13.1.          In 2002 the UN Committee against Torture having considered the 3d Periodic Report of the Russian Federation recommended specifically to ensure the protection of applicants who submitted their complaints against torture and witnesses thereof against persecution.

 

13.2.          The Russian legislation in force grants the right to victims of torture and also the relatives and representatives thereof to file complaints against torture and cruel and degrading treatment to government agencies. In conformity with the Russian legal system such violations generally are deemed abuse of official duties which is subject to criminal liability, therefore according to the tenor of the effective laws, the authorities must consider complaints against torture as information on committed offences.

13.3.          The right to file a complaint to government agencies and the right of a complainant to be protected by law against the abuse of officials, as well as the complainant’s access to justice are fixed by the Constitutional norms. It is established that each person shall be entitled to protect his/her rights and freedoms in all forms which are not forbidden by law, including application to court, and use of qualified legal assistance, also without any compensation in instances provided for by law. The rights of victims of offences and abuse of power shall be protected by law. The state guarantees that victims shall have access to justice and shall be entitled to compensation of damage inflicted thereto[1].

 

13.4.          The procedure to exercise the rights of an individual to apply to competent government agencies for seeking protection of the rights infringed upon as the result of an offence, and the obligation of government authorities and officials to provide effective protection thereof is stipulated, in particular, by the effective body of laws, specifically by the Criminal Procedure Code, civil law, civil procedural legislation, i.e. the legal framework determining the status, rights and obligations of a number of government agencies[2], and a number of instructions[3] issued by different Ministries and Departments.

 

13.5.          Investigation of crimes (including torture) committed by employees of law enforcement agencies is within the jurisdiction of the prosecution authorities. The Law «On the Prosecution Authorities of the Russian Federation”[4] and the Criminal Procedure Code of the Russian Federation [5]provides broad powers to check information on offences and conduct investigation. The Law prohibits to the prosecutors to resend complaints to an agency or an official whose decisions or actions are complained against. The Law establishes that the prosecution bodies shall be obligated to examine the complaint and take a decision regarding each complaint against the offence, including complaints against torture. In conformity with the R Criminal Procedure Code, the prosecution agencies may initiate a criminal case on the grounds of a complaint against torture, same as on the grounds of other information about an offence. If a complaint fails to provide sufficient information indicating to elements of crime, the prosecution agencies may conduct an inspection. The time for inspection established by law shall be three (3) days. In exceptional cases it may be extended up to 10 days. An inspection conducted upon receipt of a complaint about a committed offence in the course of which the decision is to be taken on whether to initiate a criminal case or not, shall be of a preliminary nature. If in the course of an inspection data is received indicating to elements of crime, the prosecution agencies shall take a decision to initiate a criminal case and start investigation. Otherwise, a decision shall be taken to deny initiation of a criminal case.

 

13.6.          In conformity with the effective legal norms the prosecution bodies must provide a motivated response to an application, complaint or any other claim (including complaints against torture).  If the complainant’s application or complaint was denied, the procedure for the appeal of the decision taken shall be explained to him/her, as well as the right to apply to court, if the latter is provided by law.

 

13.7.          In order to guarantee the right to file a complaint against offence even in those instances when a specific claimant has difficulties to accede prosecution bodies, regulatory legal acts of ministries and departments establish a procedure in accordance with which a person may file a complaint against torture to any law enforcement agency authorized to investigate offences round-the-clock, irrespective of the jurisdiction of a ministry or department this particular agency is in. Rules have been adopted and agreed upon to ensure timely transfer of a complaint against an offence to the appropriate agency (prosecution body) with the account of the jurisdiction thereof.[6]

 

13.8.          The legislation provides for additional guarantees of the right to file a complaint for individuals who are in pretrial detention facilities and, penitentiaries.

 

13.9.          For instance, pursuant to the effective rules applications and complaints of prisoners addressed to a prosecutor, court or other state power bodies exercising supervision over places of penal service shall not be censored by the administration of the respective penitentiaries. On 8 December 2003 new norms were incorporated into the Penal Code of the Russian Federation and Law “On Incarceration of Suspects and Accused”, according to which applications and complaints addressed to the Ombudsman of the Russian Federation, ombudsmen in the constituent subjects of the Russian Federation, the European Court for Human Rights shall not be censored. The above new provisions, undoubtedly, facilitate the process of filing complaints, including complaints filed against torture for the imprisoned.

 

13.10.       At the same time, the procedure of filing complaints to supervisory bodies and human rights organizations, the way it is established, does not allow to fully exclude a possibility to interfere into the process by representatives of administration in form of getting themselves familiarized with the content of the complaint and evading from passing the complaints on to the addressees. Under paragraph 91 of the “Internal Rules of Pretrial Detention Isolators of the penitentiary system”[7], complaints and applications of the prisoners are received by a representative of the facility, and it is the administration of the above institutions that forwards complaints of the inmates to the addressees. Insofar, the inmate does not have any feasible opportunity to check the degree of good faith with which the administration of the institution follows the prohibition to censor complaints and exercises the duty thereof to send the complaints to the addressees. The procedure for filing complaints by inmates serving sentences in penitentiaries is regulated in a similar manner.

 

13.11.       Apart from complaints to agencies authorized to exercise supervision over penitentiaries and places of custody, inmates have the right to file their complaints to other government agencies and municipal bodies, as well as send the correspondence thereof to their attorneys. According to the effective rules, such correspondence shall be subject to censorship on the part of the administration of the penitentiary. The administration shall consider such reports and forward thereof to the respective addressee no later than three days from the moment the inmate submitted his application or complaint to the administration. Order of the Ministry of Justice #189 of 14 October 2005 approved the new “Internal Rules of Pretrial Detention Isolators of the penitentiary system”. Paragraph 96 of these rules incorporates a norm allowing the administration of pretrial detention facility not to forward the complaint to other agencies, if the administration is able to resolve the issue itself. The range of issues to be resolved by the administration is not determined yet. In general such issues may include all complaints (including complaints against torture and cruel treatment) of inmates against administration of the pretrial detention facility on the whole, or its employees. Hence, the above rule provides a possibility to employees who do not exercise their duties in good faith not to forward complaints of the inmates beyond the confines of the detention center. Paragraph 96 specifies that complaints which may be resolved in the detention facility in question may not be forwarded to the addressee with the consent of the author of the complaint. At the same time, there is an impression that the administration of a detention center, should that be necessary, may easily get a formal consent of the inmate who is fully under the control thereof.

 

13.12.       During the reporting period norms were finalized which are related to the possibility of inmates to get responses to their complaints. For instance, on 8 July 2002 by Order 191 of the Ministry of Justice amendments were introduced to the “Internal Rules of procedure of Correctional Facilities” which established guarantees for the receipt and right of keeping responses to their complaints by the inmates, as well as a mandatory time period was established within which the response should be given to the inmate.

 

13.13.       Apart from the possibility to file a written complaint, inmates in pretrial detention facilities and penitentiaries may personally voice their complaint or transfer thereof to officials of the Ministry of Justice or the prosecution bodies who visit penitentiaries to detect and stop violations of law and rights of the inmates.

 

13.14.       As any other citizens of Russia military servicemen have a possibility to file a complaint to the prosecution bodies against offences committed against them. Moreover, the effective legislation contains a number of additional provisions relating to the filing of complaints by military servicemen.

 

13.15.       For instance, pursuant to Article 116 of Chapter 5 of the Disciplinary Charter, in the event a military serviceman files a complaint to the commander (superior), the commander “should be tactful and attentive in considering the complaint received. He will be held personally liable for the timely examination of the complaint”. Moreover, under Article 21 of Law #76-FZ “On the Status of Army Servicemen” of 27 May 1998, the person who has suffered from unlawful actions of his fellow servicemen has the right to apply to court to protect his rights and legitimate interests.

 

 

13.16.       Human rights organizations are well aware of cases when police agents would hinder victims of abuse to filing complaints. Specifically, there were cases when the right to submit was breached in form of direct physical resistance, unlawful administrative detention, and defamation of an individual attempting to file a complaint against torture or cruel or degrading treatment on the part of police agents. The following examples could be given to illustrate the above.

 

 

 

13.17.       Despite the existence of special guarantees for filing complaints granted to detainees by law, in real life individuals who are kept in custody and isolated from the outside world either face difficulties when trying to file a complaint, or do not have such a possibility at all.

 

13.18.       Individuals placed in pre-trial detention facilities may have problems both when attempting to file a complaint against torture or cruel treatment on the part of the staff of the facility, and the torture committed by police agents prior to the detainee being transferred from a police temporary isolator to the pre-trial investigation centers of the Ministry of Justice. This is accounted by the fact that the temporary isolators (IVS) and the police are within the jurisdiction of one and the same ministry. Most often an IVS is located on the premises of a police unit, while the staff of the police has access to the detainees placed in those cells. An example which illustrates the situation:

 

13.19.       It should be noted that the staff of the prosecution bodies who supervise that the rights of the detainees in the IVS be observed, do not always react to the oral complaints of the detainees in the proper manner.

 

13.20.       Individuals who are in custody in SIZO (pretrial detention centers of the ministry of Justice) and in penitentiaries do not usually have difficulties when filing complaints against cruel treatment which they had suffered prior to the placement in SIZO. At the same time, such inmates sometimes do face difficulties when attempting to file a complaint against the administration of a penitentiary or the staff thereof. Specifically, human rights organizations have received information from inmates and their relatives that the staff of the penitentiary administration obstructs the process of filing complaints by the inmates.

 

13.21.       In the opinion of human rights organizations who visit penitentiary facilities and the work with the applications of prisoners in Tver and Perm oblast and the Republics of Komi and Tatarstan, the inmates have no feasible possibility to file a complaint against torture or cruel and degrading treatment on the part of the administration, though the law prohibits censorship of letters sent by inmates to the prosecution bodies, higher bodies of the penal system and the Ombudsman. In correction facilities, as a rule, all applications and complaints forwarded to the supervisory bodies are searched and examined. Therefore inmates try to submit complaints via unofficial channels (relatives, defense lawyers, individuals released after having served their sentences).

 

13.22.       At the same time, in some regions the administration of penitentiary facilities takes measures to eliminate obstacles set by certain employees of penitentiaries for inmates to file complaints against violations of law.

 

13.23.       The efficiency of intra-departmental inspections in penitentiaries conducted by the Federal Service for Penalty Execution differs depending on the region of Russia. Specifically, in certain regions the Departments of the Federal Penitentiary Service takes measures to get more information, applications and requests from the inmates.

 

13.24.       However in some regions it is possible to asses the quality of the departmental control and supervision with regards to the observance of human rights only on the basis of statistical data.

 

13.25.       In the opinion of “Social Partnership Foundation”, an organization which is member of the Public Council under the Ministry of Justice and which regularly visits penitentiaries, the activity of the prosecution bodies exercising supervision over the legality in execution of penalties and legality in pre-trial investigation detention facilities cannot be assessed as sufficiently high. Regular inspections which the prosecution bodies conduct in penitentiary facilities are mostly aimed at the assessment of the quality of the documentation formalized by the administration of a penitentiary facility. Insofar, what is really happening with the human rights of the inmates remains without due attention.

 

 

13.26.       At the same time, according to the evidence provided by human rights organizations, in certain regions of the country the work of the prosecution bodies on supervision of observance of the rights of the inmates proves to be efficient.

 

 

13.27.       The above examples show that the efficiency of mechanisms which provide for the possibility for detainees to file complaints against torture and cruel treatment, and other violations committed against them, primarily depend on the good faith and decency of the individual officials who are charged with supervisory functions in the regions. It seems that the system which would ensure the possibility for the inmates to file complaints should be improved to guarantee protection of inmates irrespective of the personal characteristics and convictions of supervising officials.

 

13.28.       Soldiers who served in the army as conscripts also face problems which hinder the process of filing complaints against torture and cruel treatment. These difficulties, however, differ from those faced by inmates, for instance.

 

13.29.       Specifically, a military serviceman does not always have a possibility to file a complaint to the commander of his own unit, since at times the commanders treat cruelly rank-and file soldiers, or they are fairly tolerant to violence among soldiers, considering that kind of behavior as a way to maintain discipline in a unit.

 

13.30.       Using the opportunity to apply to the prosecution bodies, in the opinion of the Committees of Soldiers’ Mothers, is significantly restricted by an extremely low level of legal knowledge of rank and file soldiers, and the fear of pressure and persecution in connection with the complaint filed. It should be noted that soldiers fear not only revenge on the part of those who were directly involved in torture or cruel treatment, but the condemnation of their fellow-mates who did not participate in such treatment. The representatives of the Committee of Soldiers mothers note, that the army sub-culture is such that a young soldier who filed a complaint in conformity both the law and the Disciplinary Charter, will assign a nickname of a fink or whistler, and al his fellow mates start treating him as an outcast which makes the service of the soldier morally absolutely unbearable. In order to illustrate the above said, we can provide extracts from a letter sent on 24 January 2005 to the Committee of Soldiers’ Mothers in Nizhniy Novgorod by Vladimir Yeremin, a serviceman of military unit 41684 (the city of Podolsk, Moscow Region);

“After that I informed about what was happening [torture and mockery] the deputy commander for education, Mayor Kozek. A document was drafted, but not at once, only on the next day. Nothing was done in this respect, and the fellow-inmates started mocking at me even to a greater extent than before for the mere fact that I told the commander what had happened, they started saying that I an a fink, whistler… No matter what kind of work we would go to, I was forced to work double. The assault and battery started, and mockery again…”

 

 

13.31.       Since torture and cruel treatment are deemed by the Russian laws as excess of official powers punishable in criminal procedure, a complaint against torture should be regarded as information about an offence. If a complaint per se and the materials attached thereto indicate to elements of crime, a decision should be taken to initiate a criminal case and conduct investigation aimed at establishing precisely all the facts of the case. If communication about an offence fails to provide sufficient information, the authorized agencies may conduct a preliminary checking to specify the data about elements of crime. An inspection held upon an application stating the offence in the course of which it is decided whether to initiate a criminal case shall be of a preliminary nature. All controversies and inaccuracies detected in the course of inspection must be checked and verified and eliminated in the process of investigation.

 

13.32.       Meanwhile, according to human rights organizations involved in legal protection of victims of violence on the part of police, the staff of the prosecution bodies refuses to initiate a criminal cases, though in the materials of the preliminary checking indicating to elements of crime (for instance, medical records, confirming inflicted bodily harm while an individual was held in custody). Insofar, the officials refer to insufficient data which would confirm the guilt of certain police agents. At the same time, proceeding from the tenor of the effective criminal procedure laws, the data received in the course of preliminary verification should not prove anybody’s culpability or unlawfulness of anybody’s actions. The culpability of specific persons should be established in the course of investigation.

 

13.33.       Most often unmotivated decisions to deny initiation of a criminal case are cancelled by superior instances. However, in such situation, investigators and district prosecutors conduct another checking instead of initiating a criminal case. Since the staff of the prosecution bodies chooses not to initiate the case, they deprive themselves of a procedural possibility to recover a clear picture of what had happened and eliminate controversies having arisen at the preliminary checking stage. As a result, the situation when a complaint against torture fails to be legally resolved might sometimes last for years and years.

 

 

 

 

13.34.       Similar denials to initiate criminal cases also occur if detainees file complaints against cruel treatment and torture on the part of the administration of penitentiary facilities. Insofar, detainees who have suffered from the actions of the administration of such institutions have a lot fewer possibilities to appeal ungrounded denials to conduct investigation, since they run into a lot more difficulties when attempting to file a complaint.

 

13.35.       There is information that there have been insufficiently grounded denials to initiate criminal cases and conduct full-fledged investigation, but at the same time some regions of Russia send single reports that criminal cases were initiated against employees of penitentiary facilities for unlawfully violent actions with respect to inmates.

 

13.36.       Single and separate pieces of evidence about criminal cases initiated on the grounds of detainees’ complaints and data about unmotivated denial to initiate a criminal case does not make it possible for us to assess the efficiency and the quality of work of the prosecution offices with regard to complaints of inmates against violence and torture.

 

 

13.37.       The Criminal Procedure Code provides to a victim of an offence (including torture) or the representative thereof a possibility to file a motion requesting to conduct certain investigation actions, the right to participate in investigation actions with the permission of an investigator, the right to provide evidence, the right to be notified about decisions taken with regard to the case, the right to familiarize oneself with the materials of the investigation, etc. [8]. A person who filed a complaint against torture or any other offence shall not be automatically deemed a victim. The status of a victim shall be assigned to the person by the order of the investigator.

 

13.38.       Criminal procedural law granted the right to get familiarized with the materials of investigation exclusively to the participants in the criminal procedure, including the victim. This was done in parallel with the norm which relieved the prosecutor and investigator of the duty to provide any

13.39.       clarifications on the merits of the case in charge and materials, and provide clarifications to whoever it may be for familiarization, with the exception of instances and in accordance with procedure provided for by the federal laws[9]. This actually restricted the possibilities of a person who filed a complaint against torture to get familiarized with the materials of investigation, in instances when with respect to the complaint a decision was taken to deny the initiation of a criminal case, and the person who suffered from torture was not deemed a participant in criminal procedure (a victim).

 

13.40.       In this connection the Constitutional Court of the Russian Federation in a number of its rulings[10] has recognized that the tenor attached to the above provisions of the law by law enforcement practices, leads in all cases to refusal by the prosecution bodies to provide materials directly pertaining to the rights and freedoms of an individual without due grounds provided for by law relating to the content of the above materials, and thus hinders judicial verification of the motivated nature of such a refusal.

 

13.41.       The Constitutional Court specifically confirmed the right of an individual to freely get familiarized with materials gathered by the state authorities and the officials thereof, and directly pertaining to the rights and freedoms of the individual, unless provided otherwise by federal law, in order to protect the fundamentals of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and the safety of the state. Meanwhile, the legislator shall be obligated to guarantee the proportionality of such a restriction to the goals of its introduction recognized by the constitution. The state shall apply only the necessary measures strictly determined by the above goals, not excessive ones. The exercise of the right to appeal certain procedural decisions presupposes that the person concerned is guaranteed the right to get familiarized with these very decisions. Hence, due to the decisions of the RF Constitutional Court guarantees of access to investigation were enhanced.

 

13.42.       Unfortunately, despite legal guarantees of access to investigation there are cases when employees of the prosecution bodies violated the above provisions of the law. Untimely notification of victims and the representatives thereof about decision taken with respect to complaints, including those against torture, or failure to notify them at all, deprives the victims of the possibility to timely appeal illegal decisions taken with respect to their complaints, hinders their access to justice, and actually is a means to conceal the committed violations of the law.

 

 

13.43.       The national legislation establishes measures to protect victims and witnesses. If there is sufficient information that the victim, witness or other participants in criminal judicial procedure, or the nearest of kin, relatives or close friends are threatened by homicide, use of violence, destruction or damaging the property thereof, or by other dangerous unlawful deeds, the court, the prosecutor, investigator, inquiry body and inquirer shall, within jurisdiction thereof, take security measures with respect to the above persons, specifically: no data about such individuals will be entered into the records, their telephone and other conversations will be recorded, identification of the above persons shall be conducted in conditions excluding visual observation of the identified by the identifying person, the court session shall be held in camera, questioning in court shall be organized without public disclosure of the real data about the personality of the witness in conditions excluding a possibility of visual observation of the witness by other participants in judicial proceedings, and also personal guards, protection of home and property, issuance of special means of personal security, communication and warning about danger, ensuring confidentiality of information about the person under protection, relocation thereof to another place of residence, change of documents, change of appearance, change of place of work (service) or study, temporary placement to a secure place.[11] Persecution in any form is prohibited of those who are suspected in and accused for applying with proposals, applications or complaints in connection with the infringements of their rights and legitimate interests. The officials working in places of detention and culpable of such persecution shall be held liable in conformity with the law.[12]

 

13.44.       However, no cases were recorded by human rights organizations when protection measures were applied with respect to victims of torture, including minors and women, who applied to the prosecution bodies, even when there were sufficient grounds therefore. Information about the personality of complainants and witnesses is not concealed by the staff of the prosecution bodies. The result of it is that fairly often this information becomes available to the staff of law enforcement organizations who are suspected of torture, or their colleagues. Finally, it so happens that a person who filed a complaint against torture, and witnesses become victims of either persecution or pressure on the part of officials who were involved in torture of their fellow-employees. Such cases were recorded specifically by the Kazan Human Rights Center, in Kazan in the Republic of Tatarstan, Yorshkar-Ola organization “Man and Law” in the Republic of Marii El, Association of human rights organizations of Sverdlovsk Region in Sverdlovsk Region, by the Chita Human Rights Center in Chita Region, by the Nizhniy Novgorod Committee against Torture in Nizhniy Novgorod, and other organizations.

 

 

 

 

 

13.45.       In the above cases, when pressure was exerted upon the victims of torture Petrov and Nuriyev, Vidyakin and Golovin, such pressure became possible not only due to the fact that no protection measures were taken, but also because of the officials accused of torture and cruel treatment had not been dismissed from their positions and stripped of execution of the duties thereof. In general, single cases are known when officials suspected of torture would be dismissed from service, or placed in custody for the term of investigation.

 

 

13.46.       Persons who suffered from torture or cruel treatment on the part of the employees of penitentiaries find themselves even in a more vulnerable position than victims of torture who enjoy freedom. At the same time, in real life due attention is not paid to the protection of detainees who complain of torture and cruel treatment.

 

13.47.       It seems that the authorized agencies in the Russian Federation should pay more attention to the protection of victims and witnesses of torture against possible pressure and persecution, particularly in those cases when witnesses and victims are in custody. Today fear of persecution and lack of practical experience in protecting the complainants results in a situation that detainees often do not use their right to file a complaint which is granted to them by law.

 

13.48.       According to the staff of Committees of Soldier’s Mothers, only very few out of thousands of military servicemen who were subjected to cruel treatment in the army, enjoy the right to file a complaint, and the main reason for that is that the fear of revenge on the part of soldiers and officers, against whom the complaint was filed.

 

13.49.       Law # 119-FZ of 20 August 2004 “On Government Protection of Victims, Witnesses and Other Participants in Criminal Procedure” offered methods to protect military servicemen – victims and witnesses of offences – against pressure. For instance, Article 13 of the Law establishes the following measures of protection:

 

            1)         sending away the protected person to another military unit, other military institution;

 

            2)         the transfer of the protected person to a new location of service, including a military unit or military institution of another federal executive power body in which military service is provided for by the Federal law upon agreement between respective officials of federal executive power bodies);

 

            3)         sending away or transferring a military servicemen as a conscript who may be threatening a person under protection to another military unit or military institution.

 

13.50.       However in real life, investigation agencies do not always resort to such measures, even if there are requests to do so on the part of victims or witnesses of torture or cruel treatment.

 

13.51.       We believe that just as in the above cases with inmates the authorized power bodies should be more attentive to the issue of protecting military servicemen and apply more actively measures of protection provided for by the Russian legislation.

---