Klishas-Poletayev-Krasheninnikov draft legislation should he regarded as a step forward, that is beyond doubt. But this step does not correspond to the severity of the problem our society is facing. The problem of torture requires a real solution, not some cosmetic measures. The Committee Against Torture provided its own assessment of this draft legislation.
Igor Kalyapin: «At last, a definition of «torture» term will appear in the legislation, the one which corresponds to the definition of the Convention of the UN Against Torture. At the same time, the terms «torments» and «tortures» are differentiated. In the first case, the suffering is inflicted by a private person, in the second case – by the state representative. Maximum punishment for tortures is increased up to 12 years of prison term, which transfers torture to the category of extremely grievous crimes. That is all, as to advantages.
The drawbacks of this legislation are significant and may have long-term negative consequences. «Torture» here is not a separate element of crime, but the circumstance aggravating the guilt in two cases: abuse of office (Article 286 of the Criminal Code) and compulsion of evidence (Article 302 of the Criminal Code). The legislators propose to eternalize torture as a type of abuse of office or compulsion of evidence. It is the same as to declare a murder to be an aggravating circumstances for robbery. I think it is absurd.
The legislation subdivides torture into two types. First one – when a law-enforcement officer tortures a certain category of people (suspects, defendants or convicts). As I understand, it will be qualified as a compulsion of evidence. The second one – when a state representative tortures everyone else. It is not clear what is the sense in such a subdivision. In practice it will mean that if electricity was applied to a person before issuing an apprehension report, it amounts to torture under Article 286, and if after – then it is already Article 302.
Why this mess and diversification for different articles? There is no useful practical meaning of that, but instead a mess with reporting and statistics is created. And these are the main tools of evaluation of official activities and management. The Investigative Committee, which is obliged to investigate all these crimes (and through the fault of which they are not investigated at the present time) will continue throwing dust in eyes of the superiors, international authorities, and in the eyes of us – the society, when they tell how many cases they investigated, keeping silent on how many of them are on tortures».
Dmitry Kazakov: «The authors of the project have chosen the path of least resistance, having identified the term «torture» and introduced the corrections in the existing articles of the criminal code.
That is how the torture formula looks like schematically: applying strong physical or moral sufferings + state representative (who may be acting personally, as well as via third parties by giving them appropriate instructions or just by knowing and agreeing to their actions) + specific objective (compulsion of evidence, punishment, intimidation and etc.).
So, the legislator did not propose us a norm which would fit all the cases that are covered by the described formula. For example, if a Federal Penitentiary Service officer is beating a person on remand at the Pre-Trial Detention Facility forcing him to provide evidence for the criminal case, he will be brought to responsibility according to the article. And if the same officer beats up the same person in remand in exactly the same way in order to punish him for violating the internal regulations – it is a different article already. Although, both cases amount to torture: there is a state representative, illegal inflicting of suffering, specific goal (although a different one).
The draft legislation provides that the criminal responsibility for applying torture and other types of brutal treatment will still be distributed between Articles 286 and 302 of the Criminal Code.
And we are talking only about tortures per say. And, apart from them, there are other types of brutal and degrading treatment (that is when there is an illegal inflicting of suffering by a state representative, but without pursuing a specific goal) – they remained beyond the legislator’s attention altogether. And such cases will still be qualified under Part 3 of Article 286 with all the problems that follow. They involve typical cases of excessive use of force and special equipment during apprehension and mass actions restraint.
It can be said for certain that the draft legislation will not improve the situation with the legal regulation of prohibition of torture and other types of brutal treatment. But, it probably, will not aggravate the situation, either, and, under the current circumstances, that’s something at least».