HomeLibraryArticle 13

Article 13

November 29, 2006 08:17

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.
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.

The right to file a complaint against torture

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.

Practical possibility to file a complaint against torture; difficulties which occur

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.
Vidyakin was cruelly beaten up by a police officer Kashin who used an adjustable spanner while beating the inmate. This happened on the police station in Serov (Sverdlovsk Region, the Urals). The goal of beating up Vidyakin was to prevent him from filing a complaint against policeman Yegorov. When Vidyakin was trying to file an application to a territorial division of the Ministry of Interior stating that he was beaten up by policeman Kashin, the officials obligated by law to transfer his application for the examination of the prosecutor, passed the information about the offence to Kashin’s superior and took Vidyakin to him. The result was that Vidyakin actually provided distorted explanations of what in fact happened.
In order to prevent Sazhin who came to the Ministry of Interior division of the Komi Republic to file a complaint against cruel treatment which he suffered the day before from the staff of police when he was unlawfully placed to a sobering-up station, he was illegally detained by policemen and forcefully placed to the reception facility where in custody he was kept without being given any explanations for four hours. He was held administratively liable. Only after that could Sazhin file a complaint to the prosecutor about the violence and abuse of the policemen.
In order to avoid Gorbuyal (from Nizhniy Novgorod) and Kuman'kov (from Kazan) filing complaints against being beaten up by policemen, the police falsely accused them of offending and attacking the staff of the police.
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:
Policeman Lapin (the city of Grozny, Republic of Chechnya) trying to prevent Murdalov whom Lapin had subjected to torture, from filing a complaint, made up a false application in the name of the victim, knowingly stating in it other circumstances under which bodily harm was inflicted to Murdalov, also specified other procedural and professional documents, and drove Murdalov away from the IVS “in a direction unknown”. The whereabouts of Murdalov and what actually had happened to him have not been established yet.
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.
Shishkin in his application describing rough justice he happened to become victim of on 1 September 2003 beaten up  by the staff of Avtozavodsky District police station in the city of Naberezhniye Chelny (the Republic of Tatarstan), specified that after the torture he was placed into a cell. There he overheard a conversation between the policemen who decided that they should rather kill him, so that he would have no chance of filing a complaint against torture. After that, twice aiming to suffocate him pushed a rag into his mouth. In an attempt to save his life Shish kin thought it best to pretend dead. His oral complaint against torture which he voiced on 2 September 2003 to the prosecutor remained without any due response.
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.
The inmates of a correctional facility IK-6 (Marii El) complained that the staff of the administration of the above institution would hinder their attempts to send complaints. Heads of the detachments at times fail to register in special log books applications they received from the inmates and addressed to the government agencies, sometimes the deny receipt of such applications altogether.
In January 2004, Yury Kozlov, an inmate in IK-1 in the residential settlement Bolshiye Peremerki, Tver oblast, attempted to send a complaint against the administration of the facility for failure to provide medical assistance to him at the moment when he had a fit of bronchial asthma. The staff of the facility would not send his complaint to the designed address, while Kozlov was placed to a punishment cell for 15 days. Kozlov had to turn for help to his relatives requesting them to file a complaint in his name.
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.
In correctional facilities in Krasnodar Krai special post boxes were installed for inmates to be able to send their complaints to the Ombudsman.
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.
In the Republic of Marii El assistant for human rights of the Department of the Federal Penitentiary Service jointly with the staff of a human rights organizations “Man and Law” (Chelovek I Zakon) inspects on a monthly basis all penitentiary facilities in the territory of the republic and personally receives inmates which allows to get more information on human rights infringements in the penitentiary system and to react promptly to the complaints of 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.
For instance, upon the request of Mordovian Republican Human Rights Center, the Department of the Federal Penitentiary Service in the Republic of Mordovia provided information on the complaints received from inmates and the results of the examination thereof. Over 9 months of 2005 the Department received 160 applications and complaints from inmates against the actions of the staff of penitentiary system, and over the 9 months of 2004 the respective figure was 116. According to the Department, all the complaints and applications were examined and appropriate inspections were held, which showed that the fact stated in complaints were not confirmed.
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.
The low quality of work of the prosecution bodies in exercising supervision over the observance of rights of inmates was brought to light, in particular, in the course of investigation relating to mass protests in correctional facility OX-30/3 in the town of L’gov in Kursk Region. In the night hours of 27 June 2005 over 200 inmates committed self-mutilation. The motive for the deed the inmates gave was the protest against systemic violations of their rights on the part of the administration of the facility. Some time later 100 more convicts joined in the protest, and the total number of applications to the medical unit of the above facility reached 361 people. The Ombudsman and the representatives of human rights organizations, including “Social Partnership Foundation” were involved in the investigation of the case. According to the reports of the “Social Partnership Foundation” log-books were examined where the staff of the prosecution bodies should be making notes regarding their visits to the isolation cells. There was found just a single entry made by an inspecting prosecutor, while pursuant to the law the isolation cells should be inspected on a monthly basis.  The only entry was made in June 2005 and stated that no extraordinary events had occurred, despite the fact that 10 days before the entry was made several dozens inmates inflicts knife cuts to themselves, and had there been due thoroughness, the inspecting prosecutor could not have failed to notice that. In the course of investigation of the protests of the inmates a meeting of the prosecutor was held with the inmates. At the meeting representatives of human rights organizations were also present. At the meeting the inmates complained that a number of inmates beats up others upon the instruction of the administration, they also named those who were culpable. However, the prosecutor would not react to these claims; moreover he was aggressive to those who complained.
The results of a survey conducted by the Tver Memorial Society of former inmates who were held in penitentiary facilities of Tver oblast showed that in the course of planned inspections of penitentiary facilities the prosecutor never visited the sectors where inmates lived and never communicated with them. The inspection visit itself would not last long and would finally end in a dinner with the officers from the administration of a penitentiary.
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.
In particular, Krasnoyarsk Public Committee for Human Rights Protection stated that the work of the Prosecution Office in Krasnoyarsk Krai may be deemed satisfactory.  The complaints of the inmates relating to serving their sentences and forwarded to local prosecution office were examined, and upon the results of such examinations appropriate measures were taken by the prosecution bodies.
Similar assessment of the activity of Krasnodar Krai Prosecution Office was given by the Krasnodar Organization “Mothers in Defense of the Rights of Those Arrested, Under Investigation and Convicted”.
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…”

Examination of complaints against torture and cruel treatment: cases of ungrounded denials

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.
Sentences were delivered on criminal cases charging police agents Garifullin, Smetanin (Tatarstan), Tchetvertakov (Nizhniy Novgorod Region) with official malfeasance relating to committing acts of violence and inflicting bodily harm to individuals, the policemen were also charged with crimes against individuals, and the sentences confirmed their culpability.  However, before starting investigation of the above cases the prosecution agencies would take unlawful orders to deny initiation of criminal cases on the grounds that no elements of crime had been detected in the actions of law enforcement officials.  Had the complainants not appealed the decision to deny initiation of the criminal case, the above police agents would have never faced the court and would avoid liability for torture.
The prosecution office of the city of Syktyvkar of the Komi Republic also refused to start a criminal case on the grounds of complaints filed by Sazhin. The grounds for the denial were “absence of elements of crime” in the actions of police agents. When the above decisions were taken it was explained to Sazhin without any proper grounds, that the use of physical force by policemen in the sobering-up stationwas lawful, and accounted for by the actions of Sazhin himself whose conduct was aggressive and who resisted the policemen. All the above procedural decisions relating to Sazhin’s complaints were repealed by the superior prosecution office and the court.
Twice would the investigator of Pervomaisky district of the city of Izhevsk issue an order to deny initiation of a criminal case upon the application of Pasynkov in which the latter wrote about bodily harm inflicted to him by the policemen.
In resolving the complaint of Ochelkov who was subjected to torture in police unit for three years starting with 2002, the Prosecution Office of the city of Balakhna (Nizhniy Novgorod Region) issued nine (9) unlawful orders to deny initiation of a criminal case. Each of the above orders was repealed by the above instance. However, despite the fact, the Prosecution Office of Balakhna would fail to take any measures to initiate a criminal case and conduct a full-fledged investigation and would insist in denying the initiation of a criminal case. At the same time, the text of each previous denial would fully conform with the previous one and would not contain any rational, with the exception of the previously stated arguments which the superior prosecution office had already deemed insufficient and not convincing.
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.
For instance, according to the data of a human rights organization Public Problems Research Institute «United Europe» operating in Oryol Region, in 2005 an inmate C., who was kept in a pretrial detention facility in Oryol filed an application to the prosecution office requesting to initiate a criminal case on the grounds of being beaten up by the SIZO officer.  The Prosecution Office of Oryol Region without examining the application forwarded it to the Department of Federal Penitentiary Service. The application though was not examined there either. Only several months later a decision was taken to deny initiation of a criminal case. At the same time, a criminal case was initiated against the applicant himself.
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.
For instance, Kazan Human Rights Center communicated that in the Republic of Tatarstan in 2005 a criminal case was initiated against two employees of a correctional institution with strict regime on the grounds of violent actions used against inmates convicted on charges set forth in Article 286 para 3 of the RF Criminal Code
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.

Access of applicants to investigation

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.
The lawyer Sidorov, representing Ochelkov who filed complaints against torture in police (the city of Nizhniy Novgorod) in 2002 and 2003, had to appeal to a prosecutor of a superior instance against the actions of the prosecution body staff who failed to notify Sidorov about the decisions taken with regard to the above complaint. Similar violations were committed by the prosecution bodies in the same region with respect to the application of Folomkin.

Ensuring security of the victim and witnesses

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.
The Tver Memorial Society recorded a case when in the course of investigation a case of torture of Ivan Vasiliev, the employees of the Moscow District Police Department in the city of Tver kept persecuting their victim for several months, exerting psychological pressure upon him, and the doctors of the clinic where Vasiliev was treated. All the above actions, in the opinion of the victim, were aimed to obstruct the normal progress of investigation.
In the course of investigation of the complaints filed by minors Petrov and Nuriyev (the Republic of Tatarstan) against torture committed by policemen, some strangers attacked Nuriyev and demanded that he should not go to court. The policeman who was accused of torture in this case would come accompanied by several men to the house where Petrov lived, and the latter had to hide at his friends’ place.
According to the minors Abrosimov and Tulovchikov (Republic of Marii El), the trainees of the police unit who also participated in torturing them, attempted to bribe the boys in the course of investigation to prevent them from filing complaints.
On the eve of the day when the decision was taken by the court in the criminal case against policeman Kashin who had beaten up Vidyakin, Kashin’s colleagues, who worked in the Serov Police Department (Sverdlovsk Region) would come to the apartment of Vidyakin’s parents claiming that they were willing to “question” him.
Repeated threats were voiced of giving short shrift to the mother of a minor Golovin (Chita Region) who filed a complaint against the torture of her son. In her job place law enforcement agencies organized an unscheduled inspection, and the people involved in that inspection made it clear to the employer of Golovina that the reason for inspection is her filing a complaint .
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.
On 20 May 2004 the City Court of Yoshkar–Ola (the Republic of Marii El) upon the motion of investigation agencies applied a restrictive measure in form of placing under custody two police agents who were involved in cruel treatment and torture of Abrosimov, Tulovchikov and Likhachev.
On 28 October 2003, two local residents, Sergei Stepanov and Igor Gudkov were taken to a local police office of the residential center Vershino-Darasunsky of Tungochensky District of Chita Region. For over 9 hours deputy head of the police unit Oleg Ivanov and a criminal investigation agent Yury Knyazev had been torturing them forcing to admit that the committed one of the non-disclosed offences. Two hours later Stepanov died of serious bodily harm inflicted to him. After the criminal case was initiated, both police agents were taken into custody.
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.
The situation may be illustrated by the case of inmate Knyazev.  He is one of the inmates of a correctional institution in the town of L’gov who demanded that a criminal case be initiated against the staff of the administration of the correctional facility where he was regularly beaten up. The prosecution office of Kursk oblast refused to initiate a criminal case upon his claim. After that with the assistance of a defense lawyer he applied to the European Court of Human Rights. The complaint was granted priority status by the European Court under Rule 41 of the Rules of the Court, and prior to 20 January 2006 the Government of the Russian Federation was to provide answers to questions set by the European Court. After the complaint was filed to the European Court the employees of the Department of Federal Penitentiary Service in Kursk region were trying to exert pressure upon Knyazev. According to Knyazev, he was repeatedly beaten up. Knyazev and his lawyer filed applications regarding such beatings to the prosecution bodies, however, the initiation of the case was denied. By beating up Knyazev, the employees of the law enforcement agencies were attempting to force him to revoke his complaint from the European Court and to dismiss his lawyer representing his interests. Knyazev did write such a refusal, however, on August 11, 2005 when his lawyer visited him in the pretrial detention facility of the city of Bryansk, he requested to notify the European Court that it was a forced refusal which was the result of torture and requested to examine his complaint submitted to the European Court.
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.
For instance, Yury Nikolayev, a serviceman on active duty, was denied measures of protection.  It follows from his application filed to the Committee of Soldiers’ Mothers in Nizhniy Novgorod that his fellow serviceman K. inflicted serious bodily damage to him. An investigation was started of the case. While Nikolayev was undergoing treatment in a military hospital, his fellow servicemen came to visit him and threatened to give short thrift to him if K. would be prosecuted in criminal procedure. Nikolayev was transferred to Yaroslavl for further medical treatment. However, upon completion of the treatment course he was obligated to return to military service. In the Office of Military Prosecutor of the city of Yaroslavl, Nikolai wrote an explanatory note and requested not to send him to the military unit where he was subjected to cruel treatment. However, on 14 May 2005, Nikolayev received an order in the prosecution office to return to his former unit.
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.

[1] Articles 17, 18, 19, 24, 29, 45, 47, 48, 50, 52, 53, 55, 56 of the Constitution of the Russian Federation.
[2] Laws “On Police”, “On the Prosecution Authorities of the Russian Federation”
[3] For instance, Order #34 of the Prosecutor General of the Russian Federation, dated June 1997 “On the Organization of Work of Units and Divisions of Prosecution Authorities to Combat Crime”.
[4] Federal Law of January 17, 1992, #2202-I “On the Prosecution Authorities of the Russian Federation”
[5] Article 151 of the RF Criminal Procedure Code
[6] Order of the Office of the Prosecutor general, the Ministry of Interior, Ministry for Emergency Situations, Ministry of Justice, Federal Security Service and others of 29 December 2005
[7] Approved by Order #189 of the RF Ministry of Justice, 14 October, 2005, #39/1070/1021/253/780/353/399 On the Single Record of Offences
[8] Article 42 of the Criminal Procedure Code
[9] para 2 of Article 5 of the Federal Law “On the Prosecution Authorities of the Russian Federation”
[10] Ruling of the Constitutional Court of the Russian Federation of 18 February 2000, #3-P and of 4 November 2004, #430-0
[11] Article 11 of the Criminal Procedure Code and Federal Law #119-FZ “On Government Protection of Victims, Witnesses and Other Participants in Criminal Proceedings”, dated 20 August 2004.
[12]The Criminal Procedure Code and Federal Law #103-FZ “On Incarceration of Suspects and Accused”, dated 15 July, 1995