Why the European Court takes the side of the Russian citizens


01 March 2016

A week ago the European Court for Human Rights (the ECHR) passed a ruling in favor of Aleksandr Andreyev from the Orenburg region, having awarded 26 000 euro as a compensation for moral damage inflicted to him by the police which illegally apprehended and tortured him in 2005, as well as by the inefficient investigation of these facts by the investigative authorities. Lawyer of the Committee for the Prevention of Torture Timur Rakhmatulin comments on why the Strasburg judges time after time take the side of the Russian citizens in the controversy with their state:

«Let us start with the fact that every decision taken by the European Court for the Human Rights always indicates that the national law-enforcement system has failed. Any statement of the fact of violation of the European Convention tells that the Russian Federation, represented by its law-enforcement and judicial bodies has not performed the necessary work in order to protect its citizens from arbitrary behavior of the representatives of their own state.
Firstly, if the European Court has passed a ruling against the state, it means that the violation itself was performed by the state representatives themselves: the police officers, the penitentiary officers, the military etc… The cases in which the Committee Against the Torture used to be involved and in which the Committee for Prevention of Torture is involved at the present time, most often feature the violence and torture by the police officers and correction officers. These violations are expressed in inflicting physical and moral suffering aiming at, for example, obtaining the confession from the suspect or in the battery of the delinquent convict aiming at punishing, teaching a lesson, putting the disliked convict in his proper place. These are the most common cases, but in the practice of the Committee there have been others, too: for example, when a witness is tortured in order to extract the evidence of guilt of the other person, or when a state institution, which is supposed to provide medical assistance, poorly performs its duties, which results in a death of a man or his grave physical sufferings.

Secondly, the ruling passed by the European Court means that the state has not only violated the rights of the citizens but that this violation was not investigated in a proper way. For example, the ECHR in its practice of examining the cases of violation of Articles 2 and 3 of the European Convention («right to life» and «prohibition of torture») a long time ago elaborated a set of important criteria which are used for evaluating the efficiency of the investigation conducted by the state: thoroughness, promptness, independence, fairness, timeliness and public disclosure.

Of course, it is hard to find any thoroughness or promptness, when, for example, in the case of Yelchaninov  the investigators questioned the witness only three years after he submitted the report about the crime committed against him.

It is hard to speak about any promptness when in cases of Nimatov, Ferapontov and Sadovsky the identification of the police officers whom the applicants complained against, was performed only six years after the crime against them was committed. How the investigation can be called efficient if out of all the officers identified by the young men, only two of them found themselves on the dock? The rest of them escaped responsibility because a lot of time passed since the crime was committed: either the victims failed to identify some of the police officers, or the period of limitation for initiating criminal proceedings against the police officers, who saw the crime but did not prevent it, expired.

How can the investigation be called objective and fair if conducting verification activities and special investigation activities is often assigned to representatives of the same bodies which the applicants are complaining against? For example, the investigators of the Investigative Committee of Russia are actively involving the police officers in cases when the suspects belong to the police force, and investigation of cases where suspects are correctional officers is often conducted by the representatives of the same force. The fairness criteria is often violated by the investigators when they build all their conclusions exclusively on the evidence from the law-enforcement officers (the suspects themselves or their colleagues), thus ignoring the evidence from the victims and witnesses.

Another negative phenomena which has become widely spread in the practice of the investigators of the Investigative Committee of the Russian Federation, is passing a series of illegal refusals to initiate criminal proceedings in response to reports on crimes committed by law-enforcement agency representatives. Investigators, having received crime reports, after some time pass refusals to initiate criminal proceedings. This ruling sometimes is quashed by authorized bodies (by the head of the investigative body, by the Prosecutor’s Office or by the court) due to its obvious illegality. Then investigators pass another refusal to initiate criminal proceedings, which is often identical with the previous one to the word. And this can go on forever. The investigators passed 17 illegal refusals to initiate criminal proceedings in the mentioned case of Ferapontov, Nimatov and Sadovsky, 10 refusals – in the case of Zhdan, 13 refusals – in the case of Elchaninov, 14 – in the case of Zontov. It should be pointed out that this malpractice of passing a series of illegal rulings sometimes cannot be overcome by anything, even appealing against these rulings in the Russian court – time after time the investigators continue to issue illegal rulings and we time after time appeal against them in court. That is when we have to turn to the European Court of Human Rights.

Thirdly, I would like to point out the role of the Prosecutor’s Office. The assessment of its activity is often provided by the European Court for Human Rights in its rulings in concrete cases. Undoubtedly, the Prosecutor’s Office role is very important, since it is this organization that monitors the observance of the Russian Federation legislation by all the state bodies, including the investigative bodies. It is the Prosecutor’s Office that expresses in court the view concerning the legality or illegality of the investigators’ rulings. The Prosecutor’s Office has a lot of authority to influence all the applicable legal mechanisms for restoring the citizens’ rights, that is why one should not underestimate this institution. Very often it is the Prosecutor’s Office that quashes the illegal rulings of the investigators after human rights defenders applications, but, unfortunately, sometimes it can be vice versa: when the Prosecutor’s Office becomes an obstacle for restoring the citizens’ rights of access to the courts and effective remedy. The vivid example is the Zontov case, whose complaint was communicated by the European Court to Russian authorities last year. In this case it was the Prosecutor’s Office that quashed the investigator’s ruling on initiating criminal proceedings. Most likely, in their ruling in the Zontov case the Strasbourg judges will dedicate a few paragraphs to this circumstance and the role of the Prosecutor’s Office in the investigation conducted based on Yury Zontov’s complaint.

And, at last, it is important to say a few words about the role of the judicial system of Russia. It is the court that performs justice, and perhaps whether or not the guilty party is punished, the citizens’ rights are restored and the rights that cannot be restored are compensated, depends on the judicial system a lot more that on anything else. After all, in order to apply to the European Court of Human Rights, a citizen first has to exhaust all domestic remedies, and certainly the main remedy will always be the court. However, the court often takes the side of the law-enforcement representatives, and their rulings protect those who should carry responsibility for inefficient investigation or illegal ruling.

Another serious problem which we face in our practice is cases when citizens who complained about torture were convicted for committing some crime. If there is a verdict against the person who suffered from torture, the investigators without any shade of doubt issue unmotivated refusals to initiate criminal proceedings, and the courts declare these rulings to be legal, saying that the citizen was convicted for the committed crime and his torture allegations are just a way to escape criminal responsibility. At the same time the courts do not evaluate the quality of the conducted check or investigation based on torture complaint. What is that? A corporate solidarity and anxiety that the establishment of torture can lead to quashing of a sentence, pronounced by their colleagues-judges? One can only guess.

The European Court of Human Rights evaluates not only whether human rights were violated but also what was done by the state to minimize and compensate the inflicted damage, what was done to punish the guilty party, what was done to prevent such violations in future.

Unless law-enforcement agencies represented by the police, the Investigative Committee, the Prosecutor’s Office and the courts make all possible efforts to restore the violated rights and freedoms of their citizens, the Russian citizens will keep winning the cases in the European Court.

But the worst thing is not that Russia will be paying large sums as compensations for its citizens’ rights, but the fact that unless Russian law-enforcement and judicial system learn to protect the citizens from the abuse of power by representatives of the state itself at the national level, the legal nihilism, distrust to the law-enforcement and to the law as a whole will thrive in our country.

In the end I would like to point out that the complaint of Aleksandr Alekseyev is one of the first ones, submitted way back by the Committee Against Torture on behalf of the citizen from the Orenburg region. Thirteen more complaints about torture and inefficient investigation of these facts, submitted to the European Court of Human Rights of behalf of the citizens of the Orenburg region, are waiting for their hour. And it is our state that determines whether the number of the Russian citizens, submitting complaints to the ECHR, will increase and whether the rulings on human rights violations, hard-hitting for Russia, will multiply. I would be glad if there is no more of such rulings. And there will be none, if the Russian citizens’ rights will be protected here, in Russia».

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