Criminal Responsibility for Torture: Modern Regulation and Implementation Problems

Abstract

Russian legislators criminalized torture for the first time in 1993, and for a long time did not connect torture with the actions of state power representatives, ensuring the performance of international obligations through general prohibitions. The implementation of norms constituting the legal mechanism of counteracting torture revealed their technical legal drawbacks and lead to the introduction of amendments in Art. 117, 286 and 302 of the Criminal Code of the Russian Federation in July 2022. The transformation of Russian normative definition of actions constituting torture made the Russian approach maximally close to the conventional one. However, the Russian definition of “torture” lacks a conventional feature — a special status of the subject and the deviation from the universal definition of the subject content of the norms providing for liability for torture — which leads to different qualification of similar actions and excludes the application of more serious sanctions towards officials who «sanction» torture outside the sphere of justice. The article argues for the suggestion to widen the subject content of Part 4, Art. 286 of the Criminal Code of the Russian Federation. The revealed normative desynchronization of defining torture in relation to violence in the system of qualifying features of adjacent methods of committing crimes should not lead to differences in the legal assessment that evidently are outside the official powers of a public official, as the differences in the contents of violence and torture define the competing role of these methods of committing crimes in crime qualification. Unlike violence, encompassing harm to health, the harm specified in the legal definition of «torture» does not include bodily harm, raising the question of possible additional qualification on crimes against health. The consistency of law enforcement makes it necessary to clarify this question at the level of the Plenary Session of the Supreme Court of the Russian Federation. The severity of sanctions of Part 4, Art. 286 and Part 3, Art. 302 of the Criminal Code of the Russian Federation is the basis for a wider interpretation that does not require cumulative offences under articles in Chapter 16 of the Criminal Code of the Russian Federation. Exclusion of torture from the number of qualifying features did not lead to partial decriminalization due to a normative «conversion» by an objectively similar way, which does not only exclude the reconsideration of verdicts containing accusations under Item «д», Part 2, Art. 117 of the Criminal Code of the Russian Federation on the basis of Art. 10 of the Criminal Code of the Russian Federation, but also makes it possible to use practice-based criteria when defining torture.