"Torture will remain not a crime, but by excess of authority"

Igor Kalyapin evaluates the bill of Klishas - Krasheninnikov

The State Duma introduced a bill on "toughening the punishment for torture organized by representatives of the authorities." It proposes to increase the maximum term of imprisonment for crimes about torture up to 12 years. Thus, the category of crime changes to a particularly serious one - which means that the statute of limitations for holding accountable will increase. For this, legislators intend to supplement the existing articles of the Criminal Code on the excess of official powers (Article 286) and on compulsory indications (Article 302).

On the eve of the topic of torture at a meeting of Vladimir Putin with the Human Rights Council, the human rights activist Eva Merkacheva raised . She reminded of unprecedented videos with the torture of prisoners in the Saratov hospital and summed up that “the inevitability of punishment is the only restraining factor” for the security forces. Then Merkacheva announced the need to introduce a separate article for punishment for torture in the Criminal Code, strengthen public control and investigate the facts of the use of violence in the central apparatus of the Investigative Committee.

The authors of the new project are State Duma deputy Pavel Krasheninnikov and Senator Andrei Klishas. According to lawmakers, "the facts of the use of cruel torture that became known caused concern to the general public and cannot be ignored." The New Gazeta learned from a member of the HRC and the head of the committee against torture by Igor Kalyapin whether it will be possible to successfully put such an initiative into practice in Russia.

What is changing in the law

What is changing in the law?

The bill No. 42307-8 on amendments to the Criminal Code of the Russian Federation proposes:

• In Article 117 ( “Torture”. - Ed. ):

(The explanatory note to the law provides a new definition of torture - similar to how torture determines Article 1 of the UN Convention against torture. - Ed. )

a) paragraph “D” of part two ( “using torture”. - Ed. ) Exclude;

b) a note ( “to torture in this article and other articles of this Code is understood to be caused by physical or moral suffering in order to comply with the testimony or other actions that contradict the will of a person, as well as for the purpose of punishment or for other purposes.” - Ed. ) To exclude.

• In Article 286 ( “Excess of official powers”. - Ed. ):

a) supplement part of the fourth of the next content:

"4. The acts provided for by parts of the first, second or third of this article, committed with the use of torture, are punishable by deprivation of liberty for a term of four to twelve years with deprivation of the right to occupy certain positions or engage in certain activities for up to ten years ”;

b) add the following content with a note:

"Note.

1. The torture in this article and other articles of this Code refers to any action that a person deliberately causes severe pain or suffering, physical or moral, in order to receive information from him or from a third party, punish him for an action that he or a third party or in which it is suspected, as well as to intimidate it or a third party, or for any reason based on discrimination based on discrimination based any nature.

2. It is not torture by causing pain or suffering, which arise only as a result of legal sanctions, inseparable from these sanctions or caused by them by chance. ”

3. In Article 302 ( "Coercion to the testimony." - Ed. ):

a) the paragraph 1 of the part is the first to state in the following edition:

"1. The coercion of the suspect, accused, convicted, victim, witness to the testimony of testimony or expert, specialist to give imprisonment or testimony by applying threats, blackmail or other illegal actions by the investigator, person performing an inquiry, or other employee of the law enforcement agency, as well as another person with the knowledge of the investigator, the person performing the inquiry, or other employee law enforcement authority ";

b) in part of the second word “violence, bullying or torture”, replaced the words “violence or bullying”;

c) supplement part of the third of the following content:

“3. The acts provided for by parts of the first or second of this article, committed with the use of torture, are punishable by deprivation of liberty for a term of four to twelve years with deprivation of the right to occupy certain positions or engage in certain activities for up to ten years. ”

Igor Kalyapin

Member of the Council for Human Rights under the President of the Russian Federation, head of the committee against torture

- Igor Alexandrovich, can a new bill in the current version affect the situation with torture in the country?

- Unfortunately, I did not see in this bill what I had long dreamed of. I did not see the criminalization of torture as an independent corpus delicti.

There are certain positive steps in this bill. That is, the legislator finally figured out that torture is what is written in the UN Convention, and from there the definition migrated to the bill. But the torture in our country did not become an independent corpus delicti-it became a circumstance that aggravating guilt in two articles: 286th and 302nd.

That is, torture in our country is not a crime, but a kind of exceeding of authority.

This is completely wrong and ideologically and structurally.

Anyway to say that murder is an aggravating circumstance of theft.

They also do not write, we have a separate article, and everyone understands that this is a very serious crime. If a person went to steal, and on the road he still killed someone, then he is judged for the murder and for theft.

It is proposed to formulate part four of the article 286 of the Criminal Code as follows: exceeding official authority with the use of torture. It turns out that the application of official powers is the main crime. For example: we have bad weather, wet snow, ice and at the same time a nine -point earthquake. This will be completely wrong and, in my opinion, will continue to have a very important applied value, negative. The main thing is not a change in the law, but a change in law enforcement. It is important to make the right norm in the law, and it was still done wrong.

The most important thing will begin later, when we try to force the Investigative Committee to create a special structure that will investigate all complaints about torture.

So that local investigators who will definitely “marath” and “bury” them do this, because they are almost always and depend on these police officers, Feesbashniks, “eshnikov” and FSINCOV, who are directly covered. To single out certain investigators who are already successfully investigated in the first department of [SK] for particularly important cases, in a separate unit, so that they are out of reach of all police officers.

To do this, it would be more convenient to tie torture to a specific article of the Criminal Code. And now it turns out that the situation that was before. There is a 286th article, and there will be a 302nd, according to which it can be attracted if a person who is tortured is already in the status of a suspect. For them, the bulk of the affairs is not related to torture. We will still have no clear and understandable statistical accounting, and there will still be no special forces for investigation exclusively torture.

Many applied problems that such a legislative recommendation do not solve in any way.

- Article 302 of the Criminal Code is often used in practice in the investigation of torture?

-Of the 94 cases that we [in the committee against torture] dragged to trial, we have only one thing on the 302nd. General statistics are even more indicative. The fact is that only investigators and interrogators were responsible for it. Now in this bill the circle of subjects is proposed to significantly expand. It is assumed that any law enforcement officers will be responsible for torture.

This article will come to life, it will become working, and some significant number of those people who used to be attracted to the 286th will be involved in it. But this will not change anything, but will bring additional confusion. Because it is very important for us to understand how many people are submitting applications for torture, how much cases are initiated under an article on torture, how many cases reaches the charge, how many accusatory sentences are sent to the court. This is a very important statistics. It is possible only when there is a specific article [in the Criminal Code] for torture.

-The note to the 286th article is proposed to add that torture is not causing pain or suffering as a result of legal sanctions. How do you feel about this correction?

- This was honestly rewritten from the UN Convention against torture, paragraph 2 of the first article. The torture is not actions that are part of the legal sanction or are caused by them by accident. This is a very correct and inevitable reservation. Because when you are legally used by a stun gun, “cherry” ( various products containing tear substance. - Ed. ) Or a rubber stick, you also experience suffering. The only question is whether special equipment is legally applied or not.

- Will the bill allow the security forces to be liable, who do not torture prisoners with their own hands, but with the help of other prisoners - “activists”?

- In the definition of the UN Convention, it is said that torture is also an action or inaction, which performs a third party when connected with the knowledge or silent consent of the representative of the authorities. In the 286th article of the current version of the bill there is no this formulation, and in the 302th there is. By the way, to prove silent consent is much easier than an indication from a representative of the authorities. Because the same “activists”, as in Saratov, will say: “They gave me a task, there was nowhere to go, otherwise they would have gripped me,” and comrade opera will resist that there was nothing like that. The investigator will have to look for witnesses or some documents to prove, this is very, very difficult. And with a silent consent, it is much easier-enough for two or three people to be said that they were informed about the torture of Comrade Opera and he knew, but did not take measures.

- Do you plan to publicly make edits with a new bill?

- Of course, we are going to put all the claims in the public. For a long time, we created a working group on the criminalization of torture in the Federation Council under the chairmanship of Narisova, and the last time it was going about two weeks ago. They considered a bill there, which involves the concept of “torture” in the four current articles of the Criminal Code, and abandoned it, because they decided that it was necessary to criminalize the torture separately. We agreed that torture should be an independent crime in one article. And Narusova said that she would take into account all the sentences received and in December we will need to issue a new bill to the mountain. On today's bill of Klishas and Krasheninnikov, it is not worth the signature of Narosova - it means that this is not it.

Maybe this is some kind of competing bill, more passing, which they decided to urgently throw away, until a more radical initiative of Narosova appeared.

It is not that they are very bad and empty, but this is a small step forward, which radically does not change anything. He does not open any new opportunities. Something in practice with him cannot be changed.

It seems like there is a good moment that torture becomes a particularly serious crime, the statute of limitations for prosecution is increasing, responsibility for covering the crime appears. It’s good that they finally figured out that torture is not an adjective, as it was in the 117th article. But in practice, this will give almost nothing, except for an increase in the statute of limitations.

This is all the case, because people react to two things: that the law is finally adopted in which the “torture” is written, and the term was increased for it - the more the better for them. They will draw at least twenty years [as the maximum punishment], people will rejoice, think that this is a more effective law.

The point, in fact, is not in the time, but that such cases will not be excited and investigated. The main thing is that law enforcement practice is possible.