Britney Griner, Crime and Punishment in Russia – New York Daily News
As the Brittney Griner trial enters its final stages in Moscow and Western media coverage is largely limited to gleaning information and ideas from Russian media or US Embassy personnel, questions naturally arise about two respects: first, is the Russian criminal procedure fair, capable of producing a just result; second, whether the Griner trial was conducted “professionally” — short for the Russian Code of Criminal Procedure.
Griner was arrested at Sheremetyevo airport on February 17 when a sniffer dog alerted Russian customs to the possible presence of vape cartridges in her luggage. On March 4, Russian Customs announced that she would be prosecuted under Article 2291(2)(c), smuggling narcotics in “significant quantity” (the lowest punishable quantity). The Code punishes a person convicted of this crime with “deprivation of liberty” for five to 10 years with the possibility of a fine of up to 1 million rubles ($10-20,000, depending on the exchange rate). The article was added to the Code in December 2011 and inserted between articles 229 and 230, hence its unusual number.
The procedural code provides that Griner was ineligible for bail because she was a foreigner with no permanent residence in Russia. She was in transit to her basketball team in Yekaterinburg. She quickly got a defense attorney and apparently took their advice.
First of all, we should let go of the idea that Griner is persecuted in an unheard of way. Like most continental European jurisdictions, Russia can hold people in custody for substantial periods of time subject to judicial review. The nearly five months of detention and trial are not unusual in cases of this nature. The court, at the request of the investigating authorities, extended the detention period three times. One of the first points of contention was the delays in the access of the United States consul in Russia to Griner.
Unlike in the United States, there is no guilty plea in Russian criminal proceedings. Griner’s initial silence during the trial as to whether she wished to “admit guilt” was within her rights and had no procedural consequences. The Russian prosecutor, which is their term for a prosecutor, must prove guilt regardless of any confession – a reform of Soviet criminal procedure introduced in the 1960s in revulsion against Stalin’s practice of forcing confessions and then sticking to them proud.
In this case, the facts of a criminal offense were proven by the presence of the cartridges, forensic tests of what they contained, customs officers as witnesses, filmed evidence, etc. When the prosecutor finished presenting the case, Griner admitted her guilt and said she had made a mistake packing her bags. She probably did this to state the obvious and also to lay the groundwork for the second stage of the proceedings: what kind of person the accused is and what the court must take into account when imposing a sentence. A lot lies in the impression that her Russian teammates and coaches left on the pitch. They appeared on his behalf this week and will have presented the strongest case possible for clemency, all in accordance with the Code of Criminal Procedure.
Griner has an unusually impressive case to make for clemency. From a Russian perspective, she’s been a well-paid star for the past nine seasons, been absolutely key to her Yekaterinburg side’s success in the Russian and European leagues, won more Russian tag team championships than with his team in Phoenix. , enhanced the prestige of the Russian state by making Russia a powerhouse in European basketball – a promise that would be lost by a custodial sentence. Few Americans are ever able to say the same.
A Russian judge could, if the circumstances were deemed appropriate, impose a sentence below the legal minimum, giving the reasons for this decision. Although many reflexively insist that Vladimir Putin’s Russia is a place of draconian sanctions, especially against Americans, this happens in Russian judicial practice. Possession of medical marijuana, even if prescribed, is not a recognized ground under the Russian Criminal Code for possession or importation, but it is a mitigating circumstance that the court could take into account.
Regardless of the outcome of the trial, there is a right of appeal once a conviction becomes effective. Abroad, we are too far removed from the proceedings to determine whether the defense has grounds to appeal the way the trial unfolded. If we were observers in the courtroom and had the Code of Criminal Procedure on our knees, it would seem like a scripted performance: all the principals—judge, prosecutor, and defense attorney—know the Code by heart.
Butler is John Edward Fowler Professor Emeritus of Law, Penn State Dickinson Law, and author of Russian Law and Legal Institutions.