Links Between Criminal Justice Procedure and Torture: Learning from Russia

Abstract

This article aims to establish the causes behind the sense of impunity that pervades the institutions of Russian law enforcement in the context of interrogations in pretrial detention. This sense of impunity is critical, for it creates a climate in which torture and other cruel, inhuman, or degrading treatment or punishment is used as a tool to expedite the investigative process and guarantee the success of the subsequent prosecution. This study argues that impunity for torture by law enforcement officials in Russia is fostered by three discernible factors. First, the Criminal Code inadequately articulates the prohibition of torture. Second, the Code of Criminal Procedure contains substantive shortcomings that create a structure that both incentivizes torture and discourages investigation into allegations of torture. And, third, allegations of ill treatment and torture that are raised during trial trigger no substantive investigative actions. The combined effect of these factors is that the state, in effect, fosters the law enforcement officers’ sense of impunity. This article analyzes these shortcomings through the lens of international human rights law, contributing to the ongoing scholarly inquiry into the relationship between European Court of Human Rights jurisprudence and the domestic law of states within the Council of Europe.