The Russian human rights organizations welcome the efforts of the Russian legislators aimed at introducing the criminal responsibility for applying tortures, but consider the proposed changes to the Criminal Code of the RF to be highly regrettable. The draft legislation in this form excludes the separate criminal content “torture”, proposing to introduce a “qualifying indicator” in the existing articles of the Criminal Code “abuse of office” and “compulsion of evidence”, instead. In essence, introducing a new separate article of the Criminal Code “torture” is being replaced with some surrogate norms. We think that the adopting the draft legislation in the proposed form will not lead to eradicating torture in Russia and will not allow effectively bringing all the culprits to responsibility.
On 20 December 2021, the draft legislation No. 42307-8 “On introducing changes to the Criminal Code of the Russian Federation” was submitted to the State Duma of the RF. This draft legislation does not introduce a separate “torture” article in the Criminal Code of the RF. Instead, supplements to two articles of the Criminal Code of the RF are proposed: Article 286 (abuse of office) and Article 302 (compulsion of evidence).
Fourth part may now appear in Article 286: “abuse of office with the use of torture”. Thus, “torture” is considered not as independent crime but as the extreme degree of grave “abuse of office”. In such a way, the logics is assumed according to which, there exists some duty which has risks of turning into torture”.
However, the Russian law-enforcement authorities do not have such duties, and using this, in essence, surrogate article of the Criminal Code now is a consequence of this hopelessness that the Supreme Court acknowledged. In its Instruction of the Plenum (dated 16 October 2009 No.19) “On judicial practice on the cases of abuse of office and exceeding official authority”, the Supreme Court assumed that abuse of official authority also involves the actions which no one may perform in any circumstances. The new draft legislation proposes to formalize the approach which is paradoxical from the legal point of view, caused by the absence of the dedicated element of crime “torture”.
In addition, turning “torture” into a qualifying indicator of article “abuse of office” does not allow making the responsibility for torture more severe – namely, taking into account the “group character” of the crime or its performance “by previous concert”. The known cases of torture tell about the contrary — the criminals more often act in a group, in a very coordinated and organized way, distributing the roles among themselves. The proposed draft legislation simply excludes the mere possibility of precise qualification of such criminal actions.
The proposed definition of “torture” exсludes the responsibility of those with the knowledge and acceptance of whom the tortures are performed. It directly contradicts to the definition of “torture”, established in Article 1 of the Convention against tortures and other brutal, inhumane or degrading treatment and punishment, adopted by the General Assembly of the UN on 10 December 1984. It means that only the front line would be able to brought to responsibility, and the provisions provided by the draft legislation will not cover the heads of the institutions where the people are regularly tortured.
In addition, since Article 286 of the Criminal Code of the RF has a period of limitations, and the draft legislation does not provide for any special regulation in the part of the period of limitations for the introduced fourth part of the article, the cases, initiated under this article, will be attributed to extremely grave crimes with the period of limitations of 15 years. However, such crime as torture should not have a period of limitations.
On the one hand, the changes proposed to Article 302 of the Criminal Code of the RF, expand the possibilities of its application. For example, the convicts are additionally introduced in the category of persons who can be exposed to compulsion of evidence. In addition, “another law-enforcement officer” is added to the list of the persons with regards to whom this norm may be applied. Until now, only the investigators and the interrogating officers were the subjects of the application of this article, and this article was practically never used, because in the majority of the cases it was not the investigators who performed tortures.
On the other hand, expanding Article 302 at the same time introducing a new part in Article 286, which also covers the compulsion of evidence, does not make much sense. In other words, the proposed framework results in duplicating the norms which will inevitably lead to arbitrary administration of the law.
Therefore, the changes proposed in the draft legislation:
- exclude “torture” as a separate crime
- do not qualify “tortures” in accordance with the intentionally accepted definition, thus failing to correspond to the recommendations of the international human rights agencies, in particular, of the Committee Against Torture with the UN and the Council of Europe, repeatedly adopted with regards to the Russian Federation
- do not attribute “tortures” to the crimes without the period of limitations
- do not introduce such important qualifying indicators of tortures (increasing the severity) as the group character and the previous concert.
- do not allow bringing to responsibility the heads of the institutions, for example, penal colonies or police departments, on the territory of which tortures are being applied
- do not allow maintaining clear and transparent statistics on torture cases and, as a result, will prevent the society and the authorities from obtaining a full impression on how wide-spread tortures in Russia are.
We are convinced that at least three components are required for effective fighting torture in our country:
- a separate norm in the Criminal Code of the RF, criminalizing torture and not allowing applying periods of limitations
- effective enforcement of this norm, including the investigation which leads to establishing the culprits and to fair verdicts
- independent civil monitoring
Providing the first component fully depends on the legislative authorities. We urge the deputies of the State Duma to take a critical view of draft legislation No.42307-8, and introduce the necessary changes in it:
- introduce a separate “Tortures” norm/article in the Criminal Code of the RF in full accordance with the definition of tortures in Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
- supplement it with necessary qualifying indicators, in particular, relating to the group character of the crime and the previous concert,
- establish that periods of limitations do not apply for this norm.
In addition, it is important to introduce changes in existing Article 302 of the Criminal Code of the RF (compulsion of evidence) and part 3 of Article 286 (abuse of office with the use of violence) in order to exclude the qualification of torture under these articles.
The statement have been already signed by
“Public Verdict” Foundation*
“Memorial” Human Rights Center*
“Civic Assistance” Committee*
The Committee Against Torture
Prisoners’ Rights Support Foundation*
Human Rights Council of Saint-Petersburg
Human Rights Institute*
The Moscow Helsinki Group
Leonid Agafonov, “Woman. Prison. Society” human rights project
Valery Borschev, co-chairman of the Moscow Helsinki Group
Grigory Mikhnov-Vaytenko, priest
Aleksandr Verkhovsky, Director of Information Analysis Center “Sova”*
Yury Dzhibladze, human rights defender
Grigory Durnovo, OVD-Info*
Igor Kalyapin, member of the Presidential Council for development of civic institutions and human rights
Roman Kachanov, Chairman of the Interregional Center of Human Rights, Ekaterinburg
Sergey Krivenko, member of the Management Board of the “Memorial”* International Society
Leonid Krikun, defense lawyer
Lev Levinson, human rights defender
Evgeniya Litvinova, St.Petersburg Human Rights Council
Sergey Lukashevsky, Executive Director of the Sakharov Center*
Karinna Moskalenko, defense lawyer
Asmik Novikova, head of research programs of the “Public Verdict”* foundation
Oleg Orlov, head of the Council of the “Memorial” Human Rights Center*, member of the Management Board of the “Memorial”* International Society
Ella Polyakova, human rights defender
Aleksey Sokolov, Director of “Legal Framework” Association, Ekaterinburg
Natalya Taubina, Director of the “Public Verdict”* foundation
Alla Frolova, human rights defender
Valentina Cherevatenko, Chairman of the Foundation of Assistance to Human Rights and the Civil Society Development “The Women of the Don”
Aleksandr Cherkasov, Chairman of Human Rights Center “Memorial”*, member of the Management Board of the “Memorial”* International Society
Elena Shakhova, Chairman of the Management Board of the Saint-Petersburg NGO “Civic Monitoring”*
Liliya Shibanova, human rights defender
*organization/project compulsorily added by the Ministry of Justice to the “foreign agents” register