It is getting more difficult to gain access to the materials of the check performed by the investigators of the Investigative Committee in relation to torture cases, point out the lawyers of the Committee for Prevention of Torture and the practicing lawyers, basing on their experience. The investigation uses a lot of tricks so that the process of familiarization would become cumbersome and take maximum amount of time.
The Constitution of Russia obliges the state authorities to provide the citizens with the documents related to their rights and freedoms. This obligation also covers the materials of Investigative Committee pre-investigation checks of the crime reports. However, in practice it is often problematic to familiarize with such materials due to a number of reasons.
These reasons include a timeline of making a decision on providing the applicant with materials. The thing is that Article 121 of the Russian Criminal Procedural Code, prescribing to review the motion in the period not exceeding 3 days from the date of its application, applies to the criminal cases which have already been initiated. The law does not regulate the issue of reviewing motions prior to the case initiating. Logically, norm 121 of the Russian Criminal Procedural Code should apply also to the stage of the pre-investigative check. However, the investigators think otherwise and, in our view, illegally review motions submitted at the stage of conducting the check or at the stage when it has been already conducted and no criminal is opened, within 30 days, referring to department regulations.
The second reason which often leads to difficulties in familiarization with materials is virtual impossibility to establish actual location of the material at the moment of the familiarization.
Let us provide some examples.
So, let us assume that the applicant waited for the required period of 30 days of the check, then applied with a motion (application) on familiarization. Its review took 30 more days, after that he received the cherished permission for familiarization with the following wording: «you can familiarize with the materials in the Investigative Department when is convenient to you». However, when you come to the Investigative Department you may be told that the material is not available for this or that reason: it was sent for the check to the Prosecutor’s Office, to the Procedural control department, handed over to another department, requested at court etc. Such materials transfers, as a rule, are legal.
What should be the reaction to such original refusal? This issue was discussed by one of the lawyers of the Committee for Prevention of Torture during the personal appointment in the office of the administration of the Investigative Department of the Investigative Committee of the RF for the Nizhny Novgorod region. According to the Investigative Committee’s opinion, official notification on transfer of material to the corresponding authority should be obtained, and after that one should apply there afterwards. However, there is no warranty that the material will be in the indicated location and not sent for a «walk» along the authorities and the situation will not reoccur. Taking into account that it required to write the corresponding motion for every link of this chain, which then is reviewed within a certain time period, the effectiveness of this mechanism also raises some doubts.
The third reason that often complicates the applicants’ access to the materials of the pre-investigative check is quashing of the last ruling (refusal to initiate criminal proceedings, in our case) and submitting the material for conducting additional check. On one hand, the problem resolves itself – the problem is solved, there is nothing to quash. On the other hand, issuing rulings, their quashing and announcing others may last for many months. At this point the applicant does not have opportunity to influence the pre-investigative check progress since he cannot familiarize himself with the materials of the check. Most commonly it leads to loss of potential evidence, for example, video shooting from external surveillance cameras in the police department, which according to internal rule are stored only for 30 days.
Since the torture is prohibited by the norms of international law, which are mandatory for execution on the territory of Russian Federation, one could say about systematic violation by the Russian Federation of the European Convention and the Convention against torture. The state does only have the duty to abstain from illegal violence, but also to effectively investigate such cases.
The occurrence of this fact is pointed out not only by the lawyers of the Committee for Prevention of Torture, but also by practicing lawyers who work in the sphere of criminal law and proceeding. At the present time there are no effective instruments for solving the problem. Going to court every time when it is necessary to familiarize with the materials of the case means to overload the judicial bodies. In addition, the judicial procedures, despite their reliability unlike the other mechanisms, unfortunately, are not very quick to execute, which may finally impact the results of the investigation. As a rule, the investigator in charge of the check materials and the investigative department representative submits the procedural ruling on refusal to initiate criminal proceedings, sending the case for additional investigation. In this respect there is a need to formalize in legislation the investigator’s duty to familiarize the applicant with the materials immediately after the procedural ruling within the specific timeline established by the law. So far such a legal norm is not in place.
Lawyers from Nizhny Novgorod comment on the situation.
Evgeny Goubin: «Very often the materials are sent back and forth: they pass the ruling and then quash it, then all over again, they create red tape, do not allow familiarizing. Alternatively, they say that the materials are under check (meaning, procedural, i.e. by the superiors, or in the Prosecutor’s Office – author’s note), that is, they are not available in the department, and it is not known when they are back. As a result everything is settled in court exclusively».
Ruslan Sozonov: «Never the familiarization process has been without problems. But the investigators are often dishonest and provide the materials only after a direct complaint to his superior or to the court. Sometimes the investigators are decent folk and tell about the situation as it is, that so far there is no opportunity of familiarization, one can make an agreement with these ones».
Due to the necessity of drawing the attention to this problem at the high level, lawyers of the Committee for Prevention of Torture will submit an application to the central office of the Investigative Committee of Russia.