13 February 2020
Ivan Pavlov is a lawyer, director of Team 29 and winner of a Moscow Helsinki Group prize
Source: Moscow Helsinki Group [original source: РБК]
As the “Network” case has shown, one of the problems of Russian justice is that legal practice typically focuses on the prisoner’s initial statements, which are given precisely when he is most often in a state of shock.
For quite a while now, Russian law enforcement agencies have followed the directive that all anti-terrorist cases be investigated harshly, and at times even brutally. Those charged in the Network case were victims of this directive, seven of them being sentenced on 10 February to imprisonment for from six to 18 years. I am not familiar with the case materials and cannot speak to whether or not given points in the indictment were proved; nonetheless, I am convinced that if no one suffered from the defendants’ actions, then handing down those outrageous sentences was simply wrong.
Moreover, I will note one obvious fact: the majority of those convicted complained of torture, although this in no way influenced the court’s decision. As a lawyer with extensive experience, I am seeing an ominous trend. The use of torture on persons under investigation in Russia has been expanding and is being applied more and more often not only in terrorism cases. There have been quite a few such instances. Just one example is the case of Pavel Zlomnov, who was arrested in January 2018 on charges of illegal arms sales (selling a starting pistol). He stated that violence was used against him even when he was arrested; he was beaten on the head, kidneys, and liver. Inasmuch as Pavel comes from a long line of lawyers, his father and brother did everything possible to bring the the law enforcement officers who exceeded their official powers to account. A request was sent to the Investigative Committee to open criminal cases for torture. The reply was a refusal, and the appeal of this refusal in court was also not successful. On the other hand, five criminal cases were opened against the Zlomnov lawyers during the investigation for insulting officials of investigative bodies. About 200 lawyers from all over Russia signed an open letter in their defence that was published in October 2019.
The use of torture by a public official to compel testimony is a crime under Article 286, Section. 3, of the Russian Criminal Code (up to 10 years’ imprisonment). However, the chances of the defendants (including the persons involved in the Network case) proving they were tortured are extremely slight. The problem is recognized only when the outcry around a specific case is very great and irrefutable proof reaches the media. This is precisely how the case developed around prisoners being tortured in Penitentiary No. 1, in Yaroslav region, after a video of the humiliations was published. Those who do the torturing understand all these risks, which is why those under investigation often complain of violence that does not leave marks, for example, the use of electrical current. There was such an episode in the Network case. Defendant Viktor Filenkov (he awaits sentencing in St. Petersburg) ) complained of the use of an electric shocker by FSB [Federal Security Service] personnel, but the investigation that followed deemed that there was no evidence that law enforcement committed these actions.
It is important that Russian legal practice usually focuses on initial statements, despite the defendant’s right to repudiate them later. What is important for the court is what the person says on first contact with law enforcement agencies, that is, precisely when he is in a state of shock. As a rule, it is these statements that lie at the base of a conviction. In order for the court to take statements about torture into consideration, the defendants must prove in another trial that the violence did take place, since this constitutes a crime. For this, the defendant must write a complaint in a timely fashion to the Investigative Committee saying that they were subjected to violence. The Investigative Committee must follow up with an investigation and decide whether or not to open a criminal case. Usually, the defendant is refused on his first, second, and third appeal to investigators (as, for example, in the instance with the Zlomnovs), which the court later uses to hide behind, indicating that the competent bodies did investigate and did not establish anything.
Actually, the complaints are important in any case, as is public outcry around specific cases. Lawyers for the defendants in the Network case have already declared their intention to appeal the sentence. Predictions are a thankless task, but it is clear that in the given instance a great deal depends on whether or not the public is able to present a convincing demand for a fair trial.
Translated by Marian Schwartz