A gaping hole in the criminal code

Torture is endemic in Russia today. Here’s what can be done about it.

There is no article on torture in the Russian Criminal Code. However, torture itself, unfortunately, remains a widespread practice: reports of brutal violence in prisons and police stations appear with frightening regularity. We believe that the use of torture is absolutely unacceptable, and we strive to ensure that as many people as possible are aware of this issue. The following text explains why the Russian Criminal Code needs to be changed — and how introducing a separate article on torture could influence the situation in the country.

Please note. This article was first published in Russian as part of a joint initiative called “The Article that Doesn’t Exist” carried out by the Committee for the Prevention of Torture together with Russian media outlets.

Following the publication of an “archive” of torture videos from a Saratov prison hospital last fall, all of Russia began to discuss the problem of torture — not just human rights activists. In November, Russian senators weighed draft legislation that would strengthen criminal liability for torturing inmates. And on December 20, the text of a new bill appeared on the State Duma’s website. But rather than proposing a new criminal code article on torture, it suggests making amendments to two existing articles.

Is there really no mention of torture in the Russian Criminal Code?

The word “torture” (pytka, in Russian) comes up in Article 117 (Cruel treatment, or istyazanie in Russian)and Article 302 (Compulsion to give evidence). A note to Article 117 defines torture as follows:

“[…] the infliction of physical or mental suffering for the purpose of coercion to give evidence or to commit other actions against a person's will, as well as for the purpose of punishment, or for other purposes.”

However, this definition doesn’t correspond with the international legal understanding of torture, which explicitly addresses the use of torture by representatives of the state. Under the Russian Criminal Code, torture inflicted by prison officials is considered no different from the actions of racketeers extorting protection money from business owners, for example.

Do public officials still face criminal liability under this article?

This is quite rare. In practice, officials are more often charged under Criminal Code Article 286 (Abuse of authority). But this presents its own difficulties.

Firstly, this article is lengthy and, in addition to torture, encompasses many other crimes. Since they aren’t considered separately, this results in a complete lack of statistics on torture cases. What this means is that even the government doesn’t know the true scale of the problem. Since 2002, the UN Committee Against Torture has persistently urged the Russian authorities to criminalize torture and asked for information on how it’s being prosecuted in Russia — in response, the government has offered up statistics on all cases under Article 286.

Secondly there are crimes that Article 286 doesn’t not cover, though in reality they constitute torture. Giving an example, Olga Sadovskaya — a lawyer from the Committee for the Prevention of Torture specializing in international law — recalls a case in Bashkiriya where doctors performed a forced abortion on an 18-year-old girl at the insistence of her parents. Disciplinary action was taken against the doctors for performing a medical procedure without patient consent, but, as a matter of fact, this was an act of torture. “There [weren’t] physical health consequences, but the psychological ones are horrific,” Olga Sadovskaya explains. “And the problem here isn’t that the legislation isn’t being enforced, but that it basically doesn’t regulate this case.”

How often are torture cases initiated under Article 286?

This rarely happens. Getting a case filed is difficult. By law, investigators must first conduct an inquiry and decide whether or not to pursue a full-fledged investigation. As a rule, investigators aren’t eager to parse these situations: to question the victim, track down witnesses, and request surveillance footage. Oftentimes, after conducting a check, they conclude that there is “no evidence of a crime.”

On average, a victim will be turned away six times before a case is initiated — and each rejection has to be appealed. There are cases where refusals have had to be appealed 20 to 25 times. This process can drag on for years. In the Committee for the Prevention of Torture’s experience, 51 percent of real crimes will not see a criminal case. The remaining 49 percent that do are the result of human rights activists getting involved. Without their involvement, not even 10 percent of investigations would be pursued.

When do criminal cases get initiated?

Usually, it’s in one of three instances:

1. If it’s an extremely brutal incident — possibly, resulting in death.
2. If the incident was met with broad public outcry (as was the case after the video leak from the prison hospital in Saratov, for example).
3. If the victims and their lawyers “wear down” investigators and refuse to give up on their case after multiple rejections.

However, it’s important to note that the initiation of a case doesn’t guarantee an effective investigation. The case may be put on hold, dropped, or dragged out for years: on average, it takes three years to obtain a conviction — the record is nearly 15 years. (In fact, that record-breaking case only saw a verdict because it also involved kidnapping charges — otherwise, it would have been terminated due to the statute of limitations, which for torture is currently ten years.)

If it doesn’t render the case meaningless, this slow pace complicates the investigation: by the time investigators request surveillance camera footage, it’s already been erased; by the time they track down witnesses, they’ve already forgotten the details of the incident. Only 20 percent of cases that are opened manage to bring about a sentence in Russian courts, says Olga Sadovskaya. If this fails, human rights activists turn to international institutions — most often, to the European Court of Human Rights.

What’s the prison sentence for torture?

According to the Committee for the Prevention of Torture’s calculations, the average prison term for such crimes is 3.5 years. However, 43 percent of those convicted receive suspended sentences. And as investigations are dragged out, it becomes increasingly difficult to achieve real results.

What would the introduction of a Criminal Code article on torture change?

The introduction of such an article would mean that the Russian state has finally recognized torture as a real and significant problem. And that the authorities are ready to call things as they are, in accordance with international law, and to stop obfuscating torture using the vague charge of “abuse of authority.”

In addition, the state would have an internal incentive to investigate torture complaints — presumably, given the drive to tick every box, cases under an article on torture would have to be reported separately. At present, cases involving torture end up buried in the general statistics on abuse of power cases under Article 286.

There are examples from other countries where criminalizing torture was followed by a decrease in incidents. For example, in Sweden in the 1950s and 1960s, violence against LGBTQ+ people was particularly prevalent in the medical system. “When the first set of legislative measures was adopted, of course, at first, there was a surge in cases, and then there was a gradual decrease, since they really began to combat torture,” says Olga Sadovskaya.

This may also make it psychologically more difficult for law enforcement officers to use violence. The Committee for the Prevention of Torture believes that even the wording of the potential charges could give them pause. Serving time for “exceeding authority” is one thing, but being imprisoned “for torture” is another.

A separate article on torture would also allow for recording all types of ill-treatment, clearly spelling out who can be punished for acts of torture, and what punishments they will face. For example, the UN Convention against Torture specifically states that pain or suffering inflicted “at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” can be considered torture. This would include, for example, prisoners recruited by staff to torture their fellow inmates. Although this is a punishable offense in Russia, it’s not explicitly spelled out in the law.

Finally, criminalizing torture would help improve official statistics. Why does that matter? Because good statistics are needed to understand how many complaints about torture are filed overall, how many are rejected, and how many cases are actually investigated — right now, this a black hole in the statistics. In 2021, the Committee for the Prevention of Torture published statistics based on its own case load. But this data is far from representative: human rights activists simply don’t have the capacity to track the situation throughout the country.

Will the bill submitted to the State Duma solve these problems?

Most likely not, although it won’t make things worse.

The bill introduces the following definition of torture, which corresponds with international standards:

“[...] Any act by which severe pain or suffering, physical or mental, is intentionally inflicted on any person to obtain from him or a third person information or a confession, to punish him for an act that he or a third person has committed or is suspected of having committed, as well as to intimidate or coerce him or a third person, or for any reason based on discrimination of any kind.”

However, as lawyer Dmitry Kazakov from the Committee Against Torture notes, the bill doesn’t stipulate liability for all potential perpetrators and doesn’t provide punishments for situations where public officials have others inflict pain and suffering on their behalf. There is also no liability for other incidents of ill-treatment — for example, for the excessive use of force and special equipment when carrying out detentions or suppressing mass demonstrations. Under international law this too is prohibited.

In addition, the authors of the bill took the path of least resistance: that is, they made amendments to existing Criminal Code articles. Since they didn’t put forward a separate article, the problem of inadequate statistics isn’t going anywhere.

The statute of limitations for prosecution in torture cases is set to be raised from 10 to 15 years. However, the Committee for the Prevention of Torture can point to a slew of cases where investigators dragged their feet for ten years. It’s unlikely that anything will stop them from doing the same thing for a 15-year period. Taking into account the gravity of the crime and the public danger it presents, it would be better to abolish the statute of limitations altogether, as is the case for genocide, for example.

What can ordinary people do to influence the situation?

It’s important to show the authorities that there’s public demand to solve the problem of torture, and that this isn’t a temporary surge in interest that will soon subside. Sharing this article is one way to help more people understand the scale of the problem in Russia.

You can also support the work of organizations like the Committee for the Prevention of Torture (regular donations are the easiest way to help).

It’s important to talk about this issue more often — without great public pressure, there will be no new Criminal Code article on torture, and crimes won’t be investigated in accordance with the law. Public officials who brutally mistreat people will continue their daily violence with a sense of impunity.

As Olga Sadovskaya underscores, human rights activists see criminalizing torture as the only way forward:

“Twenty-one years ago, there was not a single conviction, not a single article in the media, not single person who spoke publicly about torture — it was a vacuum, as if all of these people didn’t exist. Now, we’re seeing a bunch of publications every day — this is the first step towards making this a problem that is talked about, and not a latent one. The next step is when the state starts to recognize it. After that, when law enforcement practices begin to change. This will take decades. But criminalization is like lifting your leg before taking another step. Without doing this, it’s impossible [to get anywhere].”

Translation by Eilish Hart