Open letter by Igor Kalyapin to First Deputy Prosecutor of the Nizhny Novgorod region Vyacheslav Rekhtin

Событие | Пресс центр

30 January 2021

Dear Vyacheslav Leonidovich!

Non-governmental association “The Committee Against Torture” is a Russian interregional human rights organization, the objectives of which include the public monitoring of the situation related to the problem of the spread of torture practices, brutal treatment by state authorities’ representatives and rendering professional legal and medical assistance to torture victims.

Non-governmental organization “The Committee Against Torture” is created with the aim of receiving reliable and verified information on human rights violations in the territory of a number of subjects of the Russian Federation, including in the territory of the Nizhny Novgorod region.

Exercising their constitutional right provided in Article 31 of the Constitution of the Russian Federation, on 23 January 2021 the citizens conducted a public event in the territory of Nizhny Novgorod city. During the public event, the “Committee Against Torture” observers established that the citizens were subjected to random and arbitrary apprehension, and subsequently they were taken to the territorial departments of police with the Department of the Interior of Russia for Nizhny Novgorod, where, in violation of the constitutional right to qualified legal assistance, defense lawyers of the administratively detained were not allowed for a long time (or at all).

In absence of a defense lawyer, without the opportunity of a confidential meeting for rendering a qualified legal assistance to the administratively detained, protocols on administrative offence under Article 20.2 of the Administrative Offences Code of the Russian Federation were issued.

The observers of the non-governmental organization “Committee Against Torture” are aware about the reliably established fact of failure to grant access to lawyers to Police Department No.7 of the Department of the Interior of Russia for Nizhny Novgorod. Refusal of the authorities to provide access to lawyers was motivated by implemented plan called “Fortress” in the territory of the state institution. At Police Department No.6 of the Department of Interior an arbitrary access of lawyers to their clients was introduced. It is known that one of the lawyers was not timely granted access to his clients, waiting for the instruction on his access for several hours. The authorities did not provide any grounds for denying access.

I think that these limitations expressed in untimely access or not granted access of lawyers to the administratively detained are illegal and violate the constitutional right of the detained to qualified legal assistance, guaranteed by Article 48 of the RF Constitution.

The Russian Federation Constitution declares the man, his rights and freedoms to be the supreme value, and based on the fact that the rights and freedoms of the man and the citizen are directly applicable, define the meaning, the content and the application of laws and are enforceable by courts, and the state is entitled to a duty of acknowledging, observing and protecting these rights and freedoms, as well as the personal dignity.

Inalienability of basic human rights and freedoms and their belonging to every person by the right of birth presupposes the necessity of their adequate guarantees. Such guarantees mainly involve the right of everyone to judicial protection, which is universal and serves a procedural guarantee with regard to all the constitutional rights and freedoms and the rights of everyone to receive a qualified legal assistance, which are not subjected to limitation according to Article No.56 of the Constitution of the RF.

According to Article 6 of Federal law No. 63-ФЗ dated 31.05.2002 “On advocacy in the Russian Federation”, the authority of a defense lawyer, involved in the capacity of a representative of the client in constitutional, civil and administrative proceedings, as well as in the capacity of client’s representative or defense lawyer in criminal proceedings and administrative offences proceedings, are regulated with corresponding procedural legislation of the Russian Federation. A defense lawyer has a right to unhampered access to meet his client face to face, in conditions providing for confidentiality, without limitation of the number and/or duration of meetings.

According to Part 1 of Article 18 of the Federal law No.63-ФЗ от 31.05.2002, interference in advocacy performed according to legislation, or hindering this activity by any means is prohibited.

The Code of the Russian Federation on administrative offences allows the person with regard to whom the case on administrative offence is performed, not only using the procedural rights provided by the Code himself, but also to resort to assistance from defense lawyer who may participate in such proceedings from the moment when the case on administrative offence has been opened and is entitled to familiarize himself with all its materials, provide proofs, submit motions and challenges, participate in the examination of the case, appeal against applying against case proceedings support measures or a judgement in a case, apply other procedural rights in accordance with this Code.

As the Constitutional Court of the RF pointed out in its ruling No.308-О dated 12.07.2005, direct interaction with a defense lawyer is an important component of the right to qualified legal assistance which, under the Russian Federation Constitution, is not subjected to arbitrary limitation in any way, including in the part of defining the quantity and duration of the meetings provided with this regard. The federal legislator, as it follows from Articles 71 (items “b”, “o”) and 76 (part 1) of the Constitution of the Russian Federation taken in conjunction with its Article 55 (part 3), is entitled to specify the content of the right stipulated in Article 48 of the Russian Federation Constitution and to establish the legal mechanisms of its execution, conditions and the procedure of implementation, but at the same time cannot allow distorting the essence of this right and introducing its limitations which would not be aligned with constitutionally relevant objectives (Ruling of the Constitutional Court of the RF No. 14-П dated 25.10.2001).

In addition, members of the public monitoring commission of the Nizhny Novgorod region, performing monitoring of human rights observance at penal institutions, it is established that the administratively detained were located in the premises of police departments which were not designated for that (assembly halls), due to that the authority of the members of the commission on monitoring the lawfulness of detention of persons at penal institutions were not performed.

Therefore, all of the above taken into account, and guided by Chapter 2 of Federal law No.2202-1 dated 17.01.1992 “On Prosecutor’s Office of the Russian Federation” I ask to:

  1. Check the lawfulness of the actions of the officers with Police Department No.6 of the Department of Interior of Russia for Nizhny Novgorod, represented by refusal to provide a prompt access of lawyers to the administratively detained on 23.01.2021 for rendering qualified legal assistance;
  2. Check the lawfulness of the actions of the officers with Police Department No.7 of the Department of Interior of Russia for Nizhny Novgorod, represented by refusal to provide a prompt access of lawyers to the administratively detained on 23.01.2021 for rendering qualified legal assistance;
  3. Provide for observance of the right of administratively detained at supervised territorial departments of the Ministry of the Interior of Russia;
  4. Notify me on the results of examination of this application.

Chairman of Non-Governmental Association “The Committee Against Torture”,
Member of the Public Monitoring Committee of the Nizhny Novgorod region,
Member of the Civil Society Institutions and Human Rights Council under the President of the Russian Federation

I.A. Kalyapin