The anti-torture law has reached zero readings

The authors of the initiative predict that the phase of "zero readings" may be overcome in a couple of months

Julia Suntsova

A separate article for torture with tougher sanctions may be added to the Russian Criminal Code.

There has been a lot of talk about the problem of the closed nature of the prison system in Russia. But there would be no happiness, but unhappiness, as they say, helped. At the end of August, Zhirinovsky was so impressed by his unsuccessful attempt to visit the disgraced party member in the Lefortovo detention center (SIZO) that he was now ready not only to deal with the leadership of this institution, but also to become one of the main speakers on the amendment. The Fsinovka (the Federal Service for Execution of Punishment) colonel, as the leader of the Liberal Democratic Party of Russia himself said, not only did not allow him to see Furgal, but dared to show the empty cell. “He invites us to his office. "The law says: you are allowed to visit places on the territory of the Federal Service for Execution of Punishment (FSIN) institution, you supposedly have visited", - he says to us. He allowed us to visit the building, the dining room, the toilet. But we did not come to see the building! He works like a fool", - Zhirinovsky told journalists.

Until now, by the way, the Khabarovsk governor taken into custody cannot even exercise the right to correspondence. “His letters do not come out from there, our letters also do not reach - not a single letter. This is also a kind of torture. " More than a month has passed, but the deputies, despite the legislative guarantees, have not been able to meet with Furgal, the party says.

The problem of torture and the creation of torture conditions in Russian police stations, convoy premises of courts, pre-trial detention centers, paddy wagons has ripened to the point of an abscess. Year after year, scandals break out in different regions of the country - testimonies are beaten out of those under investigation, prisoners are re-educated, reaching the borderline between life and death in their methods. Complaints from the "torture chambers" come in a continuous wave, and the arsenal of operatives , the limitless possibilities of human atrocities, are striking every time. Quarantine due to the pandemic only turbulent this problem.

Another alarm bell is a tendency, which is taking hold, according to human rights activists, - the victims, due to pressure from law enforcement agencies, abandon their claims and withdraw statements of crimes, which means that citizens have no right to defend the state.

- We first raised the issue of increasing responsibility for torture in the State Duma back in 2014. Unfortunately, this project was not accepted at that time. The epidemic and quarantine measures began to be used in some closed-type places for their own purposes. The stream of complaints coming from the institutions of the penitentiary system makes us make new attempts”, - says Ivan Sukharev, First Deputy Chairman of the State Duma Committee on the Development of Civil Society, Public and Religious Associations.

The first obstacle the legislator faces is the absence of the concept of “torture” in national legislation, he says.

Despite the many international acts giving their own interpretations, the definition of torture has not been implemented in Russian laws. Until now, law enforcement officers who use torture are being tried only under general article 286 of the Criminal Code of the Russian Federation - Excess of official powers. In this situation, even the isolation of torture crimes and statistics cannot be kept normally, the deputy explains.

- There is no need to reinvent the wheel when it has already been invented. We have a UN convention that clearly states what torture is. Art. 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms expands the list of violations and introduces such concepts as inhuman and degrading treatment or punishment. Russian lawmakers just need to take these definitions into account when introducing their amendments, there are no difficulties here, says Olga Sadovskaya, an expert on international protection, deputy chairman of the Committee against Torture.

Part 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms states: “No one should be subjected to either torture or inhuman or degrading treatment or punishment”.

The definition of torture is given in a number of international acts and agreements: Geneva Conventions of 1949; 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; European Convention against Torture, adopted at the Council of Europe level in 1987.

The European Court of Human Rights also gives its own definition of torture - a special form of cruel treatment of a person, which combines inhuman and degrading treatment and at the same time inflicts the deepest physical and mental trauma on a person, causing severe suffering.

Not only the nature of the ill-treatment is subject to a judicial assessment, but also its purpose - for example, to induce testimony, to compel a confession of something, by means of torture to punish a person for something. An important characteristic of an offense is its deliberate nature: torture is always used deliberately and knowingly. Finally, the minimum cruelty criterion is used to qualify an offense as torture. It is of an evaluative nature, and in each case it is subject to study and analysis. However, given that torture is interpreted as the highest form of inhuman and degrading treatment, even if the court does not see the necessary degree of cruelty, the very fact of inhuman and degrading treatment or punishment remains, which is already a violation of Article 3 of the Convention. The European Court has repeatedly drawn attention to the fact that there is no specific and limited list of actions (inaction) that would be unequivocally interpreted as torture. Therefore, in each case, a thorough analysis of the situation and circumstances of the case is required, lawyers explain.

In Russia, complaints about torture and beatings most often come from citizens who have been to police stations (accompanied by operatives), pre-trial detention centers, escort rooms in courts, in "glasses", in capsules of transport vehicles.

We must take into account the psychological torture, the authors of the initiative believe. Threats, denial of a lawyer, ban on calls, being left without food and water for several hours, interrogations at night, denial of visits, etc. “They say that the club will end up in one place if you do not sign the protocol. Even if these threats are not realized in the end, but a person perceives them as a real danger for himself, then this is torture!", - says Ivan Sukharev.

Operations officers and investigators, it happens, use the isolation and psycho-emotional state of those under investigation and resort to unconventional methods: hints of some kind of trouble with loved ones.

"An investigator came to one of our prisoners in a pre-trial detention center and in florid phrases tried to suggest that not everything is all right with his wife and relatives, so by the end of their “conversation” the person no longer understood whether his family members were still alive. After that, he was ready for anything, to sign everything that was needed, to stipulate himself a hundred times. Better beaten and tortured than this unknown, he said then", - says Yeva Merkachyova, a member of the Public Monitoring Commission of Moscow.

One of the tools for the prevention of torture, Ivan Sukharev sees the introduction of punishment for the damage to video equipment, which must be used without fail when communicating with detainees and prisoners.

“According to the regulations, police officers and Federal Service for Execution of Punishment (FSIN) members must be provided with video equipment when communicating with those under investigation and convicts. But stories with disappeared recordings from places of torture, with allegedly suddenly broken, faulty cameras at the most inopportune moment are already so eyesore that there is no doubt that in this way they are simply trying to hide the traces of their crimes. I believe that this needs to be regulated by law. It is necessary to instruct employees to interact with citizens in pre-trial detention centers and colonies only with the video recorders turned on, and strict liability should be introduced for the deliberate disabling of video equipment”, - the deputy says.

In addition, the authors of the project intend to seek the introduction of amendments into the law on the admission of detainees and prisoners to cells, in addition to members of the POC and deputies (as it is now), in addition to ombudsmen. In addition, it is necessary to ensure that prisoners have the opportunity to communicate with the outside world not only about the conditions of their detention in cells, but also about their criminal cases, investigation, and court. To this end, Sukharev intends to come up with a proposal to prohibit employees of the FSIN from listening to prisoners' conversations with representatives of the POC and on dates with visitors, and to leave the opportunity only to visually monitor meetings with visitors.

"Often the problem is not even that observers are not allowed into the cells of the prisoners, but in what quality this observation is. The POC law seems to have opened the doors to closed institutions at first, but last year they slammed shut again. Who joined the new members of the supervisory commissions? These are former FSIN officers, heads of colonies (!), Police officers, prosecutors, investigators. Last year, not a single human rights defender was able to get there in the regions, although their candidacies fully met all the stated criteria. In Nizhny Novgorod, Olympiada Usanova was expelled from the Public Monitoring Commission (ONK). She made more trips to colonies and pre-trial detention centers in a year than all other members of the PMC combined, wrote many complaints. For this, apparently, they kicked out. Former employees of the services come to the places of such active observers, who do not make visits at all, and if they do, they see nothing, but write beautiful reports”, - says Olga Sadovskaya.

To eliminate the gaps, Merkachyova proposes to single out torture in a separate article of the Criminal Code of the Russian Federation, classify torture as a particularly serious crime and introduce responsibility for it up to life imprisonment.

"The principle of inevitability of punishment for these crimes has been violated. Citizens' allegations of torture and bullying are simply not registered, and those cases that still enter the stage of investigation end with inexplicably mild punishments for the torturers. And this confident feeling that they will get their own is the main problem. POCs in Moscow and the regions are inundated with thousands of complaints from prisons and pre-trial detention centers about torture. Their number is growing. But, according to my data, in 2020 (the past months) the authorities received no more than 1000 applications from all over Russia. And only 3% of those who applied later can prove torture in court. Cases are being conducted against unidentified persons, although the victims name their tormentors by their last name, first name, patronymic, identify them, and participate in confrontations with them. All are actually installed and more than once. Cases are dragging on, they are not being conducted. They don't stand up to criticism at all. It comes to the point that people bring the judge videotapes that clearly capture the torture being investigated, but the court makes decisions not in favor of the victims. When, on rare occasions, tortured employees are convicted, this is most often just a suspended sentence. Criminals with proven guilt remain at large", - says the human rights activist.

The introduction of a life sentence will not change anything. On the contrary, the authorities will be even more reluctant to start and investigate cases against their colleagues, knowing that they are facing such a severe punishment, Olga Sadovskaya is sure.

Operational officers who torture suspects always wear the same uniform as the investigator. Together they go to searches, to the courts, together they collect case materials, often operatives act on the direct instructions of the investigator. They have worked together in neighboring premises for many years. An investigator is always his own person for an investigator, and a suspect is a common enemy. And then suddenly this investigator is asked to put his closest colleague in prison. This will not happen. A raven will not peck out a crow's eyes, human rights activists comment.

- Although the proposal to toughen the responsibility for torture will allow to extend the terms during which the perpetrators can be brought to criminal responsibility. On the other hand, such an initiative can only worsen the situation. The number of cases initiated will decrease. The number of investigations will decrease. Abandoned casualties increase. The only driver here is the inevitability of punishment. In order to be able to attract to a single person all the employees involved in torture and giving such orders, it is necessary first of all to overcome the closed nature of these special institutions, says Sadovskaya.

To improve the quality of torture investigations in Russia, Sukharev and Merkacheva propose to create a separate special unit under the Investigative Committee of the Russian Federation.

"The structure should be independent of the police, the Federal Penitentiary Service, the prosecutor's office, be deprived of all interdepartmental ties, deal with and be focused only on cases of torture. The resolution of these cases should become the only indicator of the effectiveness of the newly created structure. Thus, it will be possible to break the mutual guarantee and exclude the factor that operatives and investigators working with each other should then punish each other for the joint work", - says Merkachyova.

"The very idea of an independent structure is good. But I am very surprised to learn today that the authors of the initiative do not know anything about the fact that such a separate special department under the Investigative Committee already exists - since 2012! And it's completely ineffective. It employs a staff of 60-80 people. We constantly overwhelm this special unit with requests to investigate certain tortures and do not receive answers. And investigations too. The first task of this unit was to check against Igor Kalyapin, the chairman of the Committee Against Torture, for incorrect, about their views, human rights activities to prevent torture", - says Olga Sadovskaya.

In her opinion, the problem of torture in Russia can be solved only by systematic work in aggregate in three directions: the applicability of sanctions and the inevitability of punishment; increasing the transparency of the penitentiary system in Russia; improving the quality of investigation of crimes of torture.

Deputy Ivan Sukharev speaks cautiously about the time perspective of introducing a bill on the criminalization of torture in the State Duma: “At least two months”. While the project is at the stage of the so-called zero readings - discussions in expert groups and with colleagues in the Duma, in the Committee on State Building and Legislation. According to him, no joint analysis with the Government was carried out.