“Tortures require an article. Member of the Human Rights Council Igor Kalyapin on why there is a need to include law-enforcement officers abuse of people in the Criminal Code”, Kommersant

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31 January 2019
Photo: Irina Buzhor / Kommersant

In September 2018, the Civil Society Institutions and Human Rights Council under the President of the Russian Federation (Human Rights Council), recommended to the Government to consider including new article “Torture” in the Criminal Code of the RF, based on which only officials would be punished. The Human Rights Council issued this recommendation to the authorities after scandals with tortures of convicts in the Yaroslavl region penal colonies which were recorded on video cameras. On 28 January of this year, the Council disclosed the responses from the FSB and the Ministry of the Interior. The responses claim that such a measure is excessive, since the law-enforcement officers are brought to responsibility for torture, anyway. “Kommersant” publishes an opinion of member of the Human Rights Council, Chairman of human rights organization “The Committee Against Torture” Igor Kalyapin, who explains why torture requires a dedicated article of the Criminal Code.

Head of the Human Rights Council Mikhail Fedotov already commented on the responses from the FSB and the Ministry of the Interior in the capacity of a theoretical scientist. He said that criminalization of torture is necessary, because the legislation should be put right in order to be logical. Today, term “torture” is used a synonym of “torment”. There is Article 302 of the Criminal Code of the Russian Federation — compulsion of evidence using torture. There is Article 117 of the Criminal Code of the RF (torment), in the comment to which it is indicated that this is forcing to something against the man’s will, if he is inflicted psychic or moral sufferings. But there is an international definition of the legal term “torture” – in the UN Convention Against Torture. It says that tortures involve sufferings which are inflicted by an official – representative of authority with a specific objective – or in order to force, or to punish, or through discrimination motives. And all the participating states accepted the obligation that they would criminalize this content – introduce responsibility to their criminal codes for these tortures. And Russia also took this obligation.

In our country, I repeat, the notion of torture is explained in Article 117 of the Criminal Code of the RF, which can be used for prosecution of anyone but officials. For them there is a separate section in the Criminal Code of the RF – crimes of officials. And no official will be responsible for torture based on Article 117 of the Criminal Code of the RF.

They will get prosecuted under Article 286 of the Criminal Code of the RF (abuse of office). And that reference in the comments from the FSB and the Ministry of the Interior that one may get prosecuted under Article 117 for applying torture, — it’s not just lack of understanding, it’s completely conscious lying. I don’t think that legal departments of the FSB and the Ministry of the Interior hire incompetent lawyers. They all know that only a civil person – a citizen – may be prosecuted under Article 117. If a neighbor sticks a solder gun into his neighbor, it’s Article 117 – torment. If the same thing is done by a police officer, it’s Article 286: he did that in a capacity of the representative of authority. And all lawyers understand that here it’s a completely different element of crime: a police officer used his official powers. And Article 286 of the Criminal Code involves any office crime. If a police officer illegally knocks out the door in an apartment and breaks into it and if a police officer tortured a helpless person in handcuffs, all this is now qualified as abuse of office. And the FSB with the Ministry of the Interior pretend that they don’t understand what is the difference between knocking the door out and infringement against human life and dignity. For them it’s all the same, it’s all in one article of the Criminal Code.

That is why, when the FSB and the Ministry of the Interior say that today one may be prosecuted for torture, they are right. But, I remind you, that Russia ratified the Convention of the UN Against Tortures. By doing this we acknowledge that we understand the difference between common illegal actions and intended infliction of sufferings by a representative of authority. Our legislators pretend that they don’t understand this difference. Legal experts point at that lack of logics in the legislation.

As a man of practice, I think it’s important to mention another aspect. Our country is a bureaucratic one, and all the actions of the police officers, investigators and prosecutors are prescribed by instructions. We have instructions for investigations of thefts, robberies, plunders. But we have no procedures in place for investigating complaints against tortures by law-enforcement officers.

And we are facing the situation when investigators cannot perform urgent actions for months: examination of the incident scene, questioning of witnesses, searching for video records. And we think that this is done intentionally, as in a month or two the records will be erased, and it will be impossible to establish the time when physical injuries were inflicted. And formally, the investigator does not violate anything, as he does not have a guideline. And it is related to the fact that the bureaucratic space does not feature such a notion as torture.

It is also necessary to identify who will be investigating torture by law-enforcement agencies. Now the investigators are not capable to investigate the crimes of local police officers, as those open the doors with their feet. Such cases should be sent above.

In the Committee Against Torture we checked over 2 thousand complaints for 15 years, we found evidence of inflicting torture in 200 cases, and this does not mean that other complaints are cooked-up. We brought 68 cases to court, 130 police officers were convicted based on them. But these figures show nothing but the quality of our work. Instead, practically in every of 68 cases we faced the resistance of the investigators, who refused to initiate criminal cases. We insisted through court that the investigator’s ruling shall be quashed, they waited for a month or two and then issued another refusal, and we went to court again. This could linger for years, but ended with a judgement of conviction, anyway.

When a normal element of crime appears in the Criminal Code – torture, committed by officials, then we will have statistic data on these crimes, specific parameters on detection rate. We will be able to see how many applications are there, how many charges are brought, how many cases reach the court and how many judgements of conviction are announced. Now we have statistic data only with breakdown by articles: no one will single out torture out of all the crimes under Article 286 of the Criminal Code of the Russian Federation. Nonetheless, the state needs to know what is going on in this sphere. Take embezzlement — there are several types of it. Covert embezzlement is a theft (Article 158 of the Criminal Code of the RF), theft by deception is swindling (Article 159), forcible embezzlement is stealing openly (Article 161), and forcible embezzlement with the use of weapons is robbery (Article 162). And the state understands the statuses of how these are being fought using the statistics of each of these crimes.

And that is why we will insist on our stance with regard to the new article in the Criminal Code of the RF. I promise: while I’m alive I’ll keep raising this issue with the President of Russia. We will talk with deputies, Prosecutor’s Office, Investigative Committee, the Ministry of the Interior, the FSB, the Federal Penitentiary Service. I can guess that some people in the Ministry of the Interior and the FSB think they cannot do without torture. But this is out of accord with the state line: it’s not fighting the crime but adjusting the rates. Which means that law-enforcement officers do not have the evidence of the suspects’ guilt. When there is evidence, one does not need torture.

Recorded by Anastasia Kurilova
Source: Kommersant