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军人制裁
根据第2条和第3公约所述，我们有义务充实刑事法律的补救措施。正如附件规定介绍，法院一直认为，在他或她本人与其他人的关系中，该公约有效保护国家要求制定的国内立法，规定刑事制裁的行为会影响所保护的权利。此外，法院已明确表示，根据第2条有经缔约国有义务确保所施加的惩罚足以起到威慑作用，因此，有效地保护了人们生命和人身安全的权利。
到目前为止，俄罗斯国内法律体系已明显不能确定保安部队成员犯下的侵犯人权行为的责任。接下来的部分将仔细研究发生在当今俄罗斯法律中的案例，如杀戮，酷刑，虐待和绑架犯等俄罗斯军人犯罪的法律规定。由于这些条文涉及个人的刑事责任，也将探讨侵犯其下属犯罪的可能性。最后，将简要探讨诉讼时效，因为它在不久的将来可能成为建立问责制的阻碍。
Sanctions against servicemen
There is a positive obligation stemming from Articles 2 and 3 of the Convention to make criminal law remedies available. As stated in the Introduction to the Annex, the Court has consistently recognized that the effective protection of the individual in his or her relations with other persons requires the State to put in place domestic legislation which imposes penal sanctions for conduct which affects the rights protected under the Convention. In addition, the Court has made clear that under Article 2 there is an obligation upon the Contracting State to make sure that the punishments imposed are sufficient to act as a deterrent and accordingly thereby to effectively protect the right to life and physical integrity.
So far, the Russian domestic legal system has been manifestly incapable of establishing accountability of members of the security forces who commit human rights violations. The next parts will take a closer look at the legal provisions that are in place in Russian legislation today as regards crimes committed by Russian servicemen as regards killings, torture, ill-treatment and abductions. As these provisions concern individual criminal responsibility, the possibility of holding high ranking military officers accountable for violations perpetrated by their subordinates will also be examined. Lastly, the statute of limitations will be briefly examined as it may become an obstacle to establishing accountability in the near future.
Legal provisions
The Russian Criminal Code was amended in December 2003 when the President signed the Federal Law “On the Introduction of Changes and Amendments to the Criminal Code of the Russian Federation”. The new law has introduced into the Criminal Code the definition of “torture”. Article 117 of the Code was amended with the following paragraph: “For the purposes of this Article and other Articles of the Code torture shall be defined as infliction of physical and moral suffering aimed at coercing an individual into giving evidence or committing other acts against his will, as a punishment and for other purposes.” Until the introduction of these changes into the Criminal Code, Russian law lacked a definition of “torture” although torture is explicitly prohibited by the Russian Constitution (Article 21), the Criminal Procedure Code (Article 9) and the Criminal-Execution Code (Article 12), as well as by a number of other legal provisions. Olga Shepeleva of the Russian DEMOS Centre has argued that “the absence of the definition of torture in the national legislation contributed to the misunderstanding on the side of the law enforcement bodies of the obligations, taken by the Russian Federation under the Convention Against Torture, the European Convention on Human Rights and the International Covenant on Civil and Political Rights”. Shepeleva further noted that “the current wording of Article 117 does not cover the involvement of an official in the torture act. Thus the new wording of Article 117 has undoubtedly strengthened the protection of an individual against torture by private parties, but has failed to provide a definition of torture that would be in line with the definition given in the UN Convention Against Torture and other international documents. It is however possible that criminal prosecution of torture, committed by officials will be conducted not according to Article 117, but instead according to Articles 302 and 286, as it had been the case before the introduction of changes to the Criminal Code”. Rapporteur Mr Dick Marty has also found Article 117 to be inadequate due to, inter alia: the fact that the definition fails to include one of the key elements of torture, namely direct or indirect involvement of a public official; and neither the Criminal Code nor any other domestic act gives a definition of cruel, inhuman or degrading treatment. The Committee Against Torture has stated that ““the definition of the term 'torture' as contained in the annotation to article 117 of the Criminal Code does not fully reflect all elements of the definition in Article 1 of the Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment] which includes the involvement of a public official or other person acting in an official capacity in inflicting, instigating, consenting to or acquiescing to torture. The definition, moreover, does not address acts aimed at coercing a third person as torture.” Russia has argued that “the definition of torture in the Criminal Code of the Russian Federation is in certain respects somewhat broader than that in the Convention. While the Convention relates to torture ’inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’, the perpetrator of the offence covered by article 117 (Torture) of the Russian Criminal Code may be any person who has attained the age of 16, including officials.”
Accordingly, the use of torture is criminalized by Article 117 although it is debated whether the Article only deals with actions of private parties or if it also includes actions of officials. Torture under Article 117 is punishable by a term of three to seven years. In practice however, officials are prosecuted under other provisions than Article 117. Public officials may be prosecuted for acts of torture under Article 302(2) (Compulsion to Give Evidence) or Article 286 (Exceeding Official Powers) of the Criminal Code, both of which are lex specialis to Article 117. Article 302(2) provides imprisonment for two to eight years for the use of coercive measures, including torture, by the person in charge of the investigation, to compel a suspect, an accused person, a victim or a witness to testify. The Criminal Procedure Code further contains safeguards in relation to confessions received after torture. According to Article 75(2)(1) of the Criminal Procedure Code, the trial court should consider as inadmissible a confession by a suspect or an accused person at the pre-trial stage of criminal proceedings which he/she did not support in court. Exceptions are made where the confession was made in the presence of a lawyer. Also, according to Article 72(2) of the Criminal Procedure Code, no conviction may be based solely on an accused person’s confession of guilt, unless the confession is corroborated by all the evidence available in the case. Otherwise such conviction may be overturned by the appeal court on the ground of violating the Criminal Procedure Code (Article 379(1)(2)). Violations of Article 286 are punishable by imprisonment from three to ten years and a prohibition on holding a particular post for up to three years.
State officials who order the use of torture may be prosecuted under Article 286(2) and (3) of the Russian Criminal Code for “abuse of official powers”. Article 286 is more often applied in cases of torture than Article 302. However, the general wording of Article 286 does not give a clear and unambiguous signal to public officials that torture and other cruel treatment is criminalized insofar as the Article applies to other types of abuse of power, as well as to torture. As a result, the Russian authorities do not have specific statistics on torture and other types of ill-treatment.
If a state official commits murder in abuse of his or her powers he/she she may be prosecuted under Article 105 (murder) taken together with Article 286. Violations of Article 105 are punishable with deprivation of liberty for a term of eight to 20 years, or by deprivation of liberty for life, or by the death penalty.
Unlawful apprehensions
Article 301 of the Criminal Code (illegal detention, taking in custody and keeping in custody) penalizes the unlawful apprehension of a person. Knowingly illegal detention is punishable by imprisonment of up to three years with disqualification to hold specified offices or to engage in specific activities for up to three years, or without such disqualification. Knowingly illegal taking or keeping in custody is punishable by imprisonment of up to four years. If the deeds are considered grave, imprisonment is stipulated for three to eight years.
Statutes of Limitation
According to the Russian Government, a 15 year limitation period applies to “especially grave crimes”. Under Article 15 of the Criminal Code “especially grave crimes” are defined as:
[…] intentional acts, for the commission of which this Code provides a penalty in the form of deprivation of liberty for a term exceeding 10 years, or a more severe punishment, shall be recognized as especially grave crimes.
As noted above, the crimes committed by Russian servicemen in Chechnya have included killings, torture, ill-treatment and abductions. Neither Article 117 (Torture) nor Articles 301 (Illegal Detention, Taking into Custody, or Keeping in Custody), 302 (Compulsion to Give Evidence) or 286 (Exceeding Official Powers) of the Criminal Code stipulates deprivation of liberty exceeding 10 years. Only killings under Article 105 of the Code fall in this category. On the other hand, violations of Articles 302 and 286 are considered as “grave crimes” under Article 15 of the Code and according to Article 78(1)(c), a person shall be released from criminal responsibility 10 years after the commission of such crimes. A violation of Article 301 is considered a “medium gravity crime” unless the deeds are considered grave, in which case it constitutes a “grave crime” in accordance with Article 15 of the Criminal Code. A person is released from criminal responsibility six years after the commission of a crime of medium gravity (Article 78(1)(b)).
If these limitation period do indeed apply to crimes which are the subject of cases before the Court (dating back to the period 1999-2001), then there is an urgent need for the prosecuting authorities to meet their obligations and carry out effective investigations into these cases.
In accordance with the obligations stemming from the Convention, legal provisions to prosecute members of the security forces who commit human rights violations exist in Russia. The Secretariat has stated that “in order to assess the real impact of the existing provisions and their deterrent effect, an overview of the Russian court practice in this area would be useful”.
The most commonly used Article (Article 286 of the Criminal Code) is too general as it covers an array of abuses, from minor uses of excessive force to torture. Whether this Article is used to make the crimes seem less serious or if it is used because the acts committed by members of the security forces for some reason do not fall within the ambit of Article 117 of the Criminal Code is unknown. As regards Article 302, the UN Committee against Torture (CAT) stated in 2006 that “the State party should take measures to bring its definition of torture into full conformity with article 1 of the Convention, in particular to ensure that police, army, as well as prosecutorial officials, can be prosecuted under article 302 as well as under article 117 of the Criminal Code”.
It is now 10 years since the commence of the Second Chechen War and it is clear that the statute of limitation applies to crimes committed during that time. The issue of statutes of limitation is an important topic which has not been dealt with by the Committee of Ministers in its public Memorandums on Chechnya. As release from criminal responsibility comes into play ten years after the commission of the crime as regards torture, ill-treatment and unlawful apprehensions, there is an even more pressing need for the authorities to meet the requirements of effective investigations in these cases, if it is not already too late.
It is extremely unclear whether military commanders can be prosecuted for failure to prevent abuses by their subordinates. In many cases, the servicemen who actually committed the abuses are not known, but the regiments which participated in those crimes and consequently, their commanders, were identified by domestic investigations. The Secretariat has in this respect noted that “all provisions referred to by the Russian authorities regarding sanctions against servicemen provide for the personal responsibility of members of the security forces. The Committee of Ministers’ practice in similar cases[] has shown that the effectiveness of such sanctions in preventing abuses, such as ill-treatment or torture in police custody, is more dissuasive when not only the perpetrators but also other officials whose behaviour during the investigation encourage or make torture and ill-treatment possible are held to account”. The Secretariat has therefore asked for more information on whether the current legal framework allows the prosecution of commanding (superior) officers, investigators and prosecutors, who order, authorize and condone torture and ill-treatment by their acts or omissions.
In addition, the Secretariat has stressed that the Committee of Ministers’ experience in similar cases shows that “nothing is more effective to counter impunity and to put an end to the long-standing practice of ill-treatment in custody than a formal statement made at the highest political level announcing a ‘zero-tolerance’ policy in respect of such abuses”. Such a statement may remind the law-enforcement officials of their obligation to respect the rights of persons in their custody and of their criminal responsibility for ill-treatment of such persons.
As stated above, for the purpose of the present case study, the notion of impact is understood narrowly, having regard to the extent to which the relevant Chechen judgments and the measures taken by Russia in response thereto have had an impact on domestic prosecutions in Russia concerning prosecutions of servicemen for grave violations of human rights . This chapter analyses domestic prosecutions and statistics on prosecution rates as regards violations committed in Chechnya and starts by examining a few domestic cases in more detail.
Domestic prosecutions
It has been very difficult to gather information concerning domestic prosecutions in Russia concerning grave human rights violations committed by Russian servicemen in Chechnya. Below, three domestic cases on which it was possible to obtain some detailed information and their outcomes are examined before analysing collected statistics on prosecution rates etc.
The Budanov case was the first case concerning prosecution of a high ranking Russian official for crimes committed in Chechnya. In 2000, soldiers abducted Kungaeva, an 18 year old Chechen woman from her home. Medical reports indicated that she had been beaten, raped, and then strangled. Russian authorities promptly started an investigation and arrested Budanov, who confessed that he strangled the young woman in a fit of rage, claiming she was a rebel sniper. The investigation found that Budanov and three of his subordinates kidnapped Kungaeva at gunpoint from her home in Tangi-Chu and took her to Budanov's quarters. After he was alone with Kungaeva for about two hours, Budanov ordered his subordinates, who stood guard outside, to bury her naked corpse. Budanov was found “temporarily insane” and was acquitted by a military court. As the next section on statistics will show, in general, nearly all crimes against civilians in Chechnya have only received superficial investigations. Nevertheless, in the Budanov case, the Russian authorities devoted unprecedented resources, and launched a diligent investigation. Elizabeth Andersen, executive director of Human Rights Watch's Europe and Central Asia Division, has stated that "with this trial, Russia hoped to showcase a commitment to accountability. But even in this clear-cut case, justice was flouted. Russia's commitment was obviously shallow." Elizabeth Andersen continued that "the Budanov acquittal is simply a travesty of justice. If Russian authorities continue to shield servicemen from accountability and deny justice to their victims, the conflict in Chechnya may never be resolved. The vicious cycle of abuse and impunity must be broken." The fact that Budanov was found “temporarily insane” is a relatively common occurrence in Russia. According to the Rapporteur of the Committee of Legal Affairs and Human Rights (Parliamentary Assembly, Council of Europe), Mr. Rudolf Bindig, Russian soldiers responsible for killings of Chechen civilians and other human rights violations are often considered by the judges as non-accountable for their crimes because they were drunk or psychologically disturbed at the moment of the acts in question. However, according to information provided on Wikipedia, after a series of trials and retrials, Budanov was sentenced to 10 years imprisonment in July 2003 but then mysteriously disappeared.
The Ulman case regards the trial of four Russian servicemen accused of having killed six Chechen civilians, including a pregnant woman and a teenager, in January 2002. Captain Ulman and his men were acquitted by a jury in the town of Rostov-on-Don on the basis that they had obeyed orders from an unnamed commander. The acquittal was appealed by the prosecution, but following an order for retrial from the Military Collegiate of the Supreme Court, the men were again found not guilty by a jury at the same court in May 2005. Although the four had admitted to the killings, the court ruled that their actions were not punishable as they had been following orders. In August that same year, the Supreme Court overturned this verdict and sent the case back for retrial to the same court in Rostov-on-Don where a third retrial was scheduled for November 2005. While awaiting trial, the four men had not been suspended from service in the Russian military intelligence unit (GRU). On 14 June 2007, the military court in Rostov-on-Don found Ulman and his three subordinates guilty of the 2002 killing of the six civilians. Ulman and two other servicemen failed to show up in court but were sentenced in absentia for 14, 12 and 11 years, respectively. The fourth serviceman, present in court, was jailed for nine years. A demonstration was held in Grozny on 28 June 2007 to protest the searches that had been carried out in homes belonging to the relatives of the victims of officers on trial for killing Chechen civilians. According to Newsru.com, the protesters claimed that 15 relatives and a neighbour of the six victims have disappeared since the trial of the officers began and NGO representatives accused the federal Prosecutor General’s Office of returning to the practice of total zachistki, or security sweeps, of the kind carried out by the Russian military during the early years of the “counter-terrorist” operation in Chechnya.#p#分页标题#e#
The Ulman case is an example of a case where it appears that the authorities made efforts to fight against the still-prevailing climate of impunity. In the US Country Report on Human Rights Practices from 2007 it was stated that “in most cases security forces acted against civilians with impunity, and even the limited efforts by authorities to impose accountability failed. One exception was the June 14 conviction of Eduard Ulman, who was sentenced to 14 years in prison for killing Chechen civilians”.
As far as the authors are aware, no one has been directly prosecuted for a disappearance in Chechnya. According to NGO sources, there has only been one disappearance case (of which they are aware) in which a police officer or member of the armed forces has been held accountable, although the prosecution was not in relation to the disappearance itself, but for torture. Sergei Lapin, a senior lieutenant from the Nizhnevartovsk UVD’s criminal investigation department and known by his nickname “Cadet”, was arrested and charged in connection with allegations of torture in detention of the Chechen resident Zelimkhan Murdalov. Zelimkhan Murdalov had disappeared on 2 January 2001 after having been detained by Russian OMON forces in Grozny. According to witnesses he was tortured to death in police custody. A criminal investigation was opened into his disappearance on 7 January 2001. The investigation concluded that Murdalov had been taken into custody on 3 January 2001 in the Oktyabrsky district by Lapin and another unidentified official. Lapin had beaten Murdalov with a truncheon and subjected him to electrical shock treatment. The next day, Lapin and some unidentified colleagues took Murdalov out of the cell and since then his fate and whereabouts were unknown. Lapin was arrested and charged with various crimes related to Murdalov’s disappearance and murder, including “intentional infliction of serious harm to health under aggravating circumstances” in January 2002 but was released pending trial in May 2003. In March 2003, he was found guilty of torturing Murdalov and he was sentenced to 11 years’ imprisonment. There are rumors that Lapin was involved in the murder of Anna Politkovskaya who had published an article in the Novaya Gazeta newspaper in September 2001 in which she spoke of the allegations connecting Lapin and his colleagues to the torture of Murdalov. Politkovskaya received two letters containing threats to her life, reportedly written by Lapin. The Office of the Procurator of the city of Nizhnevartovsk in the Khanty-Mansyski region opened a criminal investigation in October 2001 into Lapin’s involvement in threatening the safety of Politkovskaya. This investigation has reportedly been closed and renewed at least nine times.
Interestingly, Lapin was not charged with the murder of Murdalov, although Murdalov disappeared after his detention, but with inflicting serious harm. In response to the question why there are not more domestic cases on disappearances, NGO sources have stated that these cases are easier to sweep under the rug because there simply is no corpse.
Statistics on criminal cases brought against military officials before domestic courts can constitute a useful indicator of the effectiveness of criminal sanctions against abuses. However, as noted above, as regards Russia and Chechnya, it is very hard to find comprehensive and reliable information regarding prosecutions of servicemen and their outcome. Therefore, this case study will rely on statistics communicated to the Committee of Ministers by the Russian authorities, statistics cited by the United Nations Special Rapporteurs, the Council of Europe Rapporteurs, the United States, and NGOs. Such statistics often refer to investigations and prosecutions under different articles of the Russian Criminal Code or with no reference at all, which makes comparison and analysis of the statistics difficult. The following statement by the Russian authorities provides some explanation as to why it is so difficult to find reliable statistics:
“As the practice of relations with international organizations has shown, a publication of statistics [on criminal convictions for the crimes of military officers against civilians] may be used to harm the interests of the Russia Federation”.
According to statistics provided in 2007 by the Russian General Prosecutor’s Office to the Council of Europe Secretariat of the Directorate General of Human Rights, since 1999, the time of the first “anti-terrorist” operations in Chechnya, the Military Prosecutor’s Office has opened 245 criminal cases in relation to crimes allegedly committed by servicemen, out of which:
98 cases concerning 127 servicemen have been transferred to military courts for trial;
62 cases have been discontinued for different reasons, notably an amnesty act, for lack of corpus delicti or following death of the accused;
85 cases are still under investigation.
The Secretariat stated that so far no statistics regarding possible convictions has been provided by the Russian authorities. In 2007, the Secretariat asked for updates and details as regards the results of the criminal trials referred to above as well as specific examples of relevant court decisions.
In 2008, the Russian authorities stated that since the first “anti-terrorist” operations, the investigative bodies of the Allied Group of Forces had investigated 271 criminal cases. Investigations were completed in 186 cases, out of which 108 cases concerning 137 persons were sent to trial. The military courts examined criminal cases concerning 130 servicemen who committed offences in respect of inhabitants of the Chechen Republic. The Secretariat welcomed the statistics and noted with interest the Russian Supreme Court’s decision which upheld the conviction of two former officers of the Russian Army to 15 and 17 years imprisonment for the unlawful killing of civilians during an “anti-terrorist” operation in the Chechen Republic. The Secretariat noted that, notwithstanding these positive developments, it results from the reports of different monitoring bodies of the Council of Europe that torture and ill-treatment by law enforcement agents in the Chechen Republic remain a cause of serious concern. In that regard, the Secretariat especially referred to the conclusions of the Commissioner of Human Rights on his visit to the Chechen Republic in 2007 and the CPT’s public statement regarding the Chechen Republic made in 2007. According to Thomas Hammarberg, Commissioner of Human Rights, through his conversations with inmates, he became increasingly convinced of the existence of the use of torture and ill-treatment by law enforcement agents, both republican and federal, during the investigative proceedings. According to detainees, undue pressure and torture are a widespread practice used to obtain admission of guilt. These depositions are then used as a basis for the handing down of court judgments. The Commissioner declared that “I got the impression that torture and ill-treatment are widespread in Chechnya. This undermines justice. If one is coerced into telling a lie and the court takes the deposition into account, this perverts the whole judicial system. Such practices must come to an end immediately.” In the course of the CPT’s visits to the North Caucasian region in 2006, the delegation likewise received many credible allegations of recent ill-treatment of detained persons by members of law enforcement agencies and security forces in the Chechen Republic. According to the CPT, the ill-treatment was alleged frequently of such a severity that it could be considered to amount to torture.
The Secretariat concluded that the number of prosecutions opened in respect of offences committed by servicemen continues to be extremely small in relation to the number of complaints forwarded to the Prokuratura. The Secretariat further noted that the Committee may wish to invite the Russian authorities to intensify their efforts so as to ensure that all allegations are effectively investigated and lead, where necessary, to the prosecution of those responsible.
It is not possible to draw any significant conclusions from the statistics provided by Russia to the Committee of Ministers as no reference is made to the legal basis and no information is provided on convictions. However, the number of cases that have been discontinued seems high in comparison with the total number of cases transferred to the courts, a fact which tallies with the developments in the re-opening of cases examined earlier in this case study. Furthermore, the number of cases must be compared with the real number of crimes committed by servicemen. Whether 271 criminal cases investigated by the Russian investigative bodies since the first anti-terror operations, which is almost 10 years ago, is a large or small quantity depends therefore on the actual number of crimes committed by servicemen during this period. There is no way of knowing exactly how many crimes were actually committed, but one indicator which shows that the number of 271 cases investigated is very small is the fact that, according to NGOs, as many as 5000 civilians have disappeared in Chechnya since 1999. This number refers only to those that have disappeared, and does not cover all the killings and instances of torture and ill-treatment. The statistics collected on complaints of killings and ill-treatment set out below reinforces the conclusion that the number of investigations is very low. More detailed statistics has been collected by other Council of Europe bodies, States, and NGOs which might help evaluate the effectiveness of sanctions against servicemen and thereby the impact of the European Court’s judgments.#p#分页标题#e#
Mr. Bindig has, in the preparation of his reports as Rapporteur on Human Rights Violations in the Chechen Republic, raised a number of individual cases of human rights violations with the Prosecutor General in Chechnya. The information he has received in response to his requests has contained little information on indictments and convictions in the courts and in his 2005 report, Mr Bindig stated that “a first analysis of the documents reveal that most investigations have not led to tangible results: few cases made it to trial; most were suspended, transferred or dismissed”.
The response from the Prosecutor General in Chechnya indicates that 251 complaints of killings were examined by the Prosecutor’s Office of the Chechen Republic in 2004 (91 in the first six months of 2005), in 151 (54 in the first six months of 2005) of which a criminal case was opened. The opening of a criminal case was refused in 93 cases (29 in the first six months of 2005) of which 89 (26 in the first six months of 2005) were justified on the ‘absence of crime’. The investigations in 7 (8 in the first six months of 2005) cases were transferred (presumably to the military prosecutor’s office). In 2004, 54 criminal cases relating to killings (31 in the first six months of 2005) involving 70 (34 in the first six months of 2005) suspects were referred to the courts. The number of complaints relating to abductions was 432 (211 in the first six months of 2005). A criminal case was opened in 168 (62 in the first six months of 2005) of these cases, and was refused in 261 (145 in the first six months of 2005) and the investigations in 7 (8 in the first six months of 2005) were transferred (again, presumably to the military prosecutor’s office). Over the period 2000-2005 the courts delivered convictions for 30 persons accused in 21 criminal cases relating to abductions. This means that 60% of the complaints regarding killings led to a criminal case being opened in 2004 and only some 40% of the complaints regarding abductions. So little information is provided regarding convictions and sentencing that it is impossible to evaluate the outcome of these investigations. However, from the more detailed statistical data provided by the Prosecutor General in Chechnya, it becomes clear that the articles used for instituting criminal cases are mainly Articles 105(1) (killing), 105(2) (assassination under aggravating circumstances), 109(3) (Infliction of Death by Negligence), 126(1) (kidnapping), 126(2) (kidnapping under aggravating circumstances), 127 (illegal deprivation of liberty), and 286(3) (abuse of power with use of force)of the Russian Criminal Code. It is encouraging to see that these articles are being used to instigate investigations against servicemen as they all deal with serious crimes. But again, in order to assess the actual impact on prosecutions, it is necessary to know the outcome of these investigation and criminal proceedings to make sure that the proceedings are not just for show. One example of an investigation that led to criminal proceedings is a case concerning killings of civilians in Novaya Katayama district in the Staropromyslovskiy district of Grozny. The criminal proceedings had been prompted by the publication of an article in the Novaya Gazeta newspaper stating that mass murders of civilians had been committed on the evening of 19 February 2000 by servicemen of the 205th brigade of the Russian Federation Armed Forces. The investigation established that 57 civilians were killed and 4 people disappeared without a trace. According to Article 155 of the Russian Code of Criminal Procedure, 12 pieces of case material were singled out and criminal proceedings were instituted on the basis of these pieces of material. Unfortunately, there is no information on the outcome as at the time the Prosecutor General reported to Mr. Rudolf Bindig, the case was still ongoing. The data provided by the Chechen Prosecutor General also confirm the conclusion set out above, namely that a large number of investigations are discontinued for different reasons. According to the Prosecutor General, a large amount of investigations were suspended on grounds provided for in Article 208(1) (failure to identify the culprits) of the Russian Code of Criminal Procedure.
According to information collected by the US Department of State in 2005 regarding statistics compiled by the General Prosecutor's Office in Chechnya, through mid-year, verdicts had been rendered in 103 cases involving federal servicemen charged with crimes against civilians since 1999 in Chechnya. Of these, 27 were given prison sentences from 1 to 18 years, 8 were acquitted, and 20 were amnestied. Sentences in the remainder were suspended or those found guilty were fined. According to the US Department of State, Russian Government statistics also showed that 34 law enforcement officers were charged with crimes against civilians, with 7 sentenced to prison and the rest convicted and given suspended sentences. Furthermore, the United States Report notes that the General Prosecutor's Office released statistics to the Russian press in early December 2004 indicating that since 2001, 1,749 criminal cases were initiated in Chechnya to investigate approximately 2,300 cases involving disappeared persons. These numbers are far higher than the data provided by other Russian authorities on investigations. However, of these, only 50 cases reached the courts. The US Department of State further cited Memorial Human Rights Center which concluded that the majority of cases opened for alleged crimes by federal servicemen against civilians resulted in no charges because of the absence of bodies or an inability to identify a suspect. Furthermore, it was reported that, according to the Minister of Justice, Yuriy Chayka, from the start of the conflict through November 2003, 54 servicemen, including 8 officers, had been found guilty of crimes against civilians in Chechnya. As these data are provided without any further detail, there is no way of knowing which articles of the Criminal Code ‘crimes against civilians’ refer to, or if this is a term used to cover all types of crimes (killings, abductions, torture and ill-treatment etc.) committed against civilians. In any case, this data includes at least some information on the outcome of prosecutions. Although some servicemen were given prison sentences, an alarmingly high number were either amnestied, were given suspended sentences or simply got off with a fine, prompting doubts as to whether these prosecutions are in fact effective. Additionally, according to these statistics only 50 out of 1,749 cases (less than 3% of the cases) concerning disappearances actually made it to court.
In 2003, Memorial Human Rights Center published a study on the ‘situation of the investigation of crimes against civilians committed by members of the Federal Forces in the Chechen Republic during military operations 1999-2003’. According to information provided by the public prosecutor to Memorial, courts martial had delivered guilty verdicts in relation to 51 servicemen, including 7 officers, 3 warrant officers, 22 soldiers and sergeants on contract, and 19 conscript servicemen. However, only 19 of the 51 were condemned to a real deprivation of liberty, with the period of prison time ranging from one to eighteen years. According to Memorial, of the other 32: 3 were amnestied; 24 were condemned to various periods of deprivation of liberty, and put on probation; 3 were sentenced to a “restriction on military service”; and 2 were sentenced to pay a fine. In this study, Memorial provides countless examples of cases in which the guilty serviceman was given only a symbolic sentence. One such instance is that of a serviceman who was found guilty under Articles 131(1) (rape) and 161(2)(d-e) (robbery with use of force, harmless to life and health, causing significant damage) of the Criminal Code and was sentenced to 5 years of deprivation of liberty on probation for 5 years. Most of the cases referred to in the study show that prison sentences are combined with probation, making the time of actual deprivation of liberty non-existent or very limited.
Conclusions
The Court has been silent as regards prosecutions and convictions in Chechnya. This might be due to the fact that the majority of the investigations were deemed ineffective and inadequate and therefore the Court has not yet had to deal with this next stage of the domestic criminal proceedings. The Secretariat has stated that “the number of prosecutions opened in respect of such offences continues to be extremely small in relation to the number of complaints forwarded to the Prokuratura” and has invited the Russian authorities to provide comprehensive official statistics of all complaints lodged.
The number of prosecutions opened is extremely small compared to the number of complaints lodged with the authorities and certainly compared to the reported number of violations. In the case of Duran, although dealing with Turkey and not Russia, the Court stated that:
While there is no absolute obligation for all prosecutions to result in a conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow life-endangering offences and grave attacks on physical and moral integrity to go unpunished.
In another case regarding Turkey, Erdo?an Yilmaz and Others v. Turkey, the Court stated that:
The Court reaffirms that when an agent of the State is accused of crimes that violate Article 3, the criminal proceedings and sentencing must not be time-barred and the granting of an amnesty or pardon should not be permissible.
As regards Chechnya, numerous domestic cases have been discontinued due to amnesties being granted and, as stated in an earlier chapter of this case study, proceedings may soon become time-barred due to the statute of limitations. The lack of a corpus delicti is another reason for many cases being terminated. The question is whether this is connected to the authorities’ lack of will to try to identify military units and servicemen allegedly involved in abuses.
If a serviceman in the end is found guilty, the sanctions imposed have been rather lenient. Sentences have been suspended or the guilty servicemen simply to pay a fine. Such light sanctions are strongly arguably not in compliance with the European Court’s jurisprudence under Article 2 of the Convention to the effect that there is an obligation upon the Contracting States to make sure that the punishment is sufficient to act as a deterrent and accordingly thereby to effectively protect the right to life and physical integrity. There are however also examples of cases in which servicemen receive stricter sentences, such as in the two cases referred to by the Secretariat in which the officers were sentenced to 15 and 17 years imprisonment for the unlawful killing of civilians.
It is also evident from the statistics available that Article 117 (torture) of the Criminal Code is not used and as Shepeleva has stated “the lack of an adequate definition of torture in the criminal law [does] not allow the law enforcement bodies to fully recognize its social danger and its characteristics as a criminal act, which undoubtedly had a negative impact on the effectiveness of the fight against this offence”.
Another important factor which may impede investigations and prosecutions is the fear on the part of the victims of reprisals. Unfortunately it seems that reprisals against victims and family members who complain to authorities are a common occurrence in Chechnya. Amnesty International stated in its report on the state of the world’s human rights in 2008 that “there were fewer reported cases of disappearances in the Chechen Republic than in previous years; however, serious human rights violations were frequent and individuals were reluctant to report abuses, fearing reprisals.” Regarding impunity, the report stated that “victims of human rights violations and their relatives were frequently afraid to submit official complaints. In some cases the victim or their lawyer was directly threatened not to pursue a complaint. Human rights groups in the region publicizing the violations and offering assistance to victims came under pressure from the authorities. Some individuals were reportedly reluctant to lodge applications at the European Court of Human Rights, because of reprisals against applicants before them.” The report included an example of an elderly woman who had been beaten up after seeking an investigation into the killing of her son. The Council of Europe Special Rapporteur, Mr. Bindig, has also expressed concern about reports that a number of Chechen applicants to the European Court have been subjected to reprisals. Such reprisals have ranged from harassment and threats up to the murder of applicants or their close relatives (see e.g. the killing of Zoura Bitieva, who had lodged a complaint with the Court in May 2000 (App no 57953/00) and whose complaint was declared admissible by the Court on 20 October 2005, and the killing of Anzor Pokaev, whose father Sharfudin Sambiev filed an application in July 2003 (App no 38693/04). Mr. Bindig continued stating that “it appears that Chechen victims of human rights violations not only have extremely limited access to justice in the Russian Federation, but also that their lives are endangered when they attempt to seek justice through international mechanisms”.
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