On April 11 at a special session of the Presidential Council for Civil Society and Human Rights “Police reform: problems and prospectives of civil society involvement” human rights defenders submitted a joint proposal against unlawful violence in law enforcement bodies addressed to the Russian Investigative Committee Head to Dmitry Medvedev’s Counsel Mikhail Fedotov. The proposal suggests creation of a specialized department for investigation of police abuse allegations.
Below you can find the text of the proposal.
To the Head
Of the Russian Investigative Committee
Dear Mr. Bastrykin!
We applaud your support of the idea of creating a specialized department under the Russian Investigative Committee for investigation of crimes committed by state agents, as well as your close attention to this category of crimes in general.
From our practice we know how investigative authorities deal with abuses of office, especially with crimes involving ill-treatment. We have appealed against thousands of unlawful decisions refusing to instigate criminal proceedings, suspending pre-trial investigations or terminating criminal proceedings, we have hundreds of criminal cases under which law enforcement agents have been found guilty by courts on our account. We propose creation of a special department for investigation of abuse of office allegations basing on our experience of legal support of police abuse victims, interaction with criminal investigators, findings of analyses and studies.
Our proposals do not presuppose amending federal legislation, but suggest expansion of existing norms and regulations by means of agency-specific legislative acts passed directly by you, which does not entail substantial expenditures.
We understand that it is impossible to completely eradicate tortures as a social phenomenon. Hence, our proposals aim at decreasing the number of acts of unlawful violence committed by law enforcers (agents of the Russian Interior Ministry, Russian Federal Drug Control Service, Russian Federal Penitentiary Service, Federal Security Service, Russian Investigative Committee) and raising effectiveness of the official response to such incidents.
We can single out several groups of reasons that impede prompt, complete and objective investigations of law enforcers’ crimes:
1. Conflict of interests: Investigators of the Russian Investigative Committee dealing with general crimes (murders, rapes, etc.) also investigate allegations of abuse of office, including in respect of Interior Ministry, Federal Drug Control Service and Federal Security Service agents with whom they cooperate in the framework of disclosing general crimes. Thus, in case of tortures, the Investigative Committee staff basically has to investigate cases against their colleagues, which excludes objectiveness.
2. Delayed notification of competent investigative authorities about signs of crimes by officials, in particularly, police abuse: at present all medical facilities report about cases of infliction of injuries (the so called 03 reports), including tortures by the police, to local police departments. Practice shows that upon receipt of 03 reports police department heads often either try to conceal such reports from the Investigative Committee or put pressure on the victim to make him/her withdraw the application.
3. Absence of a detailed description of the investigative procedure (methodology) for torture cases: in fact, an investigator acts at his discretion (for instance, in respect of whether or not the crime scene should be examined), which makes checks incomplete and investigations under this category of cases superficial.
4. Lack of thorough systematic control over such category of cases by the Russian Investigative Committee, as a result of which checks and investigations are supervised randomly and inconsistently.
5. Restriction of public control over investigations into the allegations of ill-treatment.
These factors can be eliminated, provided relevant measures are taken while establishing a specialized department under the Russian Investigative Committee for investigation of crimes committed by state agents. We kindly ask you to consider the list of possible measures targeted at improving the quality of work and effectiveness of the aforementioned department.
Proposals with regard to the structure of the specialized department under the Russian Investigative Committee for investigation of crimes committed by state agents
1. The specialized department should have the following functions: conducting preliminary (pre-investigative) checks of all crime reports alleging abuse of office by agents of the Russian Interior Ministry, Russian Federal Drug Control Service, Russian Federal Penitentiary Service, taking procedural decisions under such crime reports basing on the findings of checks, conducting an investigation under instigated criminal proceedings.
2. Offices of the specialized department can be set up on the regional level or for territories inconsistent with the civil boundaries of Russian regions.
3. Local offices of the specialized department should not be subordinate and reporting to regional Investigative Administration heads.
4. Investigators of the specialized department under the Russian Investigative Committee should under no circumstances be involved in checking allegations of and investigating general crimes.
5. Operative support provided to investigators of the specialized department of the Russian Investigative Committee should ensure independence and impartiality of preliminary checks and investigations. The responsibility for choosing a body providing operative support should lie with the specialized department investigator. When deciding on operative support, the investigator should ensure independence and impartiality – key criteria of an effective preliminary check and investigation of crimes by officials.
6. The specialized department of the Russian Investigative Committee should be staffed with investigators most experienced in successful solution of crimes by officials. Investigators transferred to the specialized department must undergo additional training aimed at development of necessary skills and competencies related to investigating allegations of police abuse.
Proposals with regard to prompt notification of the specialized department of the Russian Investigative Committee about alleged abuse of office by law enforcers
7. The Investigative Committee Head should issue a decree obliging police departments, as well as regional Investigative Administrations, to immediately submit all crime reports alleging crimes by agents of the Russian Interior Ministry, Russian Federal Drug Control Service, Russian Federal Penitentiary Service to corresponding specialized departments of the Investigative Committee in charge of investigating law enforcers’ crimes.
8. The Investigative Committee Head and Prosecutor General should issue a joint decree establishing that in case prosecutorial workers learn about actual or alleged injuries of persons kept in temporary detention units, remand prisons and other detention facilities, they should immediately notify the specialized department thereof for it to conduct a check. A preliminary check under such cases should be commenced irrespective of whether or not the prosecutorial check is over.
9. The Investigative Committee Head and Interior Minister should issue a joint decree establishing that the specialized department should be immediately notified of instances when injuries are revealed on persons kept in temporary detention units. The notification must be made irrespective of whether or not the inmate complains about ill-treatment or makes a statement. The specialized department should check every report in order to find out the circumstances in which injuries have been sustained. A similar joint decree should be issued by the Investigative Committee Head and Russian Minister of Justice in order to ensure that the specialized department is notified about injuries of inmates kept in Federal Penitentiary Service facilities.
10. The joint decree of the Investigative Committee Head and Interior Minister should envisage immediate submission of copies of all complaints and reports alleging crimes by internal affairs and police agents received by all Interior Ministry bodies to the specialized department. A preliminary check under such cases should be commenced irrespective of whether or not the Interior Ministry’s service check is over. Similar joint decrees should be issued by the Investigative Committee Head and Russian Minister of Justice (in respect of complaints and reports about crimes allegedly committed by Federal Penitentiary Service agents), and by the Investigative Committee Head and Federal Drug Control Service Director (in respect of complaints and reports about crimes allegedly committed by Federal Drug Control Service agents).
11. Together with the Russian Ministry of Healthcare and Social Development the Investigative Committee should pass a decree obliging medical facilities to immediately inform the specialized department about injuries, if the person with injuries claims that they have been inflicted by Interior Ministry, Federal Penitentiary Service or Federal Drug Control Service agents, if the person with injuries has been delivered to the medical facility by Interior Ministry, Federal Penitentiary Service or Federal Drug Control Service agents, or there are other reasons to believe that injuries could be inflicted by police, Interior Ministry, Federal Penitentiary Service or Federal Drug Control Service agents. The specialized department should promptly check such incidents and take urgent investigative steps to determine the origin of injuries. In particular, on March 30, 2012 in Kazan the Tatarstan Prosecutor praised that proposal at the meeting with representatives of human rights NGOs. At present a joint decree on the regional level is being considered.
12. A similar joint decree must be issued by the Investigative Committee Head and Russian Minister of Justice to oblige medical specialists working within the penitentiary system to report relevant incidents to the specialized department of the Investigative Committee.
Proposals with regard to performance assessment system for the specialized department of the Russian Investigative Committee and monitoring the quality of the department’s work
13. It is necessary to secure the practice of permanent procedural control over refusals to instigate criminal proceedings under complaints about crimes committed by Interior Ministry, Federal Penitentiary Service or Federal Drug Control Service agents. In case of issuing a refusal, investigators of the specialized department should be obliged to submit materials of the check to procedural control departments for evaluation within 1 day. Procedural control departments of regional Investigative Administrations of the Investigative Committee should not be in charge of checking specialized department investigators’ decisions.
14. General performance assessment standards used for investigative departments and directorates of the Russian Investigative Committee should not be used for the specialized department. The Investigative Committee must not use internal statistics and reports as a basis for assessment of specialized departments’ performance. At the same time, it is recommended to stop using internal statistics as the key criteria of performance assessment for other investigative departments of the IC as well.
15. The performance assessment system for the specialized department should be developed with the help of the academic community, experts and relevant NGOs. We are ready to submit our proposals regarding evaluation criteria for performance evaluation of the specialized department separately.
16. Regional specialized departments should prepare yearly reports about their activities to be published in mass media and also report to regional legislative bodies.
Proposals regarding the method of inquiry into crimes of ill-treatment committed by law enforcement agents
We support your proposal to work out a method for investigation of such crimes and suggest narrowing the investigator’s margin of appreciation under this category of cases by creating a clear and precise list of urgent and minimum procedural steps to be taken. Corruption is facilitated by a wide margin of appreciation of officials. The Russian Anti-Corruption Act (Federal Law “On prevention of corruption”) requires elimination of factors encouraging corruption from the legislation.
17. In order to create a methodological basis for investigators of the specialized department it is necessary to approve guidelines for investigating crimes of ill-treatment by law enforcement agents. The guidelines should reflect international effective investigation standards, in particular, those documented in ECtHR judgments concerning tortures by the police (militia) in Russia. Investigators assigned to the specialized department must be obligatory trained on contemporary techniques used for solution of crimes by officials and effective investigation standards acknowledged in the UN and Council of Europe.
18. At present the following list of steps to be taken to check and investigate into the allegations of crimes of ill-treatment committed by officials could be introduced by a decree of the Russian Investigative Committee Chairman:
– instigation of criminal proceedings in case of any death in law enforcement bodies or medical facilities after delivery from law enforcement bodies. There have been cases when the authorities tried to disguise a murder at a police station by presenting it as suicide, heart attack, etc. Every death in a state body is an accident which usually has causes and factors facilitating it, therefore, there must be an adequate response. By way of illustration, a similar practice has been introduced for deaths in the army by a decree of the Chief Military Prosecutor, as well as for deaths in a traffic accident by the Russian Interior Ministry. Now criminal proceedings are investigated upon each fact of death in the army or traffic accident, as only a thorough and comprehensive investigation can establish the truth, which is impossible in the context of a procedural check.
– upon receipt of a report about police abuse the duty investigator should immediately inspect the alleged place of crime and obtains video records with limited retention period shot by surveillance cameras. At the moment such practice exists in case bodies with signs of violent death or rape are found.
– thorough examination of the crime scene and documentation of traces of crime;
– detailed questioning of individuals alleging ill-treatment and law enforcement agents named by the applicant;
– similar questioning of cell-mates and other possible eye-witnesses, including applicant’s relatives, especially when they were waiting in the law enforcement facility;
– withdrawal and inspection of documents which are the basis for the applicant’s detention and custodial placement. Our practice shows that in the majority of cases unlawful violence is preceded by forgery of documents (detention and administrative offense reports)
– withdrawal of applicant’s medical records (including ambulance records) and their submission for a forensic medical examination;
– questioning of doctors who provided medical assistance to the applicant (including EMS doctors);
– immediate appointment of a forensic medical examination and ensuring that it is conducted. Quite often a forensic medical examination is appointed too late which makes it impossible to assess the applicant’s injuries and leads to the loss of evidence.
Proposals regarding composition of the working group tasked with development of an action plan for creation of the specialized department under the Russian Investigative Committee for investigation of crimes committed by state agents
19. The working group tasked with development of the structure and order of operation of the specialized department under the Russian Investigative Committee for investigation of crimes committed by state agents should include representatives of the academic community, relevant NGOs and experts. Our organizations are ready to participate in this working group and provide analytical and other materials based on our investigation and litigation experience and analysis.
In our opinion, the following specialists should be included into the working group:
Olga Gnezdilova, lawyer, human rights programmes coordinator of GROZA Movement
Nikolay Zboroshenko, co-coordinator of programmes for public control over law enforcement agencies of the Youth Human Rights Movement
Igor Kalyapin, chairman of INGO “Committee Against Torture”
Tamara Morschakova, PhD in Law, professor, retired Russian Constitutional Court judge, member of the Independent Legal Expert Council
Alexander Nazarov, lawyer, deputy chairman of the Public Council under the Federal Penitentiary Service Directorate for Krasnoyarsky Kray, member of the Academic Consulting Council under the Krasnoyarsky Kray Investigative Administration, member of the Expert Council under the Krasnoyarsky Kray Ombusman
Sergey Nasonov, PhD in Law, member of the Independent Legal Expert Council
Asmik Novikova, Public Verdict Foundation expert
Sergey Pashin, PhD in Law, professor, retired federal judge, member of the Independent Legal Expert Council
Mara Polyakova, PhD in Law, chairwoman of the Independent Legal Expert Council
Natalia Taubina, Public Verdict Foundation director
Alexey Titkov, senior expert of the Regional Policies Institute
Pavel Chikov, Chairman of AGORA Interregional Association of Human Rights NGOs
Olga Shepeleva, Public Verdict Foundation expert
Igor Sholokhov, Kazan Human Rights Centre chairman, member of the Academic Consulting Council under the Tatarstan Investigative Administration
Moscow Helsinki Group, Civil Assistance Committee, INGO “Committee Against Torture”, Public Verdict Foundation, AGORA Interregional Association of Human Rights NGOs , GROZA Movement, Youth Human Rights Movement, Krasnoyarsk Kray Public Human Rights Committee, RNGO “Man and Law”, Russian NGO “Don Women Union”, Information Freedom Foundation, “Public Control”.