V. Domestic Legal Framework for Counterterrorism
Counterinsurgency operations in Ingushetia are governed by Russias 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 determinewithout judicial oversightthe 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.
Russias 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 terrorismattempts to influence decisions by state authorities by means of inciting fear among the public and/or committing other unlawful and violent actions79to 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 Russias 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 peoples 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 theyre under threat. Turygin also maintained that the prosecutors 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 operations 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 Putins 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
Ingushetias 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. Ingushetias 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.
75 These include, inter alia, the Law on the Federal Security Service and the Mass Media Law. See below.
76 The Russian government framed the second Chechen war, which started in 1999, as a counterterrorism operation governed only by counterterrorism legislation. Between 1999 and until the adoption of the new counterterrorism legislation, human rights NGOs and experts repeatedly pointed out that the governments operations there could be justified only under a state of emergency, which the Russian government never declared, and not under Russias counterterrorism legislation. NGOs noted in particular that the government set no limits on the duration and territory of the operations in Chechnya and that it deployed massive military forces, both of which, prior to the 2006 counterterrorism law, were justifiable only under an emergency situation. See, for example, Memorial and Center Demos, The Conduct of the Counter-terrorist Operation by the Russian Federation in the North Caucasus in 1999-2006, January 26, 2007, http://www.memo.ru/hr/hotpoints/caucas1/index.htm (accessed on May 10, 2008).
77 See Federal Law No. 35-FZ on Counteracting Terrorism (2006), http://www.legislationline.org/legislation.php?tid=46&lid=6207&less=false (accessed June 11, 2008).
78 The law was adopted by the State Duma on February 26, 2006, and entered into force when President Putin signed it in March 2006, with the exception of articles 18 (compensation of damage inflicted in a terrorist attack), 19 (social rehabilitation for victims of terrorist attacks), 21 (compensation of harm for and social protection of individuals engaged in counterterrorism), and 23 (benefits for individuals engaged in counterterrorism), which entered into force on January 1, 2007.
79 Federal Law on Counteracting Terrorism, No. 35-FZ, art. 3.1.
80 The term justification, used in the law, may have two possible interpretations: (1) expression of understanding of or compassion for the motives of the terrorist(s); and (2) asserting that terrorist ideology and/or practices are justifiable from a political, social, or other viewpoint. Article 205-2 of the Russian Criminal Code, which provides for criminal liability for justification of terrorism, is accompanied by a commentary that says only that justification should be interpreted as public assertions that terrorist ideology and practices are justifiable and should be supported. See http://www.russian-criminal-code.com/ (accessed June 11, 2008).
81 The definition other [forms of] collaboration with terrorists has a particularly strong potential for arbitrary application as no specific types of collaboration are identified. For example, an individual who rented an apartment to a terrorist without his or her knowledge of the tenant being a terrorist may be accused of collaboration in planning a terrorist attacks.
82 Federal Law on Counteracting Terrorism, No. 35-FZ, art 3.
83 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 213 U.N.T.S. 222, as amended by Protocol 11, entered into force September 3, 1953, ratified by Russia on May 5, 1998. International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 999 U.N.T.S. 171 (entered into force March 23, 1976) ratified by Russia on October 16, 1973.
84 Federal Law on Counteracting Terrorism, No. 35-FZ, art. 11. For information on operative counterterrorism headquarters and their leadership, see below, this chapter, section Structure of Counterterrorism Operations.
85 Criminal Procedure Code, art 100, part 2, as amended by Federal Law on Ammending the Criminal Procedure Code of the Russian Federation, No. 18-FZ April 22, 2004. See http://www.legislationline.org/upload/legislations/9a/eb/3a4a5e98a67c25d4fe5eb5170513.htm.
86 Federal Law on Counteracting Terrorism, No. 35-FZ, art. 11.
87 See Chapter IX of this report, Public Protests and Response of the Authorities.
89 Federal Law on Counteracting Terrorism, No. 35-FZ, art.12.1
90 Ibid., art. 9. This article even provides for such military operations outside of Russias territory to prevent alleged terrorist attacks, with the relevant decision made by the Russian president.
91 Decree No. 352 on Measures to Implement the Federal Law on Counteracting Terrorism, issued June 6, 2007.
92 See Chapter VIII of this report, Special Operations Involving Cruel and Degrading Treatment.
93 Human Rights Watch meeting with Yuri Turygin and other Ingushetia authorities, May 27, 2008.
95 See Chapter VI of this report, Extrajudicial Executions, for details on the cases of Rakhim Amriev, Apti Dalakov, and others.
96 No such criterion is provided in Federal Law on Counteracting No. 35-FZ.
97 Ibid., art. 6 A On the measures to counter terrorism.
99 Federal Law on Counteracting Terrorism, No. 35-FZ, art. 14.
100 Ibid., art. 13.
101 The only exception from the rule is the deployment of large military formations, which must be sanctioned by Russias president. Ibid., art. 9.
102 Presidential Decree #116, arts, 1, 6 A and B.
103 Remarks made by Murat Zyazikov and Musa Medov at Human Rights Watch meeting with Ingushetia authorities, May 27, 2008.
104 The amendments were made via Federal Law No. 153 on Introducing Amendments into Specific Legislative Action of the Russian Federation in connection with the Adoption of Federal Law on Ratification of the Council of Europe Convention on Prevention of Terrorism and Federal Law on Counteracting Terrorism, (О внесении изменений в отдельные законодательные акты Российской Федерации в связи с принятием Федерального закона "О ратификации Конвенции Совета Европы о предупреждении терроризма" и Федерального закона "О противодействии терроризму"), adopted June 27, 2006.
105 It is not clear whether in this context justification must be interpreted the way it is defined in the commentary to the article 205-2 of the Criminal Code described in the footnote 94, that is, as public assertions that terrorist ideology and practices are justifiable and should be supported. This lack of clarity potentially makes it possible to use broader interpretation in connection with administrative suits against media outlets.
106 Federal Law on Mass Media, No. FZ-2124-1 as amended by Federal Law No. 153.
107 Ibid. By law, the ban is only applicable to the situations when such coverage may interfere with the conduct of the operation and threaten peoples lives and health. The formula, however, is vague and therefore indirectly encourages a very broad application of the ban.
108 Federal Law on Mass Media, No. FZ-2124-1 as amended by Federal Law No. 153, art. 4.
109 Federal Law No. 40 on the Federal Security Service as amended by Federal Law No. 153, art. 9.1.