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V. Domestic Legal Framework for Counterterrorism

Counterinsurgency operations in Ingushetia are governed by Russia’s federal counterterrorism legislation. This legislation allows fundamental rights and freedoms to be severely restricted or suspended during counterterrorism operations, and allows the security services to determine—without judicial oversight—the circumstances under which such restrictions will apply and the extent to which they should be applicable. The legislation extends the amount of time a person suspected of participation in illegal armed groups and involvement in terrorist crimes may be held in custody before being charged. It also allows for searches of homes without warrants, use of lethal force in case of unspecified necessity, and bans on public assemblies and the work of the press as possible elements of counterterrorism operations. The FSB, which is put in the lead of counterterrorism efforts, may invoke these restrictions for any duration of time, in any area it determines relevant, and without having to demonstrate that the restrictions on rights are proportionate to the threat of terrorism.

2006 Norms   

Russia’s counterterrorism framework includes a federal counterterrorism law and a range of other laws, including criminal, administrative, and criminal procedure norms.⁷⁵ In 2006 this framework was updated essentially to incorporate a range of counterterrorism practices that had evolved in Chechnya and were expedient for security and law enforcement personnel.⁷⁶

The cornerstone of these legislative changes was the adoption in May 2006 of Federal Law No. 35 on Counteracting Terrorism,⁷⁷ which replaced the 1998 Law on Fighting Terrorism.⁷⁸ The new law expanded on the old definition of terrorism—attempts to influence decisions by state authorities by means of inciting fear among the public and/or committing other unlawful and violent actions⁷⁹—to include propagating terrorism, disseminating materials that call for engaging in terrorist activity or include justifications of terrorism,⁸⁰ and carrying out “informational and other⁸¹ collaboration” with terrorists and in planning of terrorist attacks.⁸² These provisions have had a distinctly negative impact on freedom of expression, particularly with regard to media coverage of terrorist attacks. Their vague formulation leaves them open to broad and arbitrary interpretation and therefore to a breach of Russia’s obligations to respect freedom of expression as guaranteed under both article 10 of the European Convention on Human Rights and article 19 of the International Covenant on Civil and Political Rights (ICCPR).⁸³

The new law also redefines the concept of a “counterterrorism operations regime.” Whilst the old law provided for territorial limitations on a counterterrorism operation zone (a specific part of a territory, a building or vehicle and the territory adjacent to it, etc), under the 2006 law counterterrorism operations are bound neither by territory nor duration. Both are defined by the head of the counterterrorism operative headquarters in the region where the operation is conducted.⁸⁴

Restrictions on rights in counterterrorism operations

Under the 2006 law, during counterterrorism operations security services and law enforcement may conduct document checks and personal searches and impose limits on the free movement of people and vehicles.

Also, in 2004 the criminal procedure code was amended to allow individuals detained on allegations of terrorism to be held for 30 days without being charged, as opposed to 10 days applicable in all other situations.⁸⁵

The 2006 law also allows counterterrorism security personnel, without a judicial warrant, to have unhindered access to people’s homes, conduct random surveillance of communications (telephone, internet, etc.), and suspend communication services.⁸⁶ These provisions permit serious interference with the right to privacy, and to the home and correspondence, as protected by article 8 of the European Convention, article 17 of the ICCPR, and article 23 of the Russian Constitution (which additionally stipulates that restrictions on these rights can be imposed solely on the basis of a judicial sanction).

The new law places significant restraints on freedom of expression, particularly freedom of the press, by enabling the authorities to deny journalists and independent reporters access to the counterterrorism operations zone. As described below in this report, the authorities have invoked this provision to prevent journalists from reporting on developments in Ingushetia. ⁸⁷

The above restrictions are similar to those invoked under a state of emergency. But in contrast to a state of emergency, counterterrorist operations are not subject to either parliamentary or international control.⁸⁸ 

Lack of specific preconditions for counterterrorism operations

The law does not specify preconditions that must exist for launching a counterterrorism operation. It only stipulates that a “counterterrorism operation is conducted to repress a terrorist attack if there is no way to do so by other means.”⁸⁹Article 12.2 gives local security services the right to launch counterterrorism operations in their respective territories and exclusive rights and responsibility to determine the targets, timing, scope, and subjects of the operation. Article 9 provides for large-scale use of military forces in counterterrorism operations.⁹⁰

The overly broad definition of terrorism, combined with the wide powers security services have to define counterterrorism operations and restrict rights, have prompted concern that the law can be misused to suppress dissent or to advance the interests of the governing authorities even in the absence of a genuine threat of terrorism. As noted earlier, for instance, the Ingush government invoked the counterterrorism regime to justify banning a protest rally.

Authorized use of lethal force

The law sets out no standards of proportionality for the use of lethal force by law enforcement and security servicemen. A June 2007 implementing decree stipulates that weapons and military equipment in counterterrorism operations can be used during a detention “if the detention cannot be carried out by other means.”⁹¹ Before an officer is authorized to use his weapon, he is required to declare his intention to do so, unless such a warning would “endanger life” or is “impossible.” However, no guidance is provided on the circumstances in which such an eventuality may occur.

At the same time, according to authorities in Ingushetia, in 2007 and 2008 a counterterrorism operation regime has been in force in Ingushetia on only two occasions: in July 2007 to conduct a sweep in the village of Ali-Yurt as a follow up to the insurgents’ attack on Magas,⁹² and in January 2008 to prevent a protest rally which, according to police intelligence, created a threat of terrorist attacks.⁹³ Numerous “special operations” conducted in the territory of the republic are not classified as counterterrorism operations but are deemed to be regular law enforcement operations aimed at preventing crimes of a terrorist nature, involving for example the arrest of alleged members of illegal armed groups.⁹⁴ However, large armed units are frequently deployed during those operations and resort to the use of lethal force.⁹⁵ The prosecutor of Ingushetia, Yuri Turygin, told Human Rights Watch that law enforcement personnel “use lethal force if they’re under threat.” Turygin also maintained that the prosecutor’s office views “threat to personnel” as a key criterion in identifying a potential terrorist attack.⁹⁶

Structure of Counterterrorism Operations

As described below in this report, a variety of agencies can be involved in counter-terrorism operations. Article 15.3 of the counterterrorism law enumerates the agencies that may be deployed in such operations, including the FSB, the Ministry of Internal Affairs, Ministry of Emergency Situations, Fire Department, Water Safety Department, and other executive personnel.

The law provides little clarity about the chain of command over counterterrorism operations but puts the FSB firmly in control of all aspects of counterterrorism operations. The Federal Operative Headquarters (whose head is appointed by the FSB director) on the federal level⁹⁷ and the local operative headquarters on the regional level, controlled ex officio by heads of local branches of the FSB,⁹⁸ remain the key decision-making and implementing agencies with full control over concrete operations in the relevant territories. The operative headquarters develop the operation’s plan, ensure coordination between different enforcement agencies involved, and are responsible for the actual conduct of the operation.⁹⁹The operative headquarters chief, in turn, has overall control of the execution of the operation¹⁰⁰ and determines which personnel need to be deployed¹⁰¹ and which resources are needed for the operation. A federal National Counterterrorism Committee (chaired by the FSB director) and similar regional commissions (chaired by regional governors) were created by President Putin’s decree to coordinate the work aimed at preventing terrorism and minimizing consequences of terrorist attacks in general but they are not tasked with overseeing specific operations.¹⁰² 

Ingushetia’s president, Murat Zyazikov, told Human Rights Watch that the republican Counterterrorism Commission under his leadership holds meetings “on a regular basis,” discusses strategies aimed at preventing and countering terrorist activity “but does not plan specific operations, as this is the task of the professionals,” namely the FSB. Ingushetia’s minister of internal affairs, who is also the deputy head of the republican Counterterrorism Commission, said that an operative headquarters meeting chaired by the head of the FSB discusses available intelligence and determines whether that intelligence warrants a counterterrorism operation, and the republican Counterterrorism Commission follows the headquarters guidance.¹⁰³

Other Laws Amended by Counterterrorism Legislation

Other laws amended to accommodate the needs of the counterterrorism operations include the Federal Law on the Mass Media and the Federal Law on the Federal Security Service.¹⁰⁴

The amendments to the Law on Mass Media ban the media from publicly justifying terrorism.¹⁰⁵ They also stipulate that “the procedure for collection of information by journalists in the territory of a counterterrorism operation shall be defined by the head of the counterterrorism operation.”¹⁰⁶ Under the amendments, mass media outlets covering counterterrorism operations are forbidden from disseminating information on special means, techniques, and tactics used in connection with the operation.¹⁰⁷ Likewise, mass media cannot be used “for dissemination of materials containing public incitement to terrorist activity, of providing public justification of terrorism, or of other extremist materials.”¹⁰⁸ 

The amendments to the Law on the Federal Security Service provide for the conduct of military operations with the aim of “obtaining information about events or actions, which create a terrorist threat” and “identifying persons connected with the preparation and conduct of a terrorist attack.”¹⁰⁹  In practice, this accounts for the heavily militarized sweeps and targeted raids of houses by security services.