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Article 4

November 29, 2006 07:59

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
4.1.             Having considered Russia’s 3d Periodic Report, the Committee against Torture recommended to the Russian Government that Russia should promptly incorporate into domestic law the definition of torture as contained in article 1 of the Convention and characterize torture and other cruel, inhuman and degrading treatment as specific crimes with appropriate penalties in domestic law.
4.2.             Notably, in the reporting period, Russia took some measures to introduce a prohibition of torture in domestic law. These measures, however, proved to be insufficient to ensure full compliance with the Committee’s recommendations.
4.3.             Banning the use of torture, cruel and degrading punishment in the context of criminal and administrative investigation and proceedings (see pars. 4 and 7, Russia’s 4th Periodic Report), no doubt, supports the general prohibition of torture under Art. 21 of the Russian Constitution. However, the said provision, while establishing restrictions and guidelines which competent authorities must follow, fails to define torture, cruel and degrading punishment and to criminalize such acts.
4.4.             Over the reporting period, the Russian authorities also engaged in lawmaking to establish criminal liability for torture, cruel and degrading punishment. In response to the Committee's recommendations listed in the Concluding Observations on Russia's 3d Periodic Report, a group of the Federal Duma members drafted and submitted to the Duma’s consideration a draft law introducing a new Art. 117-1 “Torture” of the Criminal Code. The proposed Art. 117-1 defined torture as:
“…severe suffering, whether physical or mental, intentionally inflicted on a person for such purposes as obtaining information or forcing him to commit other acts against his will, for punishing him or for other purposes, when such pain or suffering is inflicted by a public official or with his consent or acquiescence by another person.”
4.5.             Thus, the draft text contained a definition fully consistent with that provided in Art. 1 of the Convention.
4.6.             The Duma adopted the draft law in the first reading on 19 March 2003, and its further consideration coincided with the process of amending the Criminal and Criminal Procedure Codes in 2003. It was expected that Art. 117-1 would be incorporated, alongside other amendments, in the Law “On amending the Russian Criminal Code.” However, during the final discussion of amendments to the Criminal Code, the Russian Federation Duma Committee for Legislation rejected Art. 117-1 under the pretext that it did not "fit in the structure of the current Criminal Code.”
4.7.             On 8 December 2003, instead of the rejected Art. 117-1, legislators adopted a note to Art. 117 (“torment”); the text of this note to Art. 117 is quoted in par. 3 of Russia’s 4th Periodic Report. Analyzing the definition of torture given in the note, we find that it does not fully correspond to Art. 1 of the Convention.
4.8.             Firstly, the definition of torture given in the note to Art. 117 of the Criminal Code fails to include a key element of torture, cruel and degrading punishment, i.e. direct or indirect involvement of a public official. Moreover, the provision introducing a definition of torture is located in a section of the Code dealing with crimes against life and health, rather than official crime. As a result, it applies only to acts committed by private individuals. Crimes committed by public officials in their official capacity are punished under specific provisions dealing with official crimes, rather than general criminal provisions which currently include Art. 117. This fact is proven by par. 31 of Russia’s 4th Periodic Report quoting statistics of prosecutions for official crimes, where you will not find any sentences under Art. 117.
4.9.             Secondly, a list of purposes qualifying ill-treatment as torture is narrower in the note to Art. 117 of the Criminal Code than in Art. 1 of the Convention. The Convention mentions such purposes as obtaining information or a confession from the victim or a third person, punishing or intimidating the victim or a third person, and discrimination, whereas the definition in Art. 117 of the Russian Criminal Code does not define ill-treatment of the victim in order to coerce a third person as torture. Moreover, the note to Art. 117 fails to mention purposes such as intimidation or discrimination.
4.10.         Not only is the definition of torture in domestic criminal law inconsistent with some of the standards established by the Convention, we also need to note that neither the Criminal Code nor any other domestic act gives a definition of cruel and degrading treatment.
4.11.         However, the lack of definitions of torture, cruel and degrading treatment in the criminal law does not mean that criminal prosecution of public officials who use torture is impossible in Russia. They can be prosecuted under Art. 286 and 302 of the Criminal Code.
4.12.         Art. 302 of the Code establishes criminal liability for coercion for the purpose of obtaining evidence, including the use of torture. The definition of torture given in the note to Art. 117 of the Criminal Code is used for the purposes of Art. 302.
4.13.         The Federal Law of 8 October 2003 also amended the text of Art. 302 of the Criminal Code. In its former version, Art. 302 came close to the definition of torture given in Art. 1 of the Convention, but contained substantial limitations. Firstly, Art. 302 only applied to investigators acting in official capacity, whereas torture can be used by police detectives – also to obtain evidence or confession. In addition, Art. 302 in its old version punished for the use of torture against a specific individual (suspect, accused, victim, witness, expert) with a specific purpose, namely to coerce a suspect, accused, victim or witness into giving evidence or to force a certain opinion from an expert. The use of torture and ill-treatment against persons without a formal status in the proceedings with the purpose of obtaining information about a crime or its traces, and the use of torture for other purposes than those stated in Art. 302, were not punishable.
4.14.         The new version of Art. 302 expands the range of subjects liable under Art. 302 through a phrase “as well as another person, with consent or acquiescence of the investigator." In this case, it is unclear who is liable for the crime - the agent committing the torture or the investigator consenting to, or encouraging it - or both. Secondly, it remains unclear how authorities should qualify torture committed by a public official, but without the investigator’s consent or acquiescence; torture unrelated to obtaining evidence or expert opinion, and torture used by public officials outside the context of criminal investigation. No answers to these questions have emerged from investigatory and judicial practice, as Art. 302 of the Criminal Code has had a very limited application. It can be seen, in particular, from Art. 4 of Russia’s 4th Periodic Report lacking statistics of prosecutions under Art. 302.
4.15.         Given that torture, cruel and degrading treatment are prohibited by the Russian Constitution and a number of federal laws, public officials who use torture can be prosecuted for abuse of power (Art. 286 of the Criminal Code). In practice, Art. 286 is the one applied most often for criminal prosecution of public authorities guilty of torture.
4.16.         However, the criminal law qualification of torture, cruel and degrading punishment as abuse of power hinders the fulfillment of obligations under the Convention. Firstly, the general wording of Art. 286 does not give public officials a clear and unambiguous signal that torture and cruel treatment are prohibited and criminalized. Secondly, Art. 286 of the Code applies to other types of abuse of power, as well as torture. As a result, relevant government authorities that collect statistics on abuse of power in general do not have specific statistics on torture, cruel and degrading punishment. It deprives government of any possibility of assessing the actual incidence of torture and planning effective prevention. In particular, par. 34 of Russia’s 4th Periodic Report quotes judicial statistics of prosecutions for abuse of power under part 3 Art. 286 of the Criminal Code (abuse of power involving the use of violence, weapons or methods of restraint, causing serious harm). They fail to indicate, however, in how many cases the perpetrators were prosecuted specifically for torture.
4.17.         As noted above, Art. 286 of the Criminal Code, normally applied to punish officials guilty of torture, is also applied in other cases of official abuse of power. It creates a situation where law enforcement authorities and judges perceive torture as something no more dangerous to society than any other type of official abuse of power, not necessarily involving violence. As a result, sentencing for torture, cruel and degrading treatment is just as severe - and at times less severe - than punishment for other types of official misconduct.
For example, on 12 February 2004, the Lefortovo Court in Moscow sentenced Igor Alyamkin, officer of the passport bureau at Nizhegorodsky Police Department of the Moscow City, to seven years of prison. Alyamkin had illegally issued residence registration to Luisa Bakueva, who was later involved in hostage taking in Dubrovka Theatre in the autumn of 2002. The court found that Alyamkin had used his official position against service interests and for his personal benefit (part. 1, Art. 285 of the Criminal Code); had taken a bribe and committed a fraud (Art.290 and 159 of the Criminal Code), and had abused power with grave consequences (part 1, Art. 286 of the Code). The Court sentenced Alyamkin to 7 years of prison.
On the same day of 12 February 2004, the Supreme Court of the Russian Federation upheld a sentence of the Sverdlovsk Oblast Court, whereby two police officers – Andrei Sereda and Andrei Lysov – were sentenced to 2 and 3 years, respectively, for complicity in torturing a detainee, Edouard Smolyaninov, who eventually died. On 5 April, 2004, the third officer involved in the same incident of torture and responsible for the detainee’s death – Alexander Pershin – was sentenced to 6 years of prison.
4.18.         It is evident from the examples above that Russian courts can punish non-violent official misconduct more severely than torture. The authors of this report believe that the main reason for such imbalance is the legislators’ failure to draw a clear boundary between torture and other types of misconduct.
4.19.         Par. 35 of Russia’s 4th Periodic Report says that in most cases, courts additionally punish perpetrators of official abuse by banning them from certain service positions. Unfortunately, neither the same section of the Government’s report, nor any other parts of the report specify what were the main penalties against such perpetrators. NGOs as well as government authorities lack complete data on penalties used against perpetrators of torture, cruel and degrading treatment. However, our analysis of the sentences in torture cases known to NGOs can provide at least some information to fill the gaps in the respective section of Russia's 4th Periodic Report.
Thus, according to the Kazan Human Rights Center, in 2004-2005, courts in Kazan passed 6 sentences against perpetrators of torture, cruel and degrading treatment. Courts sentenced official perpetrators to actual (not probational) prison terms only in 2 out of the six cases. In other cases, probational penalties were used, combined with a ban on certain positions in the law enforcement.
The Chita Human Rights Center reported that in 2004-2005, courts in Chita Regiona passed four sentences for torture and ill-treatment, including three probational sentences and only one actual prison term.
“Mothers in Defense of the Rights of Those Arrested, Under Investigation and Convicted” - an NGO in Krasnodar Krai – report that between 2001 and 2005, courts in Krasnodar Krai sentenced 7 law enforcement officers for torture and ill-treatment (including cases that resulted in the victim's death). Out of the seven officers convicted, only two were sentenced to actual prison terms, while the other five got probational sentences.
According to the Perm Regional Human Rights Defender Center, in 2/3 of the torture cases, courts sentence perpetrators to probational penalties.
4.20.         Probational sentences for torture and ill-treatment would have been acceptable if non-violent official misconduct and general criminal offences were punished along the same lines. But in fact, Russia pursues severe sentencing policies, reflected in the size of the country’s prison population. Thus, according to the Federal Penitentiary Service, as of early July 2005, Russia’s penitentiary institutions held 797.4 thousand inmates, i.e. 570 prisoners per 100 thousand population. In this context, probational sentences for torture and ill-treatment are perceived as too mild to match the threat posed by such crimes.