Ongoing Failure to Provide Aggrieved Parties Access to the Criminal Case File

Human Rights Watch found that in the vast majority of cases, Russian investigative authorities continue to deny European Court applicants access to the case file after the judgment has become final, in continued violation of the applicants' right to an effective remedy (article 13 of the European Convention).

The Importance of Access to the Case File

In all of its rulings concerning violations in Chechnya, the European Court has held that the applicants were deprived of effective remedies in respect of the various violations that they complained about. In many of these cases, the court has listed the authorities' refusal to grant the victim's relatives access to the case file in the criminal investigation as one of the reasons it considered the investigation ineffective and therefore failing to constitute an effective remedy.[71]In the case of Gekhayeva and Others v. Russia, for example, the court found that:

The applicants, having no access to the case file and not being properly informed of the progress of the investigation could not have effectively challenged the actions or omissions of the investigating authorities before a court... Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances...[72]

One lawyer who has won several European Court cases against Russia explained to Human Rights Watch why access to the case file is crucial to ensure an effective investigation:

The investigative authorities regularly suspend the investigation of these cases, claiming that it has not been possible to identify the perpetrators. If we are not able to review the documents in these cases, we have no information about what measures the authorities have undertaken to investigate the disappearance. Without this information it becomes impossible for us to challenge the decision to suspend the investigation and to point out to the court what other steps should have been taken.[73]

In the cases analyzed by Human Rights Watch, Russian investigating authorities, however, have consistently denied applicants access to the case file.

For example, in June 2008, Marzet Imakayeva and her lawyer went to the Shali district prosecutor’s office in Chechnya to review the case file in the criminal investigation related to her husband’s abduction by federal forces in June 2002.[74] Imakayeva told Human Rights Watch:

Last year I came to Chechnya from the United States [where I now live] and got access to my husband’s case file. Together with my lawyer we started going over the file. We immediately saw that all the witness testimonies had been taken out of the case file, but we weren’t even able to photograph anything because in about 15 minutes they took all the three volumes of the case file from us. The officials at the prosecutor’s office were afraid of getting into trouble—they even told me that directly. An investigator, a young guy, started begging me, “If you photograph this they’ll fire me right away!” And his boss was saying, “Why do you need this? You’ve already won your case. Leave this alone.”

So, I returned to Chechnya this summer, once again, to ask for access to the case file. We’ve sent an official request and I’m now waiting for the answer. That’s why I’m here.[75]

On April 30, 2009, Imakayeva and her lawyer submitted a written request to review the criminal case.[76] In a letter to Imakayeva’s lawyer, the Investigative Directorate of the Republic of Chechnya replied:

In connection with the fact that the investigation in the criminal case has not concluded, in accordance with paragraph 2, article 42 of the criminal procedure code, the representatives of the applicants cannot review the materials of the criminal case in its entirety, and only with the protocols of investigatory measures undertaken with their participation.[77]

Russian legislation, however, does not provide an absolute prohibition on access to the case file before the investigation has concluded. Article 42 confirms the right of the aggrieved party to review the case file after the investigation has concluded, but, contrary to the investigator’s claim above, it is silent on the issue of access to the case file during the investigation.[78] Article 161 of the criminal procedure code does stipulate that materials of the preliminary investigation should, as a default, not be divulged. However, the investigative authorities can provide access “in such volume, which they recognize as permissible, if such divulgence does not contradict the interests of the preliminary investigation and is not connected with a violation of the rights and lawful interests of the participants in the criminal court proceedings.”[79] The Russian authorities’ blanket use of this provision to refuse any disclosure of the criminal case file has also been criticized by the European Court.[80]  

For Marzet Imakayeva, the European Court judgment has not diminished her desperate efforts to learn the fate of her husband and son. She told Human Rights Watch, “If only I could be given the bodies of my husband and son, I could bury them. ... This is the one thing that I want now. I just want to know the truth. I’m ill all the time because of this torture of not knowing. ... I need the truth. Anything is better than this waiting.”[81]

Human Rights Watch reviewed six additional cases in which applicants and their lawyers submitted written requests in 2007, 2008, and 2009 to review the criminal case file in cases decided by the European Court.[82] In four of the cases the authorities replied that it was not possible for the applicants to review the criminal case file before the conclusion of the investigation. In the two other cases the authorities completely ignored the applicants’ request to review the case file.[83]

On July 28 and August 3, 2009, applicants and lawyers resubmitted requests to review the case files. Four of these cases are being investigated by the Second Department of the Investigative directorate of the Chechnya Prosecutor’s Office (“Second Department”)[84] and two cases are under the jurisdiction of the Military Investigative Directorate.[85] On August 9, an investigator at the “Second Department” informed the lawyer in these cases the case that the requests had been denied. The lawyer told Human Rights Watch:

The investigator on the case recognized my name and called me yesterday [August 9] on the day that they were legally obliged to reply to my request. He told me that my request for access to the criminal case files had been denied. According to him, the investigation in all the cases had been suspended and there is no real investigation going on. Still, they deny us access. Now we have to go to the court to try to get access that way.[86]

It is not known as of this writing whether the requests for access were granted in the two cases being investigated by the military investigative directorate.