Torture, physical abuse, arbitrary arrest, "disappearances," summary executions, rape, and the failure to accord procedural rights to persons in detention and at trial violate international human rights norms binding upon Russia, in particular those codified in the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture). Russia is also a party to the European Convention on Human Rights (ECHR), and subject to the jurisdiction of the European Court of Human Rights, the body which enforces the ECHR. (7)
The provisions of international humanitarian law, also known as the laws of war, which came into play with the renewed outbreak of armed conflict in Chechnya, bar much of the same conduct, an essential difference being the combatant's "privilege" to take part in hostilities, including acting to kill or harm opposing combatants. Russia is party to the four Geneva Conventions of 1949 and their two Protocols. (8) The fighting in Chechnya unquestionably has been intense enough to qualify as "armed conflict," making applicable the laws of war. The armed conflict is of a "non-international" character and thus governed by Article 3 common to the four Geneva Conventions of 1949 and Protocol II. (9)
The most grievous affront to basic international human rights and humanitarian norms documented in this report is the violation of the right to life. Article 6(1) of the ICCPR provides "No one shall be arbitrarily deprived of his life," and article 2 of the ECHR similarly bars intentional killing except in very narrow circumstances. With respect to non-combatants, Common Article 3 prohibits "at any time and in any place whatsoever ... violence to life and person, in particular murder of all kinds," and "the passing of sentences and carrying out of executions without previous judgement pronounced by a regularly constituted court." Protocol II articulates the same prohibitions in similar language at articles 2 and 6. These standards would all apply without possibility of derogation to forbid the extrajudicial execution of detainees.
Few elements of international human rights law are as unequivocal as the ban on torture. The prohibition is embodied in the United Nations Universal Declaration on Human Rights, which states in Article 5: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." That right is reaffirmed verbatim in article 7 of the ICCPR and article 3 of the ECHR. The Convention against Torture, article 1(1), defines torture as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Article 15 of the Convention against Torture requires states parties to ensure that statements obtained through torture not be used as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. Common Article 3 of the Geneva Conventions and Protocol II likewise prohibit violence to the physical and mental well-being of the person, including mutilation, cruel treatment and torture as well as "outrages upon personal dignity, in particular humiliating and degrading treatment." (10)
Rape and other forms of sexual violence fall within the prohibition of "cruel, inhuman or degrading treatment" prohibited under the human rights treaties, and indeed, may often rise to the level of torture. (11) These acts are also explicitly and implicitly condemned by international humanitarian law. (12)
Even where the act of sexual violence was not technically rape, or did not cause severe physical pain or suffering, it still may rise to the level of torture or other cruel, inhuman or degrading treatment on account of the psychological suffering inflicted. In interviews, some women detainees spoke of being forced to strip naked during interrogations. The Akayesu Judgment of the International Criminal Tribunal for Rwanda (ICTR) established a broad definition of sexual violence: "Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact," including forced nudity. (13)
Arbitrary arrest or detention is prohibited by Article 9 of the ICCPR. To comply with Article 9, the state must specify in its legislation the grounds on which individuals may be deprived of their liberty and the procedures to be used in enforcing arrests and detentions. Only acts conducted in accordance with such rules are considered lawful, thus restricting the discretion of individual arresting officers. Moreover, the prohibition on arbitrariness means that the deprivation of liberty, even if provided for by law, must still be proportional to the reasons for arrest, as well as predictable. Article 9 also specifically requires that detainees be immediately informed of the reasons for their arrest and promptly be told of any charges against them, and that they be brought promptly before a judge empowered to rule upon the lawfulness of the detention. Article 5 of the ECHR contains similar guarantees.
The manner in which Russian authorities have rounded up and detained civilians in Chechnya must be considered arbitrary. Grounds cited for detention often were alleged irregularities with identification documents. Under Russian law, police officers are allowed to detain an individual for up to three hours to establish his or her identity, but only if the officer has sufficient grounds to suspect that the individual has committed an administrative or criminal offense. (14) But as documented in this report, civilians were detained for weeks or even months for alleged passport irregularities, and detaining authorities rarely stated other grounds to justify the arrest. When civilians were detained for being in locations that were not their legal permanent address, this not only constituted arbitrary arrest, but also violated their rights to freedom of movement. Often, however, no grounds at all for arrests were given.
Russia has not declared a state of emergency in Chechnya, and thus Russia's domestic legal obligations, including the constitutional rights of citizens, remain in full force in the war-torn republic. Russia remains obligated to fully adhere to these rights without derogation.
Torture and physical abuse are punishable crimes under the Russian legal code, although the legal definition of torture in Russian law does not cover the full scope of the definition contained in the Convention against Torture. Article 21(2) of the Russian constitution states in relevant part that "[no] one may be subjected to torture, violence or other treatment or punishment that is cruel or degrading to the human dignity." (15) Article 111 of Russia's criminal code sets penalties of two to fifteen years of imprisonment for the infliction of serious bodily injury, but does not specifically address persons acting in an official capacity. (16) Article 117 of the criminal code, which also does not address persons acting in an official capacity, addresses ill-treatment:
Infliction of physical or psychological suffering by administering systematic beatings or other violent means, if this did not have the consequences indicated in article 111 [severe damage to health] and 112 [damage to health of average seriousness] of this law is punishable by deprivation of freedom for up to three years.
The Russian criminal procedure code bans the coercion of "a defendant or other participant in a case to give testimony by means of violence, threats or other unlawful means," (17) and since March 1999 the law on police also forbids the use of torture and ill-treatment. (18) Torture committed by an official is considered an aggravated circumstance of the crime of coercion to give testimony, defined in article 302 of the criminal code:
1. Coercion of a suspect, defendant, victim [of crime] or witness into giving testimony or coercion of an expert into giving a conclusion by means of threats, blackmail or other unlawful means by an investigator or person carrying out the inquiry is punishable by deprivation of freedom for a period of up to three years.
2. The same action, together with the application of violence, degrading treatment or torture is punishable by deprivation of freedom for a period of two to eight years.
Summary or arbitrary executions are acts of murder, and are punishable as such under the Russian criminal code. Similarly, rape is a punishable offense under the Russian criminal code.
The Duty to Investigate
Under international law, Russia has a duty to investigate allegations of torture, rape, summary execution and other serious violations of human rights and international humanitarian law standards. The perpetrators of such abuses should be punished, and victims should be provided with compensation.
Article 12 of the Convention against Torture obliges states parties to initiate a prompt and impartial investigation of torture complaints whenever circumstances give "reasonable ground to believe that an act of torture has been committed." Article 13 of the ECHR requires states to establish "an effective remedy before a national authority" for anyone whose rights and freedoms
as set out in the convention have been violated. In addition, the European Court of Human Rights has ruled that article 1 of the ECHR, in conjunction with article 3, requires an effective investigation of torture complaints whenever the applicant has an "arguable claim." (19) For example, in the case of Assenov and others v. Bulgaria it stated:
The Court considers that, in these circumstances, where an individual raises an arguable claim that he has been seriously ill-treated by the police or other agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to "secure to everyone within their jurisdiction the rights and freedoms in [the] Convention," requires by implication that there should be an effective official investigation [of alleged violations of the rights set forth in the Convention.] This obligation...should be capable of leading to the identification and punishment of those responsible. (20)
The court elaborated upon the need for a sufficiently thorough and effective investigation in various decisions, as in the case of Assenov and Others v. Bulgaria, in which the court held that Bulgaria had denied the applicant an effective remedy. In this case, prosecutors had failed to immediately question a series of witnesses to a police beating of a Roma adolescent in public. In addition, prosecutors at various levels had concluded, without a proper investigation, that "even if the blows were administered on the body of the juvenile, they occurred as a result of disobedience of police orders" and that the boy's father had caused the injuries. (21)
In another decision, Aksoy v. Turkey, the European Court of Human Rights ruled that if an applicant was in good health when detained and injured at the time of release, the burden of proof lies with the government:
[W]here an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of injury, failing which a clear issue rises under Article 3. (22)
Article 13 of the Convention against Torture also obliges states to ensure individuals the right to complain and to be protected against repercussions for filing a complaint. (23)
The U.N. Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions encourage states to investigate all suspected cases of extra-legal, arbitrary, and summary executions. These authoritative standards explicitly include deaths in custody if there are "complaints by relatives or other reliable reports" which suggest that an unnatural death occurred. The investigation, which must be thorough, prompt, and impartial, should" determine the cause, manner and time of death, the person responsible, and any pattern or practice which may have brought about that death" and should result in a publicly available written report. (24)
In Russia, the procuracy is the primary body responsible for ensuring observance of human rights, including the procedural and other rights of criminal suspects, defendants, and other detainees. However, the procuracy also plays the principal role in prosecuting crimes, as it is in charge of investigating certain categories of criminal cases and prosecutes defendants in court.