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Mikhail Fedotov on the regulations under which protesters are charged [Novaya gazeta]

posted 17 Apr 2017, 23:58 by Rights in Russia   [ updated 18 Apr 2017, 00:02 ]

7 April 2017

Source: Moscow Helsinki Group [original source: Novaya gazeta]

Extract

An interview with Mikhail Fedotov, chair of the Presidential Council for Civil Society and Human Rights, by Leonid Nikitinsky, columnist for Novaya gazeta and a member of the Presidential Council

The Presidential Council for Civil Society and Human Rights has suggested a re-examination of its previous proposals for amendments to the regulations under which participants in mass protests are charged, for example by allowing the use of video footage

While visiting police stations and special detention centres where those detained during the mass protests in Moscow on 26 March were held, Mikhail Fedotov, chair of the Council for Civil Society and Human Rights, commented to the journalists who were with him that, “We must change the regulations which apply to the examination of cases involving administrative offences of this kind – the main evidence should be video footage”. Novaya gazeta asked Professor Fedotov to provide a more detailed explanation of this and other initiatives by the Council for Civil Society and Human Rights in relation to the mass protests.

Mikhail Fedotov: I should start by saying that the idea of using video footage when examining charges relating to violations of the regulations on the organisation of mass protests is an initiative suggested by the Council for Civil Society and Human Rights rather than by myself as an individual. It was proposed on 1 February 2011 at a meeting of the Council for Civil Society and Human Rights held in Ekaterinburg, which Dmitry Medvedev (the then President of the Russian Federation) also attended. Back then Liudmila Mikhailovna Alekseeva and Mara Fedorovna Polyakova commented that reports about administrative offences were sometimes produced by police officers not at the scene of the offence, but later and on the basis of their colleagues’ version of events; these reports were liable to contain inaccuracies, and came dangerously close to false evidence (Article 307 of the Criminal Code of the Russian Federation). The police officers who detained the offenders merely brought them to the police station and left them there with the on-duty officers before going away again to continue their work, and the authors of the reports (that would later go to the courts by the dozen) found themselves in a very questionable position.

President Medvedev agreed that, “perjury is a crime under any circumstances”, and that wider use should be made of audio recordings and video footage. I will quote what he said next (the minutes of the meeting of the Council for Civil Society and Human Rights of 1 February 2011 can be found on the Council’s website); “I am thinking not of eyewitness reports, which are of a highly specific nature for both parties, but of audio recordings and video footage, so that it becomes established practice for courts to allow such evidence to be included in the file for the case.”

On 26-28 March 2016, together with Andrei Babushkin, a member of the Council for Civil Society and Human Rights, I visited Moscow police stations where the detainees had been taken, and we discovered that the reports were all carbon copies of each other, stating that the offender in each case had “…participated…”, “…chanted protest slogans…”, “…walked out onto the roadway…”, “…prevented the movement of traffic and pedestrians.” We could not help but ask ourselves whether these reports reflected what had really happened. At every single police station, I asked the police officers whether they had used their own or third-party video footage. All of them replied that no one within the police force had ever given them any video footage, and they had never heard of third-party video footage being used.

One can only assume that the police has significantly improved its technical capacities for recording video footage over the six-year period since the Council for Civil Society and Human Rights first asked this question, and that the footage itself has increased in both quality and quantity. Why should this footage of protesters and witnesses not be used?

— What prevents the use of video footage?

Mikhail Fedotov: Nothing prevents its use, and there are no laws prohibiting it. It merely differs from the established practice enshrined in Article 26.2 of the Code on Administrative Offences, which defines the term “evidence” and which was criticised by the Council for Civil Society and Human Rights six years ago. According to Article 26.2, the factual information which can be used by a judge or another body as a basis for a decision (and I quote) “is established by means of the report on the administrative offence or other reports… statements by person against whom the administrative offence charge has been filed, testimonies by the victim or witnesses, expert findings, other documents, and also evidence obtained by special technical means and material evidence.”

Video footage does not qualify as “material evidence”, because the latter is defined by the Code as “implements for committing an administrative offence or the object of an administrative offence, including implements for committing an administrative offence or the object of an administrative offence showing evidence of said offence.” Video footage also does not qualify as evidence obtained by special technical means, since the Code defines the latter as measuring apparatus. What all of this means is that there is no direct prohibition, but an obvious gap exists.

There is of course no law prohibiting a request for video footage to be included in the file for an administrative law case. In practice, however, the judges are more likely to accept evidence of this kind if it is submitted by the police than if it is submitted by the defence. If video footage submitted by the defence is included in the file for the case, a note is usually made to the effect that it, “contains information on the detention of the offender and his removal to a police vehicle, but does not contain any information which refutes the event or circumstances constituting an administrative offence.” The Council for Civil Society and Human Rights believes that this practice must be changed by amending Article 26.2 of the Code on Administrative Offences to allow video footage as evidence, and also by the issuance of corresponding clarifications by the Supreme Court of the Russian Federation.

It is very revealing that the Code has already been amended by addition of a passage stating that video footage can be used not only as evidence, but as “supreme evidence” which removes the presumption of innocence in the case of traffic offences. An explanatory statement for Article 1.5 of the Code eliminates the presumption of innocence for vehicle owners by stating that the owner of the car must prove his innocence if a traffic offence is recorded by technical means “involving photography, filming or videoing”; this saves money and reduces police workloads. Why should all citizens not have the option of using video footage as evidence to refute the charges brought against them? What are we afraid of? Justice and the rule of law? […]

Translated by Joanne Reynolds
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