Home Library Investigation and judicial decisions on torture cases: An analysis of cases executed by the Public Verdict Foundation and its regional partners
Investigation and judicial decisions on torture cases: An analysis of cases executed by the Public Verdict Foundation and its regional partners
The Russian Federation, being a party to the UN Convention against tortures and European Convention for the protection of human rights and fundamental freedoms, is responsible for preventing torture and cruel and humiliating treatment within its boundaries, the effective investigation of the complaints about human rights violations, the criminal prosecution of the guilty and compensation to the victims.
Torture is prohibited by the current Russian laws: in paragraph 2, article 21 of the Constitution of the Russian Federation, article 9 of the Criminal Procedure Code and article 117 of the Criminal Code of the Russian Federation. In the article 117 of the Criminal Code of the Russian Federation "torture in this and other articles of the Code is defined as actions causing physical or moral suffering for the sake of evidence or in order to make a person do any other thing contradicting his will or used as a punishment measure". At the same time Russian laws do not have special norms stipulating punishment for the use of torture by official representatives of the state. Such crimes in the most typical cases are treated as the exceeding of official commissions (article 286 of the Criminal Code of the RF), abuse of power, forgery by an official and crimes against a person. The laws provide victims of torture and cruel treatment with the opportunity to receive compensation for the damage, including moral damage, from the means of the state budget. At the same time criminal prosecution of those guilty for tortures and the decision to provide compensations are impossible without an effective investigation able to determine the fact of torturing and in particular the guilty people.
The experience of Russian human rights organisations reveals that lack of effective investigation of the complaints about tortures and cruel and humiliating treatment today constitutes one of the most serious problems in the fight against these human rights violations.
According to international standards the investigation of cases of torture and cruel and humiliating treatment can be considered effective if complying to the four main principles: speed, thoroughness, independence and the victim's access to the investigation process.
Speed is one of the most important qualities of effective investigation, and means that the investigation should both start as soon as possible upon receiving a complaint or any other information about torture and should lack unfounded delays. It means that collecting the evidence should be immediate so that important evidence is not lost.
Thoroughness implies that within the framework of the investigation all necessary measures should be taken at the due time in order to clarify the circumstances, find and take into account all important evidence, and identify the guilty. Thoroughness also means that all contradictions and gaps in evidence should be eliminated.
Independence of the investigation means that the person or body carrying out the investigation should be independent. First of all, one should guarantee independence of interrogation officers from the presumed suspects as well as from the bodies and structures in which they work. Officials who could be responsible for torture should neither participate in the investigation nor take part in decision-making process at the end of this investigation. Independence of investigation implies objectivity of the conclusions (i.e. these conclusions should be grounded neither entirely nor partly on the positions of the officials suspected in committing the crimes).
Victim's access to the investigation means that victims as well as their relatives and representatives should have opportunity 1) to participate in investigation, 2) to present the evidence that should be allowed to be entered upon the record, 3) to receive information on the investigation process and decisions taken in connection with it or as a result of it.
According to international standards, the application of the above mentioned principles should be based on the principle of investigation transparency due to the particular danger of such crimes. It means that the results of the investigation should at least become public.
It is important to mention that all the aforementioned qualities and principles of the international standards of the effective investigation are reflected in the Russian legislature on the level of the Constitution and laws as well as on the level of the normative acts of the General Prosecution Office of the RF and Investigative Committee of the RF attached to Procuracy.
Hence, one can assume that legislative conditions for effective investigation of torture and cruel treatment cases have been created. However, experience shows the opposite.
The Public Verdict Foundation has been providing legal assistance to victims of human rights violation committed by law enforcement officers since 2004. In total the Foundation has been working on about 350 cases. The majority of these cases (about 80%) are cases of torture and cruel treatment. Analysis of process of the investigation of torture and cruel treatment cases executed by the Public Verdict Foundation and its regional partners shows that violations of the international standards of the effective investigation and Russian normative acts by investigation bodies attached to prosecution offices are a common practice.
In many cases investigation bodies attached to prosecution offices take unlawful procedural decisions to dismiss criminal complaints which are later cancelled by higher courts or prosecutors. The fact is that there can be several dismiss-cancellation circles before a criminal suit is eventually brought to the court accounts for a loss of crucial evidence.
The case of Loginova E.E. (Novokuznetsk, Kemerovo oblast) can make a good example of this trend. In September 2008 Loginova E.E. was unlawfully detained and subjected to administrative liability for an offence. During the detention procedure the police officers unlawfully used force against her, thus inflicting bodily injuries. The latter were registered in the note of medico-legal examination. Loginova E.E. submitted a complaint about the actions of the policemen. As a result of the check upon this complaint, the investigator delivered eleven orders of refusal to initiate criminal procedures, which later were acknowledged as unlawful and ungrounded and were reversed by both the head of the investigative body and the court. The view of the place of occurrence was conducted only nine months after the event, as a part of the check, which has been going on for already one year. It is obvious that over such a long period of time all evidence had been lost. Despite the medical certificate submitted by the plaintiff, which proved bodily injuries, the investigation did not conduct a special examination, which would have allowed to register the nature of the injuries, their localisation and way of infliction. Instead, the investigators questioned several times a medical expert who was not able to give unambiguous and clear conclusions about how these injuries were inflicted.
Another example of violations of the above-mentioned principles and their consequences is a case involving the death of Vanifatiev V.V. (Volgograd). On October 13, 1995 Vanifatiev V.V. was found dead in his flat. After his death, the victim's sister, Vanifatieva I.V. reported missing money, her brother's documents and some other property. Besides, she guessed that her brother died through violence and submitted a respective complaint to the investigative bodies. Five months later the criminal action was finally initiated, however only on theft charges. All requests of Vanifatieva I.V. to conduct a forensic test of the corps, which would allow to find out the reason of her brother's death (thanatopsy was not conducted) were not satisfied. The expertise was arranged only 8 months after the death. According to the conclusion of the expert, "eight months has passed and as a result of a biological decomposition, it is impossible to either define or confirm the illnesses registered in the death certificate... it is also impossible to find whether the body contained any poisons, apart from salts of heavy metals, since they deteriorate in decomposing tissues. Intoxication from the salts of heavy metals does not have an obvious form but has a distinctive clinical findings, which are not present in the corps of Vanifatiev V.V." To sum it up, the untimely expertise resulted in impossibility to define the reason of the death of Vanifatiev V.V. At the same time the investigative bodies kept on conducting checks over the next 10 years, delivering more than 20 unlawful orders of refusal to initiate criminal action for this case and it was only in 2005 that it was initiated. However, due to impossibility to determine reasons of the death, the pre-trial investigation was suspended on the grounds of impossibility to find a guilty person.
Temporary or final termination of the prejudicial investigation of a case by investigation bodies attached prosecution offices that are later reversed by the higher investigation body or courts are also common practice.
On the 7th of May 2004 Nagatinskaya interdistrict prosecution office of Moscow initiated against unidentified policemen a criminal action on infliction of bodily injury to Noskov on the 21st of March 2004 under the article 286, part 3, paragraph "a" of the Criminal code of the RF. The suspects in the case were Bolkunova E.V., Pukhov K.S., Popov Yu. A., officers of the fourth department of the operational-investigation unit (ORCh) of the Criminal Police (KM) attached to the Department of the crime detection (OUR) of the Directorate of internal affaires (UVD) of the South Administrative District (YuAO) of Moscow. The suspects and the victims were confronted and on the 1 April 2005 the prejudicial inquiry was suspended on the basis of the article 208, part 1, paragraph 1 of the Criminal Procedure Code of the RF. And only almost 2 years later, on the 29th of January 2007 the prejudicial inquiry was renewed. Bolkunova was charged on the 12th of February 2007, Pukhov and Popov - on the 13th of February 2007, i.e. all necessary investigation actions were carried out and the guilty were determined during 2 weeks. On the 29th of October 2007 Nagatinsky district Court of Moscow found all three guilty in the crime under the article 286, part 3, paragraph "a".
Analysis of the investigation of the torture and cruel treatment reveals lack of a due thoroughness, i.e. that not all necessary and possible measures are taken, witnesses are not interrogated, the evidence of the victim is not taken into consideration (cases described above are good illustration of such practice) while the versions of policemen become a base for investigation theories.
On the 13th of January 2004 at about 1.30 a.m. minors Aplekayev and Darovskikh were at the night club from where they were delivered to the Central UVD of Yoshkar-Ola. At the police premises they were unlawfully beaten with special items (rubber truncheons) by the police officers. A year later on the 7th of December 2005 a suit on exceeding official duties by a policeman and beating of Aplekayev and Dorovskikh was initiated under the article 286, part 3, paragraph "a" of the Criminal Code upon approval of the acting deputy Prosecutor of Mariy El. On the 7th of June 2006 the prejudicial inquiry was suspended in accordance with the article 208, part 1, paragraph 1 of the Criminal Procedure Code of the RF. This order was appealed to the Prosecutor of Mariy El and on the 7th of August 2006, i.e. 2 months later, it was reversed by the acting Prosecutor of the Republic Mariy El as ungrounded and premature because the investigation officer had not taken all necessary measures. Among the latter there were confrontation between victims and witnesses, elimination of essential contradictions in their evidence, checking the evidence of the victims on the spot, interrogation of the duty officer of the police department where the minor victims were delivered and unlawfully kept, i.e. measures that should have been taken on initial stages. On the 12th of July 2007 the city court of Yoshkar-Ola found a detective guilty in exceeding official duties with the usage of force and special items (article 286, part 3 of the criminal Code).
Violation of the principle of the victim's access to the investigation is also quite wide-spread. This principle is violated both at the stage of a preliminary check, when law-enforcement bodies deliver orders of refusal to initiate an action, and when an investigation is already going on. However the nature of the violations in these two cases is different.
The article 42 of the RF Criminal Procedure Code specifies the victim's rights during an investigation of the criminal case. For example, the victim is entitled to read protocols of the investigative actions, which involved him, resolutions to conduct expertise and its results, as well as to submit evidence, file a motion etc.
Investigative bodies do not prevent the realisation of the right to file evidence, however only pro forma. Petitions of a victim to adduce evidence to the materials of the case, conduct an inquiry etc. are accepted, but in most cases are left unsatisfied. As a rule, the investigator explains the reasons for refusal to satisfy the petition. Often the victim does not agree with the reasoning provided by the investigator, however, there is little chance for him to appeal it, as according to the article 38 of the RF Criminal Procedure Code, an investigator conducts the procedure independently and is entitled to make decisions on the investigative actions on his own.
Similar violations were numerous in the criminal case, initiated against policemen on charges of the murder of Shchiborshch K.V., committed as a result of exceeding limits of necessary defence. Shchiborshch K.V. suffered from a mental disease and was in need of hospitalisation, however he refused to be hospitalised voluntarily. His father tried to persuade him to go to the hospital voluntarily, however, it didn't bring the wanted result. As the health of Shchiborshch K.V. started deteriorating sharply and hospitalisation was inevitable, the father asked police to help with the hospitalisation. Detention operation involved use of physical force and special means. As a result, right after the delivery to the hospital Shchiborshch K.V. died from numerous bodily injuries.
As a part of the investigation into the case, there were conducted three forensic tests by experts of the same specialisation. The conclusions of the experts contained ambiguous information. Besides, the conclusion which became a reason to terminate the criminal case, was later acknowledged by the controlling medical body as conducted with violations of the current legal requirements for such documents. The controlling medical body also stated necessity to involve an expert of a different specialisation, i.e. necessity to conduct a comprehensive expertise. This statement is registered as a separate act. The victim requested to adduce this act to the materials of the criminal case and to conduct a comprehensive forensic expertise. However, the investigator left the request without satisfaction because he found that act as an insufficient reason to conduct a comprehensive expertise. Instead he ordered to conduct an ordinary expertise, which, as it was already noted, was acknowledged by specialists as incapable to return unbiased conclusions.
At the stage of a preliminary check the violation of the principle of victim's access to the investigation is different and results from a lack of a clear wording of the right of a plaintiff for an insight in the RF Criminal Procedure Code. This often gives grounds for investigative bodies to deny a right of a plaintiff to study the materials, thus not allowing him to draw a sound and well-motivated appeal in case of refusal to initiate criminal proceedings.
The article 24 of the RF Constitution obliges state agencies and their officials to guarantee everyone a right to study documents and materials directly affecting their rights and freedoms, if not stated otherwise in a law. Thus, any information, apart from state secrets, confidential data, involving official, professional, commercial etc. activities, must be available to a citizen. Since the limits can be set only by a law, and the article 148 of the RF Criminal Procedure Code (refusal to initiate criminal proceedings) does not contain any restrictions concerning citizens, whose rights and freedoms are involved when an order of refusal is delivered, the investigative body has to provide a plaintiff with an opportunity to study all relevant information of the check. However, in real life this principle is often neglected.
A case of Kurepin I.V. (Odintsovo, Moscow oblast) starkly illustrates such violations. On October 11, 2006 Kurepin I.V., who was detained on suspicion of committing a crime, was found dead in a detention cell of the Odintsovo Directorate of internal affairs. According to the medical examination, the reason of death was mechanical apnea caused by a strangulation with a soft loop. The mother of Kurepin N.I. found on his body numerous traces of beating and cigarette burns. She filed a request to conduct a check on suspicion of possible torture of her son. Odintsovo municipal prosecution office conducted the check, which gave grounds for more than 5 orders of refusal to initiate criminal proceedings. These resolutions were later found unlawful and ungrounded and reversed. The check registered bodily injuries on the corps (racomas and bruises), however the circumstances in which they were inflicted were never investigated. The representative of Kurepina N.I. filed numerous petitions to get access to the materials of the check, however they were all turned down on different grounds, such as: lack of a relevant provision in the law, on-going check after the reversal of the order of refusal to initiate an action, the materials' being reviewed by the prosecution office etc. Thus the representative of the victim was prevented from preparing a sound and well-motivated complaint about the actions of the investigator, who obviously failed to conduct the investigation effectively.
Implementation of the principle of independent investigation also has many obstacles. First of all it is due to particularities of the Russian legislation and organisation of the work of the law-enforcement system as a whole. Russian legislation does not contain special norms, specifying punishment for the torture committed by an official, i.e. a state representative. These crimes are covered by the article 286 of the RF Criminal Code (misfeasance). The analysis of the cases received by the Foundation shows that the majority of the crimes under the article 286 of the RF Criminal Code involving torture, are committed by the officers of the criminal investigation department (37,5%).
The article 151 of the RF Criminal Procedure Code gives a full list of crimes, preliminary investigation for which is laid onto investigative bodies. For example, investigators of the Investigative committee attached to the RF prosecution office among other responsibilities have to look into the crimes specified by the article 286 of the RF Criminal Code.
However, the organisation of the Russian law-enforcement system implies that the operative work on the cases executed by the Investigative committee attached to the RF prosecution office, is laid upon the criminal investigation department. This paradox means that investigators of the Investigative committee attached to the RF prosecution office have to initiate criminal proceedings against their long-term colleagues from the criminal investigation department.
More over, in real life they often fail to ensure independence of a body or a person conducting investigation.
A typical example of such violation could be a case of Vitkevich N.N. (Bryansk). Vitkevich N.N. was driving past 10b Lenin avenue in Bryansk. The traffic was busy and cars struggled to manoeuvre. A quarrel between him and a person then unknown to him (D.A. Patov, a deputy prosecutor of the Soviet district in Bryansk) turned into a fight. Using his official position, Patov called to the police reporting that there was an attack on a prosecutor. The case was handed to the investigation department of the Directorate of internal affairs for Bryansk Soviet district, i.e. a unit, whose work, according to paragraph 5, part 2 of the article 37 of the RF Criminal Procedure Code, is controlled by Patov. Besides, the investigator could not be considered as independent, which violated the principle of equal rights of both sides. As a result of the investigation, a bill of indictment was delivered to Vitkevich. Objectiveness of the investigation is doubtful.
It is worth noting that orders that were found by a head of investigation body as premature and groundless are repealed only after appeals of the victims rather than on the initiative of head of investigators themselves. Another thing important to bear in mind while working out how to increase the effectiveness of the work of investigation bodies attached to prosecution offices is that in the best part of cases investigators are not brought to responsibility (neither discipline, nor criminal) for negligence, lack of necessary measures and unlawful decisions, which lead to impunity and repeated practice of ineffective investigations.
The abovementioned negligence, delays, unlawful decisions make victims wait for years for restoration of their violated rights even when a guilty person is charged with a crime and brought to the court in the framework of the criminal case. From the Table 1 it becomes obvious that in the majority of cases executed by the Public verdict Foundation and its regional partners 1-2 years pass from the report about a crime to a verdict (17 out of 59 cases on which either the decision is already taken or the hearings are held in the court). One should note that in 15 cases victims had to wait for the decision for 6-12 months, in 17 cases - for more than 2 years. Four cases from the last group are completely scandalous because the victims had to wait for the restoration of the justice for more than five, six and seven years.
Table 1: Period of time that passed from the report about the crime until the final decision
Special attention will be paid to the analysis of characteristics of tortures and cruel treatment. The data given below is based on the analysis of 49 cases executed by the Public Verdict Foundation and its regional partners on which sentences had been already imposed by September 2009 (56 cases) or the hearings at court were still being held (3 cases). Geographically the cases are spread across the following regions: Yekaterinburg and Sverdlovsk oblast, Yoshkar-Ola and Republic of Mariy El, Kazan and republic Tatarstan, Kaluga oblast, Moscow, Moscow region, Nizhny Novgorod and its oblast, Novokuznetsk and Kemerovo oblast, Ryazan, Syktyvkar and Republic of Komi, Tula, Chita and its oblast, Cheboksary and Republic of Chuvashia, Bryansk, Khabarovsk, Republic of Chechnya, Krasnodar region, Novosibirsk, Vladikavkaz, Republic of Dagestan, Republiс of Khakasiya, Tver.
In most cases beating (with sticks, truncheons as well as fists and feet) was the main type of tortures, in a number of cases it is accompanied by the enchainment with handcuffs, using a gas mask, humiliating and victimization. In five cases through bodies of victims officers transmitted electrical flow, in one case a victim was tortured with a red-hot iron. Scratches, bruises, brain concussion, fractures are among the most common harm occurred as a result of tortures and cruel treatment. Such harm as a rule is seen as light health damage or does not affect health in a serious way at all. As it is illustrated in the Table 2 half of cases belong to this group (30 of 59 cases). In 9 cases victims received medium health damage, in 10 cases - they suffered serious health harm (in two cases victims became disabled, in one - victim is disappeared) and in 10 cases tortures resulted in death.
Table 2: Damage to health as a result of tortures and cruel treatment
Correspondence of the punishment measures to the health damage is another interesting thing to analyse. In analyzed cases 93 law enforcement officers were convicted and sentenced to various terms (57 to prison, and 34 to probation) and 2 were fined. In the majority of cases the courts decided to debar the accused from holding positions in state bodies for several years in addition to deprivation of liberty. Table 3 shows a stable trend of giving real sentences for tortures which led to the death or serious harm to health, at the same time the sentences range from 1 to 13 years (in fatal cases) and from 2 to 11 years (in cases of serious health damage). Another interesting fact worth to study is that the majority of officers responsible for tortures which led to medium health damage got suspended sentences (from 1,5 to 5 years), while for tortures that resulted in a light health damage they were punished with real imprisonment sentences for 3,5-7 years. For tortures which did not affect health of victims 22 law-enforcement officers got suspended sentences (from 1 to 5,5 years), while 21 others were sentenced to real imprisonment (from 1 to 3,5 years). From the above mentioned observations one can draw a preliminary conclusion that there is still no solid practice on torture cases and sentences are basically personal decisions of judges hearing each particular case.
Table 3: Correspondence of the punishment to the health damage
Table 4 shows that in the best part of cases (28 of 59) tortures and cruel treatment were committed in the police premises, besides, in 14 cases officers being on duty used force against citizens in streets, in 4 cases - in deserted places, in 5 cases - in lodgements or on the territory of military units, on roads (3 cases), in public places and medical department of sobriety, in cars and ambulance hospitals, in underground, private apartment (1 case each).
This raises at least two questions:
- if tortures were used in police premises, then why the suspension of criminal cases was often explained by "impossibility to determine the officers committed crimes ..."?
- if tortures were used in police premises, then why don't investigation bodies attached to prosecution offices check the role of heads of respective departments and why aren't they brought to responsibility?
As a result, the problem of impunity in the Ministry of Internal Affairs (MVD) is aggravating and contributing to the repeated practice of arbitrariness.
Table 4: Place of the crime
Table 5 starkly illustrates that tortures are used predominantly in order to force a person to confess (18 cases out of 59), to demonstrate power and superiority (20 cases out of 59). These results are coherent with a flawed report system when good indices and positive dynamics given poor financing and the lack of qualified officers are achieved by all possible means, including unlawful ones, such as compulsion to confess by force. Frequency of the wish to demonstrate power also corresponds to the social portrait of bodies of internal affairs hiring poor-educated people.
Table 5: Purpose of tortures and cruel treatment
As it was mentioned above, the most often used type of tortures and cruel treatment is beating. Law-enforcement officers as a rule beat with their fists and feet (23 of 59 cases) rather than use any special means, however, in a number of cases they used special items owned by the MVD (handcuffs - in 10 cases, rubber truncheon - in 7 cases, guns - in 9 cases, gas mask - in 5 cases, cat's-eye signal baton - in one case) as well as other conventional means (metal pipe, magazine, plastic bottle filled with water, wooden stick, harmer, piece of wooden chair, gas spanner, red-hot iron, belts - each in one case). A special attention should be paid to the fact that law enforcement officers used electro shocker baton as a torture tools in 5 cases
Table 6: Items used
93 law-enforcement officers were convicted on 56 cases (3 cases of the analysed scope are still on the stage of judicial inquiry). More often officers charged with tortures and cruel treatment are criminal detectives (36 people, 38,7%), policemen (14 people, 15%) and officers of special forces of MVD (8 people, 8,6%). Table 7 shows that law-enforcement officers of higher level are also brought to court (heads of the regular police, department combating economic crimes, the criminal police etc.)
Table 7: Posts of convicted officers
It is worth mentioning that in 16 out of 59 cases (27%) the victims of tortures and cruel treatment are minors. In most cases (12 out of 16) these tortures did not result in any significant health damage, in 1 case they led to light harm, 2 cases they led to the medium harm and in one case - to serious injuries and consequently to death. There are judicial decisions on 14 cases. In 10 cases out of 14 the guilty got suspended imprisonment sentences for 2,5-5,5 years. In 5 cases the one case the officer was charged with other crimes apart from beating minors, in the second case tortures resulted in death, while the two more crimes were broadly covered by press (crime committed against Moscow teenager Nikita Gladyshev and mass beating of several dozens of people in Nizhnee Makopse of Sochi (including 5 minors) by Sochi OMON (special forces of the Ministry of Interior). One could think that crimes against minors should be considered as an aggravating circumstance, however, there is no sign of such a trend.
The analysis described above is based exclusively on the cases which were brought to the human rights organisations by the victims themselves and hence cannot be seen as a full-scale analysis of the all-Russian practice of investigation and judicial decisions on torture and cruel treatment cases. It is better to consider it as revealing a number of trends in applying laws, that if studied thoroughly will help to work out measures to increase effectiveness of the work of the law-enforcement machinery. At the same time one should bear in mind that an all-Russian analysis will be difficult to carry out due to the lack of official statistics of such crimes as tortures committed by functionaries are not described by Russian laws as a separate crime. As a result these cases are treated under the article 286 of the Criminal Code of the RF and are dissimilated in the official records in a general category "Crimes against state authorities, interests of state and local administration".
Conclusions and recommendations
The undertaken analysis demonstrates a lack of the system of the effective investigation of torture and cruel treatment cases which made victims seek a cancellation of unlawful decisions and restoration of the justice for years. Prosecution offices as a rule are not punished for negligence, delays and unlawful decisions. Investigation often does not take into consideration the fact that crimes are committed in the premises of the bodies of the MVD, which are under responsibility of the heads of departments. Hence, as a rule the heads of departments are not brought to responsibility. This practice leads to general impunity and contributes to the continuation of tortures and cruel treatment. In order to fulfil international responsibilities of Russia in this sphere and taking into account a particular danger of these crimes one finds important:
To work out and to introduce guides on the application of international standards of the effective investigation of the torture and cruel treatment cases;
 This and other cases mentioned in the review are executed by the Public Verdict Foundation, whose specialists provide legal, informational and psychological aid to the victims.
October 23, 2009 11:57
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