Court and case: Russia will change the procedure for prosecution for defamation
In Russia, the procedure for prosecution for defamation may change. Consideration of a crime committed without aggravating circumstances is proposed to be transferred to the category of criminal cases of private and public prosecution. This means that the state will assume the obligation to collect evidence and form the position of the prosecution, thereby ensuring the protection of the constitutional rights of citizens. Experts believe that the redistribution of the procedural burden opens up the possibility for a more complete and objective determination of the circumstances of the case. Izvestia found out what the new law will change.
Prosecution for defamation will be simplified
The Supreme Court proposed to change the procedure for considering criminal cases of libel. The relevant bill was adopted by the State Duma in the first reading yesterday.
Defamation without aggravating circumstances, as a rule, has a domestic character. This may be, for example, a conflict between neighbors in which one of the parties used deliberate lies as a weapon. Aggravating circumstances include the dissemination of false information in the media or on the Internet. In this case, the incident is considered public, and a case can be initiated even without a victim's statement.
At the same time, criminal cases of domestic defamation are currently being initiated by magistrates in the order of private prosecution.
The private-public procedure allows initiating a case at the request of the victim or his legal representative. However, such a case cannot be closed by reconciliation of the parties. As a result, it is expected that the decision to terminate criminal libel cases without aggravating circumstances will be taken by the court not unconditionally, but taking into account all the circumstances of the case and information about the accused.
It is also important that the private procedure assumes that the victim of defamation must independently prove the events and circumstances of the crime, as well as support the prosecution in court. The innovation will place the main burden of proof on law enforcement agencies. This, according to the authors of the initiative, will allow for a more thorough investigation of the circumstances of the commission of libel, which will exclude judicial review of cases in which there is no confirmation of the fact of the event or the presence of corpus delicti.
The draft law was developed by the Supreme Court as part of the instruction of the President of the Russian Federation dated December 24, 2020.
A fair approach
Domestic slander in Russia usually refers to statements that are not related to public space, explains Sean Betrozov, a practicing lawyer at the Moscow Chamber of Lawyers and a member of the Russian Bar Association. As statistics show, this is the most widespread type of slander. And it is precisely such cases that are covered by Part 1 of Article 128.1 of the Criminal Code of the Russian Federation.
In absolute terms, there are not so many of them — about a third of all cases are terminated already at the stage of the justice of the peace due to the failure of the victim or the refusal of the charge, the expert points out.
— This demonstrates the total inefficiency of the existing order and at the same time indicates that there is a real request from citizens for protection from defamation, and a considerable one. If the topic did not concern society, such statements simply would not have been received," he is convinced.
The private procedure for dealing with libel cases without aggravating circumstances assumes that the victim must file an application directly to the court. There are no inquiries and investigations in such cases, recalls Alexander Khaminsky, a lawyer and head of the law enforcement center in Moscow and the Moscow Region.
This approach effectively shifted the functions of investigation from the state to the citizen, limiting access to justice for persons who do not have sufficient legal resources, said Ilya Rusyaev, managing partner of Rusyaev and Partners, a lawyer.
In the model proposed by the Supreme Court, the state undertakes obligations to collect evidence and form the position of the prosecution, Rusyaev clarifies. Such a redistribution makes it possible to fully and objectively establish the circumstances of the case, especially in cases where the conflict arose in unequal social or professional conditions.
Freeing the victim from the need to personally act as a prosecutor also reduces the risk that he will be counterattacked by the defense, including in the form of counterclaims, statements about deliberately false denunciation, and so on, believes Sean Betrozov. The victim's participation will be limited to witness statements.
And since the decision on the expediency of ending criminal prosecution will be made based on the circumstances of the case, information about the accused and the degree of public danger of the act, this will exclude situations when a person renounces his claims due to pressure, blackmail and agreements outside the legal field, the expert admits.
— At the same time, the victim is still expected to submit an application. This excludes cases of initiation of proceedings without his will. This is a reasonable compromise between the public interest and the autonomy of a private individual," the lawyer emphasizes.
Despite the fact that criminal cases of a private-public nature cannot be terminated by reconciliation of the parties, such a novel will not particularly affect the relationship between the victim and the accused, Alexander Khaminsky expects.
"Given that defamation refers to crimes of minor gravity, the accused can be released from criminal liability if he reconciles with the victim and makes amends for the harm caused to the victim," the lawyer draws attention.
Achieving balance
The total number of cases of domestic defamation in Russia is not so large as to overload the investigative authorities, Sean Betrozov is convinced. However, from a psychological point of view, it is very important for a citizen to realize that he is not left alone with the procedure.
— This may encourage more victims to contact the preliminary investigation authorities. Hence, an increase in the number of appeals and, consequently, initiated cases is possible," the expert admits.
At the same time, the number of cases reaching court may decrease, as law enforcement agencies will assess the reliability of statements and form an evidence base. As a result, cases may be refused if the evidence does not seem convincing to the investigation, Ilya Rusyaev does not exclude. Such a filter, according to the lawyer, will save the courts from considering cases initiated for far-fetched reasons or for pressure purposes.
He recalls that in 2023, only 24 people were found guilty under the article on domestic defamation, while 239 people were acquitted.
— This indicates a high proportion of cases that are not supported by proper evidence. The new legal structure seeks to remedy the situation by redistributing responsibility for the validity of the charges to the bodies of inquiry and the prosecutor's office, the Izvestia interlocutor believes.
The introduction of a preliminary investigation will really make it possible to filter out deliberately unfounded statements, Betrozov agrees. In the case of private charges, the justice of the peace has to sort out any claim received, regardless of its legal standing.
The high percentage of excuses, according to the expert, shows the shortcomings of the current system. Their number does not indicate unfounded accusations, but that the victims are unable to fully defend their rights in the existing conditions.
The initiative of the Supreme Court actually returns the state to the sphere of delicate reputation protection, balancing the rights of the victim and the accused in conditions where honor and dignity become objects of legal protection not on paper, but in the current mechanism of criminal proceedings, Rusyaev summarizes.
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