CASE OF KHASHIYEV AND AKAYEVA AND 153 OTHER CASES AGAINST RUSSIA

Interim Resolution CM/ResDH(2011)292[1]

Execution of the judgments of the European Court of Human Rights

in 154 cases against the Russian Federation concerning actions of the security forces in the Chechen Republic of the Russian Federation

(see Appendix for the list of cases in the Khashiyev group)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”);

Having regard to the 154 judgments of the European Court of Human Rights (“the Court”) finding grave violations of the Convention resulting from and/or related to actions of the security forces during anti-terrorist operations which took place mainly between 1999 and 2004 in the Chechen Republic of the Russian Federation concerning unlawful killings, unacknowledged detention, disappearances, torture, destruction of property, lack of effective investigations and of effective domestic remedies in this respect;

Recalling that, since 2005, when the Court rendered the first judgments in this group, the Committee has consistently emphasised that the execution of these judgments requires the adoption of comprehensive measures in particular aimed at:

- improving the legal and regulatory framework governing anti-terrorist activities of security forces, including the use of force and the existence of safeguards to prevent ill-treatment and disappearances;

- ensuring effective accountability of members of the security forces for abuses committed during antiterrorist operations, including effective domestic investigations;

- developing domestic remedies available to victims of such abuses, including compensation;

- enhancing awareness-raising and training of members of security forces;

Recalling that, as a matter of priority, the Committee’s current assessment focuses on the effectiveness of domestic investigations as this issue is closely connected to the individual measures required by these judgments and relates to:

- the general framework governing domestic investigations carried out in the cases which gave rise to judgments of the Court or applications before the Court;

- the rights of victims during the pre-trial stage of criminal proceedings;

- the remedies available to victims to complain against the ineffectiveness of domestic investigations;

Having assessed the extensive information provided by the Russian authorities on the measures taken or envisaged following the judgments of the Court, which is summarised in various public memoranda[2] and information recently provided by the Russian authorities to the Committee[3] and having regard to the meetings held with the Secretariat and with judges, prosecutors, investigators and victims and their representatives during the visit to the Chechen Republic in June 2011;

Considering in the light of the above, that the progress achieved and the outstanding issues need to be presented in the present Interim Resolution;

1.General framework for domestic investigations carried out in cases which gave rise to a judgment of the Court or to an application before the Court

Considering the important changes introduced after the events described in the Court’s judgments in the general framework governing domestic investigations and in particular those conducted in cases which gave rise to a judgment of the Court or an application before the Court;

Observing that in the setting-up of appropriate regulatory framework governing activities of prosecutors and investigators, due regard was paid to the Convention requirements and the Court’s judgments;

Acknowledging that the violations found in these judgments took place in the difficult context of the fight against terrorism as well as the practical difficulties arising out of conducting investigations into past events, which inevitably limit the possibilities open to the investigators;

Noting with interest the efforts reported by the Russian authorities with a view to remedying the shortcomings of the initial investigations, establishing the facts as well as the identities of those responsible, including servicemen and other representatives of federal forces who might have been involved in the events described in the judgments;

Noting further that these efforts have resulted in the identification of particular servicemen in a number of cases and in the arrest of one of the perpetrators in the Sadykov case;

Noting however with concern that despite the efforts made by the Investigative Committee and by other competent authorities, more than six years after the first judgments of the Court, in the vast majority of cases, it has not yet been possible to achieve conclusive results and to identify and to ensure the accountability of those responsible, even in cases where key elements have been established with sufficient clarity in the course of domestic investigations, including evidence implicating particular servicemen or military units in the events[4] ;

Underlining therefore the need to ensure that the investigating authorities make full and effective use of all means and powers at their disposal as well as to reflect on whether any other additional measures are still required, bearing in mind the difficulties inherent in investigations conducted into the consequences of a large-scale antiterrorist operation such as that at issue;

Stressing in addition that the necessary action in this respect should be taken as a matter of priority since with the passage of time, the risk of loss of evidence increases and even if they are eventually identified, the prosecution of those responsible may become impossible given the expiry of the time-limits in the statutes of limitation;

2.Search for disappeared persons

Considering that, in all judgments concerning disappearances, the Court also found a violation of Article 3 of the Convention on account of the applicants’ suffering as a result of the disappearance of their relatives and of their inability to find out what had happened to them;

Taking note of measures aimed at improving the regulatory framework governing the search for disappeared persons in general[5] and at enhancing the search for such persons in the Chechen Republic in particular, through the developments in use of DNA tests of relatives of disappeared persons;

Noting however with particular concern that little progress has been made so far in this respect and that fresh applications concerning disappearances are being lodged with the Court;

Considering that the numerous disappearances which took place in the Chechen Republic constitute a specific situation which calls for additional tools and means;

Stressing in this respect the need to intensify further the search for disappeared persons, in particular through better co-ordination between the different agencies involved, collection, centralisation and sharing of all information and data relevant to the disappearances among different authorities concerned, strengthening local forensic institutions, enhanced cooperation with the relatives of disappeared persons, identification of possible burial sites and other relevant practical measures;

Emphasising that the need for such measures is all the more pressing in cases where the continued failure to account for the whereabouts and fate of the missing persons gives rise to a continuing violation of the Convention;

3.Involvement of victims in domestic investigations

Noting the continuous efforts made by the Investigative Committee to improve the regulatory framework governing the participation of victims in domestic investigations, bearing in mind the experience of other countries;

Noting further with satisfaction that the adoption of these measures was already resulted in development in practice of regular meetings with victims’ families; reports to the families on progress of domestic investigations and granting greater access to the material in investigative files;

Emphasising the need for continuous efforts aimed at ensuring close co-operation with victims’ families and for further improvement of the legal and regulatory framework governing the participation of victims in domestic investigations;

4.Remedies available to the victims

a.Possibility to challenge investigators’ actions or omissions before the domestic courts in accordance with Article 125 of the Code of Criminal Procedure

Noting with particular interest the recently adopted measures to guarantee that this remedy is used in line with the requirements of the Convention and taking note of the examples of domestic courts’ practice demonstrating positive developments in the application of this remedy as well as of the statistics showing the increasing use of the remedy, in particular by victims;

Recalling that the potential effectiveness of this remedy has not yet been fully demonstrated and accordingly has not yet been recognised by the Court;

Stressing in this respect that the successful exercise of this remedy by victim is not yet sufficient to ascertain its effectiveness; this effectiveness remains closely contingent on whether the investigating authorities acted on the shortcomings identified in the court’s decision effectively and promptly;

Underlining in this context the possible role for prosecutors in ensuring that such a follow-up is given by the investigators to the court’s decisions and noting with satisfaction the recent measures taken in this direction[6];

b.Compensatory and acceleratory remedies in case of excessive length of the investigation

Noting the information provided by the Russian authorities that two Federal Laws providing the right to compensation for a violation of the right to judicial and enforcement proceedings within a reasonable time, adopted in response to the pilot judgment of the Court delivered in the Burdov (No. 2) case, also apply to the investigation stage of criminal proceedings;

Noting further that in addition to compensation, the Laws mentioned above provide for a possibility to complain of excessive delays in the investigation, to the head of the investigating body or to the prosecutor, who should indicate specific procedural steps to be taken and set the deadlines for their implementation if the complaint is justified;

Considering that it remains to be seen how this remedy will work in practice in the case of domestic investigations,

NOTES WITH SATISFACTION the continuous improvement of the institutional, legal and regulatory framework for domestic investigations in order to bring it in line with the requirements of the Convention and the Russian authorities’ efforts aimed at remedying the shortcomings of initial investigations and ensuring their effectiveness;

EXPRESS HOWEVER DEEP CONCERN that notwithstanding the measures adopted, no decisive progress has been made in domestic investigations carried out in respect of the grave human rights’ violations identified in the judgments in the vast majority of cases;

URGES the Russian authorities to enhance their efforts so that independent and thorough investigations into all abuses found in the Court’s judgments are conducted, in particular by ensuring that the investigating authorities use all means and powers at their disposal to the fullest extent possible and by guaranteeing effective and unconditional co-operation of all law-enforcement and military bodies in such investigations;

STRONGLY URGES the Russian authorities to take rapidly the necessary measures aimed at intensifying the search for disappeared persons;

ENCOURAGES the Russian authorities to continue their efforts to secure participation of victims in investigations and at increasing the effectiveness of the remedies available to them under the domestic legislation;

ENCOURAGES the Russian authorities to take all necessary measures to ensure that the statutes of limitation do not negatively impact on the full implementation of the court’s judgments.

INVITES the authorities to keep the Committee of Ministers informed of the progress made in the domestic investigations in particular in individual cases identified by the Committee[7] as well as in the implementation of the necessary general measures required by these judgments.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th meeting of the Ministers’ Deputies.

[2] CM/Inf/DH(2008)33, CM/Inf/DH(2008)33 addendum, CM/Inf/DH(2010)26.

[3] DH-DD(2011)130.

[4] See for instance, Isaeyva, Abuyeva, Musaeyv and others, Bazorkina, Khadisov and Tsechoyev judgments.

[5] Lastly, a Joint Order of the Prosecutor General and of the Ministry of the Interior of 27 February 2010 n°70/122 approving the Instruction on the procedure of examination of complaints and other information on incidents related to disappearance of persons.

[6] Since the last examination of these cases, the Prosecutor General of the Russian Federation adopted on 2 June 2011 an Order n°162 on the organisation of prosecutors’ supervision over procedural activities of the investigative bodies.

[7] See the Committee of Ministers’ decision adopted at the 1120th DH meeting (September 2011).

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