Reluctance to change places – Newspaper Kommersant No. 13 (7458) dated 01/25/2023

The Constitutional Court (CC) obliged the courts of general jurisdiction to consider complaints from the accused and suspects against the decisions of investigators to transfer them to another pre-trial detention center. Leaving the grounds for moving from one place of detention to another outside the framework of judicial control would limit the right to judicial protection and detract from the dignity of the prisoner’s personality, the ruling of the Constitutional Court, which was published on January 24, says. Experts say that the frequent transfer of the accused is used as a tool of pressure and so far it has not been possible to appeal against such actions.

The reason for checking Article 125 of the Code of Criminal Procedure (CCP), which regulates the procedure for considering complaints against decisions and actions of investigators, was the complaint of Vladimir Sargsyan, a resident of Cherkessk, who had to move several times from one region to another during the investigation. All this time, his defense was challenging the investigator’s decision to transfer the defendant. According to the applicant, the reasons for the moves were far-fetched, but in reality he was thus pressured into confessing. In addition, the remoteness of the detention of Vladimir Sargsyan from the place of the preliminary investigation greatly complicated his communication with a lawyer and artificially limited the possibility of obtaining qualified legal assistance.

However, the Essentuki City Court refused to consider the complaint, considering that such decisions of the investigator were not subject to appeal. The appellate and cassation instances supported this position, as did the Deputy Chairman of the Supreme Court. Such a refusal, according to Mr. Sargsyan, violated his constitutional right to defense, and the Constitutional Court agreed with him. Art. 125 of the Code of Criminal Procedure guarantees the possibility of appealing not only decisions to terminate or refuse to initiate a criminal case, but also other actions of the investigator that can damage the constitutional rights and freedoms of participants in criminal proceedings, recalled the Constitutional Court.

At the same time, the decision emphasizes, the court should not be limited to formal verification and refuse to assess the validity of controversial decisions. And although the current legislation does not regulate in any way the grounds for transferring the accused to another pre-trial detention center, this in itself does not exclude the verification of such a decision by the court, the Constitutional Court insists. As a general rule, it is assumed that the accused is detained at the location of the body of preliminary investigation and the court, and the transfer of the prisoner to another place should be an exception to the rule – for example, due to the need to carry out investigative actions. Given this interpretation, the disputed article does not contradict the Constitution, the Constitutional Court decided. But the federal legislator can specify the grounds, goals and conditions for the transfer, and the applicant has the right to count on compensation, the amount of which must be determined by the court of the city of Essentuki.

It is important that the Constitutional Court recognized the existence of the problem and its importance, says Konstantin Kachalov, a Pyatigorsk lawyer for Vladimir Sargsyan. He notes that this problem is especially acute in the regions of the North Caucasus, where such transfers are often used to put pressure on those under investigation. The Constitutional Court confirmed that the arbitrary transfer of the accused from the pre-trial detention center of one region to another can lead to a violation of his rights, and sent a signal to the legislator, suggesting that he formalize the conditions for the transfer, the lawyer notes. Now, in his opinion, the word is up to the legislator: it depends on how he does this, whether the possibility of violating the rights of the accused and suspects in such actions of the investigators will be excluded. But judicial practice is also important, adds Mr. Kachalov: either the courts will deal with it objectively, or they will take the side of the investigator and will not take into account the arguments of the accused.

This is certainly an important decision, agrees the head of the Moscow branch of the “Team Against Torture” (created instead of the liquidated Committee against Torture, entered in the register of foreign agents) Georgy Ivanov. He also believes that the transfer from one institution to another is often used to put pressure on the accused: the move makes it difficult to get the help of a lawyer of his choice, and the transfer itself is a long and far from the most pleasant experience. Until now, it has been practically impossible to appeal against such decisions of the investigator in court, since mass refusals to accept such complaints were practiced, the expert notes. Taking into account the new positions of the Constitutional Court, the courts will be obliged to check the motivations for such transfers, that is, to investigate the validity of the investigator’s conclusions. True, Mr. Ivanov adds, taking into account the general predisposition of the courts, it is hardly worth expecting, first of all, the investigation of a breakthrough in this area.

Anastasia Kornya