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Article 11

November 29, 2006 08:03

Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.
11.1.          Articles 1, 2, 6 and 11 of the 4th Periodic Report of the Russian Federation describe number of legislatives amendments concerning arrest and detention, detainees’ rights and rights of suspects and accused. Mentioned changes in legislation provided legal framework for prevention of torture and ill-treatment. However adoption of new norms have not changed substantially practical situation of suspects, accused and detainees. Introducing new laws competent authorities failed to conduce institutional changes necessary for implementation of these laws and to provide law enforcement services and judges with necessary material recourses. As a result practice of apprehension, arrest and detention as well as treatment of detainees have not changed substantially. In addition some rules regulating work of law enforcement services had not been changed or amended to adjust them to declared goals of human rights protection.

Disproportionate and indiscriminative use of force and firearms in the course of apprehension, suppression of unlawful activities and maintenance of public order

11.2.         Articles 12-15 of the Law N 1026-I “On Police” regulate application of physical force, special means and firearms against individuals. Although these provisions provide detailed list of situations when police officers may use such methods and means, they do not explicitly formulate principle of proportionality in the use of force, special means and fire arms. Ombudsman of the Russian Federation criticized uncertainness of this rules in his Special Report “About Compliance of the Russian Federation with Obligations Undertaken with Accession to the Council of Europe”.[1] This situation is exacerbated by the fact that programs of study used to train employees of law enforcement agencies do not pay enough attention to personal immunity and prohibition of torture and cruel and degrading treatment. Lacking the skills allowing for successful solution of professional tasks without application of excessive violence, such personnel try to enforce the law and fight delinquency using types of treatment or punishment forbidden by the Convention.
11.3.         As a result enforcement staff often uses violence to suppress insignificant violations of the public order.
For example on May 24, 2003 in Krasnokamsk (Perm Region) police officer Gusev in the presence of many passers-by, cruelly beat and kicked under aged Mr. Tuzhilkin who had been driving a motorbike without a license, inflicting injuries to the boy. At the same time, police officer Sazhin forced the motorbike passengers, under aged Agafonov and Bolotov, to drop to the ground and held them down.
Criminal police officers Fatykhov of Alkeevsky District Police Department (Republic of Tatarstan) was convicted for abuse of power, which was an unjustified use of firearms, on October 4, 2003, in chasing two minors - Mr. Shamsutdinov driving a motorbike and his passenger Mr. Kharitdinov, who suffered from bullet wounds of the thorax and stomach, respectively.
11.4.         Apprehensions of those suspected in criminal activities are quite often followed by the use of physical force even when apprehending individual do not resist or try to escape.
For example, on November 14, 2004 in the Bezhetsk Town (Tver Region) police forces conducted special operation to arrest workers of the local market suspected in unlawful hindering from free trade. According to numerous witnesses, police officers in masks and equipped with machine guns suddenly appeared in the territory of the marked and attacked group of men standing near the entrance to the furniture shop. Among those men were not only suspects, but also other people who came to the market for their own business. Despite this fact, police officers without warning through all of them down on the snow and beaten them even nobody of them resist or tried to escape. Police officers kept all those people lying on the snow for about hour and than brought them to the police station. 
11.5.         In some cases law enforcement officers apply force even to kids or old people who obviously is unable to provide serious resistance or threat to life and health of the law enforcement officers.
On April 13, 2006 in Moscow, police officers came to apartment building to check suspicions about commitment of robbery. In the hall police officers saw 12 years old boy coming out of elevator. According to the boy and to some witnesses police officers asked him what he is doing in the hall. He replied that he is living in this apartment building. Police officers did not believe, catch the boy, beat him up, handcuffed and moved to police station. According to medical documents, the boy received brain concussion and other injuries. Police officers explained to the boy’s parents that they tried to protect themselves from his attack.   
11.6.         Human rights organizations in Russian are specially disturbed with the cases of mass violence occurred in the years 2004 and 2005.
In the period from 10th through 14th December 2004 the special task police unit (OMON) of the Ministry of Internal Affairs of the Republic of Bashkortostan and the Blagoveschensk city and district police department conducted “a complex of operative and preventive measures in order to deter and terminate crime and administrative offenses in the streets and public places in the territory of Blagoveschensk and Blagoveschensk region”[2]. This large-scale operation was carried out within the local self-government territory, an area with a population of 50 thousand people. According to the human rights organizations conducted independent investigation of the events, in the course of this operation police forces apprehended and detained about 1 000 people. During the apprehensions and in the ocurse of detention police staff used force and special means at all times, though in majority of cases the residents of Blagoveschensk did not resist detention. About 200 people had been beaten on the streets but had not been detained. The actions of police during detentions, in using violence and special gear were exclusively non-selective.[3]
11.7.         In the year 2005 police forces in other regions of the Russian Federation conducted similar preventative operations but of smaller scale.
Thus on February 5, 2005 police forces conducted “preventative operation” in the village Rozhdestveno of Tver Region. In the course of operation police applied physical force unselectively. Number of juveniles and women had been beaten. Also number of people had been unreasonably detained. As a result of this operation about 20 people suffered from various forms of human rights abuse. 
On June 11, 2005 police forces conducted “preventative operation” in village Ivanovskoe of Stavropol Region. In the course of operation police officers in absence of apparent reasons and with the use of physical violence apprehended number of villagers including juveniles. Detainees were brought to the local police station and released after few hours.
11.8.         Necessary to note, that all the above mentioned operations had been conducted in settlements where were no mass public disorders or other emergency situations required any extraordinary operations. In such situation excessive and non-selective use of force by police provided for raise of fears and distrust to police among members of local communities.
11.9.         Competent authorities of the Russian Federation shall pay more attention to planning of any police operations, especially those which may request application of physical force, special means of firearms. Principle of proportionality of the use of force shall be clearly explained to all officers of the law enforcement agencies.

 Detainees’ rights

11.10.      Criminal Procedure Code as well as other legislative amendments entered into force during reporting period introduced various guarantees for those detained in relation to any criminal charges. Unfortunately on practice detainees rarely may enjoy these guarantees. Every day work of the law enforcement bodies had not been reorganized in order to ensure implementation of new legal standards.
11.11.      The fact that Russian police are in deep crisis, had been mentioned even by the President of the Russian Federation. Existing system of police performance evaluation does not take into account level of human rights observance, but require local police units and individual officers to show up high rates of solved crimes and so on. At the same time, professional level of police officers are extremely law and local police units suffer from lack of basic recourses necessary to perform their functions.[4]
11.12.      On the years 2004-2005 the DEMOS Center together with its partner-NGOs in 10 regions of the Russian Federation conducted series of interviews with the police officers, prosecutors and judges. Analysis of this materials provided clear picture of why police officers violate detainees’ rights.

 Falsification of reasons for detention

11.13.      Various problems impeding normal police work all together led to situation that police officers see a suspect person as the main source of information on the crime. It is from him or her that they try to obtain data about the accomplices, the circumstances in which the crime was committed (and, accordingly, the traces that could be registered as a proof) and the place where the tools of the crime of the property criminally acquired are. During interview former police officer, explained: "It is necessary to get information from the person, to verify it and find the evidences".[5]
11.14.      Such information substantially helps the police officers in the process of disclosure and investigation of particular crimes: there is no need to check up several versions of what in particular happened, instead of looking for proofs it is necessary only to carry out the procedures to confirm them and so forth. Getting the information directly from a suspect allows saving time and human and material resources, which is very important for the police officers overburdened with cases and lacking necessary equipment.
11.15.      In order to facilitate the process of getting the information from a suspect, the police officers prefer to out his or her to isolation. At the same time, detention of a supposed criminal as a suspect is not always possible or convenient for the police officers. Detention of a person as a suspect implies that the data in support of the necessity of his or her arrest will be prepared and submitted to the court within 48 hours. Here the police officers face several problems at once. First, the police officers often do not have such data prior to detention - they plan to get those data from the detainee himself of herself. Secondly, if a person has been detained as a suspect, but then during the further investigation it is proven he has nothing to do with the crime, the police officers may be punished: "It's useless to hang an extra unlawful arrest on the unit. An unlawful arrest under a criminal case asks for an extra kick form the bosses".[6] Thirdly, due to the excessive workload and lack of technical staff the police officers fail to cope with the registration of materials necessary for arrest within 48 hours stipulated by the law: "Personal examination is needed, as well as interviews with the witnesses. Also the latter are yet to be found, brought in and registered - registered in written form. All that takes time... 48 hours are not enough... As for the detainee, he or she cannot be interrogated between 11 p.m. and 6 a.m. - it's mandatory time for rest and sleep... The material has be completely prepared and copied, brought to the prosecutor for consideration and then submitted to the court... The officer doing inquiry and investigation fits to the time limits with a great effort".[7]
11.16.      In order to have an opportunity "to work" with a suspected criminal and simultaneously to avoid the problems with paper registration and a possible responsibility for unlawful detention, police officers register such detainee not as a person suspected of having committed a crime, but as a administrative offender or a person with no definite place of residence. "In order to verify the suspicion of a criminally punishable offence, a person is detained on the basis of administrative charges. Identity is checked up and material is gathered, and if there is ground to affirm that the detainee is possibly guilty, then that person is investigated under a different category".[8] If the detainee's non-complicity in the crime is established, then "they do it with administrative measures only".[9] As seen from the data of interviews with police officers, prosecutors and judges, administrative arrests to facilitate a crime disclosure may be used not only with suspected persons, but with witnesses as well: "It happened that within investigations of criminal cases people were detained administratively. And those included not only the accused ones. I had a case when a bomzh [a person with no definite place of residence] was the suspect and the three witnesses were bomzhi too. Were I to let them go, I would have no witnesses at the trial".[10] In order to subject a suspect to administrative arrest police officers either provoke a person to be rude (that is, hooliganism and disobedience) or simply compile report about administrative offences at odds with the reality. As an example may be cited case registered by the Memorial Human Rights Commission of Komi Republic on May 2003.
Tsigelnik was suspected of having murdered her father. Police officers detained her and put into the reception-distribution ward, motivating that act with the necessity to establish her identity. Tsigelnik spend more than 7 days in the reception-distribution ward, although it was obvious that it would have required little effort to establish her identity, as she was arrested in her mothers' house. During her stay in the reception-distribution ward the police officers held "conversations" with Tsigelnik in an effort to force her to admit herself guilty of having murdered her father.
11.17.      Illegal use of administrative penalties in order to ensure a supposed criminal isolation becomes possible because the judicial bodies passing decisions about administrative charges do not study with due attention the circumstances of the cases and do not verify the authenticity of administrative materials submitted by the police. Such facts, been established by the European Court of Human Rights on two torture cases: Mikheyev vs. Russia[11] and Menesheva vs. Russia.[12]
11.18.      Besides administrative detentions police officers use other methods in fact depriving a supposed suspect of his or her freedom. For instance, they may summon suspect person as a witness and then keep him as long as they need to obtain information on the crime committed. Such practice may be illustrated by case registered by the Perm Regional Human Rights Defender Center in the city of Perm in January 2004.
The father of underage B. worked with a businessman dealing with disassembly of condemned houses. The tools belonging to the businessman, including chainsaws was usually kept in a barn in the yard of the house B. lived in. B. was responsible for storing the chainsaws in the barn after the end of the working day. One night the chainsaws were stolen from the barn. Police officers suspected B. of the theft, as he had been brought to criminal responsibility previously. The investigator summoned B. to the police station as a witness. As the writ summoned B. to interrogation as a witness, his parents did not go with him. Police kept B. at the station for over 6 hours, beaten him and demanded that he should show the place where he had hidden the stolen chainsaws.
11.19.      Surveyed advocates described incidents similar to the case of B.: "My client was detained. The police arrived early in the morning and invited him to go with them. He went and could not be found for a whole day and night. Then we found with great efforts that he was still in a certain RUVD [District Police Station] and that they would not let him go, as he was a witness to a case".[13]
11.20.      In some instances a suspect is not even given the status of a witness, but is rather kept at a police station under the pretext of the need to have "conversations" and "operative actions". Such "conversations" are not stipulated by the law, although common sense allows supposing they should be voluntary. But in reality an individual engaged in such conversation finds that he or she is in fact deprived of his or her freedom with no opportunity to break that conversation at his or her own discretion. Within the case study frameworks information was obtained and analyzed about four cases when those suspected of crimes actually lost their freedom under the pretext of having "conversations" with them.
11.21.      One can quote an incident that took place in February 2003 in the Republic of Tatarstan as an example:
Underage Nuriev and Petrov were suspected of theft. Police officers summoned them for a conversation. Nuriev and Petrov came to the police station with their mothers who wanted to wait until the end of the conversation. But police officers did not let the mothers stay at the station. Nuriev and Petrov were kept there for more than a whole day and night. Police officers beat them. Throughout all that time the police officers demanded that the adolescents should admit they had stolen a car radio tape-recorder.

Impeding detainees’ contacts with lawyers and relatives

11.22.      Interviewed advocate from the Republic of Komi said the practice of actual detention under the pretext of "conversation" was widespread in the region: "It's a huge practice of all lawyers. Police come in the evening to a person's home, office, anywhere and take that person for a conversation. The relatives call - dear lawyer, help us, they've taken him to the Babushkina Street, to the Pechyorskaya Street, to the Sovetskaya Street, anywhere. Help us. We come, but the police say - sorry, we are simply having a conversation. We thought together with lawyers how to fight that. Some inform the city prosecutor's office in each case. But, you can hardly inform anybody in the evening, that can be done only the next day, but the next day everything is already done [it's late]. Yet, the person has conversed for two or three hours. What has he conversed about, how has he conversed, what has he said? Lawyers try to insist, but the police reply - well, get out of the room, we just have a conversation. We have already reached a stage when we ask our client aloud if he agrees to stay for a further conversation. He says "no". Then we say - dear officers, you deprive this man of his freedom unlawfully, against his will and that corresponds to the relevant article in the Criminal Code, so we'll write and demand the action to be brought. Go - we'll examine the things later".
11.23.      From the description given by the lawyer it is seen that for the police the reason of detention under the pretext of a conversation is not only avoiding paper-work entailed by a detention and a possible responsibility for mistakes in detention. Substituting the detention and interrogation with "conversations" enables police officers to restrict or rule out the contacts of the criminal suspect with the lawyer and the relatives, thus facilitating the getting of information on the crime.
11.24.      The materials of police officers survey show that police officers see the relatives and the advocates as a hindrance to their productive interaction with the detainee. That is the reason why police officers sometimes do not notify parents about their underage children's detention: "If a child is detained under suspicion of a crime committed by him or her, or friends, that child who feels the parents' support might deny everything".[14] Police officers regard the advocate's presence in a similar way: "It seems to me that advocates are such people who will only make obstacles".[15] However, when a person has already been given the status of a suspect, the lawyer's presence at the interrogations becomes mandatory. Police officers find a way out of that situation by holding instead of interrogations the very same "conversations" that do not require the assistance of a lawyer. As an interviewee reported, if a detainee insists on the lawyer's presence, "then an operative conversation takes place and he won't need the lawyer anymore".[16]
11.25.      Investigating authorities try to prevent access of advocates to the detained persons not only during the first hours or days of detention. Practicing advocates mention the existence of various methods of opposing the defense. For instance, those include the removal of a detainee from one isolation ward to another, the timing of the investigation action simultaneously with the advocate's participation in a trial on another case, the refusal to give permissions to see the client, the refusal to let the advocate to study the procedure-related materials and so forth. The criminal case of G., T., N.A. and Kh.A. registered and examined by the Tver Memorial Society serves as a practical example of that kind of violations:
T. and Kh.A. met with their debtor and had negotiations concerning a postponement of a debt payment. The debtor turned to the police complaining about extortion as regards him. T. and Kh.A. were accused of extortion and robbery. Simultaneously the accusations of extortion and robbery were made against N.A. who accompanied T. and Kh.A. to the place they met the debtor in, although he himself did not participate in the communion, and against G. who at the time of the incident was in another town. All four accused were detained and put in custody. Acknowledgement of their guilt was obtained from them. It is probable that in order to obtain the acknowledgements of their guilt the police officers used violence. Anyway the results of a medical examination confirm they suffered bodily harm during their time in custody. The advocate of Kh.A. personally handed the investigator the warrant of the advocates’ bar and submitted his application for an audience with his client and for the examination of the case materials. However, the investigator had interrogated his client same day without the advocate’s presence in spite of the fact that the latter was in the premises of police station. Then the investigator ordered that the accused be removed from police station to temporary isolator in nearest town. Yet, he told the lawyers that their clients were kept in Pretrial Detention Center in the capital city of the region. Only ten days after the moment of the detention the lawyers managed to meet clients and get access to the documentation of the criminal case. And they managed to do so only after they had lodged their complaints to the prosecutor’s office. While examining the protocols of procedural actions with the participation of T., the lawyers found that the signatures of T. in some of the documents were falsified by means of copying.
11.26.      Necessary to note, that availability of advocate’s aid to detainees also restricted by high costs of qualified legal aid, which make it unaffordable for considerable part of the population. Current law entitles those needed to assistance of ex officio lawyers. However system of free legal aid is poorly organized. The Public Interest Law Initiative, together with the Center for Justice Assistance of the INDEM Foundation in the year 2004 conducted research on the system of free legal aid in Russia and listed key problems in organization of state system of legal aid which negatively impact on quality of assistance provided by the ex officio lawyers.[17]
11.27.      The All Russian Movement “For Human Rights” also considers that existing system of free legal aid makes ex officio lawyers depending on investigating authorities, because without their notification finance agencies will not pay honoraria to ex officio lawyer. The Movement “For Human Rights” certifies that in absence of strong control of advocates’ community over quality of legal aid, such situation provoke ex officio advocates to perform defense function only formally and do not resist to attempts of investigating bodies to restrict the rights of detainees.
11.28.      The All Russia Movement “For Human Rights” claim that since work with depended ex officio advocates is more convenient for the investigating bodies, the last some times exercise pressure upon the suspects or accused to force them to reject counseling of advocates hired by the relatives and to accept ex officio advocate selected by the investigator.
11.29.      Some times law enforcement bodies interfere unlawfully into activities of independent advocates. The Commission for Protection of the Professional and Social Rights of Advocates of the Federal Bar Association of the Russian Federation informs that such interference may include: crimping of advocates to become secret agents of the law enforcement services, search of advocates’ offices, and personal search of advocates after visit to detained client, and surveillance of advocates’ telephone conversations.
For example on March 23, 2005 chief of the Criminal Investigation Unit of the Volgorevchensk City Police Department performed personal search and checking of documents and other belongings of advocate Rumyantseva. It happened immediately after the end of Mrs. Rumyantseva consultations with her client taking place in premises of the temporary isolator. 
On February 11, 2005 chief of the Investigation Department of the Division of the Federal Service for Control over Drugs Circulation in the Republic of Bashkortostan persuaded advocate Latypov, who just came to him with the writ to defense of Mrs. Gumerova, to became a secret agent.  Advocate refused such proposition and after that had been kept in the premises of the Department for about 4 hours. 
11.30.      Interference to the advocate’s functions, impediment of advocates’ access to detained clients as well as attempts to influence free choice of the defense lawyer increase risk of ill-treatment of the detainees and therefore shall be eliminated.

Use of arrest

11.31.      The new Code of Criminal Procedure did not only place the use of arrest as a ‘measure of restraint’ under judicial authority, but also imposed restrictions on the use of this measure. Thus, under Art. 97 of the Code, the use of any ‘measure of restraint’ must be based on a well-founded assumption that a suspect or an accused:
1) may attempt to escape the inquest, preliminary investigation, or trial;
 2) may continue to engage in criminal activity; or
3) may attempt to intimidate a witness or any other participants of the criminal proceedings, destroy evidence or in any other way hinder the proceedings.
11.32.      By Art. 100 of the Code, a measure of restraint can only be applied in exceptional cases. By Art. 108 part 1 of the Code, detention of a suspect or accused can be used as a measure of restraint only if they are suspected or accused of a crime punishable by more than two years of imprisonment, and where using a milder measure of restraint is unfeasible. A judge ordering detention as a measure of restraint must make a written statement of concrete factual circumstances underlying the decision.
11.33.      On 10 October 2003, the Plenary of the Russian Supreme Court adopted Regulation No 5 “On the application, by general jurisdiction courts, of generally recognized principles and standards of international law, and of international treaties Russia is party to.” In par. 14 of this Regulation, the Supreme Court established that arrest cannot be applied based only on the seriousness of criminal charges, and explained to courts that it must be based on other circumstances which may warrant isolation of the suspect or accused.
11.34.      The new Code provides for a range of measures which can be used to control a suspect or an accused person, including, besides custody, release on recognizance (signature), personal guarantee, bail or home arrest. However, measures of restraint alternative to arrest have been generally underused. Specifically, the use of bail is limited due to poverty of most people in Russia. Home arrest is rarely used, because law enforcement officers have limited ability of supervising compliance with the imposed restrictions. Therefore, releasing the suspect/accused on recognizance remains the most common alternative measure of restraint.
11.35.      When judges have to choose between arresting a person and releasing him/her on recognizance, the tendency is to order detention, whether well-justified or not. Defence attorneys and human rights lawyers report that very often judges order arrest of first-time and non-violent offenders. Moreover, in many cases they fail to indicate any of the legally established reasons for the use of detention, referring only to the seriousness of charges. The Zalyotin case, registered by the Tver Memorial Society can serve as illustration of this formalistic approach.
Mr. Zalyotin was detained on charges of non-violent extortion of a bribe. Most investigative actions were performed on the same day as charges were brought against Zalyotin. Zalyotin had no prior criminal record; besides, he suffered from poor health making his escape highly improbable. Moreover, medical doctors advised against detention in SIZO for fear that it might aggravate Zalyotin’s health problems. Nevertheless, the court ordered detention, while offering the following arguments: “Zalyotin is suspected of an official malfeasance, which is considered an especially serious crime, for which imprisonment is the minimum mandatory punishment, therefore, the court has sufficient reasons to believe that being released, the suspect may attempt to escape preliminary investigation. Agencies in charge of preliminary investigation have not completed investigative actions, so the court has reasons to believe that the suspect may hinder the criminal proceedings, intimidate and use pressure against witnesses.”[18] The court did not offer any other arguments to justify Zalyotin’s detention in SIZO.
11.36.      The above example graphically demonstrates that some judges are not sufficiently prepared to apply the new law with regard to the use of alternative measures of restraint. Therefore, they tend to approach the issue of pre-trial detention in a purely formal manner, which, in turn, maintains the excessively high population of remand prisons.
11.37.      Another factor which undermines efforts to reduce the number of pre-trial detainees is the failure of the new Code to impose mandatory limits on pre-trial detention during judicial proceedings. It means that even after the investigation and during the entire trial up to the moment of sentencing, the accused can be detained. Detention during trial can be excessively long, because criminal proceedings are often delayed due to courts’ overwhelming workloads and also due to problems with getting witnesses to show up in the courtroom. The situation is further aggravated by the fact that whenever a person is detained during the investigation, courts will automatically extend the term of detention, without even looking at feasibility of his/her continued custody. Generally, courts extend the term in custody awaiting sentence in a closed hearing, and even in the absence of the prosecutor’s motion requesting continuous detention, without listening to the accused or his/her defence attorney.
11.38.      This pattern of almost mandatory detention awaiting sentence combined with lengthy trials cause most criminal defendants to spend at least a year in detention centres. Thus, a delegation of the International Helsinki Federation visiting Investigation Isolators (SIZO) No 5 and No 6 in Moscow learned from the SIZO administrations that the average detention time was one year. Moreover, while interviewing detainees in SIZO No 5, the delegation found teenagers who had spent 18 months in detention, and in SIZO No 6 some women-prisoners had been detained for more than two years.[19]
11.39.      Excessive use of arrest by judges is demonstrated in a review of SIZO population dynamics in 2003, a year when judicial arrest procedure produced its first tangible effects. Thus in early 2003, remand prison population was 145 thousand, while in June 2003 it reached 156 thousand. A drop in the number of detainees in 2004 was due to the adoption in December 2003 of the Federal Law amending the Russian Criminal Code (Law No 162-FZ). The law enacted 257 amendments, most of them liberalising the criminal legislation, decriminalising certain acts, mitigating criminal sanctions, and limiting the use of incarceration. As an immediate result of the amendments, many criminal investigations were closed, and the accused individuals released, while the inflow of new detainees to SIZOs decreased. As it was mentioned by the Chairman of the Supreme Court of the Russian Federation, in the year 2005 number of pre-trial arrests had been growing. According to him in the year 2005 judges sanctioned 260 000 arrests. In June  2005 about 161 000 detainees had been kept in remand centers of the Ministry of Justice. In December 2005 there was about 164 000 detainees in such institutions.
11.40.      It is important to note, however, that statutory restrictions alone will not substantially reduce the overcrowding of SIZOs without a corresponding change in judicial pattern of ordering arrest.
Treatment of prisoners in penitentiary institutions
11.41.      Situation of individuals in pre-trial detention facilities as well as in correction institutions described in details in Article 16 of the present Report. Here we would like to draw your attention only to use of disciplinary sanctions and measures of restraint to prisoners.
Disciplinary practices
11.42.      Disciplinary measures envisaged by the Federal Law #103-FZ of July 15, 1995 “On Incarceration of Suspects and Accused” include only a reprimand and placement in a punishment cell for up to 15 days (up to 7 days for minors). Incarceration is imposed for offences that are explicitly specified in the Article 40 of the Law. Article 40 also provides for the regime in the punishment cell that amounts by all standards to solitary confinement — all contacts, including correspondence, reading, watching TV and playing games are prohibited, with the exception of the contacts with the lawyer. The prisoner is allowed only a 30-minute out-of-cell walk. Punishments are imposed by the Director of the facility following a procedure that does not envisage any due process guarantees. Detainees have the right to appeal the punishment to the higher administrative authority, the prosecutor or the court although the appeal does not stop the execution of the punishment.
11.43.      Apparently detainees rarely challenge disciplinary decisions.
 In February 2004 delegation of the International Helsinki Federation visited the Investigation Isolator No 6 in Moscow. The Director of the institution informed the delegation that there had been some 200 cases of disciplinary isolation during 2003 and 238 reprimands. The Director told that there had been no complaints on disciplinary sanctions during the year 2003. The Chief of the Investigation Isolator No 2, visited by the delegation of the International Helsinki Federation at the same dates, also could not recall of any appeal lodged against a decision on punishment by a prisoner.
11.44.      Absence of fair trial guarantees in the process of disciplinary punishment appointment is extremely disturbing also because conditions in disciplinary isolators some times far from humane. 
Delegation of the International Helsinki Federation had chance to see disciplinary cells in some of the Moscow Investigation Isolators. In the Investigation Isolator No 4 were only four punishment cells. On the day of the visit of the delegation there was no detainee placed in a punishment cell. Material conditions in the cells were hygienic. There was sufficient heating, hot water and a toilette facility. There was no access to natural light however, despite the fact that the facility was new. For the daytime bed cloth and mattresses are taken out of the cells, and beds are locked to the wall. The delegation noted that although the conditions of detention in such a cell are probably better than in the average punishment cell in Russia, they nevertheless amount to inhuman punishment.
In the juvenile pre-trial detention facility No 5 delegation also visited the punishment cells. The size of the cells was approximately 2 x 3 m (6 square meters). Cells in both the juvenile unit and the unit for adults were dark with very poor access to natural light. The single window of the cell was small, situated very high. Although the delegation visited the detention center in a sunny day, the windows in the punishment cells did not allow the natural light to penetrate into the cells. There was however no artificial light in the cells. Some light passed through the ventilation window from the corridor but it did not allow reading and writing in the cell. Thus, the juveniles who were punished could spend in these cells 7 days and the adults — 15 days, practically in the dark. The isolation cells were furnished with a bed, which is locked to the wall during the day and a small chair. The design of the chair is such that sitting on it for prolonged periods of time can certainly cause pain. It means that during daytime incarcerated prisoners stand or move around the cell.
11.45.      Necessary to note, that the law restricts length of disciplinary detention to maximum 15 days each time, however, law establishes no limits on the total time a detainee may spend in isolation during one year.
11.46.      According to the Article 115 of the Penal Code of the Russian Federation, disciplinary measures, which may be applied to the prisoner serving a sentence, include a much wider variety of punishments than in the case of pre-trial detainees. Such measures include putting of male prisoners to conditions of custody akin to solitary confinement for up to one year and of female prisoners — to similar conditions for up to three months. These very severe measures are imposed with almost no due process guarantees by the Director of the correctional facility.
11.47.      The Penal Code also provides for such disciplinary measure as short term incarceration (up to 15 days), however as in the case of punishment of pre-trial detainees, there is no any limit on total length of detention in a punishment cell during one year. Thus, in lack of due process guarantees, it becomes possible that prisoners, disliked by the administration of the facility may spend months or even years in solitary confinement with short breaks between different isolations.
11.48.      Situation is aggravated by the absence of clear definition of the disciplinary offence. Instead, Penal Code provides a general description of actions that may entail disciplinary penalties against prisoners. In fact, what is discussed is not a list of offences but rather a certain criterion. Thus, Article 115 of the Code mentions “violations of the set order for serving the sentence.” Regulations also set forth a list of prisoners’ duties. Thus, in order to categorize a prisoner’s conduct, the committed action is compared against a list of duties in an attempt to conclude whether or not the action constitutes a violation of the set procedures at the confinement facility.
11.49.      As a consequence of the lack of a classification of violations, a legal problem arises. Namely, it is impossible to establish a rigid link between the gravity of an offence and the degree of penalty imposed on the prisoner. In particular, it is not quite clear from the laws which violations of a correction institution regime should entail putting the perpetrator in a punishment cell, and which should only call for a reprimand. Such a situation creates a great risk of unduly severe disciplinary measures being applied to prisoners, in spite of the fact that Article 117 of the Penal Code requires that penitentiaries’ administrations consider the circumstances of the offence, personal features of the prisoner, his/her previous conduct, and the gravity of the offence. Notably, these exhaust the list of the administration’s responsibilities in relation to application of disciplinary penalty measures.
In February 2004 delegation of the International Helsinki Federation visited Iksha juvenile correction facility in Moscow Region. The delegation inspected the punishment cells and from the conversation with the incarcerated person understood that he was put there by an officer for smoking at an unauthorized place. The delegation was particularly concerned about the use of punishment cells for relatively minor violations of discipline.
Isolation cages
11.50.      The Federal Law “On Incarceration of Suspects and Accused” requires isolation of those suspected or accused in relation to one criminal case. In order to fit this requirement administration not only distributes such individuals to separate cells, but also undertakes various measures to prevent communication between inmates from different cells when they are moving inside the remand center’s building (for example, when inmates are moving out for investigative actions or participation to the trial, when inmates are taken out of the cells to visit a doctor and so on). With the purpose to prevent such communication administration put prisoners to small cages.
In February 2004 delegation of the International Helsinki Federation visited pre-trial detention facility No 2 in Moscow. There members of delegation observed several cages which looked like a small metal closet. Persons in the closet can’t see outside, and can’t be seen. Delegation expressed serious concerns about the length during which detainees can be kept in such small cage.

Ensuring precise recording of the time of detention[20]

11.51.      It is a common knowledge that one of the key measures to prevent violence and other types of intolerable behavior towards the detained is precise and clear regulation of 1) the maximum time a person can be detained for without/before the court-issued arrest warranty, and 2) procedure of detainment – in particular, of defining the “moment of detention” from which one then starts counting off the exact time a person will spend in detention, and from which the procedural rights of the detained start being applicable (including the right to see the lawyer).
11.52.      According to part 2 Article 22 of the Constitution of the Russian Federation and part 1 Article 10 of the Criminal Procedure Code (CPC), a person can not be detained without a court-issued arrest warrant for longer than 48 hours. Part 2 art. 94 of the RF CPC says that if, after 48 hours since the moment of detention, the courts has decided against the arrest or the court has not prolonged detention period (acting on paragraph 3 part 2 of Article 108 of RF CPC) the detained must be released. The RF CPC ties other judicially important practices to the moment of detention: 1) as of this moment, the suspect has the right for a lawyer (p.3 part 4 art. 46; p.3 part 4 art. 49); 2) within 12 hours since that moment the relatives of the suspect must be informed of the arrest (part 1 art. 96) and in case the detained is the minor the relatives must be informed immediately after the moment of detention (part 3, art. 423); 3) within 24 hours since the actual detention the suspect must be interrogated (part 2, art. 46). 
11.53.      The Criminal Procedure Code is extremely vague, however, when it comes to defining the moment of detention. For example, article 5, which is aimed at defining key concepts of the code, does not list the moment of detention among those terms. Instead, it defines two other notions – the detention of the suspect (paragraph 11) and the moment of actual detention (paragraph 15), from which one can logically conclude that – apparently – the moment of actual detention is synonymous to the moment of detention. This conclusion, however, is proven shaky, as in various articles and regulations and in relation to different aspects of the arrest and detention procedures the CPC would either mention moment of detention (see part 2 art. 94 and part 1 art. 96) or moment of actual detention (see part 2 art. 46; p.3 part 3 art. 49), which, according to the rules of legislative practice, means that those are two different concepts. At the same time, as has already been mentioned, the Code only defines one of those notions and does not list the differences between them, which leaves the ad hoc decision on the precise meaning of moment of detention with a law enforcement authority – and that, taking into account the importance of the issue – should not be the case.
11.54.      At the same time, the notion of moment of actual detention, which should mean the actual  moment when a person’s freedom of movement is restricted due to the suspected violation of law on the part of the person, is narrowed down in the RF CPC by the new factor: the freedom of movement should be restricted in due order, set by the RF CPC (see part 15, article 5). The substance of this particular factor is also unclear, as the norm regulating due order of restricting physical freedom of movement is absent. In the end, the notion of the moment of actual detention is, too, unclear (despite the definition given in article 5 of the Code), which leads to a multitude of interpretation possibilities when the notion is used – and applied – by practitioners on spot.
11.55.      Moreover, the Code regulation regarding the recording of the moment of (actual) capture time is not satisfactory, either. For example, part 1 of article 92 of the Code reads that after the suspect is brought to the body of inquiry, a custody report shall be complied within 3 hours. Part 2 of article 92 says that a custody report should include date and time of compiling it, the date, time and the place of, and the grounds and the motives for the detention. That is, according to the Code, the record should not include the moment of detention, instead the record should reflect the time of detention. Needless to say that the notion of time of detention is not defined and no references are made as to its relation to the notion of moment of (actual) detention, which in practice, again, leads to interpretive free-for-all. It would be logical to assume that both notions – time of detention and moment of detention – have the same meaning. However, in this case we face a series of new questions: 1) how (from which sources) a law enforcement agent completing the record receives data on the moment of (actual) detention and should they receive this information at all; 2) who – and how – would record the time (moment) of detention before a suspect is delivered to the temporary confinement facility, so that to pass this data over to the law enforcement agent whose responsibility is to draw the detention record. Those questions matter because in reality the suspect’s freedom of movement would be restricted by other law enforcement officers than those who have to draw the detention record, and between the time of detention and the time of recording the detention there may pass several hours (not more than 24, as a rule). One has to paragraph out that not only the Code, but its sub-laws that regulate the activities of specific law enforcement units and agents, too, leave those questions unanswered.
11.56.      As a result of discrepancies and lack of clarity in the Code and sub-laws, the usual law enforcement practice includes several hours between the moment a person is captured and the moment the detention record is drawn. During this time the rights are neither read nor implemented – including the right to see a lawyer, although this is also the time when intensive and lengthy work is being carried out with the suspect towards the solution of crime. Nobody records the actual time of detention when it is carried out. When the record is drawn, the time that goes there is the actual record-drawing time (not always correct as to the minutes), while in reality several hours might have passed between the record-drawing and the actual detention. Since then, all procedures connected with the moment of detention are timed in accordance with the detention record readings. Such approach allows investigative law enforcement agencies to freely extend the 48-hour detention limit for unwarranted detentions, as well as other limits – the one allowing access to the lawyer, for instance, informing the relatives or carrying out an official interrogation. The above-mentioned practice was developed under the Criminal Procedure Core of the Russian Soviet Federative Socialist Republic and hasn’t changed much since the introduction of the new Criminal Procedure Code.

Implementation of the suspect’s and the accused right to the lawyer[21]

11.57.       Ensuring suspect’s timely and unhampered access to qualified legal assistance (defender) is undoubtedly one of the key measures of prevention (elimination) of torture. Here we should note, that in sub-part 3 of part 4 article 46, sub-part 8, part 4 article 47, and articles 49-51 of the Code there are given detailed and complete norms as to the order of implementation and realization of a suspect’s right to have a defender. The listed norms imply that the right of a suspect or an accused for the defender has to be realized at any moment when an objective necessity for defense of rights and freedoms of the accused related to the criminal case arises. In particular, a person detained on the suspicion of having committed crime, must be given a possibility to access a defender from the moment of the actual detention (paragraph 3, part 3, article 49; part 15, article 5 of the CPC).
11.58.       However, in practice, those norms are interpreted in a very limited way by the law enforcement agencies involved in criminal investigation procedures: it is assumed that the right for the lawyer should only be realized if particular procedural investigative activities are carried out with his participation. Thus reasoning, the law enforcement agencies who carry out crime prosecution, widely apply so-called “talks” – detection measures that are not specified in the RF CPC and are presented as ‘informal’ and ‘voluntary’ communication – a talk – between the investigating officer and a suspect or an accused. Since the RF CPC does not mention this kind of practice it is assumed that for the time such practices are carried out there is no need to ensure any procedural rights of the accused or a suspect – including the right for the lawyer.
11.59.       In the context of a very interpretative application of the CPC norms in practice, it is particularly the right for the lawyer that almost never gets ensured at once – as of the moment of actual detention. As a rule, the lawyer first appears during the first official interrogation if a suspect or an accused – the interrogation, which, according to part 2 article 46 of the CPC, should be held within 24 hours since the actual moment of detention. The lawyer defending a person who is detained in the pre-trial detention unit (SIZO) or in the temporary confinement facility (IVS) is never made aware by the competent authorities that a “talk” is planned with their client. Neither is the lawyer informed about the fact of the “talk” after it has taken place; whereas during some periods of the preliminary investigation the “talks” – in terms of length and intensity – can surpass the CPC-warranted investigative procedures involving the suspect or the accused.
11.60.       In reality, those “talks” are rarely voluntary since nobody ever asks either suspects or the accused if they would want to participate in such a “talk”. In fact, an accused or a suspect confined in either IVS or SIZO would be taken out of the cell and brought into a necessary room/office – independent of whether they want it or not - for a “talk” on demand of one law enforcement agent or other. The length of the “talk” depends on a law enforcement who has initiated it in the first place. The informal character of the “talk” means that 1) there is no formal record of the “talk” – neither of the fact or of the contents thereof; 2) there is no regard for any of the procedural rights of the one who is “talked” to (an accused or a suspect) – in particular, the right for the lawyer is not ensured.
11.61.       Thus, a “talk” is a measure that allows the law enforcement agents to apply the widest scope of means of influence on a suspect or an accused, including all kinds of physical and psychological influence. The “talk” is usually aimed at the following: 1) receiving from the accused or the suspect information related to the crime under investigation (primarily, the information on how the suspect or accused themselves relate to the crime in question and on any evidence against them, of which the law enforcement agents have been unaware); 2) completing the document written and signed by the accused or the suspect and composed in a free, i.e. not formalized, fashion (the paper can be called “acknowledgement of guilt”, “sincere confession”, “confession statement”, etc.); 3) shaping an understanding that (a) any defense from those who have accusations or suspicions is useless and can only make things worse for the accused or suspect, and (b) during the CPC-warranted investigative procedures one has to agree with the accusations and allegations and acknowledge one’s own guilt. 
11.62.       It should be specifically noted that the “acknowledgement of guilt” or other free-style document received from the accused or the suspect that contains confession of any form related to the crime under investigation is used as an acceptable evidence during the trial even if the accused or the suspect does not confirm the statements made in the document during the official interrogations – carried out in due order and in the presence of the lawyer, including the court examination.
11.63.       Such practice of improper (discrete) application of the right for the lawyer that leaves broad possibilities for implementing wide scope of various types of unauthorized treatment – including torture – has been formed under the loop-holes in the previous code and hasn’t changed much since the new Code has come into effect. National courts of various levels, Supreme Court included, acknowledge the above-mentioned practice as legal, which stimulates its spread and sustainable popularity among the law-enforcement agents.

Conditions of transportation of SIZO inmates to the courts and their confinement in the court convoy facilities[22]

11.64.       The problem of inhumane conditions of transportation raises serious concerns. This issue is most acute in Moscow, since there concentrated many detention units and courts of various jurisdictions – including courts of superior jurisdiction, the distances are long and traffic is problematic. However, as we will show below, the problem is also known in other regions of Russia.
11.65.       Individuals who are held in SIZOs and partaking in the trial in any role (defendant, witness) often face hardships that may be considered as inhumane treatment, especially when the trials last for many weeks and months without breaks.
11.66.       Because the convoy service, which lacks specialized vehicles (vans), “collects” the inmates of various SIZOs of the city and then delivers them to different courts on one go, the process often takes a lot of time and looks like that:
11.67.       The inmates are woken up early in the morning, usually from 4 to 6 a.m., they skip breakfast and are convoyed into the so-called “collection cell”, which is often over crowded and under-ventilated. The inm