14.1.          In par. 121-124 of its 4^th Periodic Report, the Russian Government described, as evidence of its compliance with Art. 14 provisions, the rehabilitation procedure under Art. 133 of the Criminal Procedure Code, and provided an example of this rule being applied by a court.

 

14.2.          While admitting the importance of integrating these provisions in the Russian law, we nevertheless need to mention that they have virtually nothing to do with what is understood in the modern world by rehabilitation of torture victims. By rehabilitation, the Russian Criminal Procedure Code means the procedure of restoration of rights and freedoms to someone unlawfully or unjustly subjected to criminal prosecution (criminal charges, conviction, arrest or other restrictions). This procedure provides for compensation of material damage caused by unlawful criminal prosecution and redress of moral harm (including official apologies brought to the victim by the prosecutor on behalf of the state, and sending written messages, within a legally established short timelines, about the person's acquittal to his/her place of work, study or residence), and restoration of labor, pension, housing-related and other rights.[1]

 

14.3.          However, the criminal procedure law does not mention torture as a ground for rehabilitation. It means that even an officially investigated and proven fact of torture does not entitle the victim to rehabilitation provided in the Criminal Procedure Code. A victim of torture can claim compensation of harm as part of rehabilitation only in case s/he suffered from unlawful or unjustified criminal prosecution, as well as torture. But even in this case, victims are not entitled to compensation of harm caused by torture, but to compensation of damage caused by unlawful or unjustified criminal prosecution.

 

14.4.          The fact that the current rehabilitation procedure provided by law does not include compensation and apologies for torture can be illustrated by examples:

 

14.5.          Besides, experience shows that in cases where victims of torture could, in principle, expect rehabilitation for unlawful criminal prosecution, competent authorities sometimes fail to suggest that they benefit from this procedure.

Teenagers Petrov and Nuriyev were suspected of theft, prosecuted and detained. Later it was determined that Petrov and Nuriyev were prosecuted on the ground of false confession forced under torture. Therefore, on 20.05.2003, the police investigator in Sovetsky District, Kazan, made a decision to drop criminal charges against Petrov and Nuriyev and lifted the measure of restraint. However, the investigator failed to recognize their right to rehabilitation under art. 18 of the Criminal Procedure Code.

 

14.6.          As to programs of medical, psychological and social rehabilitation of torture victims, Russian authorities do not implement or finance them. Some efforts to offer medical, psychological and social rehabilitation to torture victims are made by NGOs supported by private donors and the UN Voluntary Fund for Torture Victims.

 

 

14.7.          If no criminal proceedings were instigated or conducted against a torture victim, s/he cannot access rehabilitation procedure. Should this be the case, compensation of damage is not regulated by specific legal norms on rehabilitation, but rather, by general legal provisions on liability that arises from causing harm to someone.

 

14.8.          Thus, constitutional norms[2] and federal laws guarantee everyone the right to compensation by the State of any harm caused by unlawful actions of public authorities or officials. Any harm inflicted on a person or personal property must be compensated in full. The court also may obligate the perpetrator to provide pecuniary compensation of moral harm caused to the victim - and moral harm is defined by law as physical or mental suffering. Any harm inflicted on a person by unlawful action or inaction of government authorities or officials must be compensated from the Federal Treasury, the treasury of the RF subject (region), or a municipality.[3] The same general rules are applicable to torture victims.

 

14.9.          The law provides for procedures for compensation claims as part of criminal and civil proceedings. In criminal proceedings, it is possible to claim compensation for the harm caused by the criminal offence. Besides, a compensation claim can be considered by court as part of criminal proceedings.

 

14.10.       So by law, a torture victim can claim compensation as part of criminal proceedings instigated against public officials guilty of torture. This claim can be considered by court in conjunction with the criminal proceedings and adjudicated at the sentencing stage. No statute of limitation applies to the possibility of bringing such a claim and its admission by court. The plaintiff in criminal proceedings does not have to pay stamp duty when bringing his/her claim. Because the right to bring this claim is associated with a crime committed against the plaintiff, the burden of proof lies with the public law enforcement agencies - meaning that the entire base of evidence obtained through official investigation of a crime also supports the claim.[4]

 

14.11.       Bringing a compensation claim as part of criminal proceedings is preferable for victims of torture. In such cases, the state, as well as the victim, is the prosecuting party, so it does not interfere with, and even assists the victim in accessing compensation. However, a torture victim can bring a compensation claim as part of criminal proceedings only if the authorities have investigated the allegation of torture and decided to bring criminal charges against the public officials guilty of torture. If for whatever reason there was no effective investigation of torture allegations, the victim cannot access the procedure of compensation described above.

 

14.12.       As noted above, a victim can also bring a civil claim for compensation. It can be done, inter alia, following the completion of the criminal proceedings, if the civil suit for compensation was not brought during consideration of criminal case. In this case, the State is the responding party in civil proceedings. So a torture victim must independently, without assistance of authorities, prove the circumstances s/he refers to as grounds for his/her claim for compensation. According to established rules of evidence, any circumstances established earlier by an effective court judgment do not have to be proven again and cannot be challenged. The court’s judgment in criminal proceedings involving a determination of whether the offence took place and whether it was committed by the person in question is a pre-requisite of any civil proceedings. All other facts need to be proven according to general rules.[5] So if there is a verdict determining the guilt of a specific official in inflicting torture, the only thing that the torture victim has to prove in civil proceedings is the amount of harm caused.

 

14.13.       Although an effective verdict with regard to specific parties guilty of torture should substantially relieve the burden of proving a civil claim, courts in such cases have not always satisfied the torture victims’ claims for compensation.

 

14.14.       In cases where the fact of torture and the specific perpetrator have not been established in the frame of criminal procedure, a torture victim formally can also seek compensation. However, in this case, the victim faces the challenge of independently collecting evidence of torture, proving the guilt of the public officials and the causal relations between the torture and the material and moral harm caused to him/her. Moreover, if there has been investigation into the torture complaint which failed to determine the fact of crime, the torture victim will have to challenge it. An award of compensation is unlikely in this situation, however. Human rights organizations in 11 RF regions (the republics of Marii El, Komi, Bashkortostan, Tatarstan, Krasnodar and Perm Krais, Nizhni Novgorod, Chita, Orenburg, Sverdlovsk and Tver Regions) have not observed a single case of torture victims seeking compensation in court following a denial of criminal prosecution of specific culprits.

 

14.15.       So, the likelihood of a torture victim being awarded compensation depends almost entirely on an effective investigation of the torture complaint by prosecutorial bodies. The practice of ineffective and lengthy investigation of torture complaints (see Art. 12 and 13 of this Report for details) is an important barrier faced by torture victims in accessing compensations.

 

 

14.16.       As mentioned before, if a torture victim has been successful in having his/her complaint investigated and the guilt of specific public officials determined by court, then, as a rule, s/he can expect to be awarded compensation either through criminal or through civil proceedings. Analyzing judicial awards of compensation to victims of torture and ill-treatment, we note a tendency in recent years of increasing the amounts of compensation awarded for material damage and moral harm. It is possible that the observed increase in compensation awards shows better awareness of such serious violation of individual rights and liberties as torture. On the other hand, the observed increased may be due to the overall better standards of living in Russia.

 

14.17.       According to the data available to the Public Verdict Foundation concerning judicial awards in 2004 – 2005 of compensations to 15 torture victims or their families (if the victim died) in Kazan, Nizhniy Novgorod and Yekaterinburg, and in Chita region the awards varied, depending on the nature and seriousness of harm between 7 and 280 thousand rubles. The courts’ practice of determination of the compensation amount has been inconsistent.

 

 

 

 

14.18.       We should note that torture victims awarded compensations of material and moral harm face substantial difficulties with enforcing their payment. There is no doubt that the practice of enforcing judicial awards of this type is not consistent with art. 14 of the Convention.

 

14.19.       It is important to emphasize that problems with enforcing compensations awarded by court are due to defects of the current legislative provisions on execution of judgments.[6] The established legal procedure of obtaining compensations from state or municipal budgets (and compensations to victims of torture, according to current law and jurisprudence, are levied, in the first place, on the government) forces the victim to file all needed paperwork to the government bodies responsible for making the payment from the respective budget. Then the only thing left for the applicants to do is to wait for the payment. S/he cannot access the services of court bailiffs or forcibly execute the judicial award. As a result, applicants, including torture victims, cannot access their awarded compensations within reasonable timelines. 

 

14.20.       According to human rights organizations, in 2003-2005, in a number of instances, including awards to torture victims, court bailiffs have argued, with reference to Russian laws, that it is impossible to execute the awards, and sent the writs of execution back to claimants explaining their right to serve the writs to the Russian Ministry of Finance independently.

 

14.21.       In June 2005, the Russian Constitutional Court found that a plaintiff should not be at a disadvantage just because they sue the public authority, rather than a private party, and that government authorities cannot justify a failure to execute a court judgment by saying that they do not have funds budgeted for it. As a result, the Constitutional Court found the current procedure of collecting due compensations unconstitutional and invalid starting on 1 January 2006.[7] We have not had any information concerning a new practice of paying compensations to victims.

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14.1.          In par. 121-124 of its 4^th Periodic Report, the Russian Government described, as evidence of its compliance with Art. 14 provisions, the rehabilitation procedure under Art. 133 of the Criminal Procedure Code, and provided an example of this rule being applied by a court.

 

14.2.          While admitting the importance of integrating these provisions in the Russian law, we nevertheless need to mention that they have virtually nothing to do with what is understood in the modern world by rehabilitation of torture victims. By rehabilitation, the Russian Criminal Procedure Code means the procedure of restoration of rights and freedoms to someone unlawfully or unjustly subjected to criminal prosecution (criminal charges, conviction, arrest or other restrictions). This procedure provides for compensation of material damage caused by unlawful criminal prosecution and redress of moral harm (including official apologies brought to the victim by the prosecutor on behalf of the state, and sending written messages, within a legally established short timelines, about the person's acquittal to his/her place of work, study or residence), and restoration of labor, pension, housing-related and other rights.[1]

 

14.3.          However, the criminal procedure law does not mention torture as a ground for rehabilitation. It means that even an officially investigated and proven fact of torture does not entitle the victim to rehabilitation provided in the Criminal Procedure Code. A victim of torture can claim compensation of harm as part of rehabilitation only in case s/he suffered from unlawful or unjustified criminal prosecution, as well as torture. But even in this case, victims are not entitled to compensation of harm caused by torture, but to compensation of damage caused by unlawful or unjustified criminal prosecution.

 

14.4.          The fact that the current rehabilitation procedure provided by law does not include compensation and apologies for torture can be illustrated by examples:

 

14.5.          Besides, experience shows that in cases where victims of torture could, in principle, expect rehabilitation for unlawful criminal prosecution, competent authorities sometimes fail to suggest that they benefit from this procedure.

Teenagers Petrov and Nuriyev were suspected of theft, prosecuted and detained. Later it was determined that Petrov and Nuriyev were prosecuted on the ground of false confession forced under torture. Therefore, on 20.05.2003, the police investigator in Sovetsky District, Kazan, made a decision to drop criminal charges against Petrov and Nuriyev and lifted the measure of restraint. However, the investigator failed to recognize their right to rehabilitation under art. 18 of the Criminal Procedure Code.

 

14.6.          As to programs of medical, psychological and social rehabilitation of torture victims, Russian authorities do not implement or finance them. Some efforts to offer medical, psychological and social rehabilitation to torture victims are made by NGOs supported by private donors and the UN Voluntary Fund for Torture Victims.

 

 

14.7.          If no criminal proceedings were instigated or conducted against a torture victim, s/he cannot access rehabilitation procedure. Should this be the case, compensation of damage is not regulated by specific legal norms on rehabilitation, but rather, by general legal provisions on liability that arises from causing harm to someone.

 

14.8.          Thus, constitutional norms[2] and federal laws guarantee everyone the right to compensation by the State of any harm caused by unlawful actions of public authorities or officials. Any harm inflicted on a person or personal property must be compensated in full. The court also may obligate the perpetrator to provide pecuniary compensation of moral harm caused to the victim - and moral harm is defined by law as physical or mental suffering. Any harm inflicted on a person by unlawful action or inaction of government authorities or officials must be compensated from the Federal Treasury, the treasury of the RF subject (region), or a municipality.[3] The same general rules are applicable to torture victims.

 

14.9.          The law provides for procedures for compensation claims as part of criminal and civil proceedings. In criminal proceedings, it is possible to claim compensation for the harm caused by the criminal offence. Besides, a compensation claim can be considered by court as part of criminal proceedings.

 

14.10.       So by law, a torture victim can claim compensation as part of criminal proceedings instigated against public officials guilty of torture. This claim can be considered by court in conjunction with the criminal proceedings and adjudicated at the sentencing stage. No statute of limitation applies to the possibility of bringing such a claim and its admission by court. The plaintiff in criminal proceedings does not have to pay stamp duty when bringing his/her claim. Because the right to bring this claim is associated with a crime committed against the plaintiff, the burden of proof lies with the public law enforcement agencies - meaning that the entire base of evidence obtained through official investigation of a crime also supports the claim.[4]

 

14.11.       Bringing a compensation claim as part of criminal proceedings is preferable for victims of torture. In such cases, the state, as well as the victim, is the prosecuting party, so it does not interfere with, and even assists the victim in accessing compensation. However, a torture victim can bring a compensation claim as part of criminal proceedings only if the authorities have investigated the allegation of torture and decided to bring criminal charges against the public officials guilty of torture. If for whatever reason there was no effective investigation of torture allegations, the victim cannot access the procedure of compensation described above.

 

14.12.       As noted above, a victim can also bring a civil claim for compensation. It can be done, inter alia, following the completion of the criminal proceedings, if the civil suit for compensation was not brought during consideration of criminal case. In this case, the State is the responding party in civil proceedings. So a torture victim must independently, without assistance of authorities, prove the circumstances s/he refers to as grounds for his/her claim for compensation. According to established rules of evidence, any circumstances established earlier by an effective court judgment do not have to be proven again and cannot be challenged. The court’s judgment in criminal proceedings involving a determination of whether the offence took place and whether it was committed by the person in question is a pre-requisite of any civil proceedings. All other facts need to be proven according to general rules.[5] So if there is a verdict determining the guilt of a specific official in inflicting torture, the only thing that the torture victim has to prove in civil proceedings is the amount of harm caused.

 

14.13.       Although an effective verdict with regard to specific parties guilty of torture should substantially relieve the burden of proving a civil claim, courts in such cases have not always satisfied the torture victims’ claims for compensation.

 

14.14.       In cases where the fact of torture and the specific perpetrator have not been established in the frame of criminal procedure, a torture victim formally can also seek compensation. However, in this case, the victim faces the challenge of independently collecting evidence of torture, proving the guilt of the public officials and the causal relations between the torture and the material and moral harm caused to him/her. Moreover, if there has been investigation into the torture complaint which failed to determine the fact of crime, the torture victim will have to challenge it. An award of compensation is unlikely in this situation, however. Human rights organizations in 11 RF regions (the republics of Marii El, Komi, Bashkortostan, Tatarstan, Krasnodar and Perm Krais, Nizhni Novgorod, Chita, Orenburg, Sverdlovsk and Tver Regions) have not observed a single case of torture victims seeking compensation in court following a denial of criminal prosecution of specific culprits.

 

14.15.       So, the likelihood of a torture victim being awarded compensation depends almost entirely on an effective investigation of the torture complaint by prosecutorial bodies. The practice of ineffective and lengthy investigation of torture complaints (see Art. 12 and 13 of this Report for details) is an important barrier faced by torture victims in accessing compensations.

 

 

14.16.       As mentioned before, if a torture victim has been successful in having his/her complaint investigated and the guilt of specific public officials determined by court, then, as a rule, s/he can expect to be awarded compensation either through criminal or through civil proceedings. Analyzing judicial awards of compensation to victims of torture and ill-treatment, we note a tendency in recent years of increasing the amounts of compensation awarded for material damage and moral harm. It is possible that the observed increase in compensation awards shows better awareness of such serious violation of individual rights and liberties as torture. On the other hand, the observed increased may be due to the overall better standards of living in Russia.

 

14.17.       According to the data available to the Public Verdict Foundation concerning judicial awards in 2004 – 2005 of compensations to 15 torture victims or their families (if the victim died) in Kazan, Nizhniy Novgorod and Yekaterinburg, and in Chita region the awards varied, depending on the nature and seriousness of harm between 7 and 280 thousand rubles. The courts’ practice of determination of the compensation amount has been inconsistent.

 

 

 

 

14.18.       We should note that torture victims awarded compensations of material and moral harm face substantial difficulties with enforcing their payment. There is no doubt that the practice of enforcing judicial awards of this type is not consistent with art. 14 of the Convention.

 

14.19.       It is important to emphasize that problems with enforcing compensations awarded by court are due to defects of the current legislative provisions on execution of judgments.[6] The established legal procedure of obtaining compensations from state or municipal budgets (and compensations to victims of torture, according to current law and jurisprudence, are levied, in the first place, on the government) forces the victim to file all needed paperwork to the government bodies responsible for making the payment from the respective budget. Then the only thing left for the applicants to do is to wait for the payment. S/he cannot access the services of court bailiffs or forcibly execute the judicial award. As a result, applicants, including torture victims, cannot access their awarded compensations within reasonable timelines. 

 

14.20.       According to human rights organizations, in 2003-2005, in a number of instances, including awards to torture victims, court bailiffs have argued, with reference to Russian laws, that it is impossible to execute the awards, and sent the writs of execution back to claimants explaining their right to serve the writs to the Russian Ministry of Finance independently.

 

14.21.       In June 2005, the Russian Constitutional Court found that a plaintiff should not be at a disadvantage just because they sue the public authority, rather than a private party, and that government authorities cannot justify a failure to execute a court judgment by saying that they do not have funds budgeted for it. As a result, the Constitutional Court found the current procedure of collecting due compensations unconstitutional and invalid starting on 1 January 2006.[7] We have not had any information concerning a new practice of paying compensations to victims.

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