Joint proposal of Agora and Committee Against Torture concerning eradication of unlawful violence in law enforcement agencies and increasing the effectiveness of investigations into such cases

Событие | Пресс центр

03 April 2012

To the Head

Of the Russian Investigative Committee

A.IBastrykin

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 have made the torture practice widespread:

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. Absence of a detailed description of the investigative procedure (methodology) for torture cases: in fact, an investigator acts in 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.

3. Lack of systematic control over such category of cases by the Russian Investigative Committee, as a result of which materials of checks and criminal cases are inspected randomly and inconsistently.

4. Restriction of public control over torture cases: Investigative Committee investigators systematically deny applicants and victims access to the materials of checks and criminal case files in breach of law, which deprives the latter of a possibility to appeal against procedural decisions.

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.  

In order to eliminate these causes we suggest taking the following further steps:

1. The new specialized investigative department within the Russian Investigative Committee should have subordinate departments in Investigative Committee Administrations in Russian regions. These departments must be staffed with investigators having most extensive experience in investigating abuses of office. Specialized departments must be subordinate to Investigative Administrations of Federal Territories, which would exclude their dependence on regional authorities. For the purpose of ensuring independence, the internal regulation establishing specialized departments must prohibit investigation into general crimes by such departments, as well as interaction with non-specialized (local) operative groups of law enforcement bodies. Operative groups for investigation into abuses of office should only contain agents from Internal Security Departments (of the Interior Ministry and Federal Penitentiary Service) and Federal Security Service.

2. Together with the Russian Ministry of Healthcare and Social Development the Investigative Committee should pass a decree organizing direct submission of all reports about injuries sustained in law enforcement bodies or as a result of state agents’ actions to the Russian Investigative Committee for a check and immediate investigation. 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.

In particular, such proposal was supported by the Prosecutor of Tatarstan during a meeting with representatives of human rights NGOs on March 30, 2012 in Kazan. At present the Tatarstan authorities consider passing a joint decree on the regional level.  

3. Instigation of criminal proceedings in connection with deaths in law enforcement bodies or medical facilities, provided the patient had arrived from a law enforcement body, must be made mandatory. Our practice shows that there have been instances when the police tried to represent murders in police departments as suicide, death as a result of a 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.

4. We welcome your proposal to develop a procedure for investigating into crimes of officials and suggest narrowing the investigators’ margin of appreciation by strictly defining a minimum list of p investigative steps to be taken. Official’s discretion is one of the factors facilitating corruption. The Russian Anti-Corruption Law requires elimination of such factors by legislative means. At present a list of investigative steps can be introduced by a decree of the Russian Investigative Committee head:

– upon receipt of a report about police abuse the duty investigator should immediately inspect the alleged place of crime. 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 the applicant and law enforcement agents named by the applicant;  

– similar questioning of cell-mates and other possible eye-witnesses, including applicant’s relatives 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 records);

– 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 ordered too late which makes it impossible to assess the applicant’s injuries and leads to the loss of evidence.

5. It is necessary to establish the practice of continuous procedural control over refusals to instigate criminal proceedings under crime reports alleging tortures. Investigators must be obliged to submit materials of the check to the local Procedural Control Department of the Investigative Administration of the Russian Investigative Committee within 1 day upon issuing a refusal to instigate criminal proceedings for this decision to be checked.

6. It is necessary to establish the practice of conducting service checks in respect of investigative authority heads and investigators, in case there are several unlawful refusals to instigate criminal proceedings. Introduction of such practice will raise personal responsibility of investigators taking decisions under this category of cases.

We are offering you our support in development of these and other specific measures aimed at increasing the effectiveness of investigations into cases of this category.

Taking into account your statement that investigative bodies should pay special attention to reports about police abuse submitted by the public, we are attaching a list of cases (107 materials) selected by human rights NGOs in 12 Russian regions specifically for this purpose.  In each case applicants applied to local investigative authorities with medical records confirming injuries.

InterregionalAssociationofHumanRightsOrganizations “Agora

Interregional Human Rights Organization “Committee Against Torture”