The accession of Crimea to the Russian Federation on 18 March 2014 also meant its accession to the Russian legal system. According to the Treaty on the Accession Russian laws and regulations become operative in the territory of the newly constituted Republic of Crimea and the federal city of Sebastopol as of its signature. It begs several questions from the criminal justice perspective. Some of them will hopefully be answered in this post.
The transitory scheme should be based on the coexistence between Russian laws and regulations that came into effect on 18 March 2014 and Ukrainian criminal legislation in force in Crimea before this date. Underlying the principle of coexistence is the willingness to establish a system which would be respective of the fundamental principles of criminal law, such as, for instance, the non-retroactivity.
The principle of coexistence has a strong and deeply rooted academic and practical background. Its golden age was during the European Middle Ages when Bartolus de Saxoferrato (1313-1357) and other postglossators developed the true international criminal law. Six centuries later it was one of the most prominent lawyers of the XX century, Henri Donnedieu de Vabres, who picked up the baton and formulated the axiom of the international criminal law: ‘the law, that once regulates a penal relationship, shall regulate it forever’.
It is not the first time in the world history that a territory undergoes a change of sovereignty. Instead of re-inventing the wheel, it might be wise to adopt the practices that have already proven their efficiency.
The restoration of the French sovereignty over Alsace and Lorraine after World War I entailed similar problems. On 25 November 1919 two decrees were adopted: a Decree on the introduction of the French penal laws in the departments Moselle, Bas-Rhin and Haut-Rhin and a Decree on the temporary application of certain penal laws currently in force in the Alsace-Lorraine. The report to the President of the Council and to the Minister of Defence by Millerand explains that the former experiences with the annexation of new territories to France were taken into account in the drafting of these decrees.
Inspiration may be drawn as well from the example of the German unification. The crimes committed in the GDR before the unification were judged in accordance with GDR laws applicable at the time of the offence. This solution was based on the Annex I, Chapter III, Area C, Section II, Para. 1(b) of the 1990 Treaty on the Unity (Einingungsvertrag) amending art. 315 of the Introductory Act to the FRG Penal Code.
What the Legislative Proposal Might Look Like
The scheme enunciated in the two French Decrees may be adopted by Russian law-makers as a framework subject to all the adjustments necessary in the Crimean context. The following provisions must be included in the legislative proposal:
- The offences committed in the territory of the Republic of Crimea and the federal city of Sebastopol, including the territorial sea, the airspace, the continental shelf and the exclusive economic zone are deemed to have been committed in the territory of the Russian Federation notwithstanding the time of their commission. This is to ensure the competence of Russian law-enforcement agencies to investigate and adjudicate the crimes that occurred before 18 March 2014.
- The criminality of the conduct which took place before 18 March 2014 and the criminal responsibility of the offender will be assessed according to the provisions of the Ukrainian Criminal Code. However, the sentence will be imposed pursuing to a table of the correspondence of sentences, devised to this effect. It is crucial that one’s liability be ascertained on the strength of the law applicable at the time of the offence.
- Former Ukrainian citizens and stateless persons who have permanently lived in Crimea and have acquired Russian citizenship as a result of the accession are not subject to extradition to a foreign state for the crimes that they committed before becoming Russian nationals.
- Criminal cases initiated before 18 March 2014 in connection with conduct which is not criminalized in the Russian Federation should be dismissed.
- An accused person who is alleged to have committed a crime before 18 March 2014 should have the right to ask for a jury trial if he or she would have had this right should the crime have been committed in Russia.
These are the four pillars around which a more detailed scheme can be articulated. The transitory period is always delicate and, hopefully, the precipitate and legally deficient solutions will be avoided. We will wait and see.