Moscow April 22, 2013
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7.2 Commission's opinion on other matters relating to the events of May 6Data collected by the Commission provide a basis to express the following opinion on a number of other questions that reveal the content and nature of events on May 6, 2012 in Moscow. 1. The Commission believes that fair investigation of the events on May 6, 2012 is impossible without a proper assessment of the actions (or inaction) of the city authorities and law enforcement authorities, which are required by law to “assist to carry out a public event”, ensure “public order and security of citizens at a public event”. 2. The Commission notes that the actions of law enforcement authorities were deliberately aimed at the mass and unmotivated arrest of protesters. Mass arrests were to create the impression of mass unrest. This is confirmed by all the data, including numerous detentions outside the venue of the public rally, when protesters were leaving. 3. As a result of deliberate illegal actions of law enforcement authorities, numerous threats to life and health of citizens participating in the public rally have been created. Many of them needed help, representatives the authorities did not provide it, but also hindered the provision of such assistance. Only under the pressure from protesters officials in exceptional cases did not interfere with the provision of medical care to those citizens who needed it. 4. Noteworthy is especially aggressive reaction of representatives of the authorities to cases when the protesters pointed to the illegality of their actions. Many of the detainees on the Bolotnaya Square and beyond the area found themselves in paddy wagons for this very reason. Even more inadequately severe reaction occurred in response to attempts of citizens to stop the illegal actions of representatives of the authorities who were severely beating defenseless people. 5. The Commission considers the description of the events on 6 May 2012 and the investigation of the case of May 6, presented by Russian federal TV channels, to be biased with politically engaged character. 6. The Commission considers that the investigation of the “Case of the May 6” is biased and politically engaged, charges are illegal, preventive measures against the accused are illegal as well.
7.3 Violations of the Constitution of the Russian Federation, the international obligations of the Russian Federation and the laws of the Russian FederationThe Commission notes that the actions of the authorities on the actions that implement the right of citizens “to gather peacefully, without weapons, hold meetings, public rallies, demonstrations, marches and pickets” for the first time in 25 years is marked with unprecedented brutality, pervasive violence and massive violation of the law. Below in this section a list of acts that have been violated by the authorities on May 6 and thereafter, during the investigation and court proceedings is presented. 7.3.1 Violations of the Constitution of the Russian FederationArticle 2 «Man, his rights and freedoms are the supreme value. The recognition, observance and protection of the rights and freedoms of man and citizen shall be the obligation of the State» Article 31 «Citizens of the Russian Federation shall have the right to assemble peacefully, without weapons, hold rallies, meetings and demonstrations, marches and pickets» in conjunction with art. 15, 17, 18, 19, 45 art. 15: par. 1 «The Constitution of the Russian Federation shall have the supreme juridical force, direct action and shall be used on the whole territory of the Russian Federation …»; par. 2 «The bodies of state authority, the bodies of local self-government, officials, private citizens and their associations shall be obliged to observe the Constitution of the Russian Federation and laws»; par. 4 «The universally-recognized norms of international law and international treaties and agreements of the Russian Federation shall be a component part of its legal system. If an international treaty or agreement of the Russian Federation fixes other rules than those envisaged by law, the rules of the international agreement shall be applied» art. 17 par. 1 «In the Russian Federation recognition and guarantees shall be provided for the rights and freedoms of man and citizen according to the universally recognized principles and norms of international law and according to the present Constitution»; par. 3 «The exercise of the rights and freedoms of man and citizen shall not violate the rights and freedoms of other people» art. 18 «The rights and freedoms of man and citizen shall be directly operative. They determine the essence, meaning and implementation of laws, the activities of the legislative and executive authorities, local self-government and shall be ensured by the administration of justice» art. 19 par. 2 «The State shall guarantee the equality of rights and freedoms of man and citizen, regardless of … convictions…»; par. 1 «Human dignity shall be protected by the State. Nothing may serve as a basis for its derogation. par. 2 No one shall be subject to … violence...» art. 45 par. 1 «State protection of the rights and freedoms of man and citizen shall be guaranteed in the Russian Federation» 7.3.2 Violations of the European Convention on Human RightsArticle 11. Freedom of assembly and association par. 1 «Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests». par. 2 «No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. this article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State». 7.3.3. Violation of the Universal Declaration of Human Rights and International Covenant on Civil and Political RightsThe Universal Declaration of Human Rights that was adopted by the UN General Assembly on December 10, 1948. Article 20 «1. Everyone has the right to freedom of peaceful assembly and association» International Covenant on Civil and Political Rights (December 16, 1966)Article 21 «The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others». 7.3.4 Violations of Law No. 54- ФЗ “On Meetings, Rallies, Demonstrations, Marches and Pickets” dated June 19, 2004Article 12. Duties of the executive authority of the constituent entity of the Russian Federation or of the local self-government body. «par. 1 The executive authority of the subject of the Russian Federation or the municipal body, upon receiving notice of the public event, must: … 2) deliver to the promoter of the public event, within three days from receipt of the notice on holding the public event … a well-motivated proposal to alter the place and/or time of holding the public event … 3) … appoint its authorized representative for purposes of offering assistance to the promoter of the public event in the holding of the public event as is provided under this federal law. The appointment of the authorized representative shall be formalized with a written order that shall be forwarded in good time to the promoter of the public event and internal security body for organization and proper maintenance of public security of the participants of the public event and others … <…> 5) enforce, within its respective competence and jointly with the promoter of the public event and the authorized representative of the internal security body, public order and security of citizens in the process of holding the public event and also provide them, in case of need, with urgent medical aid». Article 13. Rights and obligations of the authorized representative of the executive authority of the constituent entity of the Russian Federation or the local self-government body para. 2 «The authorized representative of the executive authority of the constituent entity of the Russian Federation or the local self-government body shall be obligated: 1) to attend the public event; 2) to give to the promoter of the public event assistance in its holding; 3) to ensure, jointly with the promoter of the public event and the authorized representative of the internal security body public order and security of citizens and also observance of legality in the process of its holding». Article 14. Rights and obligations of the authorized representative of the internal security body par. 1 «At the suggestion of the executive authority of the constituent entity of the Russian Federation or the local self-government body, the chief of the internal security body that is servicing the territory (premises) in which it is planned to hold the public event, shall be obligated to appoint an authorized representative of the internal security body for purposes of rendering assistance to the promoter of the public event in maintaining public order and security of citizens. The appointment of the representative shall be formalized with an order of the chief of the internal security body»; par. 3 «The authorized representative of the internal security body shall be obligated: 1) to give assistance in holding the public event within his respective competence; 2) to ensure, jointly with the promoter of the public event and the authorized representative of the executive authority of the constituent entity of the Russian Federation or the local self-government body, public order and security of citizens and observance of legality when holding the public event». 7.3.5 Violations of Law No. 3- ФЗ “On the police” dated February 7, 2011Article 1. The Intended Purpose of the Police «1. The police is intended for protecting the life, health, rights and freedoms of citizens of the Russian Federation, foreign citizens and stateless persons (hereinafter also referred to as "citizens" or "persons"), countering crime, enforcing law and order, protecting property and ensuring public safety». Article 2. Main Lines of Activities of the Police «1) the protection of the person, the society and the state against wrongful encroachments; <…> 6) the maintenance of law and order in public areas». Article 5. Observing and Respecting Human and Citizen's Rights and Freedoms «1. The police shall pursue its activities on the basis of the observance of and respect for human and citizen's rights and freedoms. 2. The activities of the police which restrict the rights and freedoms of citizens shall be immediately stopped if the lawful objective has been achieved or if it has been discovered that the objective cannot or is not to be achieved by means of restricting the rights and freedoms of citizens. 3. Police officer is prohibited to resort to torture, violence or another cruel or denigrating attitudes. Police officer shall stop the actions whereby pain, physical or moral suffering is being deliberately caused to a citizen. 4. While addressing a citizen a police officer: 1) shall announce his position, rank and surname, show his service identity document if requested by the citizen, and thereafter announce the reason and purpose of the address; 2) if measures are applied to the citizen whereby his rights and freedoms are restricted, shall explain to the citizen the reasons and grounds for the use of such measures and also the rights and duties of the citizen occurring in connection thereto. 5. When a citizen is addressing him/her a police officer shall announce his position, rank and surname and attentively listen to the citizen and take relevant measures within the scope of his powers or explain who is competent to resolve the issue raised. 6. The information received as the result of the police's activities about the private life of a citizen shall not be provided to anyone without the citizen's voluntary consent, except for the cases envisaged by a federal law. 7. The police shall provide each citizen with an opportunity for familiarizing himself with documents and materials directly affecting his rights and freedoms, except as otherwise established by a federal law» Article 6. Rule of Law «1. The police shall pursue its activities in strict compliance with the law. 2. Any limitation on the rights, freedoms and lawful interests of citizens and also on the rights and lawful interests of public associations, organizations and officials is admissible only on the grounds and in the procedure envisaged by a federal law. 3. Police officer is hereby prohibited to incite, coerce or urge either directly or indirectly anyone to commit actions contravening the law. 4. When on duty, to justify their actions (omissions) police officer is not entitled to refer to the interests of service, economic feasibility, illegal demands, orders and instructions of higher officials or any other circumstances. 5. Measures of state enforcement may be used by police to execute the duties and realise the rights of the police only in the cases envisaged by a federal law. 6. The federal executive governmental body in the area of internal affairs shall ensure control over the legality of decisions and actions of police officials» Article 7. Impartiality «1. The police shall protect the rights, freedoms and lawful interests of a human being and citizen, irrespective of … convictions, membership in public associations…» Article 9. Public confidence and support of the citizens «1. The police carrying out its activities seek to ensure public confidence and support of the citizens. 2. Actions of the police officers should be reasonable and clear to the public». Article 12. The Duties of the Police «1. The following duties are hereby vested in the police: <…> 6) to ensure jointly with representatives of executive governmental bodies of subjects of the Russian Federation, local self-government bodies and the organizers of meetings, rallies, demonstrations, marches and other public events (hereinafter referred to as "public events") the safety of citizens and public order, to render assistance in accordance with the legislation of the Russian Federation to the organizers of sport events, shows and other mass events (hereinafter referred to as "mass events") in ensuring the safety of citizens and public order at the places where these events take place». Article 14. The Detention «1. The police shall protect everyone's right to freedom and personal immunity. Before a court's decision in the cases established by the present Federal Law and other federal laws a person shall not be detained for a term exceeding 48 hours. <…> 14. A report shall be drawn up in respect of detention as containing the date, time and place of its being drawn up, the position, surname and initials of the police officer who drew up the report, information on the detainee, the date, time, place, grounds and reasons for the detention, and also the fact of the detainee's close relatives or close persons having been notified. <…> 16. Detainees shall be kept on premises specifically designated for that purpose under guard in conditions precluding a threat to their life and health. The housing conditions, food standards and the procedure for rendering medical services to detainees shall be defined by the Government of the Russian Federation. Before being placed in specifically-designated premises and after the end of the detention period detainees shall be inspected and the results of the inspection shall be entered in the report on detention». Article 16. Cordoning-off (Blocking) Sites, Dwellings, Structures and Other Installations «1. The police shall protect the right of free movement of everyone who legally stays on the territory of the Russian Federation. A restriction by the police of citizens' freedom of movement is admissible only in the cases envisaged by the present Federal Law and other federal laws. 2. By a decision of the head or acting head of a territorial body the police is entitled to cordon off sites: 1) when the aftermath of accidents, natural and man-made disasters and other emergencies is being eliminated, when quarantine measures are under way during an epidemic and/or epizootic; 2) when measures are being taken to stop mass disorders and other acts disrupting transport traffic and the operation of communication facilities and organizations; 3) when search is under way for persons who have escaped from custody and persons who are evading serving a criminal sentence; 4) when pursuit is under way of persons suspected to have committed a crime; 5) when a counterterrorist operation is under way and when information about the discovery of explosives or explosion devices or poisonous or radioactive substances is being verified. 3. When sites are cordoned off (blocked) vehicle and pedestrian traffic may be restricted or banned if its required to ensure the safety of citizens and law and order, conduct investigation, operative search, protect the scene of a crime or administrative offence, the scene of an accident and also to protect pieces of property which are endangered» Article 19. Procedure for the Use of Physical Force, Special Means and Firearms «1. Before using physical force, special means or firearms, a police officer shall inform the persons in respect of whom he/she intends to use physical force, special means or firearms that he/she is a police officer, warn them of his intent and provide them with an opportunity and time for performing the legal demands of the police officer. If physical force, special means or firearms are used by a unit (group) said warning shall be given by one of the police officers who are included in the unit (group). 2. The police officer is entitled to abstain from warning of his intent to use physical force, special means or firearms if a delay in the use thereof poses an immediate threat to the life and health of a citizen or a police officer or can cause grave consequences. 3. While using physical force, special means or firearms the police officer shall act with due regard to the prevailing situation, character and degree of actions of the persons to whom physical force, special means or firearms are applied, and the character and force of the resistance rendered by them. While doing so, the police officer shall strive to minimise any damage. 4. The police officer shall render first aid to a citizen who has got bodily injuries as the result of the use of physical force, special means or firearms and also take measures for providing him/her with medical assistance as soon as possible. 5. Notification of infliction of bodily injuries as the result of the police officer using physical force, special means or firearms shall be given by the police to close relatives or close persons of the citizen as soon as possible but in any case within 24 hours. 6. Notification shall be provided to a procurator within 24 hours of each case when a citizen is wounded or dies as the result of a police officer using physical force, special means or firearms. 7. The police officer shall preserve the scene of a crime an administrative offence or the scene of an accident as it was if the result of his using physical force, special means or firearms a citizen has been wounded or has died. 8. About each case of the use of physical force resulting in harm to the health of a citizen or material damage to a citizen or an organization, and also about each case of the use of special means or firearms the police officer shall inform his direct supervisor or the head of the nearest territorial body or unit of the police and submit a relevant report within 24 hours after the time when they were used. 9. As a member of a unit (group) a police officer shall use physical force, special means and firearms in accordance with a federal law as governed by orders and instructions of the head of that unit (group)» Article 20. Using Physical Force «1. In the following cases a police officer is entitled to use, either in person or as a member of a unit (group), physical force, including for instance combat fighting techniques, if non-violent means do not guarantee the execution of the duties vested in the police: 1) to stop crimes and administrative offences; 2) to deliver the perpetrators of crimes and administrative offences to the service premises of a territorial body or unit of the police, the premises of a municipal body or other service premises and to detain them; 3) to overcome resistance to legal demands of police. 2. The police officer is entitled to use physical force in all cases when the present Federal Law allows to use special means or firearms» Article 21. Using Special Means «1. In the following cases a police officer is entitled to use, either in person or as a member of a unit (group), special means: 1) to ward off an assault against a citizen or a police officer; 2) to stop a crime or administrative offence; 3) to stop resistance offered to police; 4) to apprehend a person who is caught as he/she was committing a crime and who is trying to escape; 5) to apprehend a person if that person can offer armed resistance; 6) to deliver to the police, escort and guard detainees, persons in custody, persons subjected to an administrative penalty in the form of a administrative arrest and also to stop an attempt at escaping, if the person offers resistance to police or causes harm to surrounding people or himself/herself; 7) to release persons detained by force, captured buildings, premises, structures, vehicles and land plots; 8) to stop mass disorders and the other wrongful actions disrupting transport traffic and the operation of communication facilities and organizations; 9) to stop a vehicle whose driver failed to comply the demand to halt issued by a police officer; 10) to detect the persons who are committing or have committed administrative offences; 11) to protect guarded installations, block the movement of groups of citizens committing wrongful actions. 2. The police officer is entitled to use the following special means: 1) special batons in the cases envisaged by Items 1-5, 7, 8 and 11 of Part 1 of the present article» Article 22. Bans and Restrictions Relating to the Use of Special Means «1. Police officer is hereby prohibited to use special means: 2) in respect of women with apparent signs of pregnancy, persons with apparent signs of disability and minors, except for cases when said persons offer armed resistance, commit a group or another assault threatening the life and health of citizens or a police officer. 2. Special means shall be used with due regard to the below restrictions: 1) the special baton shall not be used to deliver blows to human head, neck, collar-bone area, abdomen, genital organs and heart projection area». |