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Article 15

November 29, 2006 08:24

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
15.1.          The requirements of Article 15 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment imply not only the establishment of a related norm in national laws of the Convention member-state, but also the adoption by said state a set of measures that would ensure maximum adherence to that norm. In particular, the national law should provide with the mechanisms (procedures) that would de juro and de facto allow to exclude any statements made as a result of torture from the trial.
15.2.          The Constitution of Russian Federation (adopted on December 12, 1993) and the Criminal Procedure Code (adopted on December 18, 2001, took effect on July 1, 2002) both contain an absolute ban on using any statement made as a result of torture as evidence in trial (article 21 and part 2 article 50 of the Constitution; article 9 and article 75 of the CPC). Compliance with this ban is ensured in the following way:
15.3.          If – during the trial the side of the prosecution presents material evidence, which can be classified as a confession statement from the defendant, and the side of the defense (defendant and the lawyer) maintains that this evidence was received under torture, the court must investigate the matter and decide about the admissibility of that evidence. According to article 14 of the CPC (presumption of innocence), the prosecutor must present proof to overcome the statement about torture, while the side of the defendant has the right to present proof in favor of that statement.
15.4.          At the same time, as stated in article 144 of the CPC, the prosecutor should record the statement about torture and ensure the check up – that is, treat this statement as a communication on a crime. The check up should be carried out by the specifically appointed employee of the prosecutor’s office, usually an investigative officer. If there has already been a check up on the similar statement from the accused, no other check up is required.  If – during the check up process – the necessary data is collected that points to the fact of torture, there should be issued a court order to launch a criminal case, a pre-trial investigation should start. In the opposite case – a court statement should be issued to deny the request to launch a criminal case. The report on the check up should be presented by the prosecutor to the court so that the latter could consider it and decide about the admissibility of the statement on torture.
15.5.          Having considered evidence presented by both sides on the statement on torture, the court must either decide that this statement is well-proven or not proven, and rule whether evidence is inadmissible and thus should be excluded from the trial, or admissible.
15.6.          If the torture statement was made by the defense as an application to consider inadmissibility of evidence presented by the prosecution, the court judgment should be issued in the form of motivated ruling to either deny or accept the application. At the same time, regardless of the way the defense presents their torture-related argument, the fact of the argument must be addressed in the analysis of presented evidence included in the final judgment on the case (except for the jury courts, in which case no evidence analysis is needed with the sentence).
15.7.          This is how the CPC determines the procedure of court consideration of the in-trial statement (argument) on torture inflicted on the defendant. However, to reveal the real meaning of this procedure as a tool (mechanism) to remove any statements received under torture from the evidence, we need to address the practice.
15.8.          In actual practice the procedure in question often possesses the following features.
15.9.          According to the investigation done by the Prosecutor’s Office in accordance with the article 144 of the CPC it’s not infrequent when a decree to ignore the criminal cause is issued, stating that the claim of tortures hasn’t been corroborated[1]. It is this very resolution to ignore the cause that is brought into court by the prosecutor as the main evidence of the invalidity of the defendant’s claim of tortures. Normally in order to protest the defendant’s claim of tortures the prosecutor also vouches for a witness  -  an officer of the relevant law enforcement agency that dealt with the defendant during the preliminary inquiry process. Considering that torture is usually implemented at the earliest stages of the investigation while the trial of evidence happens no sooner than in six months after the start of the investigation, these witnesses, when examined in court, normally don’t remember any detail of their treatment of the defendant. However, as a rule they claim that they didn’t apply any illegal measures/retaliations to the defendant and that their treatment of the defendant was uttermost civil. Such evidence is usually considered sufficient by the court to plead the defendant’s claim of tortures invalid and denied by the prosecution, irrespective of the degree of cogency of the evidence given by the defense as a justification of the claim of tortures.
15.10.       Avoiding suppositions about what the courts are guided by when they consider defendants’ claims of tortures in this way, let’s list the facts relative to this procedure:
1) courts do not take into account the initially vulnerable state of the victim of tortures, in particular his or her being in full inspection of the law enforcement officers (including those who implemented tortures) during the period tortures took place and long after it.
2) courts often don’t take into account the defendant’s lack of access to qualified medical and legal assistance;
3) courts don’t consider the defendant’s and defense’s obviously limited power to prove the fact of tortures;
4) courts ignore the aspect whether the defendant was granted effective means of legal defense after his or her claim of tortures, in particular whether the defendant’s right to file a complaint was promptly ensured, whether this complaint was inspected swiftly, scrupulously and objectively and whether the resolution issued after the afore-mentioned inspection was well-founded;
5) courts refuse to consider the defendant’s claim in question a admissible evidence when supported by the facts pointing at the high degree probability that the defendant was tortured, always demanding that the defense provide persuasive evidence that allows an unequivocal conclusion that the tortures really took place, meanwhile the court evaluates the evidence of tortures provided by the defense according to the same set of stringent rules that are used to prove the fact of a crime, including the rules for evaluation the evidence consequent to the assumption of innocence principle;
6) all doubt of the fact of tortures subsequent upon the evidence provided by the parties is interpreted by the court against the defendant and his claim of tortures.
15.11.       The above-mentioned details of the procedure in question refer equally to all regular courts, courts with trial by the jury included. For that matter it should be noticed that contrary to the statement contained in Article 116 of the Russian Federation Periodic Report on the Convention Implementation, the CPC lacks regulations insuring a more scrupulous investigation the defendant’s claim of tortures by the court with the trial by jury as compared to all the other courts. In reality the specific character of the trial by jury in the context of the Russian Federation Criminal Procedure Court’s procedure in question is as follows. None of the participants of the court proceedings has the right to claim tortures or suchlike – that is, claims, that discredit the competence of the evidence provided by the parties and inspected by the court - in the presence of the jury. For the time when the defendant’s claim of tortures is addressed and the admissibility of the evidence is considered the jury leaves the courtroom, and the above-mentioned questions are treated and decided solely by a professional judge taking the chair in this case, in accordance with procedure described above (Article 334, parts 6&7 of Article 335 of the Russian Federation Criminal Procedure Code).
15.12.       Thus it has to be admitted that the procedure of answering the defendant’s claims of tortures appearing during the trial of a criminal case, prescribed by the current Russian Federation Criminal Procedure Code and the practice of its application in courts doesn’t ensure the de jure and de facto possibility of exclusion from the probation the defendant’s claims, issued under torture. In reality this procedure is no more than a formal ceremony in the sense that its result is anticipated by all the participants of the court trial. The result is predetermined by the not unbiased attitude of the Prosecution that supports the official prosecution’s position against the defendant in court and at the same time is responsible for verifying the defendant’s claim of tortures.
15.13.       The foregoing is applicable not only to the treatment of the defendant’s claim of tortures by courts, but also to similar claims of the witnesses.
15.14.       It must be mentioned in support of the arguments described above  that the drafters of the present do not know of any case when the court trying a criminal case considered the defendant’s or witness’s claim of  tortures valid and in that ground excluded the relevant evidence from probation as inadmissible. Also there is no information about such cases in the Russian Federation Periodic Report on the Implementation of the Convention.
15.15.       The obvious inefficiency of the afore-described proceeding could be partially compensated by assigning in the Russian Federation Criminal Procedure Code more stringent and unambiguous norms for defining evidence admissibility that would allow to exclude any doubtful claims of the defendant, made during the preliminary investigation of the criminal cause. For instance, taking into consideration that providing the suspect and the defendant with the timely and unimpaired access to qualified legal assistance (the defendant) is an essential measure of torture prevention, it would be reasonable to supplement the Criminal Procedure Code with a legal proposition of the inadmissibility as evidence of any claim made by the suspect or the defendant during the preliminary investigation of a criminal cause in the absence of a defender, and not corroborated by him or her later in the inquiry at court.
15.16.       Paragraph 1 part 2 article 75 of the CPC contains a rule of law, according to which evidence given by the suspect and by the accused in the course of the pre-trial proceedings on the criminal case in the absence of the counsel for the defense, including the cases of the refusal from counsel for the defense, and not confirmed by the suspect and by the accused in the court is referred as inadmissible proof.
15.17.       In the actual practice of the law enforcement agencies the said norm is interpreted as restrictive. The literal interpretation and application of the rule of law paragraph 1 part 2 article 75 CPC means that it covers only the suspect’s and (or) defendant’s statements which are inferred (articles 76 and 77 of the CPC) as  the information he has provided at the specific and highly regulated by the present CPC procedure as the interrogation of the suspect and (or) defendant. Accordingly the information (statements), reported (made) by the suspect or defendant in the absence of the defender during any other investigation proceedings, provided by the CPC (view of place occurrence, testimony verification at the place of occurrence, identification line-up), as well as in the result of the so called “interviews” or any other circumstances are not covered by paragraph 1 part 2 article 75 of the CPC but nevertheless can be used in the court proceedings. 
15.18.       Suchlike interpretation of this rule of law paragraph 1 part 2 article 75 of the Russian Federation Criminal Procedure Code reduces its practical application as a means of excluding the suspect’s or defendant’s statements received under torture from the process of criminal case probation. So the rule of law in question is rather decorative, as its stringent requirements have a very narrow sphere of application, leaving ample opportunities for various statements (acknowledgement of quilt, clarification, explanation etc.) to be used as admissible evidence during the criminal case proceeding while they don’t possess the formal features of the suspect’s evidence or the defendant’s evidence. The law enforcement offices take advantage of this legitimized possibility in order to make up for the lack of evidence against suspects and suspects and defendants.
15.19.       Part 3 article 7, part 1 and paragraph 3 part 2 article 75 of the CPC contain a rule of law, according to which al evidence received through violation of the requirements of the present Code is considered inadmissible.  In principle this rule provides additional possibilities for exclusion of doubtful evidence from the probation process of a criminal case, including any statement made by the defendant under torture, even if the fact of torture implementation is not sufficiently proved, but there’s a sufficient proof of the violation of any other requirement of the CPC.
15.20.       But in actual court proceedings the aforementioned rule is also interpreted as restrictive. Not every violation of the requirements of the CPC is considered sufficient to plead the evidence received through violation of some rights inadmissible. Evidence can be recognized as inadmissible only upon violation of the requirements of the Russian Federation Criminal Code resulting in factual violation of the rights of any participant of the legal procedure during the actual collection of evidence in whose behalf a request to admit the evidence in question as inadmissible is filed[2]. Thereat the burden of proving the aforementioned circumstances is assigned on the [arty that has filed a request  to recognize the relevant evidence inadmissible. The dominance of this approach in court practice results in the fact that the initial idea of the necessity to recognize evidence received upon violation of the requirements of the that are enacted as received upon violation of the CPC summarily is fully leveled, and the preserved legal possibilities to recognize the relevant evidence inadmissible turn out to be illusive.
15.21.       In these circumstances it is to be admitted that the rule of the CPC about the necessity to recognize all evidence received upon violation of the CPC as inadmissible, by implication of law can not be deemed effective as a means of exclusion of the suspect’s, defendant’s or witness’s statements, received under torture, from the probation process.
15.22.       The analysis of the provisions of the CPC and their applications in court proceedings reveal the following:
1) the present Russian criminal court procedure lacks any proceeding which allows objectively and impartially to verify a claim of  tortures made by a participant of  a criminal lawsuit, to establish the fact of tortures and to recognize the corresponding evidence inadmissible on the basis of the facts that are indicative of high probability of tortures;
2) the present procedure of adjudging claims of tortures is quite formal and ineffective, it doesn’t comply with article 15 of the Convention,  because within the framework of this procedure the final court decision after the scrutinizing the claim of tortures is fully predetermined  by the attitude of the prosecution, which caries out criminal prosecution of the defendant and supports the official prosecution, consequently the stated attitude of the Prosecution to the defendant in the matter of tortures implementation cannot be objective and impartial;
3) the special rules of law of the Russian Federation Criminal Procedure Code which define the admissibility of evidence by the sense assigned to them by the legal procedure, do not add to this procedure sufficient security accreditation for the proper fulfillment of the requirements of article 15 of the Convention.

[1] There is not a single case known to the drafters of this report when the defendant’s claim of tortures was pleaded valid after the investigation done by the prosecutor’s office and accordingly a decree for initiation of a criminal cause was issued and the investigation of the tortures on the record started.
It’s also noteworthy that there is no information about suchlike cases in the Russian Federation 
Periodic Report of the Convention Observance. The main drawbacks of the inspections done by the law enforcement agencies addressing claims of tortures are treated the Article 13 of the Report of Russian Non-governmental Organizations.
[2] The evidence of such interpretation  and application of this rule about the inadmissibility of the evidence received upon violation of the Russian Federation Criminal Procedure Code in courts, and of the support of this approach by the Supreme court of the Russian Federation can be found in one of the issues of the official edition “The Bulletin of the Supreme Court of the Russian Federation // Bulletin of the Supreme court of the Russian Federation. 2004, № 8, page 27.