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Report by the representative of the official delegation
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, 14 2007

Report by the representative of the official delegation from the Russian Federation at the summit organized by the OSCE in Vienna, September 1314, 2007

Irina Aleshina, representative of the official delegation from the Russian Federation:

Given the limited amount of time, my speech will be mainly exploratory in nature.

One of today’s most pressing problems is the struggle against terrorism, which poses a serious threat to a basic human right the right to life. Terrorist attacks worldwide have taken the lives of many thousands of completely innocent people. Terrorism knows no borders. Itis an implacable enemy of international peace and security, it threatens life and health, and undermines the democratic foundations of society and state by harming rights and freedoms. Human life turns into ‘expenditures’ by criminals for their own ends and to satisfy their personal ambitions.

Human life is the highest value of any civilized country. Itis quite clear that one of the most important issues is the question of compensation for harm caused by an act of terrorism. Assistance to victims in distress is based on centuries-old tradition, and the essence of the civilized rule of law means that many of the risks of human existence must be shared by society as a whole and not fall on any one individual citizen.


In accordance with Article 52of the Constitution of the Russian Federation, the Law protects the rights of victims of crime (including from acts of terrorism and abuses of power), and the State provides them with access to justice and compensation for damages. TheState’s duty to compensate damages from terrorist acts is fixed in the Federal Law of February 26th, 2006, ‘On Combating Terrorism’. Thislaw clearly defines the duty of the state to compensate victims via the federal budget for monetary damages from a terrorist act that can be expressed as a loss of specific property as well as the loss of earnings when there is injury or loss of support of dependents who have lost their breadwinner. TheCivil Code determines procedures for moral (non-pecuniary) damages, and Article 1099(of this code) states that compensation for moral damages is independent of compensation for property damage. Thecourts, depending on the physical and mental suffering of the victim, determine the amount of this compensation. Thecourt assesses the nature of this physical and mental suffering, taking into account the victim’s actual circumstances and individual characteristics.

Current legislation provides for social rehabilitation of victims of terrorist acts. Social rehabilitation of victims includes psychological, medical and vocational rehabilitation, as well as legal aid, employment and housing assistance, and its aim is the social reintegration of persons affected by a terrorist attack, and their integration into society.

An act of terrorism is a crime that must be investigated and solved, and its perpetrators punished. Thepurpose of criminal proceedings also includes the protection of the rights and lawful interests of individuals and organizations that are victims of thecrime.

Those who suffer from terrorist acts, in accordance with Russian criminal procedural law, are considered victims. Avictim is an individual who has suffered a physical crime, property or moral damage, and can also be a legal entity in the event of a crime that harms its property and business reputation. Incases of crimes that lead to the death of a person, the victim’s close relatives have the right to exercise the rights of a victim.

Recognition of the status of a victim may take place at the request of a person or entity, as well as at the initiative of the investigator. Itdoes not matter whether the offender has been established or apprehended. Recognition of a crime victim should be done regardless of what stage of the crime was complete when its was directed against the victim: whether it was being prepared, during its attempt, or after the completion of thecrime.

To a considerable extent, the victim has a right to active participation in the judicial process. Inparticular, the victim has the right to:

1) Receive copies of the most important decisions in a criminal case (the decision to institute criminal proceedings, the recognition of victims, a copy of sentencing, etc.),

2) Be made aware of the charges, allowing them information exposing the perpetrators and their relationship to the charges,

3) Provide investigators with objects and documents related to criminal cases under investigation,

4) Make motions and objections, to bring complaints against actions and omissions by an investigator, prosecutor, or judge,

5) Testify in their native language via interpreter free of charge,

6) Acquaint themselves at the end of the investigation with all case materials and write this down in any data and any amount, to make copies, including the use of technicalmeans

7) Participate in court proceedings, to question defendants and witnesses in court, to express their opinions as to the guilt of the defendants and their punishment, to enter comments into the court records, and to appeal verdicts.

Lawyers and other legal representatives such as parents, adoptive parents, guardians, or trustees of the victim, may represent the victim. Representatives and legal representatives of the victim are independent parties to the criminal proceedings, and have sufficient procedural status. Theyhave the same procedural rights as the persons they represent. Thepersonal participation of a victim in a criminal case does not deprive him of the right to have legal representation in that criminal case, and the law does not limit the number of representatives.

It should be noted that this approach to the regulation of victim’s rights, as set forth in the applicable criminal procedural legislation of Russia, corresponds with the provisions of the (European Union’s) declaration of basic principles of justice for victims of crime and abuse of power, and coincides with the European Union Council of Ministers’ recommendations on the position of the victim in criminal law and procedure, since an important function of criminal justice should be to address the questions and safeguard the interests of the victim, and increase the victim’s confidence in the criminal justice system.

Legislators have given investigators the right, if necessary, to ensure the safety of the victim, his representatives, their immediate family, as well as relatives and friends, by not entering their identity into the record of investigation activities (interrogations). Inthis case, the participant participates in the investigative action using a pseudonym. Investigators write up their decision, and the document is placed in a sealed envelope to be filed with the case. Itis important to prevent access to this envelope with its original data on the protected person to anyone other than investigators and, later, the judge. Thereasons for the investigator’s decision to use confidentiality on the victim is specified in the document, and an alias and sample of the victim’s handwriting is used in the protocols of investigation, which is performed with his participation. InRussia, a conventional name is used as an alias. Itis permissible to use an alias and change the sex of the protected person. Entries in the records are maintained in accordance with the chosen male or female name. Thevictim can also choose the alias. Allactions involving the protected person are made in such a manner as to preserve his anonymity. Inorder to do this, records of investigative actions do not specify original data about the protected person, or any information that might allow for their identification. Given the fact that information about a victim may be contained in various documents (journals and registrations made by law enforcement and medical institutions), the investigator can make these documents unavailable.

Either the accused or his counsel may petition a meeting with someone hiding behind a pseudonym. However, according to the criminal procedure law, the holding of such a meeting is the investigator’s right, but not his obligation, and is based on the purpose of using an alias and not subject to the satisfaction of such a petition. Theposition of the European Court of Human Rights recognizes the inalienable right of the accused to question those testifying against him, but the European Court is not referring to a defendant’s right to question them directly, so, therefore, during a trial the defendant can transmit questions to be first examined by the judge, or before trial and during the preliminary investigation by the investigator. Inone legal decision (SN vs. Sweden in 2002) the Court stated: “One cannot assume that subparagraph d of Article 6, paragraph 3of the Convention requires in all cases that questions be asked directly of the accused or his counsel.” When deciding whether or not to use an alias, however, the investigator observes restrictive conditions for the application of security measures as set forth in the European Court of Human Rights. Inthe case of Kostovsky vs. Netherlands (1989), the court noted: “taking (testimony) from anonymous sources as a basis to achieve an applicant’s conviction is clearly at odds with guarantees provided for by Article 6of the Convention.” The Court made a similar decision in the case of Saidi vs. France (1993), finding that a conviction was based “solely on the statements of two anonymous individuals who identified the applicant as involved in the offense. Theprosecution did not submit any additional evidence to support their testimony.”

There is a special screen that allows, as necessary, for identification in an investigator’s office or on site, without resorting to special facilities. Thecurrent Law on Criminal Procedure does not preclude the use of video for identification. Thevideo image can be allowed for recognizable identification by live video, or by demonstrating a previously made recording.

At trial, the court may apply additional security measures. Protection of participants in court proceedings, including victims, is assigned to the bailiff, who shall act in accordance with the Federal Law on Bailiffs. Todeflect attacks on participants in the process, bailiffs may use special tools and weapons in their existing service.

On the basis of Article 241of the Russian Criminal Code, closed court proceeding may be conducted in order to protect participants in a trial. Thecourt may decide to hold closed hearings with respect to the entire judicial proceeding, or any part thereof. Closed hearings are also considered when something cannot be announced about that portion of the sentencing that contains information about witnesses and victims. Apresiding judge may ban photography and videotaping of a trial during open hearings.

The victim in a criminal trial is provided compensation for property damage due to the crime, as well as expenses incurred in connection with his participation in the trial. Thevictim’s lawsuit may contain compensation for non-pecuniary damages. Thevictim may bring a civil suit for consideration by the court during hearings of the criminalcase.

One of the most important guarantees of a victim’s property rights is the right of a prosecutor to introduce civil lawsuits into a criminal case. Thisis of particular importance in guaranteeing a victim’s property rights, since victims, due to age and health status, often cannot protect their rights and interests on their own. Thecourt decides issues stemming from a civil lawsuit during sentencing in the criminal case. Theabsence of a judicial decision on a civil lawsuit during a criminal case (for various reasons, such as unsubstantiated claims by the victim) does not deprive the concerned of his right to refer his lawsuit to another court for civil proceedings.

An additional protection is provided by the Federal Law of August 20th, 2004, on State protection of victims, witnesses, and other persons assisting in criminal proceedings. Ifthere is evidence of a threat of murder, violence, or property destruction or damage, the victim’s close relatives, other relations, and friends, may apply for the following measures of State protection:

1) Bodyguards for these persons, and protection of their homes and property;

2) The issuance of special personal protective equipment and emergency communication;

3) Relocation to another residence;

4) Temporary placement in a safe place;

5) Replacement documents;

6) Change of appearance;

7) Confidentiality of information about the protected person;

8) Temporary placement in a safe place (sic).

Measures of State protection can also be applied in criminal proceedings taking place against the applicant, or a witness, or the victim. Refusal to apply protective measures, or the provision of inadequate protective measures for the person concerned, gives them the right to appeal against the prosecutor or thecourt.

We still have, unfortunately, many problems in protecting the rights of victims. Still to be resolved is the issue of free legal assistance to victims (when the accused is entitled to such). Science and practice shows the need for a state insurance fund, from which victims could quickly receive money necessary for treatment or recovery of lost property. Itis important, however, that the State take an active part, as it is responsible for its citizens.

Terrorism is an international evil. Russia principally supports broad, effective cooperation in countering this threat. Webelieve that it is necessary to consolidate international efforts in combating terrorism. Inturn, we are examining the experiences of our foreign colleagues and will certainly use whatever we find to be ofvalue.

http://www.osce.org/documents/html/pdftohtml/26252_ru.pdf.html

 
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