Information and Analytical Center of Nizhny Novgorod Society for Human Rights
SECTION 1
RESPECT FOR THE INVIOLABILITY OF THE PERSON
À) DEPRIVATION OF LIFE ON A VERDICT OF COURT
The cancellation of a capital punishment is extremely complicated by an uncooperative attitude of the public opinion to this problem. So, according to the data of research conducted by a broadcasting company "Volga", 85,4% interrogated consider that capital punishment should be applied in Russia.[1]
In December 1998 the consideration of a case about the assassination of the manager of Borskiy glass-works Mr. Maksimov was finished at the regional court of Nizhniy Novgorod. Two charged persons, N. Yudin and Dudarev, were sentenced to a capital punishment.[2] Human rights activists of Nizhniy Novgorod have the information that tortures were applied to the charged persons.[3]
In 1995 Mr. N.A. Sovitskiy was sentenced to a capital punishment by order of the regional court of Nizhniy Novgorod on the charge of assassination, arson of a house and armed assault. At the establishment of guiltiness the court took into account the confession of the charged. But as convicted testifies "..."The frank confession" was persistently beaten out, while the will was not broken. I have not sustained tortures and has signed, without reading ". The fact of beating was not checked during inquest, as Mr. Sovitskiy "was interrogated at the lawyer's presence".[4]
B) POLITICAL AND OTHER ASSASSINATIONS COMMITTED IN THE EXTRAJUDICIAL ORDER
In 1998 three cases of "throwing" of people out of windows of the Regional Department against Organized Crime received public. Two accidents of three of them resulted in destruction of the people.
C) TORTURES AND OTHER CRUEL, INHUMAN AND HUMILIATING TREATMENTS AND PUNISHMENTS
According to the Constitution of Russia, to the international obligations of the state,[5] law-enforcement-observing bodies should provide efficient protection of injured parties and punishment guilty persons of wrongful acts. Methods of investigation and inquest causing corporal hurts are qualified as torture and are recognized as the roughest violation of human rights. Inhuman conditions of contents in penitentiaries are also qualified as torture.
According to the assessment of the Nizhniy Novgorod Human Rights Society and the Human Rights Commission at the administration of the Nizhniy Novgorod region the problem of wide application of illegal investigation and inquest by a method of physical violence by law enforcement bodies and the impunity of guilty persons requires the most steadfast attention today. That is the only sphere, where violation of human rights is not admitted by authorities.[6]
In 1998 20 petitions from the injured party came to human rights organizations. Since 1996 the number of such references is rather stable.
The problem of tortures does not lose the urgency first of all in connection with the absence of effective mechanisms of protection. Among the reasons, which influence the conservation of "torturing justice", repressive traditions can be named, impunity of guiltiness, low qualification of the employees and judges' non-skillness in the rating of lawfulness of the extracted evidences.
The impunity of application illegal methods in investigation and inquest is defined by discrepancy of functions of a body. On the one hand, the prosecutor's department is a charging party in criminal procedures, on the other hand, investigating the facts of illegal methods of such evidences, weakens the position of the charges. Besides that prosecutor's department has no operational cast in the subordination and can not provide difficult investigation of the facts of illegal methods and protection of the injured parties.[7] Moreover, the interrogations of detained are groundlessly conducted by the operational workers. According to the certificate of injured, during such interrogations, beatings are supposed by the directions of inspectors, necessary testimonies "are being beaten out". "... The second police department of Avtozavodskiy area, where according to the direction of inspector Ç. …Killed by a natural image ... there are no four bottom teeth, a scar on the nose... ".[8]
The investigation of the cases of tortures is limited by service (department) checking. In overwhelming majority of cases the petitions disallow "as the absence of corpus delict" by authorized body, i.e. prosecutor's office and in the cases of lodging criminal case they do not reach the court. The majority of sufferers do not declare about applications of violence and cruelty, as they do not trust in protection and equity and being afraid of new threats and violences.
Taking into account these circumstances, it is necessary to consider the incompetence of prosecutor's offices in this sphere, and its work as not appropriate to public and state tasks. Such non-conformity is reconfirmed by the prosecutor's office: "I inform, that for prosecutor's office of the Nizhniy Novgorod region the questions of supervision of the observance of constitutional citizens' laws have major value <...> At the same time facts of application of tortures in the territory of the region are not established". Really, "no fact of checking citizens' applications about the way of lodging criminal case according to Item 302 P.2 of Criminal Code of Russian Federation (providing punishment for a brutal treatment and torture)[9] by the organs of the prosecutor is known". In 1998 the prosecutor's office less often reacted to wrongful acts of law enforcement bodies. If in 1996 90 investigations were conducted and 27 criminal cases were proceeded on facts of excess of service authorities, during the first half-year of 1997 only three criminal cases were proceeded, and for 1998 five cases were lodged.[10]
Beatings and brutal treatment are applied both at detainment and during investigations, and during inquest too. "... My son was detained by the employees of the State motor-vehicle inspectorate and atrociously beaten. In the Department of the Interior of Nizhniy Novgorod <...> he was tortured. They tortured him with an electrocurrent, broke a hand, broken a head (concussion of a brain), beat what they wanted and where they wanted... ".[11] "We were beaten with rubber bludgeons, a haft of a shovel, rendered impacts by legs and hands in various places of a body. They required my confession <...> they broke fingers of hands, I received intolerable torments and pain"[12]
The applied system of operational detainment includes receptions contradicting to demands of the law. Painy receptions, long fixation in the painful provisions are widely used. Without display of aggression of the detained such actions are qualified as tortures. That is the certificate of one eyewitness of operational detainment: "the Employees of law enforcement bodies put the handcuffs on him, attached him to the fence of a house <...> another young man standing at the same time at the stoppage was knocked off by a hand impact on a neck. He was tumbled down on the ground the downgraded face, the hands were wrapped up in the back, the handcuffs were dressed on, the hands and legs were connected by a wide tape. Then they began to strike his face by asphalt. Then, both sufferers were serially removed deep into the street, adhered to the fence and were atrociously beaten with legs".[13]
The employees of bodies of special assignment act most roughly. At the detainment in his house the employees of the Nizhniy Novgorod Regional Management against organized crime atrociously beat M.G. Golih. "In the result of beating of Golih concussion of brains and crises of edges were caused".[14] In Kanavinskiy area of Nizhniy Novgorod the criminal case on the commander of a platoon of Moscow Special Police Units Sisoyev was proceeded.
The application of physical violence is accompanied by other processual infringements. So February 12, 1998 Kanavinskiy Regional Department against Organized Crime beat A.V. Oshurin during conduction of investigation. The interrogations were conducted without the protocol, and officially the injured party was detained "for conversation".
Recently an application of tortures began having more "qualified" character, which complicates an establishment of truth. At the same time it is necessary to note, that the number of the petitions on beating has decreased from the places of confinement, that can have some humanity of the penal system by the reason.
The divergence of court during the criminal procedure of devoted publicity of the facts of beatings during interrogations is a problem. In the best cases court directs the information for checking to procurator's departments. Taking into account, that the prosecutor's office is the charger at the process, the results of similar checkings are obvious. In the situation of lacking the control, the prosecutor's office frequently does not explain the refusals in lodging criminal cases on the facts of tortures, and any alien interposition is barred: "the Checking of lawfulness of the accepted decisions is included into competency only of appropriate procurator and the court".[15] At the same time, prosecutor's office of Nizhniy Novgorod in 1998 lodged the criminal case concerning the militiamen of a shelf of Police Petrol Service Deyev, Chernov, Polyakov on the fact of causing bodily harms.
In most cases court does not react to applications of charged people and the lawfulness of the extracted evidences does not investigate, that contradicts principles of fair process. Excessively superficially the medical examinations are conducted, that is appreciably connected with department subordination of medical staff. The term of the storage of the items of information about causing bodily harms is limited (for two years), that complicates the collecting of the evidences.[16] The injured party has no possibilities of presenting the evidences of drawing of body harms during judicial proceedings, as these items of information are frequently found in methodical departments of places where detained persons are contented. For example, informational items on results of medical examinations of the injured parties were not granted on the references of the Human Rights Commission to the regional investigation isolator ward in 1998.
The employees of militia call for a doctor only under condition of giving the testimonies or at all refuse in medical aids.
There is a certificate of the arrested Mr. Glinkin Timur Victorovich: "... However Ò. and three workers of militia (Sormovskiy Regional Department against Organized Crime) began to render impacts on my body, requiring me to admit. Then they made me sit on the floor, bound my legs in a special way, stuck my mouth by a sticky tape, put on a jacket on my head and bound it, they began drawing the cord through the legs to the back, and someone of them sat down on my neck.... These mockeries lasted for two hours, I agreed to give the testimonies, which they would offer to me <...> I began again attempting to explain, that I am not guilty, but they wanted to bind me in the same way again<...> I got a coin out of the pocket and attempted to open veins. Having seen it, they began beating me. They refused in medical aid. They bound me (I was blood-stained) again in the same pose, sat on my neck in turn, strengthening the pain and not giving to breathe <...> I had to give testimonies".[17]
It is necessary to recognize as intolerant the practice of intimidation, blackmail of injured by the representatives of law enforcement bodies. The criminal cases' lodging or threats of lodging cases on "the fact of recalcitrance'' got wide spreadings. So, the criminal case was lodged against the members of the family of the Sorokins according to Item 117 Criminal Code of Russian Federation in answer to the petition about beating of the family of the Sorokins. According to the information of the sufferers, on January 28, 1998 at 1 o'clock in the morning the employees of militia knocked at the door of the flat and required Mr. L.M. Sorokina to take the children out of the flat (which were sleeping). "On her refusal, including to proceed into the department, the employees of militia with application of physical force "dragged her downstairs". Thus, the employee struck Mr. L.M. Sorokina with a fist that resulted in a trauma of an eye. At the attempt of interceding her husband Mr. A.A. Sorokin and her son C.A. Sorokin were atrociously beaten". The prosecutor's office answered the petition with presented evidences about excess of service authorities by the employees of militia, that "wrongful acts are not revealed ".[18]
The analysis of practice of tortures shows the growth of "refinement" of tortures. For causing sufferings not leaving traces electrical currents (electrical shocker, megaometer) and remedies of strangulation (gas mask, cellophane parcel) are widely used.
So, according to the certificate of the eyewitnesses, gas mask and electrical current are widely applied at tortures at Avtozavodskiy Regional Department for Internal Affairs of Nizhniy Novgorod.
The employee of the second State Department of Militia of Avtozavodskiy Regional Department of Internal Affairs "began beating me very strongly on the head by fists and, compressing the face and throat by shaked me, offending obscenely. He beat with scope by a knee and fist in the breast so, that some times I did not fall slightly from the chair <...> If I shall keep silence <...> Spoke, that he will put on a gas mask without access of air...".[19] "...I was tortured. They were the employees of Arzamasskiy Regional Department for Internal Affairs: L., V., G., and inquest was led by Ð. So, during interrogations I was put on a gas mask and they blocked the valve, and just beat me".[20]
The physical violence as a rule is connected with extreme psychological pressure. Swearing, shouts and the threats, intimidation by destiny close officially admit lawful "methods of investigation" - they are taugt. The long staying in a stressful situation is capable to make a person confession of any crimes.
"...S.I. [an employee of the Criminal Investigation Department of Pervomaiskiy regional Department for Internal Affairs] put on boxing gloves and beat on the head while it did not bother him. Then Ñ. took a strap with the length of seventy centimeters, I sat on a chair in the handcuffs, Ñ. Put the strap on me and strangled me I do not know what it was further I awake laying on the floor <... > Then Ñ. took a wire, turned it on in the socket of 220 V and concerned open parts of my body with naked ends of the wire. And it occured some days. They beat me by legs and created psychological pressure. It is impossible to describe everithing it is necessary to see it. I wanted to commit suicide...".[21]
"...They began putting a gas mask on me, deprived the access of air, leading me up to a unconscious status. Everything was accompanied by impacts on the head and ears. They put on the handcuffs and broke the hands out, sitting on a chair, they bent me forward for my head was passing between the legs of the chair, beat me on the back and kidneys. They spoke, that would rape me with a bludgeon <...> They put a pistol to a head threatened, that would hit and throw me out of the window <...> Bragging that they would have nothing for them".[22]
It is important, that the unpunished application of tortures maintains citizens' nonconfidence to law enforcement bodies and it forms the sensation of defencelessness at illegal acts of bodies of the law order.[23] The result of the usual practice is that the society for the sake of which the crime control is conducted is afraid both criminals, and militia according to the results of interrogations. At such situation the crime control can not be successful as the defining factor in this struggle is the relation of the population to "to confronting parties".[24]
The servicemen of the regular military service are exposed to wrongful acts, according to standards of international law, falling to the definition of tortures. Because of cruel beatings and mockeries many soldiers, as a rule of the first year of servicing, do not maintain physical pain and degrading of human denomination, and sometimes being afraid for their lifes and health leave military units. After the escape they are afraid of coming back to the same part, as they can be atrociously beaten and even killed by soldiers, which have been serving for a long time. Sometimes similar petitions act for the officers.
In 1998 131 servicemen, who have autocratically left a military unit, including because of "grandfathership" addressed to the public reception of regional Soldiers' Mothers Committee of Nizhniy Novgorod. In 19 cases the servicemen refused to come back to the same parts. All facts of outrages were proved (before starting criminal cases, the military prosecutor's office checks the facts, worded in arguments).
Here are some of endurance from explanatories, written by the soldiers.
Laptev Aleksey Sergeyevich (is invoked to a military service on November 19, 1997): "I was frequently beaten, basically they beat in the breast and on legs, so it was difficult to me to walk and to breathe <...> Gradually because of assault and degradings I became closed, unsociable man <...> a week earlier before the leaving the part at night I was woken by ordinary Ñ. and sergeant Õ., they were drunk, made me go to the canteen for some bread and a stew, but I refused <...> For my refusal I was beaten so, that I lost consciousness, my face was broken, and the body was covered with bruises. The officers of my company knew about this accident but did not pay any attention".
Here is an explanation of Sulin Yuriy Pavlovich (he was invoked to the military service on June 24, 1998): "The sergeants which lived with us began beating us. Made us execute non-authorized orders <…> Sergeant Ì. rendered impacts on kidneys in the formations <...> cadet Nosov <…> was standing close <…> they beat on the head so, that everything was floating in the eyes. Kidneys still hurt me. I have got a headache <…> It was impossible to endure such service".
Here is an explanation of Nikolaev Aleksey Vitalyevich from August 10 1998 ã:"On June 17, being drunk, the battalion commander atrociously beat me and my friend. He beat all possible places. He beat the liver, saying: "Do you want me to make it as a cutlet?" He beat me for 3,5 hours. I could not sit for a week after that, as everything hurted me, the head was constantly hanging about. I even addressed to a first-aid post. On the same day the commander beat me with an aerial from the radio station. Being drunk, a foreman with his friend beat me too. He had rubber bludgeon he beat with it and when it was taken away he began beating me by boxing gloves. During my staying in the company I was frequently beaten by the colleagues and the officers''.
We named surnames of the addressed servicemen, but we ask not to name them in the report for preventing possible troubles.
The situation in the places of imprisonment
In 1998 no cases of mass beating of the inmates were fixed, but the problem of beatings remains burning.
Most intolerant conditions of contenting the inmates are known as"torturefull".[25] With the increasing of the number of concluded in regional colonies and investigation isolator wards the congestion in chambers and premises increased. The position of tubercular sick persons and HIV-INFECTED citizens is especially heavy to which corporal hurts moral adds. "42 men are convicted at the chamber where only 8 persons can be situated in. There are people which must be have taken away last year or earlier. I did not want to say but to keep it inside too <...>for reaching the toilet you should so much forces and nerves <...> And they continue taking people more and more and you can not see the end of them. If not today, tomorrow everybody will begin walking on heads of each other...".[26]
There are also hard conditions in penal isolators, premises of a chamber type and isolators of the temporary contents, where congestion is also supposed and there are no elementary sanitary convenience. "... without any arguments I was transferred from the premise of quarantine into the penal isolator. Till August 4, 1998 I was kept without bed accessories in the chamber with insanitary conditions, in which there were 10 men (though it is designed for one person)".[27]
The administration of penal organizations uses brutal treatments which cause suffering to the convicted persons in the way of non-authorized, secret punishment. For example, the inmates are made "stand near the wall on the extension and hold them for some hours, not giving the people to move...".[28] Such reference admits as "torture", but prosecutor's office consider such actions of administration as legal.
The observance of the servicemen's rights, suffered with illegal relations
In 1997 the Human Rights Commission considered the petition of Mrs. L.S.Tanicheva concerning to the beating of her son, who is a serviceman of the regular military service S.U. Tanichev in Military Unit 3754 of the Ìinistry for Internal Affairs of Russian Federation. During the studying the circumstances of the case the problem of absence of servicemen's guarantees, which would save them illegal relations appeared. Item 5 of the Federal Low "About the status of servicemen", concerning to protection right to life, health, protection of honour and denomination, is not regulated in execution. For servicemen constrained to leave military units in the result of illegal relations the order of the guarantees of safety are not conducted and the order of placing and directing the servicemen for the further service is not defined.
The limitation of the detained and arrested persons' right to an immediate legal aid of the lawyer
"The Guarantee of lawyer protection during the committing of justice is one of the main principles of fair judicial proceedings ensuring. The principle of efficient access of the lawyer to the person who is kept in custody, should be provided in complete volume, including questions of immediate informing, availability and observance of privacy. Besides that, the indifference in the realization of citizen's right to defence and sometimes an open counteraction by the side of law enforcement bodies is widely shown in right protective spere. The cases of pressure on charged take place with the purpose of the refusal of the lawyer, the conducting of investigatory actions without presence of the lawyer".[29] In the petitions of the inquirers different forms of such pressure are described: the fraud, threats and blackmail from the party of examining magistrates and inspectors. Such actions the representatives of law enforcement bodies consider as allowed the curts do not react on such infringements. So, on November 21,1997 at indicting a state lawyer which took part in investigatory actions was granted to A.U. Kuzmenko. The inquirer's request for engaging ''his own'' lawyer with the help of his relatives was not satisfied. The defence attorney, elected by the indictee, entered the process only on December 5 as the result. A.A. Kamaletdinov "was informed in incorrect form from the part of the inspector " about his right to the lawyer, that is why he did not have a lawyer during investigatory actions. Besides that the testimonies received by the inspector during the period of time when the lawyer was absent, were taken as a basis by a judgement.[30]
Inquirers' refusals from the defence attorney or giving the consent on conducting investigatory actions (including the so-called givings up) occurring without presence of the defence attorney are obviously provoked by inspectors. It is enough difficult to establish the truth in such cases in the connection with the difficulties of the evidence. The "intermediary" of ascertainors and inspectors in the choice of the lawyer is negative in practice. According to the regional court it would be illegal "to recognize the suspected or charged persons' testimonies extracted without participation of the defence attorney not having evidential value ".[31]
It is impossible to consider the practice which is not appropriate to the international standards when for a long time (more than three hours) neither lawyer, nor cognates are informed about the detainment as acceptable. The established by the legislation terms[32] of the notification give an apportunity to conduct the first investigatory actions without the lawyer, and in the case of necessity, not showing an official charge "to remove" the terms of the notification of the lawyer and cognates.
So, according to the petition of E.A. Lirina, detained by Regional Department against Organized Crime on July 25, 1997, her cognates were informed, that "she is not detained, but they need her for giving testimonies". During four days of conviction the ascertainors of the Regional Department against Organized Crime did not informed her cognates that Lirina is detained, a charge is presented and she has a possibility of receiving a lawyer.
There are situations when they make refuse the lawyer or achieve a "consent" to give evidences without the presence of a lawyer by threats. As a rule, the refusal from the lawyer occurs during his absence, that is not considered as gross violation processual norm11. "During the inquest I was provided against taking the lawyer and caused to sign the refusal. Concerning to this fact I wrote an application, but it was not disassembled and was not attached to the case either" (the petition of S.V. Fokin to actions of Avtozavodskiy Regional Department for Internal Affairs and the court).[33]
According to the assessment of Human Rights Commission: "The right to a free-of-charge lawyer is a major remedy of protection from the judicial error and arbitrariness and discrimination. Inadequate financial ensurings of guaranteed participation of a free-of-charge lawyer for a suspected during the period of investigation, inquest and court are a display of deep crisis of the punitive justice system. The order of recovering damages of the remedies by a convicted without his consent for the participation of the lawyer and not having enough of remedies for paying the defence attorney contradict the norm Item D) of Part 3 Item 14 of International Pact about civil and political rights of the United Nations"10. National legislation12 does not correspond to the international standards. The accepted decision for granting a free-of-charge lawyer can not be actually changed by the decree.[34]
It is impossible to recognize the practice of granting a free-of-charge lawyer only during judicial proceedings as accepteble. According to the petition of convicted A.V. Suslin11, his right to a free-of-charge lawyer was provided only during trials. The applicant says: "there was no lawyer during the inquest and it was nobody with whom I could decide some questions which were not clear to me". It is necessary to note, that, according to Item 49 of Criminal Code of Russian Federation, the participation of the defence attorney is obligatory for the persons who do not speake the language of the court procedure. At the same time the penalty of expenses for obligatory participation of the lawyer for such categories of charged persons, as other ones, without their consent contradicts not only international standards but the principle of a free choice of the remedies of protection stipulated by Item 49 of Criminal Code of Russian Federation.
Lawyers say that the neccesity of the signinng the demand for each meeting with the an inquirer by an inspector makes the work difficult. Such dependence upon the inspector (formally he has to sign the demand) does not correspond to the principle of the free access to the iquirer. The conditions of meetings with convicted persons are not provided in investigation isolator wards. In 1998. The Nizhniy Novgorod regional Bar allocated own remedies for devicing cabins for meetings of the defence attorneys with inquirers.
D) THE REFUSAL IN CONDUCTING A FAIR PUBLIC TRIAL
The basic guarantees of the right to a fair judicial proceeding are defined by Item 14 of the Pact of the United Nations "About civil and political rights". According to the assessments of regional human rights organizations of Nizhniy Novgorod the information on infringement of the basic constituting right to a fair judicial proceedings is contain in more than 40% of the references connected to the appeal of a criminal verdict. The infringements of the principle of equality of the parties, right to not testifying against themselves and right to a court without the unjustifiable detention are mostly distributed. During many processes the defendets' right to the showing the evidences to his benefits including to call and to interrogate the attestors is ignored. For example Mr. A.V. Karpov informs in her petition: "...The direct attestors <...> were not called to the court, though I insisted " (judicial proceeding passed on April 13, 1998 at Avtozavodskiy court).
The simplification of judicial proceedings up to an "interview" with the judge has received an extremely wide circulation which ignors basic guarantees of a fair trial including the right to a public trial.[35]
There are cases when the citizens were not informed about the reason of their detainments and about their charges in good time. In right protective practice the persons which are suspected in committing a crime while the inquest does not have formal bases for their arrest are lingered for giving their testimonies. In this case the suspects are deprived of the guarantees of the processes which are used by charged persons. The lawyer protection including the right to a free-of-charge lawyer is not provided in the right way.
The problem of ensuring the guarantees of processes is closely connected to a level of the legal conscience of the citizens. The growth of legal literacy of the population is supervised for the last years. But it continues to remain inadequate as in the criminal procedure demands to knowledge of the court procedure language and basic standards remain of a high level. The ensuring of informing detained about their rights should become the prime. The informative stands (posters) placed in places accessible for detained persons' and their cognates review (in Regional Department for Internal Affairs and in investigation isolator wards) can improve the situation.
The hushing up or wrong informing detained about his legal guarantees is regarded as gross violation of rights in the national legislation. However for two years of action of the new criminal code the facts of engaging officials to the responsibility according to the appropriate Item of Criminal Code of Russian Federation (Item 140) are not known.
In all known cases of judicial errors (the cancellation of a verdict and producing innocence) the injured parties have difficulties in receiving the compensation for caused material and moral damage. The asset withdrawn by bodies of the law order is not given back or given back in the damaged status. So L.V. Shamberova who addressed to the Department for Internal Affairs for receiving the arrested automobile in a unsuitable status received threats. It is known that in many cases the distrained goods during inquest are used by the employees of the Department for Internal Affairs and the owners of the properties prefer ''not to communicate'' with law enforcement bodies when their proparty is not returned at all or is returned in an unsuitable status.
The receiving of compensation for property losses and suffered expenses in the result of the mistake of justice have significant difficulties. The applicant is complicated in the performing of evidences of the suffered expenses and the court considers such applications reluctantly. The receiving of the compensation for illegal deprivation of liberty is even more complicated because of the absence of practice and legislative regulation. The expenses on disbursement of compensations are not funded as they were not stipulated in the budget for 1998.
The ungrounded refusal in judicial protection
After the cancellation of results of elections of the Head of administration of Nizhni Novgorod from April 3, 1998 more than 20 petitions and applications about an infringement of the elective rights were sent to areal and regional courts of Nizhniy Novgorod by the citizens of Nizhniy Novgorod.[36] The judge of the Nizhegorodskiy areal court Mrs. E.V. Makarova refused to adopt such petitions of Klyanu, Donchenko and Speranskiy. However and after confession her actions by the collegiate organ of the regional court as illegal these petitions were not considered.
The Human Rights Society of Nizhniy Novgorod also received a refusal to accept and to consider the similar petition from the courts of justice that is a gross violation of human rights to access to justice. According to the assessment of representatives of legal community "the behavior of the judicial authority at the moment of assertion of democratical principles crossed all hopes for judicial protection of human rights".[37]
On April 17, 1998 the Human Rights Society of Nizhniy Novgorod conducted a picket in protection of voters' rights for ten days. On May 15, 1998 in the regional court of Nizhniy Novgorod a hearing of the case on the petition from Mr. Klimentyev, who was elected as a Mayor, and from the citizens: Bagayev and Kostunin. Bagayev and Kostunin sent petitions with opposite demands to Klimentyev's one. The given petitions did not contain the concrete items about the information on rights violations of Bagayev and Kostunin as voters. The court did not find them out either. However, in the difference of other not accepted petitions about violations of voters' rghts these petitions were accepted, considered and satisfied by the court. One of the complainants worked at the manager's office of the Uniform Customer at the administration of the Nizhniy Novgorod area (at a branch of a local authority of Administration of Nizhni Novgorod.). The court, under the presidency of the judge Mrs. E.V. Makarova, made a decision about the refusal in satisfaction of the application of Andrey Klimentyev. At the same time the court recognized the results of voting as non-actual. During the trial the judge occupied a biassed, dependent on imperous interests position ignoring standards of court procedure, so in this connection the decision was predetermined.[38] "The experience of justice's concessions to political expediency in Nizhniy Novgorod" testifies "the danger of independence of Russian courts".[39] The petitions of other mentioned citizens are not still construed.
Since December, 1996 trials of the officer S.F. Shkolniy proceed about degrees of jurisdiction in connection with the appeal the illegality of the order about dismission from a service.
About for three months the military collegiate organ of the Supreme Court does not answer the petition of Mr. Shkolniy on the actions of the batalion commander of Expeditionary Forces of Moscow Military District colonel Nikeshin V.N. Nikeshin refused to issue the personal file of the officer, to calculate with a military unit, to issue the order for production to the military account in the selected place of living. Orally the Chief of reception military Collegiate organ of Internal Forces of Russian Federation declares, that there is an order to cease the correspondence with Shkolniy. And only the officer's application to the Chairman of the Veterans' Committee of State Duma of Russian Federation to the general of the Army V.N. Varennikov moved the case from a lifeless point. The case in the order of supervisory powers is asked for for the fourth time by the Main military prosecutor's office.
The Vladimir military court refused to adopt the petition of Shkolniy on groundlessness of the order about dismission.[40] And only after adjuration of the protest by the chairman of military court of Moscow Military District the general - lieutenant of justice A.S. Beznasuk the verdict of the court was cancelled and the case was directed for a new trial to the military court m/part 36822. Moscow.
The same judge Mrs. E. Makarova groundlessly suspended the consideration of the petition of Mrs. N.M. Speranskaya on illegal acts of Ìuniciple Housing Maintenance Center N5 of the Nizhniy Novgorod region. Her verdict was cancelled.
During a lot of months the judge Mrs. T.F. Parshina does not consider the petition of Mrs. E.S. Speranskaya on actions of the Regional Department for Internal Affairs of Nizhniy Novgorod which refused to registrate her at the place of living. Besides that Mrs. Parshina does not consider seven petitions on the officials' actions of the invalids of Groups I and II, of an invalid of the war, of the victims of political reprisals and of the veterans of work. These petitions are incorporated with several claims in one office-work as though for more complete and fast consideration.
There is a usual practice not to consider citizens' petitions without necessary bases (a correct registration or reasons of expediency) on wrongful acts of the officials and bodies of the local authority in the regional court of Nizhniy Novgorod.
According to the Russian legislation the petition on actions of state bodies and officials should be considered within ten days. But courts do not respect and even probably intentionally offend this law procedure.
So, for example, the petition of I.S. Lavrentyeva on the inactivity of the Ministry of the Finance of Russian Federation (non-answering) which she sent to the regional court of Nizhniy Novgorod on April 18, 1997 was considered for a year and nine months. The petition of Mrs. I.S. Lavrentyeva on wrongful acts of the Management of Federal Treasury (a refusal to assure x-copies of the documents concerning to her rights) was considered for 11 months. The trial with applications of Mrs. I.S. Lavrentyeva "About restoration the place of working, the removal of disciplinary punishments …" is going on within three years.
The reason of such gross law and rights violation by the court is possible because of the fact that the Regional Ministry of the Finance is supervised by the wife of the Governor of the Nizhniy Novgorod region Mr. U.I. Lebedev according to the opinion of I.S. Lavrentyeva (from the petition of I.S. Lavrentyeva, January 25, 1999).
Non-execution of the decree
The non-execution of the decrees is a problem which is characteristic for all Russian court procedures.
In many cases the objective cause of non-execution of the decisions is the absence of the remedies to the claims. But the absence of the remedies can be an inquest of admitted infringements. As one of the most typical example it is possible to name a non-execution of the decisions of courts on the returnings the contributions to the deceived investors of the Bank "Nizhniy Novgorod credit" both other ruined banks and failed financial pyramids. The interposition of administrations of the Nizhniy Novgorod region and of Nizhniy Novgorod into contractual legal relationships between banks and investors created a not legal situation of deciding the cases. The interposition of administrations besides judgements and the inactivity of the law enforcement officers on the claims about returning and compensation of the contributions resulted in infringement of ensurings of the suffers' claims and the order of expenses on alien obligations.
The non-execution of judgements is connected with inactivity of the law enforcement officers including with non-using the approbations to the guilties. According to this reason since 1993 the decision of the Arzamasskiy court on the case of U.P. Parusov is not executed (the court obliged the Housing Department-3 to repair a house of the applicant).
The non-execution of decrees intime results in difficult consequences in cases connected with housing. For example, the non-sequestering property allowed the defendant to dispose the real property by his own discretion before the definitive adjudication by the court on the case of L. Bruy( Avtozavodskiy regional court). As the result Bruy was remained without a flat.
The infringement of a principle of equality of the parties in judicial proceedings
The infringement of a principle of equality of the parties is one of the most widespread kinds of limitations rights to a fair judicial proceeding.
The typical infringements conceded by the judges:
- the ignoring of the procedure of cross questions and giving the floor to the parties;
- the refusal in calling of the attestors under the application of the party;
- the refusal to request the documents on case having essential value under the application of the party;
- non- informing the parties about the process;
- the using official positions and authorities in civil disputes by the officials of the law order;
- the rough reference and prejudiced judge's relation to one of the parties.
The greatest danger is exhibited by infringements of equality of the parties at criminal procedures, as it defines a culpability of the charged and his punishment. It is possible to consider cases, when a court refused to call and interrogate the attestors, whose testimonies had essential value for cases and also an adoption the evidences received during inquest, as priority by courts aswidespread. For example during criminal procedures the court refused to call the witnesses for the defense according to the petitions of V.V. Manturov and of A.A. Tarakanov.[41]
In judiciary practice of the Nizhniy Novgorod region there are elements of punitive or repressive justice. For example in the case of differences in the witness's testimonies or charged, stated during the inquest and the process the court, as a rule, considers the testimonies taken during the inquest. In some cases the judge himself initiates the searching and performance of the evidences of charge.
The judges, probably discharging the instruction of authorities, have to resort to infringement of the citizens' rights: do not notify about the time of sessions of the court, conduct sessions of the court without the claimant (without finding the reason of absence), leave the claim without consideration.
So the regional court of Nizhniy Novgorod violated the following rights of Mrs. I.S. Lavrentyeva (from the petition of I.S. Lavrentyeva from January 25, 1999):
- her claims were left without consideration for six times;
- the judge T.P. Bazhenova deprived the claimant of the right to judicial protection, conducted session of the court on March 12, 1998 when the claimant was absent and considered the petition (it is reconfirmed by the cassation court);
- on November 19, 1998 the judge Kourkina took out an obviously illegal decision; copied a literally motived part of the decision cancelled by the regional court as illegal, violating claimant's rights;
- the Chairman of the regional court of Nizhniy Novgorod does not answer applications, provides to copy the documents of the case, does not excite civil cases according to sent claims (April 30, 1998, June 9, 1998).
E) THE REFUSAL IN THE POSSIBILITY OF RECEIVING GUARANTEED EXTRAJUDICIAL PROTECTION OF THE VIOLATED RIGHTS
They refused to T.U. Speranskaya in lodging criminal cases on her application to the prosecutor's office of Nizhni Novgorod about the facts of infringement of the elective citizens' rights and interposition in activity of electoral commission during vote campaign of the mayor of Nizhni Novgorod in April, 1998.
The refusals in reception applications from the injured party remain an ordinary practice of law-enforcement bodies.
According to the petitions of convicted the appealing the conditions of the contents and illegal acts of administration is complicated and does not give any effect. The prosecutors' checking is conducted excessively formally the reasons of disciplinary punishment of convicted are seldom considered. The practice of limitation in reception on petitions takes place. "The prosecutors' checking is coming, they announce: " who wants to be recepted, wellcome", and the members of the discipline and order Section block all local sites and it is impossible to go into".[42]
Å) A FREE INTERPOSITION INTO PRIVATE LIFE, FAMILY, DWELLING OR CORRESPONDENCE
In 1998 the articles about the officer S.F. Shkolniy were published in the newspapers: "Red star" and "Dzerzhinets" which contained the information about his private, family life, the items of information did not appropriate to the validity and discreded his honour and dignity. The consideration of Shkolniy's petition about the protection of honour and dignity is postponed for the different reasons for about a year.
NOTES
- The data of interactive interrogation of a broadcasting company "Volga", Nizhniy Novgorod, 1370 persons were interrogated.
- The newspaper "Business", December 28, 1998.
- The Archive of the Human Rights Commission, 1998.
- The letter of the General Procurator's Department of Russian Federation, November 2 1996 N12/1-165-96.
- According to Item 21 of the Constitution of Russia, Item 5 of General Declaration on human rights, Item 7 of the International Pact of civil and political rights, United Nations: "nobody can be exposed to tortures or cruel, inhuman and humiliating treatments and punishments.
- The answer of the Procurator of the Nizhniy Novgorod region Mr. V.M. Muravyov to the Human Rights Cimmission N15/772-97, July,1 1998.
- The report of Human Rights Society of Nizhniy Novgorod " Application of tortures in territory of the Nizhniy Novgorod area ", 1997.
- From the letter of convicted Mr. Alekseyev Aleksandr Aleksandrovich from July 9, 1998, Archive of Human Rights Society of Nizhniy Novgorod
- The explanation of the Human Rights Commission to the prosecutors of the Nizhniy Novgorod region, N154-2/2, May 14, 1998
- The letter of the Public Prosecutor's Department of Nizhniy Novgorod, December 31, 1998
- From the letter of the mother Morozova Olga Ivanovna, August 5, 1998
- From the letter of Mr. Morozov Sergey Gennadyevich, September 28, 1998
- A declaration from May 29, 1998, the Archive of Human Rights Society of Nizhniy Novgorod.
- The case of M.G. Golih, the petition from April 15, 1998, documents on the caused phisical damage. Archive of the Human Rights Commission.
- The answer of the deputy procurator of Nizhniy Novgorod Mr. P.K. Selin, October 21, 1997.
- The order of the Ministry for Internal Affairs of the United Social Socialist Republics N172-88, according to which the term of storage of the doctor's logbooks in the investigation isolator wards is limited by two years.
- An extract from the letter of arrested Mr. Glinkin Timur Victorovich, August 3, 1998.
- Archive of Human Rights Society of Nizhniy Novgorod: Case N111 (the Sorokins)
- From the letter of a charged infant Martinov Sergey Vladimirovich, September 27, 1998.
- From the letter of remanded Mr. Makarov Vladimir Nikolayevich, charged according to Item 155 P.2, February 11, 1998.
- From the letter of remanded Mr. Meleshin Aleksandr Vasilyevich, August 11,1998.
- From the letter of remanded Mr. Kovalyov Valeriy Ivanovich, April 29, 1998. The letter speaks about employees of Usilovskiy Militia Department of the Nizhegorodskiy area of Nizhniy Novgorod.
- A conclusion of the Human Rights Commission "About cruel treatment at ensuring the law order" N7, February 18, 1998.
- The report of Human Rights Society of Nizhniy Novgorod "the Application of tortures in the territory of the Nizhniy Novgorod region" 1997.
- Economic and social council of the United Nations. E GENERAL, E/CN.4/1995/34/Add.1, November 16, 1994, Human Rights Commission. The fifty first session. A question on all persons' human rights subjected to detainment or imprisonment in any form, to torture in particular, and other cruel, inhuman or degrading denomination treatments and punishments, the report of the Special reporter Mr. Nightgel S. Rodly, presented according to the resolution 1994/37 of Human Rights Commission.
- From the letter of convicts which have AIDS contained in the investigation isolator ward of the Nizhniy Novgorod region, 37 signatures sign the letter, September 28, 1998.
- A.V. Yermolayev, UZ-62/5, October 2, 1998.
- The petition of convicted Mr. S.V. Sherichov, ÓÇ-62/8.
- The conclusion of the Human Rights Commission N9, July 15, 1998.
- The Archive of the Human Rights Commission, Cases NN106, 107, 161.
- The answer of the Chairman of the regional court of the Nizhniy Novgorod region Mr. V.N. Vorobyov N1-15/292, August 21,1998.
- Item 47 of the Criminal Code defines the term of 24 hours for notifying about the defence attorney and another 24 hours for adoption the decision about an allocation of legal aid of the defense attorney. The item also provides a recovering damages of the remedies by the convicted for participation of the granted free-of-charge defence attorney.
- The archive of the public reception of the Nizhegorodskiy Human Rights Society, 1998.
- The cases when the court considered a convicted as duty for compensation effected expenses for defence attorney took place.
- The most part of cases about the claims of non-disbursement of wages are made out after a "conversation" with an applicant.
- The materials of a joint press conference of Moscow Helsinki Group and Human Rights Society of Nizhniy Novgorod, April 28, 1998.
- The definition of the Judge Mr. G.I. Dorodniy according to his refusal in taking an application from May 15, 1998; the definition of the judge Mrs. E.V. Makarova according to her refusal in taking the petition from July 22, 1998.
- Speransskiy S.B. About the facts which show the fabrication of cases and the rendition obviously illegal decision by the court.
- An application of Human Rights Association "General Action", April 10, 1998.
- The information is granted by the regional soldiers' mothers Committee of Nizhniy Novgorod.
- The archive of the Human Rights Society, Cases 133 and 138.
- An application of V.P. Stolyarov, who was convicted in UZ-62/1 from 10.09.98.