A few words about the pre-investigation check using the example of one case


16 November 2016

Chairman of the Supreme Court of the Russian Federation Vyacheslav Lebedev made a submission to the Presidium of the Supreme Court of the Russian Federation оn the necessity of resuming the case based on the complaint of Aleksandr Andreyev from Orenburg who won 26 000 Euro in the European Court of Human Rights as a compensation. 

Notably, the Chairman of the Supreme Court, in his submission justifying the necessity of resuming the proceedings based on Andreyev’s complaint, reproduces the opinion of the European Court of Human Rights: “The mere fact of refusal of the investigative authorities to initiate criminal proceedings based on justified complaints against brutal treatment serves as evidence of the state’s failure to fulfill its obligation on conducting an efficient investigation. Despite the fact that the applicant provided a convincing statement on brutal treatment by the police, the investigative body rejected his claims as ungrounded based on the results of the pre-investigation check. Meanwhile, such important investigative activity as identification, which would enable to identify the police officers, supposedly applying brutal treatment against him, could be performed only after initiating the criminal proceedings”.

The European Court has indicated before that the pre-investigation check based on the complaints of the police torture is not an effective legal mechanism (case “Lyapin against Russia”), since in its framework it is impossible to establish the party which is guilty of torture.

Recently ombudsman Tatyana Moskalkova voiced an opinion on uselessness of the check stage, since: “as of today by the time of the pre-investigation check, which lasts for a month, the persons involved in a case have no clearly defined status – neither of a victim, nor of a suspect/defendant. Also, citizens are compelled to provide testimony twice: first in the course of the questioning during the check, and then – in the course of interrogation during the investigation. At the same time, during the period of pre-investigation check the evidential basis can be irretrievably lost”.

At the same time, it is worth reminding to the Investigative Committee’s investigators and to the judges, that the case of Mr Andreyev from Orenburg is not the only one where the official investigation conducts the pre-investigation check for months or years.

With regards to some of our complaints there are dozens of refusals to initiate criminal proceedings. In all the cases it means that the most important evidence is lost: video records, that could feature batteries of the detained persons at police departments or at penal institutions, are destroyed; witnesses forget a lot of important details, and with every passing day it gets more complicated to find witnesses, and sometimes witnesses just die;  important documents are destroyed due to expiry of the storage period – these documents could contain important data on illegal violence; in the framework of pre-investigation check it is impossible to perform a number of important investigative activities (identifications, interrogations, face-to-face confrontations  – all these can be performed only within the framework of an initiated criminal case). Often a criminal case is initiated when it makes no sense to perform some important investigative activities, for example, identification, since victims cannot identify who tortured them if years passed after the event.    

That is why I think that it is important to remind the investigators over and over again that in every case when they evade from initiating criminal proceedings against the representatives of law-enforcement authorities, replacing the full-fledged investigation with a check, they potentially increase the number of complaints lodged with the European Court of Human Rights and increase the sums of compensations awarded to the Russian citizens, which are, by the way, paid from our “shared pocket” – the Russian Federation’s budget. 

As our practice shows, the criminal cases on torture are initiated even after many years passed – the Lyapin’s case is a good example of this. The problem is only that these homebred Sherlocks have little chance to catch up with all that they missed during the time of endless pre-investigation checks….  

As for the case of Andreyev, who was tortured when he was only 17, no-one is going to be punished by now, no matter whether the criminal case is opened or not.  

The period of limitation for bringing to criminal responsibility for those who tortured him expired a year ago.

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