Приговор при свечах / Judgment in candlelight - Владимир Анатольевич Арсентьев

We are talking about the standard situation, or the standard procedure, informed by judicial investigation, wherein evidence is examined at trial. In this situation, the establishment of the defendant’s guilt is public, direct, and oral. Such competitive criminal proceedings utilize cultural codes, including the communicative and intellectual functions of speech. While the communicative function deals with passing the information to others, the intellectual function is a way of forming and formulating thoughts and ideas. All those means of expression as a holistic cultural package help reach the understanding of the case. I, an honorary judge, believe in humanist ideals as an absolute value. So I will now view the various phenomena of criminal justice, including the dissenting opinion of a judge, through this humanist lens of natural and positive law.

A dissent can “mitigate” the responsibility of the guilty party in case of appeal before the higher-level court.

The dissent is closed to the public because it gives a glimpse into the confidential discussion that takes place in the judicial chambers. Under the conditions specified in the law, the dissenting opinion is available only to the representatives of the parties to the criminal proceedings as a guarantee that their rights be fulfilled.

The dissent does not split the judge’s personality but signifies the person’s moral integrity. As a law-abiding citizen, the judge fulfills their duty of administering justice and signs the final document – the verdict. However, if the judge comes to a different conclusion, important for the outcome of the case, they can express a dissent, as criminal justice is based on the principles of democracy.

The above reflections on judicial dissent have been substantiated in the practical use of the legal precept in question.

For example, the judge organized and supervised the trial of a criminal case against Kluyev[132] on the merits of the charges. When the judge took up the case, the 10-year statutory limitation period was nearly over. Earlier, a guilty verdict was delivered in the case, overturned by a higher court in the 1990s due to a violation of the right to defense.

During those proceedings, the composition of the court changed multiple times. As late as the 21st century, the newly assigned presiding judge referred the case to the prosecutor of the province to further investigate the matter. The reason was that the preliminary investigation had closed Kluyev’s criminal case on April 16, 1999 for lack of convincing evidence. That precluded the criminal prosecution of the defendant and prevented the court from ruling on the merits of the case without referring it for additional investigation. Perhaps that was the reason why the preliminary investigation authorities had failed to follow any guidance on the case provided by the provincial court, the Supreme Court of the Russian Federation on January 27, 1997, or the Presidium of the Supreme Court on August 6, 1997.

As a result, the proceedings became protracted and covered in red tape. Substantiating any of the two possible rulings – guilty or not guilty – had been an insurmountable task for quite a long time, and all that time Kluyev had been kept in prison. The detainee was a man of science with a degree and a high academic status, his record overall clean. He was also married and had children. After falling out with his wife, he found himself serving a long prison sentence. However, he never allowed any compromises with the investigation regarding his innocence. After pre-trial detention that lasted 5 years, 7 months, and 9 days, Kluyev finally managed to have the court release him.

Having examined the merits of the case in a closed session, the provincial court, consisting of a presiding judge and two people’s assessors, found Kluyev guilty on some of the charges but limited the punishment to the preliminary sentence already served, freeing Kluyev from further penalty under Article 302 Section 2 Item 2 of the Russian Criminal Procedure Code (CPC RF).[133]

However, the presiding judge drafted in the chambers a dissenting opinion in conformity with Article 5 Part 5 of the CPC RF and appended it to the verdict. (The law prohibits disclosing the content of the dissenting opinion.)

The presiding judge was the last to put his signature under the verdict. This is evident from the document, the contents of which were announced in the courtroom by one of the other judges who heard the case.

The Judicial Board on Criminal Cases of the Supreme Court of the Russian Federation amended the sentence, excluding convictions on some charges, including the time-barred charges and the ones considered by the prosecutor to be without merit. The rest of the sentence was upheld, and Kluyev’s cassation appeals were dismissed.[134]

Thus ended the longstanding, complicated, but unique story of that criminal case, along with the middle age of professor Kluyev, who never expected judicial dissent. He publicly expressed his gratitude for the fundamental observance of his rights and freedoms, and especially for the presumption of his innocence.

As for the dissenting opinion, the goal of administering justice was fulfilled as the verdict entered into force. Despite procedural nullity, the dissent expressed what had to be expressed, flatly contradicting the existing policy message of the verdict. The higher judicial body, consisting of three professional judges of the Supreme Court, expressed its legitimate opinion as laid out above. The higher authority had no doubt that the judicial procedure of sentencing Kluyev was strictly legitimate, which they stated in the corresponding court decision.

The legislative model of sentencing in the chambers provides that all issues should be resolved by a majority vote, and the presiding judge is the last to cast a vote. In these limited procedural conditions, if the opinion of the presiding judge contradicts the view expressed by two other judges, it becomes a dissenting opinion. If