I wanted to save what was left of me.124
-Boris Botvinnik, March 14, 1997
Under that kind of torture, you're no longer contemplating the possibility of suicide, you're desperately trying to find an object to kill yourself with.125
-Dmitrii Koligov, March 16, 1998
At that moment under that torture I would have confessed to the murder of List'ev.126
-Andrei Getsko, April 5, 1998.
After the resistance of the detainee wears down, police force him or her to write a confession, sometimes by prompting or dictating what is to be written. Investigators and judges often heavily rely on these confessions in the further stages of the preliminary investigation and trial proceedings. Human Rights Watch is not aware of any Russian judge who exclude a coerced confession from the evidence of a criminal case, even if medical evidence of torture was presented. Law enforcement agencies and the judiciary have been reluctant to admit mistakes in investigations and judicial errors.
The Process of Securing Confessions
Former detainees recounted the different ways in which they composed their confessions under duress.127 Some said they wrote the confessions themselves;others, that police either prompted or dictated the confession, and sometimes coerced several confessions from the same victim. In yet other cases, once the detainee confessed, police attempted to force them to sign confessions to various other unsolved. Police forced many of the individuals interviewed by Human Rights Watch to state in their confessions that article 51 of the constitution (the right not to testify against oneself or close relatives) was explained to them, that they voluntarily refused a lawyer, and that they had no complaints about their treatment by the police.
Mikhail Iurochko told Human Rights Watch that his first confession was written with heavy prompting by the case investigator:
Yes, they gave me an interrogation form, the investigator sat there, the detective was close by. The detective left, the investigator worked out together with me the place in the room [at the scene of the crime]: what, where, how. He prompted me. I wrote it with my own hand...like that. "Here, probably, you did this, and that you did like this."128
After Iurochko wrote this confession, a witness apparently testified to seeing three people on the roof of the victims' apartment building on the day of the murder. According to Iurochko's account, police subsequently forced him to write a second confession, this time implicating two of his friends.129
Mara Poliakova, a former instructor at the Procuracy General's Institute for Improving Qualifications of Top Personnel, analyzed numerous criminal cases and found evidence that police regularly force defendants to write new, revised confessions as their cases advance, with subsequent confessions reflecting new information the investigation had gathered. She illustrated her observation with the case of a man who was convicted for the murder and rape of a minor. The Moscow City Court overturned his conviction when police found an individual who appeared to be the real perpetrator of the crime:
[D]uring the very first interrogation, he said: "I committed the murder and rape of this girl." He didn't give any concrete information about the crime. Then he changed his testimony. He said that he had committed the crime with his close friends...in this [confession], he listed thefriends. Then the investigation established a fool-proof alibi for these people.... Then it turned out that certain [other] friends were, as we say, fond of women, they brought some sort of pictures to their friends, of a pornographic character or simply with a sexual motif. That is, they [the investigators] established a kind of preoccupation and a new confession appeared, in which he referred to his ostensible co-offender. Then, a fool-proof alibi was established [of the man's friends]. Whenever an alibi was established, a new version appeared.130
Some former detainees told Human Rights Watch that police tried to force them to sign blank interrogation forms or refused to allow them to read the interrogation reports they were supposed to sign. For example, Andrei Tuzikov told Human Rights Watch, "Then one of them put a plastic bag over my head, gave [me] a piece of paper and a pen and said: `Sign.' I had no choice and I signed.... I didn't know what he [the police officer] wanted. They later wrote in their own, they had given me a blank piece of paper."131 Zhanna Setchikova and Tatiana Popkova described similar experiences (see below).
Several former detainees told Human Rights Watch that police tried to force them to confess to so-called "visiaki," crimes that police are unable to solve for long periods. Igor Koliapin, of the Nizhnii Novgorod Society for Human Rights, told Human Rights Watch about one of his clients:
[T]hey detained a young man (seventeen to nineteen years old) for the theft of a car, almost red-handedly and started to beat him up at the precinct and demanded that he confess to some other unsolved crimes, which were "hanging" in the precinct.... They told him: "Things won't look worse, what's the difference? You're going to be doing plenty of time. We'll make sure you get vodka or whatever else. And we won't pester you anymore. Confess, you've committed a crime anyway. And you avoid unpleasantness for someone else: you'll do time not only for yourself but also for the other guy."132
He said that when the young man refused to confess to the other crimes, police officer beat him severely.
Several others gave Human Rights Watch similar accounts of their own ill-treatment. Police, according to his account, tried to coerce Oleg Fetisov into confessing not only to stealing a jacket but also to several apartment and garage burglaries. Altogether, they tried to make him confess to seven different crimes. The effort failed with his leap from the police station window to escape torture. Andrei Tuzikov said that after he had been tortured and confessed to one crime, police left him alone for some time:
Five days I spent in the KPZ [temporary holding cell], nobody called me in or touched me. Then after five days he [the investigator] said: "We have some [burgled] apartments." He dictated. I signed. I didn't start to argue with him.... He said, "We have an apartment `hanging,' you must take it [upon yourself]."133
Altogether Tuzikov confessed to seven different crimes, most of which were apparently not prosecuted.
Reliance on Confession Evidence
In various cases Human Rights Watch examined, investigators and judges relied heavily on coerced confessions signed by defendants. Once torture produced a confession, the emphasis of the further investigation appeared to be to corroborate and reinforce the confession; sometimes investigators disregarded other evidence or evidence exonerating the defendant.
In the case of Mikhail Iurochko, Dmitrii El'sakov, and Evgenii Mednikov, who were accused of murdering two young sisters, police coerced confessions from all three men that by and large corroborated each other. The case investigators subsequently refused to take into consideration what appeared to be legitimate evidence of the innocence of one of the men: Dmitrii El'sakov maintained that at the time of the murder he was at work at an Arkhangel'sk fire department, and various colleagues, including the head of his shift, confirmed this. The colleagues told investigators and later the court that El'sakov could never have left the fire department for a long time without his absence being noticed. Furthermore, nobody had seen him leave the building. Several colleagues said they remembered seeing El'sakov at different times during the day and one colleague said he had lunch with El'sakov at 1:00 p.m.
Like the investigators, the Arkhangel'sk Province Court refused to believe Dmitrii El'sakov's colleagues. The judge even went so far as to institute criminal proceedings against one of the firefighters for lying under oath. El'sakov's lawyer, Valentina Lutsyshina told Human Rights Watch:
This man, who was on the shift...gave testimony of the following nature; he answered the court impertinently: "You can leave your court room as well but to do that unnoticed for a longer time is impossible.... You can go to the bathroom for five or ten minutes but in a small group even that soon gets noticed."134
Had the investigator, or court, accepted the alibi, the entire criminal case would have collapsed as it would have become clear the confessions Iurochko, El'sakov, and Mednikov gave implicating one another had been obtained through unlawful means. In May 1999, the Supreme Court overturned their convictions and sent the case back for further investigation.
Mara Poliakova, a former instructor of the Procuracy General's Institute for Improving Qualifications of Top Personnel, confirmed to Human Rights Watch that once confessions have been obtained, procuracy officials heavily rely on them and are highly reluctant to dismiss them, even if circumstances indicate that the confessions may have been obtained under coercion. The instructor trained procurators by having them reenact criminal investigations throughout the course of several years. One of the cases used during this training was that of a young man who had been wrongly sentenced to death for raping and murdering a minor on the basis of his confessions and some circumstantial evidence. He periodically withdrew his confessions, claiming that they had been coerced under torture and were dictated to him by co-detainees or police officers. After his conviction by the Moscow City Court, police found the real perpetrator of the crime and the Supreme Court overturned the young man's conviction. Poliakova told Human Rights Watch:
All our procurators worked on this case in a traditional way.... And each time they went the same [wrong] way.... [E]ach procurator works in the following way: there is the prosecution's version and his task is to push that version through court. And everything that contradicts that version (and this is at a level of thinking or even the subconscious) is thrown off internally.
In this case, there was a lot of circumstantial evidence but there were also some small contradictions. It was necessary to identify these and to clarify the reasons for these contradictions.... His [the defendant's] testimonies, in which he confessed his guilt in committing the offense, differed. Also, when you read them [the confessions], even a layman's eye can see that we're talking about different language styles, different levels of command of the language.
The procurator should have approached his testimony critically. First of all, it was necessary to...establish why [he gave] such different testimony. In this case, a psycho-linguistic expert assessment should have been carried out.... We later carried out an expert assessment and the experts, seven people, [were] specialists in different areas: psychologists, linguists.... Everyone gave a separate conclusion and when they were put together, it turned out that all results were the same. And all seven experts concluded that he [the defendant] was the author only of the retractions.... They even established that the texts [of the confessions] had been dictated by three or four [different] people.135
In the case of Boris Botvinnik, Dmitrii Koligov, and Mikhail Shikalenko, investigators also heavily relied on the three men's "confessions" as well as on a videotaped "investigative reenactment" at the site of the crime. Botvinnik told Human Rights Watch that after he signed a "confession," police took him to the place of the crime to reenact it. Botvinnik was supposed to show police where he had done what at the time of the crime. Botvinnik claims that police prompted him during the entire reenactment and at one point even led him down the wrong staircase, where they got stuck and had to turn back. Both Koligov and Shikalenko described in court how police had beaten them into confessing.
In court, Judge Valentina Komarova of the Nikulin District Court initially tried to avoid hearing the case on the merits; she returned the case to the procuracy for further investigation on two occasions, stating it was insufficiently investigated. On both occasions, the case eventually returned to the judge, who issued a guilty verdict in March 1999, two years after first receiving the case. During that period, Koligov and Shikalenko remained in the Butyrka pretrial detention center. In 1998, Shikalenko was diagnosed with an open form of tuberculosis.
The "confessions" and the "reenactment" provided as the basis for the conviction. As a Human Rights Watch researcher monitoring the trial observed, sheinexplicably refused take into consideration several other irregularities that had occurred during the criminal investigation. The gun with which the victims were shot, a bag, and various other pieces of material evidence that had been previously confiscated by police mysteriously disappeared. Prosecutors did not respond to the defense's queries as to the fate of this material evidence, and the judge failed to require the prosecution to do so. Police also failed to question the only witness to the armed robbery and murder of which Botvinnik and his codefendants were accused. The witness, a Mongolian woman who worked at the Mongolian embassy in Moscow, had been wounded during the robbery and was taken to the hospital. She did not leave Russia for at least three weeks following the crime.
The case of death-row prisoner Sergei Mikhailov, whose innocence appears to have been irrefutably proven but who still languishes in jail, reveals the overwhelming importance given to confessions in Russia. It appears that once a confession-based conviction is obtained, the resistance to reopening or reviewing the case becomes extraordinarily high, even in the face of dramatic new evidence.
Following the murder and rape of a ten-year-old girl in the provincial town of Vel'sk in Arkhangel'sk province in October 1994, police detained twenty-one-year-old Sergei Mikhailov for ten days in December 1994 for petty hooliganism. Denied access to a lawyer, Mikhailov claimed that police beat him over the course of these ten days and threatened to throw him into a so-called "pressing room," where cell mates who are police trustees would beat and rape him. While still in incommunicado detention, Mikhailov confessed to the murder. After Mikhailov was granted access to a lawyer, he withdrew his confession. In April 1995, the Arkhangel'sk Province Court tried the case and sentenced Mikhailov to death, based largely on his confession. The Supreme Court confirmed the sentence on appeal.
In November 1996, a murder almost identical to the one for which Mikhailov had been convicted occurred in Vel'sk. In the course of the investigation, police arrested Alexander Kozlov, who reportedly confessed not only to the second but also to the first murder.
Instead of immediately starting proceedings to correct a miscarriage of justice against Mikhailov, the Arkhangel'sk procuracy tried to obscure its mistake.136 Although the procuracy's special investigator concluded in July 1997 that Mikhailov had been wrongly convicted and recommended that the sentence beoverturned, the head of the procuracy in Arkhangel'sk, Alexander Apanasenko, refused to send this conclusion to the Procuracy General in Moscow. By then, an Arkhangel'sk-based journalist had written several critical articles about the case, and her newspaper, Pravda severa, also hired a lawyer for Mikhailov. In November, Apanasenko appointed a second special investigator, who reached the same conclusions as his colleague. Once again, Apanasenko refused to send the conclusions to Moscow. During this time, Mikhailov's lawyer had written five complaints to the Procuracy General, which finally demanded to receive the case materials.
Subsequently, the Procuracy General appointed its own special investigator, Dmitrii Buianov, to the case, this time from neighboring Vologda province. In August 1998, this investigator told a representative of Human Rights Watch that he was absolutely convinced of Mikhailov's innocence. Shortly thereafter, he presented his conclusions to the head of the Vologda procuracy, who sent them to the Procuracy General in Moscow. Inexplicably, the Procuracy General considered Buianov's conclusions insufficient to request the Supreme Court to overturn Mikhailov's conviction. It sent the case back to Vologda in October 1998, claiming that "not all witnesses had been questioned." In January 1999, Buianov submitted his next conclusion to the Procuracy General, which apparently found it insufficient and returned it to him once more in April 1999. As of this writing, Buianov had sent the results of his latest investigation into the case, but the Procuracy General had not taken a decision yet.
Meanwhile, Mikhailov continues to be held on death row at the Arkhangel'sk pretrial detention center,137 where he has been for almost four and a half years. According to his lawyer, Mikhailov has tried to commit suicide several times. Both his lawyer and the special investigator Human Rights Watch spoke to expressed deep concern about his mental stability. As a death-row prisoner, Mikhailov does not have the right to receive visitors, except for his lawyer. From April 24, 1995 to July 1, 1997, Mikhailov had no exposure to sunlight, as death-row prisoners did not have the right to recreation. Human Rights Watch representatives met with Mikhailov briefly in August 1998, thanks to the special investigator from Vologda province. However, the representatives were forced to break off the meeting because prison authorities insisted that a guard be present at all times. Mikhailov appeared extremely distraught and depressed. Due to President Boris Yeltsin'sinitiative to commute the sentences of all remaining death row prisoners in June, Mikhailov's sentence was changed to twenty-five years of imprisonment. He is currently awaiting transfer to a labor colony.
Judicial Refusal to Exclude Coerced Confessions
Judges rarely exclude confessions obtained under duress, although most at trial did appear to question the defendant on the issue, summoned the alleged perpetrators for questioning, and some requested medical documents. Some judges subsequently simply dismissed the torture complaints while others sent cases back for further investigation or instructed the procuracy to investigate the torture complaints.
One judge from a Moscow district court, who acknowledged that many defendants she tries allege they were ill-treated, told Human Rights Watch that when defendants make allegations of torture, it is extremely difficult for her to exclude the confessions or testimony concerned, even if she is convinced that the allegations are legitimate:
When a defendant alleges he was tortured, I am obliged to appoint a procuracy inquiry into the allegations before I exclude the evidence. However, these inquiries never confirm the allegations. The procuracy just writes formal replies. That makes it almost impossible for me to exclude the evidence: If I do, the procuracy will appeal and a higher court will overturn my verdict pointing to the outcome of the procuracy inquiry.138
In the case of Boris Botvinnik and his codefendants, Judge Komarova questioned the defendants about torture during several court hearings. She questioned the detectives and investigators who had worked on the case, who claimed that they had fully observed the law. She was provided with conclusions regarding the nature of Botvinnik's injuries from a leading eye institute in Russia and a hospital in Volgograd. However, Judge Komarova denied several requests for a forensic medical examination, and in her final verdict on the case, did not exclude the confessions or the results of the highly suspicious "investigative reenactment," which were both obtained under torture and the threat of torture, and failed to refer to the medical evidence of torture altogether. Judge Komarova gaveall three men comparatively lenient sentences on March 1, 1999: Botvinnik received a suspended sentence of five years' imprisonment; Koligov, a three-year prison term (he had already spent two and a half years in pretrial detention); and Shikolenko, a four-year prison term.
During their trial in August 1997 in a Nizhnii Novgorod court, Kirill Komlev and Anton Shamberov both told the court that they were tortured and mentioned the name of police detective Popov. The judge called Popov to the stand. Anton Shamberov told Human Rights Watch:
When during the court hearing they [the judges] asked Popov if they had beaten Komlev and Shamberov, he said: "No, we didn't beat them, we just had a friendly talk." For almost an entire ten days they talked friendly talks. And Komlev said: "If beating up is called a friendly talk, then we had a friendly talk." Popov said further that now the defendants will say whatever in order to get themselves off and the court accepted that.139
As was the case during the procuracy's review of the torture allegations, the court did not question three people who allegedly saw Komlev at the police station after he was beaten: his wife, mother, and lawyer. The court ruled that the torture allegations had not been confirmed by facts.
In the case of Andrei Getsko, the judge summoned several doctors who Getsko claimed had seen how police officers beat him in an elevator at the Central Hospital-1 in Bratsk. When the doctors confirmed that they had witnessed the incident on March 20, 1998, the initially skeptical judge had no choice but to recognize that the beatings had taken place and instituted criminal proceedings. She did not exclude the confession signed by Getsko as a result of the beatings, but rather referred the criminal case against Getsko, which had lasted already four years, back to the procuracy for further investigation.
In one extreme case, a judge acknowledged in his verdict that testimony had been received under physical coercion but went on to base the guilty verdict on that testimony. Judge S.V. Romanovskii of the Klin City Court, in his verdict in the case against Aleksei Korkhov (charged with battery and murder) stated that witness Seliverstov repeatedly testified to police in favor of Korkhov.140 However, the written verdict declares that "after physical coercion," he changed his testimony,incriminating Korkhov. Yet the judge went on to argue that he believed that the testimony obtained under coercion was the truth. Even if that testimony were truthful, the judge should have excluded it from the court proceedings under article 69 of the criminal procedure code.