On the rack over torture (17 December 2001)

MOSCOW – Russia’s first chicken came home to roost at the European Court of Human Rights in late November, when the court decided the country must answer for its treatment of a detainee.

The prisoner in question was Valery Kalashnikov, the former president of the Northeast Commercial Bank in Magadan (no relation to the famous Soviet arms manufacturer). He was arrested on embezzlement charges in June 1995 and spent nearly five years waiting for his case to be heard. During that time he lived with 23 other prisoners in a cell designed for eight. In his complaint, Kalashnikov said that three people shared one bed and slept in shifts, 16 prisoners sitting on the floor, or on cardboard boxes, waiting for their turn. There was an open toilet situated next to the eating space and the cell was full of cigarette smoke.

Kalashnikov contracted numerous fungal infections and lost almost 30 kilograms in weight. These conditions and the indeterminate length of his time on remand amounted to torture, his lawyer said.

In its defense, the Russian government argued that since Russia became party to the European Convention on Human Rights only in May 1998, it was not responsible to Strasbourg for what happened before then. Seen from that dateline, Kalashnikov’s detention could not be regarded as very long. The fact that he did not appeal against his conviction in 1999 meant he had not exhausted every avenue open to him before writing to Strasbourg and should disqualify his complaint, Russia said. The government’s decision to grant Kalashnikov amnesty in 2000 showed it had no intention of ill treatment toward him, it further argued.

But he European Court of Human Rights decided that Kalashnikov’s complaints about his conditions, the length of his detention, and the length of his trial proceedings are admissible, and will rule on their merits next summer. Its judgement is likely to be in two parts. First, it will consider whether financial compensation should be awarded to Kalashnikov himself for any damages he may have suffered, and secondly, if it decides his complaints are justified, it will consider whether the Russian government should implement “general measures” to prevent similar situations from arising in the future.

The “general measures” required by Strasbourg can have far-reaching effects. In a case against the United Kingdom, for instance, they provoked a legal revolution and the introduction of a system of duty solicitors on call 24 hours a day to give free legal advice to detainees. More recently, Italy has been obliged to recruit thousands of judges following a negative judgement in Strasbourg about the length of its trial proceedings.

The striking thing about the Kalashnikov case is that situations such as his are so commonplace in Russia. Traditionally, the state prosecution service has had wide powers to remand suspects in custody and prolong their detention for long periods without recourse to Russian courts. Enormous numbers of people are in Russian jails waiting for their trial date to be set, and the authorities freely admit that the remand prisons are the most overcrowded part of the penitentiary system. Since most remand prisons were built in Tsarist times, stories of filthy and disgusting conditions abound. A ruling from the European Court of Human Rights in this area could therefore have far-reaching impact.

But what are the chances that it would be implemented? Nearly half of the rulings of domestic courts in Russia are ignored, according to surveys by the Justice Ministry. Can an international court 11 time zones away from Magadan expect to have more bite?

So far, the Russian Federation has given every indication that it will abide by Strasbourg’s decisions. When it became a party to the European Convention on Human Rights, it undertook to do so, and it has since put aside money in the federal budget for financial compensation to successful claimants. Russia has every incentive to implement Strasbourg judgements because if it fails to do so, it will face a steep bill when similar complaints appear before the court. The government has also made it clear that it will reclaim compensation awards from the budget of any of the 89 regions whose laws or practices are found to be at the root of a negative judgement by Strasbourg. This, if nothing else, should concentrate minds powerfully in regions like Magadan. Strasbourg is also used to dealing with reluctant governments and pursues the implementation of its court judgements – sometimes over several years – until they are carried out.

Russia, like the Soviet Union before it, is party to various human rights treaties, some of which are worth little more than the paper they are written on. Its commitments under the European Convention on Human Rights are the only ones that can be tested in an international court – and the only ones that carry legal and financial penalties if they are not respected. Kalashnikov versus the Russian Federation could open the floodgates. Around 2,000 complaints have been registered against the Russian Federation at the Court – including from the North Caucasus – and 50 have been transmitted to the government for investigation. In the not too distant future, decisions taken in a quiet Rhineland courtroom could supply much-needed voltage to the meandering process of legal reform in the Russian Federation, as they have already done in other parts of Europe. arch According to human rights organization Amnesty International, the knowledge and awareness of widespread torture and ill-treatment in police custody, in prisons and in the army in Russia has grown in recent years. But this has not ended the use of torture and ill-treatment, nor changed the conditions in many prisons and pre-trial detention centers, which often amount to cruel, inhuman and degrading treatment. In many cases this is due to overcrowded prisons and the lack of ventilation and light. Diseases like tuberculosis are widespread. In pre-trial detention centers, for example, people have to sleep in shifts as there are not enough beds in the cells.

In addition to these conditions, which affect a large number of the population of the Russian prison system, Amnesty says that allegations of torture and ill-treatment of detainees as well as deaths in custody, have been raised again and again in letters to them. These letters have come from victims, their relatives or human rights organizations. In the letters, it is stated that people have been tortured to extract confessions or they have been accused of disobeying the rules of the prison and therefore were ill-treated. Amnesty states that to its knowledge there have been few or inadequate investigations so far into these allegations by the appropriate authorities.

The non-government organization (NGO) has in the past cited several cases of victims of torture and ill-treatment in detention in Russia.

Marjorie Farquharson

(With additional material by Asia Times Online)

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