We publish an alternative draft law available for open access. законопроект мы публикуем в открытом доступе. Use this link to read and download the document.
“Public Verdict” and the Committee Against Torture consider the current draft law which already passed the first reading to be dangerous and useless. “Tortures” in this draft have not been singled out in a separate article in the Criminal Code of the RF. Instead, they are assigned a ill-defined role of abuse of office. The definition in the comment to the draft law contradicts to the international requirements, mandatory for Russia, despite the claims of its authors.
Torture is a severe violation of fundamental human rights. The problem of a public nature — how do we fight tortures — was taken out of the full-fledged discussion. The draft law was presented for the reading without any discussion whatsoever: the formal presentation of the law was reduced to its retelling and complete absence of arguments. The draft itself as well as its examination in the parliament look like a badly concealed attempt of the legislative authorities to reduce the tension existing in the society as soon as possible instead of starting to fight this problem in a consistent way.
Most often, tortures are planned group crime. The draft law completely ignores this: according to the logics of the authors, “torture” is some random activity of an employee who decided to abuse his authority. The experience of “Public Verdict” and of the Committee Against Torture, which achieved over a hundred of real verdicts for the criminals both in police force and in the penitentiary system, tells that torture is always a well-thought, planned and mostly collective activity, supported with thoroughly selected tools of torture. Which means that it is a separate crime of extreme severity, and not a deplorable failure in exercising one’s duties, according to Klishas, Krasheninnikov and Poletayev.
The draft law intentionally and bluntly ignores the integral part of the definition of the Convention, which tells about the culpability of the persons whose silent consent, connivance or encouragement make tortures possible. This part disappeared intentionally, which does not prevent the authors at the plenary meeting from insisting that their draft corresponds to the Constitution. In the closed system of the Federal Penitentiary Service, it is more often that the convicts become executors rather than the detention facilities and penal colonies staff.
Another drawback of the draft developed by Klishas, Krasheninnikov and Poletayev — duplicating the content, when essentially one and the same crime is covered by different articles.
It is presumed that part 3 of Article 286 will continue to be valid. It means that a convenient method of working according to the old ways is created for the law enforcers, together with an overpowering challenge — how to differentiate the abuse of office using violence (Part 3) from abuse of office with torture (proposed Part 4). Thus, the draft law authors actually condemn the investigators to manipulations, and no consistent and predictable administration of the law will be able to emerge.
“The fact that specialized departments (the Prosecutor’s Office, the Ministry of the Interior, the Investigative Committee, the Federal Penitentiary Service) are supporting Klishas’ draft law, in itself indicates that it is extremely bad”, — head of the International Legal Remedy Department with the Committee Against Torture Olga Sadovskaya comments. “If the departments which apply tortures and do not investigate them, totally support such criminalization of tortures, it only means that it suits the purpose to continue with tortures without investigating them”.
The Committee Against Torture and “Public Verdict” foundation jointly developed their own draft law against tortures and brutal treatment. Each of these organizations has been working with this problem for about 20 years, insisting on bringing the persons guilty of tortures to responsibility all over the country and helping the victims to achieve justice at the national and international levels. We know how the law operates in practice and realize how it will work in case the half-baked draft by Krasheninnikov, Klishas and Poletayev is accepted. We are strongly against the proposed draft law.
We publish our alternative draft law against tortures available for access on the website of the Committee Against Torture and suggest that the community and the law making specialists scrutinize it. See this link to read and download the document.
The draft law segregates tortures into a separate element of crime and provides for distinguishing between tortures and other types of brutal treatment.
Human rights defenders’ draft law takes into account the qualifying indicators (aggravating circumstances), such as group character, extreme violence, using the special equipment and other objects, tortures or brutal treatment of minors, pregnant, consequences in the form of severe damage to health, fatality and etc.
Our draft law provides for punishment from 3 to 20 years of imprisonment depending on the gravity of tortures and brutal treatment with deprivation of right to take certain positions and engage in certain activity for the period from 3 to 10 years.
Punishment for tortures must be severe and should not have a period of limitations.
The project of the “Public verdict” and the Committee Against Torture extends the range of the perpetrators of crime: from executive officials to other persons acting in the official capacity. It is necessary, since tortures are applied not only by executive officials, but also, for example, by kindergarten day-care assistants and middle management staff of psychiatric asylums. In addition, the law extends the responsibility not only to direct perpetrators but also to the superiors of the establishments who turn a blind eye to tortures or agree to them. This completely corresponds to the international legal norms.
Applying illegal violence must be extremely dangerous for those who is in charge of the institution at the highest level, knows of tortures being applied, issues instructions, but delegates tortures to their subordinates.
“Fighting tortures is not only a legal norm. Effective investigation, public monitoring, the possibility for the victim to report tortures and have a subsequent access to the investigation progress are also important. But a lot depends on how tortures are criminalized in the country, — Director of “Public Verdict” foundation Natalya Taubina comments. — That’s because it is through the law that the state demonstrates its attitude to the problem and its readiness to fight it. Tortures and brutal treatment are fundamental violation of human rights. Prohibition of tortures is an absolute prohibition, and the international law does not contain any exceptions”.
Now the civil servants have an opportunity to offer a solution of this problem to the society and to the state, instead of inflicting an irremediable blow on human rights by surreptitiously rushing a useless sham.
We ask mass media, public figures, state authorities, NGOs and the activists to help in distribution of the draft law created by the Public Verdict and the Committee Against Torture
“Public Verdict” foundation
the Committee Against Torture