Authors:
Petr Barenboim, Ph.D. in Law, Advocate of the Law Firm “Asnis and Partners”, First Vice President of the International Union (Commonwealth) of Advocates, Life-time Fellow of the American Bar Foundation
Dmitry Kravchenko, PhD. In Law, Advocate of the Law Firm “Asnis and Partners”, Member of the Council of the Moscow City Chamber of Advocates, Head of the Management Board of the Moscow Branch of the Association of Lawyers of Russia
The Bars should Support good legislation both at a Constitutional and at a Substantive level. As lawyers we have a special duty in the legislative process. That duty obliges us to ensure that human rights and the rule of law are always given its proper place in the mindset of the legislators. It is essential that new coercive measures meet the proportionality test. That means that they should be necessary, they should be efficient and they must be proportional in the strict sense.
The proportionality test is only often dispensed of and where applied the application is often biased in favour of repressive legislation. Due to real or perceived terrorist threats a number of new laws have been introduced to permit secret coercive measures, The Data Retention Directive in Europe and new tools for the police have gained acceptance not only by the legislator, but also by a frightened population. All this forms the beginning of a new type of society — a society of supervision and repression.
Anne Ramberg, Co-Chair of The International Bar Association’s Human Rights Institute
The Russian language is official language of the United Nations together with English, French, Spanish, Mandarin and Arabic. But in the official Russian versions of UN documents the concept of “psychological torture” is inadequately interpreted. Due to an incorrect translation, the Russian understanding of non-physical torture diverges from the UN’s official stance. This is evidenced by the wording of Article I of the United Nations Convention against Torture: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”. The original word “mental” wrongly was translated into Russian as “moral” (нравственный). This diffuses the core understanding of the concept of “torture” and makes it too vague and subject of manipulation for meaningful application of law. The official back translation of “нравственный” maps to “moral” not “mental,” which further complicates the situation as the two terms are not synonymous and are associated with completely different meanings.
The other possible translation of “mental” is “that of the soul” (душевный) which might be more appropriate because given the common Russian label of mentally ill persons is “sick in the soul” (душевнобольной). However in reality this alternative definiton translation moves the concept even further from the scientific understanding of the substance underlying this kind of torture.
This wrong translation was made by the UN’s Russian translators in 1948 in the Universal Declaration of Human Rights. The wrong translation was carried over into the 1984 Convention against torture, as well as into most UN documents due to bureaucratic inertia. Attempts of UN translators to fix the situation confused definitional accuracy even further. For example, in the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1975, the word “mental” was wrongly translated as “intellectual” (умственный), which although somewhat closer to the original English definition, but is still not fully adequate and accurate. In different UN documents, the same concept of “mental” was translated as “moral” and “intellectual” in two different instances, leaving accurate definition of “severe mental pain and suffering” all the more confusing in Russian official UN language which lead to the same effect into translation on some other Slavic languages and also in the countries depended at that time from USSR.
Formally, the UN itself is responsible for the work of the own Russian translators, but the Russian Ministry of Foreign Affairs keep overlooking the semantic chaos unfolding before them.
Moreover, since Russian is one of the official UN languages, Russian translators’ initial mistake set a precedent, which led all post-Soviet states to translate their own texts of the Convention against Torture in a similar fashion. Thus, in the Ukrainian translation, the term “mental” is rendered as “moral,” evoking the idea of “moral torture,” which sounds similar to “moral damages,” but should actually address illegal psychological pressure exerted on the victim by government officials or their subordinates. Even such modern well-established democracy as Latvia (“moralas”) and Chech Republic (“dusevni’) still use theirs wrong translation from wrong official UN Russian made decades ago. But not Poland (“psychiczne”) which translated “mental” directly from English or French. It is quite possible that similar issues are lurking in translations from official UN Russian text into other languages of post-Soviet states.
The use of this incorrect translation and subsequent unacceptable definition of “moral torture,” make applying the UN’s core concept widespread “non-physical torture” and illegal psychological pressure on witnesses, suspects, defendants, and their family members very challenging in the Russian Federation and other post-Soviet states relying on the Russian UN text three decades ago.
To date, the correct translation of “mental” as “psychological (neuro-psychological)” (психическая (психологическая, невро-психологическая) only appears in the Russian book report remains an advance version and an official UN translation in Russian is not yet available). It is important to use this well done Report to correction of a recent wrong meaning of “mental (psychological) torture” in Russian texts of official documents of the UN by the own UN official interpretation.
The situation could be rectified by applying the correct translation, but that would require immediate action on the part of diplomats, politicians, experts, and various civil society institutes, since the report’s preliminary text, containing a detailed description of the application and terminology associated with non-physical torture, has been already published by the UN. If the terminology is yet again translated incorrectly, it would complicate the appropriate enforcement of torture prohibition norms for quite some time to come. Therefore, this question should be addressed prior to the UN’s October session, by which point both the final report on psychological torture and its Russian translation will be official documents.
Russian civil society institutes including the Federal Chamber of Advocates of Russia and the Moscow City Chamber of Advocates in particular have raised the question of difficulties related with the current definition of “psychological torture” and the need to revise it for the sake of its practical use by lawyers in all post-Soviet countries. The issue was discussed at the International Bar Association meetings held in Moscow and Singapore in 20072, as well as at the International Forum for the Rule of Law in Vienna in 20083 and the European Bar Association in Bruges in 20074. Clearly, it is time for Russian lawyers, together with other civic institutes, to intensify their efforts to secure an adequate interpretation of the term “mental torture” in official Russian texts of the UN documents. Before this happens, however, lawyers should for the fight against psychological tortures may be use even in the Russian territory as well as in the territory of all post-Soviet countries the official UN definitions in English, French or Spanish.
We are talking here not just about academic issues but about very practical matters. Events in Belarus – the post-Soviet country, which using the wrong official Russian definition of “mental torture,” — following the August 9 presidential election, according to some experts, demonstrated that it is possible to employ psychological torture not only to obtain testimony from arrested persons, but also to extract political statements from opponents. A recent video address from the opposition leader Svetlana Tikhanovskaya probably recorded, as some experts suggested, under evident psychological pressure highlights the need to adopt a more precise official definition of the concept of “psychological torture” in the post-Soviet space. Legal experts believe that the United Nations’ (UN) and Russia’s differing definitions of this concept lead to human rights violations.
And another Russian example. The 1984 UN Convention states that “each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” However, cases in which a judge’s tacit consent means that a defendant is prevented from perceiving courtroom events in their full scope due to abnormal levels of arterial blood pressure are not rare5. During the discussions of the Convention’s definition of torture, the media raised an important question that defense attorney and member of the Russian Presidential Human Righusets Counsel Shota Gorgadze had already broached during a trial in Novgorod. Mr. Gorgadze argued that the continuation of the trial under the circumstance of a hypertensive emergency capable of impacting the defendant’s perception of the proceedings should be viewed as torture. Including the concept of “neurological torture” in the current UN Convention could therefore contribute to Russia’s and, potentially, the global movement against torture.
Notes:
3 Reznick, G. A Concept for the Rule of Law in Russia. The Moscow City Chamber of Advocates. Moscow: Justitsinform, 2008.
4 Semeniako E., Barenboim P. The Moscow-Bruges concept of a single legal and rule of law space for Europe and Russia. Moscow: Justitsinform, 2007.
5 Barenboim, P., Nagornaya, S. Advokatskaya Gazeta, No. 11, May 2020.