From the very first rulings by the European Court of Human Rights on counter-terrorist operations in Russia's northern Caucasus, the Court has been inundated with applications relating to the conflict in the region. These cases are often the most harrowing in nature, involving killings, torture and 'disappearances' (and most often in combination with unlawful detention). Since the Court considers only complaints in relation to abuses allegedly committed by state parties, its decisions concern solely cases involving Russian law enforcement agencies, not paramilitary groupings. Even within this limited scope, the court has made over over 200 ECtHR rulings against the Russian Federation in cases from the northern Caucasus.
Implementing the European Court’s decisions
For the applicants from the northern Caucasus to the EctHR — and there have been more than 1000 of them — the issue is strangely less winning their case in Strasbourg as ensuring that the ECtHR rulings are actually implemented back home, in Russia.
The severity of the human rights violations committed by Russian law enforcement officials in Chechnya should not be underestimated. Undoubtedly, many qualify as crimes against humanity and some undoubtedly share certain characteristics with war crimes. Yet, as time goes by, the options available to bring officials (e.g. of law enforcement agencies) to justice is decreasing. Under Russian legislation, statutes of limitation can and are being applied to even serious crimes. Other challenges include the destruction of archive documents and the loss of potentially vital evidence necessary for an effective investigation of the crimes.
‘The severity of the human rights violations committed by Russian law enforcement officials in Chechnya should not be underestimated. Undoubtedly, many qualify as crimes against humanity and some undoubtedly share certain characteristics with war crimes.’
Having ratified the Convention, Russia is legally obligated to implement the ECtHR's final judgements. This amounts to much more than the mere payment of damages awarded by the Court. The authorities must too put right any violations identified in the original investigation. They are obliged to carry out a criminal investigation into crimes committed by state officials, and to punish the culprits. In cases of 'disappearances', the state must also determine the fate of the victims and the places of their burial, and to hand over their remains to their relatives. In most cases, this is the only evidence of death applicants are prepared to accept.
With a few exceptions, the state has paid damages awarded by the ECtHR in proper order. It does much worse on other aspects of implementation, however. For example, not a single state official found guilty of committing crimes against the applicant, has served a serious prison sentence. Not a single charge or prosecution has followed from ECtHR cases, even when crimes have been well documented and the individuals identified. And despite the fact that a number of mass graves have been discovered in Chechnya, we have yet to see a single victim identified or their remains passed on to relatives.
Perhaps the most concerning aspect, however, is the fact that in a number of cases the have actually actively dropped criminal prosecutions against members of the security services.
How is this possible? One of the main tricks that authorities play is to apply statutes of limitations of 10 or 15 years to grave crimes committed in the northern Caucasus (the overwhelming majority of which relate to incidents between 2000 and 2003). Most legal systems recognise the concept of the statutes of limitation, i.e. the period beyond which the culprits can no longer be brought to justice. However, statutes of limitations clearly should not be applied in certain cases, such as in the context of large-scale, systemic and grave human rights violations. At the very least, in line with international practice, statutes of limitations ought not to be used as a convenient 'get-out' for those wishing to avoid punishment. Russia's investigative bodies have regularly used statutes of limitations to drop criminal proceedings against members of law enforcement agencies.
The second main 'get-out' card for investigating bodies is to conclude that the officials' actions do not constitute a criminal offence or grave crime. The issue of what qualifies as a criminal offence is extremely important, since offences such as murder, torture or kidnapping are not covered by past amnesties. Consequently, even in those rare cases when the criminals are brought to justice, invariably their actions will be reclassified as offences that fall under the remit of agreed amnesties (the most common of these would be 'overstepping their official authority'). Some recent examples of this follow:
- In 2007, investigative bodies dropped criminal proceedings relating to an incident in February 2000, when a column of peaceful civilians fleeing the village of Katyr-Yurt was fired on by military aircraft. In its ruling in the case Isaeva vs Russia (which came into force in 2005) the European Court established that Major-General Vladimir Shamanov and Major-General Yakov Nedobitko were in charge of the operation. However, criminal proceedings against them were dropped due to the 'absence of corpus delicti'.
- In 2007, in the case Bazorkina vs Russia, investigating bodies refused to launch criminal proceedings against General Aleksandr Baranov who had issued the order to shoot a captive, Hadjimurad Yandiev. The decision was based on a linguistic analysis that had concluded that the General's statement about shooting Yandiev in the presence of his subordinates did not qualify as an order.
- And last but not least, in the case Sadykov vs Russia in 2011 the authorities dropped criminal proceedings against not just one but both key individuals. The story is brief and truly horrific: following prolonged torture in the detention facility of the Department of Internal Affairs, Alauddin Sadykov, a former school teacher, had an ear cut off. The ECtHR ruled in the applicant's favour and the ruling has come into force. Nevertheless, the offences committed by the guard at the detention centre, who had allowed MVD officials to enter Sadykov's cell and abuse him, were classified as overstepping official authority rather than complicity in abuse. As a result, both men were covered by an amnesty and did not have to face justice and punishment.
Criticism from Europe
Since 2006, applicants to the European court and their representatives have been able to report to the Committee of Ministers of the Council of Europe, which is the body authorised to monitor the implementation of the ECtHR rulings. Following an investigation into the implementation of 154 ECtHR judgements in 'Chechen' cases, the Committee of Ministers issued a critically worded resolution, dated 2 December 2011, regarding the use of the statute of limitations and the lack of effectiveness in prosecuting crimes. Most recently, the Committee of Ministers has called upon Russia to clarify the way amnesties are being used in cases of human rights violations in the northern Caucasus.
‘Abueva et al. vs Russia subjects Russia to harsh criticism for the very first time, noting a 'flagrant disregard' for the facts the Court had established in investigating the first case.’
Although the European Court itself has traditionally refrained from commenting on the implementation of its own decisions, it broke its silence later in the same month, when it passed an unprecedented ruling in the case of Abueva et al. vs Russia (this relates to the same shooting of the column of civilians in Katyr-Yurt as the Isaeva case). The ruling subjects Russia to harsh criticism for the very first time, noting a 'flagrant disregard' for the facts the Court had established in investigating the first case. The Strasbourg judges demanded that a fresh investigation be carried out. The prospects for this do not look promising however: judging by the latest information from the Russian side, criminal proceedings in both cases have now been dropped.
In conclusion I would like to emphasise that most of the problems described here are not issues of either technical or material inadequacy. Russian investigators have a good grasp of the relevant techniques and are quite capable of mounting effective investigations (as they often do when investigating 'ordinary' crimes committed in the past). The problem is instead a lack of willingness to conclude investigations on the part of the authorities. In the case of crimes perpetrated by siloviki [members of the army and security services], applying such techniques would require political backing and the go-ahead from the federal authorities. For that to happen, Russia and the Committee of Ministers of the Council of Europe, needs to realise that impunity and lawlessness are not only contrary to the interests of Russia, but to the interests of Europe as a whole.