Commentary: Nikitin must prove his innocence

Publish date: November 29, 1999

Written by: Jon Gauslaa

Article 49 of the Russian Constitution states that the defendant "shall not be obliged to prove his or her innocence". However, this is exactly what Aleksandr Nikitin has to do in order to be acquitted.

Legal commentary

One of the most astonishing features of the ongoing trial against Aleksandr Nikitin is the complete passivity of State Prosecutor Aleksandr Gutsan. Four days into the trial he has only asked Mr. Nikitin a couple of questions. The judge has on the other hand played an active role in the proceedings, and so has obviously also the defence-team.

Gutsan’s passivity has surprised the international observers attending the trial. A common view among them is that his approach means that Nikitin has to prove his innocence, even if this directly contradicts Article 49 (2) of the Russian Constitution, which is worded as follows: “The defendant shall not be obliged to prove his or her innocence”.

Despite the wording of the Constitution, the proceedings in the City Court are, however, in full conformity with common Russian practice. According to Nikitin’s chief defender, Yury Schmidt, a Russian judge has simply no right to conduct the trial in any other way than Judge Sergei Golets is conducting the trial in the City Court.

Russian criminal procedure is not yet based on the Constitution, but on the Soviet Criminal Procedure Code from 1960. This code is in its turn based on the “principle of inquisition” meaning that the court is responsible both for carrying out the “court investigation”, and for passing the verdict. It goes without saying that a criminal procedural system based on such a principle raises doubts concerning the court’s objectivity. That is why most western countries throughout the 19th century rejected the principle of inquisition, and replaced it with principles that obliges the prosecutor to prove that the defendant is guilty while the court mostly listens to the parties of the case throughout the proceedings.

As stated above, prosecutor Gutsan seems to take things very calmly. It is like he already knows the outcome of the trial, and thus does not need to put any effort into proving that Nikitin is guilty. On the other hand, his behaviour may also be a result of the prosecutor’s passive role in a Russian court’s hearing of a criminal case. According to the principle of inquisition, the prosecutor has done most of his job when the indictment is finalised.

However, “the times they are-a-changing”, also in the Russian legal system. The way the proceedings are carried out may still raise doubts about the objectivity of the court and it means that the defendant has to prove his innocence in order to be acquitted. But the contradictions with international standards and the Russian Constitution will not be that serious, if the City Court really allows Nikitin to prove his innocence.

Until now the proceedings in the City Court have been conducted in a fair and equal manner. Judged from what has happened so far, the Court seems to be able to evaluate both the facts and the legal circumstances of the case in an objective manner.

However, only the Court’s verdict will tell if it really is like that.