The court and the investigation do not consider the person who suffered from torture to be a victim

Событие | Пресс центр

22 April 2020

Yesterday, on 21 April 2020, judge of the Lyublinsky District Court of Moscow Vladimir Kuznetsov declared the ruling of investigator with the Investigative Committee of Moscow Aleksandr Zatsepin to be legal – for over a year he refuses to declare Nikita Mikheyenko a victim (under his complaint the criminal case on police torture was opened). Lawyers with the Committee Against Torture, representing the interests of Mikheyenko, will appeal against this ruling in the court of appeals.

On 14 September 2016, Nikita Mikheyenko was apprehended by criminal investigation of the Department of the Interior for Schukino District of Moscow. He and an acquaintance of his were accused of drugs storage and preparations for selling. Back at the police department, the investigative officers demonstrated to Mikheyenko a black bag with drugs allegedly found in his backpack. In addition, according to Mikheyenko, the police officers inserted two rolls rewound with a scotch tape, into his jeans, and later on they were seized in the presence of attesting witnesses.

After the attesting witnesses left, the police officers demanded that the apprehended person confessed. Mikheyenko refused.

“The police officer, having thrown the ashes off the burning cigarette which was in his right hand, raised it to my right eye, due to that my eyelashes scorched, then moved it along the right eyelid, and then put it out against the wrist of my right hand”, — Mikheyenko told the Investigative Committee investigator, subsequently.

After that, according to Mikheyenko, three police officers hit and kicked his body, head, groin, feet, threatened him with a gun, put a piece of crumpled paper in his mouth.

According to Mikheyenko, after that the police officers brought him to the toilet, where put a condom which they found in his backpack on the rubber truncheon and passed it over his buttocks, threatening with rape, and then put his head in the sink full of water several times.

Before he was put to the temporary detention facility, Mikheyenko was examined at the first-aid station, where he was diagnosed with the following bodily injuries: “Bruises, extravasations of soft tissues of the parotid area on the right, upper lip, right shoulder joint, right wrist, right shank”.

On 16 September, the court refused to take Nikita into custody, and house arrest was selected as a measure of restraint. On the same day, he was hospitalized with a diagnosis “closed craniocerebral injury”. He spent seven days in hospital, after the release he was under the neurologist’s supervision.

On 15 September, Nikita complained to the head of the police department about torture, later on this crime report was forwarded to the Investigative Committee. However, the criminal case on abuse of office with the use of violence (item “a” of Part 3 of Article 286 of the Criminal Code of the Russian Federation) was initiated only on 4 October 2018 after repeated complaints against the inaction of the investigative authorities.

This ruling, in particular, stated that: “On 14 September 2016, unidentified police officers of the Department of the Interior for Schukino District of Moscow performed the abuse of office by applying physical violence against detained N.A.Mikheyenko, having beaten him and inflicted bodily injuries”.

Despite the opened criminal case in which it was stated that it was Mikheyenko who was beaten up at the police department, the investigator refused to declare him a victim. With regard to this, in September 2019, Nikita applied for legal assistance to the Committee Against Torture.

Having examined the motion submitted by Nikita Mikheyenko on declaring him a victim in the criminal case and on involving his representatives in the case – the lawyers with the Committee Against Torture – Deputy Head of the Lyublinsky Interregional Investigative Department of the Investigative Committee for Moscow Aleksandr Zatsepin, who is in charge of this criminal case, dismissed this motion. The investigator stated that “analyzing the materials of the criminal case, as the present time it does not appear possible to confirm which illegal activities inflicted damage to N.A.Mikheyenko and what exactly the damage was, due to absence of conclusive finding of medical forensic examination. Accordingly, N.A.Mikheyenko cannot be declared a victim”.

Lawyer with the Committee Against Torture Petr Khromov strongly disagrees with such a point of view of the investigator: “According to the law, the decision on declaring someone a victim is taken by the investigator immediately after initiating the criminal proceedings. In our case, investigator Zatsepin debarred this legal right of Mikheyenko, having provided some highly questionable arguments that at the present time it is not possible to determine how exactly and how severely the victim was beaten up. However, in the sense of Article 42 of the Criminal and Procedural Code of Russia the important thing is the fact of inflicting the physical damage and not its severity”.

Human rights defenders appealed against the investigator’s refusal to declare Mikheyenko a victim to the Lyublinsky District Court of Moscow. Yesterday, judge Vladimir Kuznetsov dismissed the complaint on declaring the investigator’s ruling to be illegal.

In the rationale of the court ruling it is stipulated: “The investigator is authorized to lead the investigation on his own, take decisions on performing investigative and other procedural activities… At the same time, dismissing the motion does not violate N.A.Mikheyenko’s constitutional rights, because Mikheynko is not deprived from the possibility of re-submitting this motion”.

“We are surprised and disappointed by this ruling of the court, which did not see the violations of Nikita Mikheyenko’s constitutional rights to access to justice, – Petr Khromov comments. – However, this right is obviously violated: without a procedural status of a victim, Mikheyenko is not notified of dismissing and resuming the criminal case, cannot appeal against these rulings, does not have a right to familiarize with the materials of the case which was illegally dismissed once before, but later on was resumed. We shall definitely appeal against this court ruling and will be insisting that Nikita Mikheyenko’s rights are observed”.