The lawful infliction of suffering clause in the new law does not condone torture. But the law itself will not work in Russia – Kalyapin

On July 14, Putin signed the law on tougher punishment for torture. According to the amendments to the Criminal Code, torture is transferred to the category of especially serious crimes. The law makes it possible to bring to justice employees of the Federal Penitentiary Service, and not just investigators, as it was before.

Lawful actions or random actions cannot be considered as torture, because torture is a conscious and intentional action, says Igor Kalyapin. Exactly the same clause is in the first article of the UN Convention against Torture. It states that the definition of torture does not include "pain or suffering that arises as a result of legal sanctions, is inseparable from these sanctions, or is caused by them accidentally." According to the expert, the European Court has always referred to this definition, because there is no other international document that would define torture.

“In fact, this is quite logical, because any punishment causes physical and moral suffering, for example, when a convict is placed in a ShIZO, or handcuffs are put on a person, or physical force is used on a person, some painful techniques,” Kalyapin explains. - All these things, of course, cause either physical suffering or moral. The only question is whether it is legal or not. If actions that cause suffering are provided for by law, then they are not considered torture - this is what the UN Convention says, this is what the European Court thinks, and the fact that this clause, which has exactly the same meaning, was transferred to the Criminal Code of the Russian Federation, is logical and correct ".

Can this clause be used to justify torture? Maybe it has always been like this, says the human rights activist. According to him, the "Committee against Torture" has been working for more than 20 years, and for all 20 years the main difficulty was to prove not that a person was beaten by a representative of the authorities, but that these actions were illegal.

“Smart policemen and Fsinovtsy did not deny the very fact of inflicting injuries and said: “Yes, we used physical force on a person, and as a result, hematomas and abrasions appeared, but the force was used lawfully, because ...”
What followed was some fantastic story about how a man who did not resist when he was detained in front of witnesses, as soon as he got to the police department, allegedly began to rush at everyone. The classic “tore off the epaulette from the policeman”, “scratched the face of the policeman” and similar things. As a result, physical force was “forced” to be applied to him, it was used lawfully, and physical injuries appeared. Everything has always revolved around this. The fact that the police and authorities will play on this is expected, it will be so, but this does not mean that this element should be excluded from the very corpus delicti.”

As Kalyapin notes, the task of human rights activists and lawyers, and by and large the Investigative Committee, when a person complains about the illegal actions of the police or any other representatives of law enforcement agencies, is to prove that the actions of the police are illegal.

If a person was not just used tear gas, handcuffs, a stun gun or a baton, but it was done illegally and, therefore, was torture, then it is necessary to prove one of the elements of torture - the illegality of the official's action. If the stun gun was used legally, then this is a legitimate use of special equipment, and if illegally, then this is torture. It is impossible to call any use of special equipment torture.

A classic example when torture is justified by the fact that a person attacked, tore off his shoulder straps, scratched his face

“Almost any policeman now has a pistol hanging on his side, and in a certain situation he has the right to use it, including shooting to kill in order to at least injure a person, and maybe even kill him. But this does not mean that any use of a gun should be considered torture or murder.

Of course, this complicates the task of proving, but this does not mean that this should not be done. The police have the right to protection and to the lawful use of all these means. If we accuse them of torture, then we must prove that they did wrong.”

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