exactly the same as it was six months ago: it's in the hands of a Federation Council working group. I know that the biggest mistakes in the previous version, which everyone criticized, have been removed from the text. But the matter hasn’t moved forward. Though of course the draft law is absolutely ready to be submitted to the State Duma. And it has been ready for a long time already. But there’s no political will, no desire.
Interview by Kristina Safonova
Translated and abridged by Eilish Hart