Ministers’ Deputies
Information documents

CM/Inf/DH(2009)32 … … 29 May 20091
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Action of the security forces in the Chechen Republic of the Russian Federation: general measures to comply with the judgments of the European Court of Human Rights

Progress report prepared by the Secretariat

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INTRODUCTION

1. In accordance with the Committee of Ministers’ decision adopted at the 1035th meeting, the Secretariat organised bilateral consultations in cooperation with the Russian authorities with a view to discussing the issues raised in the Memorandum CM/Inf/DH(2008)332.

2. The present document constitutes the first progress report by the Secretariat prepared following two rounds of bilateral consultations held in Moscow with the competent Russian authorities3.

3. Both consultations were dedicated to the issues related to the effectiveness of domestic investigations carried out in the cases which gave rise to applications to the European Court and to victims’ rights at pre-trial stage of criminal proceedings. Meetings were organised with the competent authorities, such as the Investigating Committee set up with the Prokuratura of the Russian Federation, the Prokuratura of the Russian Federation and the Military Prokuratura, the Supreme Court of the Russian Federation. Representatives of their local departments from the Chechen Republic were also present at each meeting.

4. This document contains a summary of the information provided by the competent Russian authorities in response to the issues raised in the relevant parts of the Memorandum CM/Inf/DH(2008)33. It also refers to results achieved to date and to further measures envisaged.

5. The information provided by the Russian authorities shows significant changes in the legal, regulatory and institutional framework governing domestic investigations.

I. GENERAL INFORMATION

6. The Russian authorities stated that the constitutional order was restored in the Chechen Republic and the declared state of a counter-terrorist operation was lifted on 16 April 2009.

7. The Russian authorities have indicated that, since the events described in the judgments, a number of important changes have taken place at federal and regional level. The Russian Federation has undertaken a number of important reforms, such as the entry into force in 2002 of the new Code of Criminal Procedure (hereinafter the “CCP”) and the setting up of the Investigating Committee with the Prokuratura of the Russian Federation in September 2007. As a result of the latter reform, the bodies responsible for the investigation and for its supervision have been separated and the independence of the bodies responsible for investigation has been reinforced.

II. INFORMATION PROVIDED BY THE RUSSIAN AUTHORITIES AND OUTSTANDING ISSUES

A. Measures taken by the Investigating Committee

8. The information provided by the Russian authorities on the special mechanism set up within the Investigating Committee to investigate crimes allegedly resulting from and/or relating to the authorities’ actions during anti-terrorist operation in the Chechen Republic of the Russian Federation may be summarised as follows:

1) Structure and mandate

9. Two units were set up within the Investigating Committee’s Directorate in the Chechen Republic:

10. a) In July 2008 a special working group was set up for the investigation of cases which gave rise to applications to the European Court within the Directorate of the Investigating Committee in Chechen Republic. The working group comprised eight investigators from each of the interdistrict departments of the Investigating Committee’s Directorate in the Chechen Republic and two investigators from the Unit for the investigation of particularly serious crimes of the same Directorate. The members of the group were released from other duties so as to enable them to work exclusively on these cases and entrusted with carrying out all the investigating measures provided by the CCP. In April 2009 this group was transformed into the Special Investigating Unit (SIU) by order of the Head of the Investigating Committee.

11. There are currently 143 cases of this type pending before the SIU. In addition, the Central Office of the Investigating Committee’s Directorate in the Chechen Republic is currently screening all the cases concerning abduction and disappearances which have been transferred to the Investigating Committee from the Prokuratura in 2007. A number of cases where there were allegations of a crime committed by persons dressed in camouflage or with a use of firearms or military equipment have been assigned to the SIU.

12. b) A Special Supervising Unit (Unit of Procedural Control N°2) was set up by the order of the Head of the Investigating Committee of 11 October 2007 within the Main territorial Office of the Investigating Committee in Chechen Republic. The aim of this unit is to ensure in particular the supervision of the quality of investigations carried out by the SIU. Any investigator’s decision to suspend the investigation, terminate or refuse to initiate criminal proceedings, together with the investigating file, shall be transmitted to the supervising unit within 24 hours.

13. The members of the SIU and the Special Supervising Unit meet weekly to discuss the course and the results of the investigations.

14. The supervision of these investigations is also ensured at the Central Office of the Investigating Committee. These cases are studied, joint meetings are held, circular letters on the practice of the European Court are prepared, etc. Additional measures to ensure the quality of investigation not least in the light of the Convention’s requirements are determined by the order of the Head of the Investigating Committee of 14 May 2009. They include regular analysis of the European Court’s case-law and training measures, particularly the organisation of study visits to the Council of Europe.

2) Processes

a) Analysis of the shortcomings identified by the European Court

15. Judgments of the European Court concerning the anti-terrorist operation in the Chechen Republic are subject to careful examination by the Investigating Committee. The investigations’ shortcomings are analysed and brought to the attention of the investigators dealing with the cases which gave rise to the applications to the European Court. For example, in 2008 a study of the judgments of the European Court was carried out by the Special Supervising Unit. The results of the study were submitted to the Deputy Head of the Investigating Committee’s Directorate in the Chechen Republic in a memorandum of 7 November 2008. The memorandum deals with Articles 2 and 3, Articles 5, 8 and 13 of the Convention (see an example of a circular letter in DD(2009)302).

16. In December 2007 a commission composed of the representatives of different entities of the Investigating Committee carried out the monitoring of all pending criminal cases which gave rise to applications to the European Court, in the light of the European Court’s findings. The common shortcomings identified by the commission were brought to the attention of the heads of units of the Investigating Committee’s Directorate in the Chechen Republic by the Head of Directorate in a letter of 25 January 2008. The Head of Directorate ordered concrete action to remedy the shortcomings and fixed the deadlines accordingly.

b) Working methods

17. The work of the SIU is based on the following principles:

- Analysis of the criminal files created at the initial stage of the investigation, elaboration of hypotheses of a crime, elaboration of concrete actions to verify the hypotheses by using the following methods:

    - analysing information from different sources about committed crimes committed, including by NGO’s;
    - drawing up an action plan;
    - meeting with bodies of inquiry;
    - exchanging information with other investigating authorities; and
    - carrying out of all investigating and operational search activities necessary for the investigation and elucidation of criminal offences.

- Continuing collection of information by

    - submitting requests to different state bodies;
    - entrusting bodies of inquiry with investigation and search operations aimed at identifying perpetrators and/or whereabouts of missing persons;
    - entrusting bodies of inquiry with other investigation and search operations aimed at establishing certain facts, for example at identifying witnesses;

- Interaction with military investigators, exchange of information on cases which are being processed, common investigation of crimes in particular by

    - setting up of joint investigating groups4;
    - organising joint meetings, in particular to hear the results of joint actions5;

In order to strengthen the interaction, on 10 June 2008 a working group including 5 military investigators freed from other duties was set up within the Military Investigating Directorate of the Allied Group of Armed Forces in the Northern Caucasus.

- Identification of and search for documentation related to the possible conduct of special action by state agencies by

    - requesting courts to allow seizure of classified documents from the archives of the Defence Ministry, Ministry of the Interior, Federal Security Service or Federal Service for Execution of Sentences;
    - seizure of classified documents from archives;
    - interrogating persons who held positions of heads of local administrations and military governors at the material time.

3) Interaction with families

a) Direct contacts

18. The SIU members maintain regular working contacts, including telephone contacts, with the victims. The investigators inquire about new information which has come to the knowledge of the victims concerning the faith of the abducted persons or the circumstances of the crime. The information received is checked in the framework of the investigation or transmitted to bodies of inquiry. Should a victim require an examination of a witness, the investigator in charge shall identify the witness and carry out the necessary investigative action. The victims are informed about the course and the results of the investigation, as required by the CCP.

b) Contacts with other public institutions or organisations

    i. Ombudsman

19. The terms of the agreement signed on 15 April 2009 by the Head of the Investigating Committee’s Directorate in the Chechen Republic and the regional Ombudsman for the Chechen Republic read as follows:

“1. [the Ombudsman and the Investigating Committee’s Directorate] are to exchange information about violations of human rights:

a) the Ombudsman is to inform the Investigating Committee’s Directorate about violations committed by investigators that have come to the Ombudsman’s knowledge, about complaints submitted to courts and applications aimed at the protection of rights violated by decisions taken by investigators or heads of investigating division or by their failure to act;

b) the Investigating Committee Directorate is to inform the Ombudsman about the measures adopted following the examination of the above communications;

c) at the Investigating Committee Directorate’s request, the Ombudsman is to provide the Directorate with any documents concerning abductions in the Chechen Republic which are at the Ombudsman’s disposal.

2. [the Ombudsman and the representatives of the Investigating Committee’s Directorate] are to meet every six months to discuss the results of the work and to elaborate plans of common action aimed at full and objective investigation.”

    ii. Committee for Search of Missing Persons set up with the Parliament of the Chechen Republic (the Committee)

20. The Committee in particular receives victims and collects information which is transmitted to the Investigating Committee’s Directorate. This information is checked by the Directorate and used to identify those who have committed crimes. Thus, in April 2009 the Committee transmitted to the Directorate 96 complaints about abductions which took place during anti-terrorist operations in the Chechen Republic. After verification, the Directorate established that criminal investigations had already been opened in all 96 cases. The complaints were joined to the criminal files and the submissions are being used in the framework of criminal investigations.

Preliminary remarks and further information expected

21. The following aspects of the developments as described above must be underlined:

    - investigations are carried out within the scope of and in accordance with the Code of Criminal procedure;
    - appropriate attention is given to the judgments of the European Court;
    - each judgment is analysed and the shortcomings identified by the Court give rise to concrete investigative measures in order to remedy the lacuna found; and
    - the SIU deals mainly with cases which gave rise to applications to the European Court.

22. The setting up of such a mechanism, including the SIU and the Special Supervising Unit, appears to be a positive development in remedying the defects in the investigations identified by the Court. It also contributes to finding concrete solutions concerning individual measures required. Therefore, the efficiency of the measures taken needs to be tested in concrete cases. Consequently, information on concrete results achieved by the SIU would be appreciated so as to allow a conclusion on the adequacy of the present situation for the purposes of the Convention.

23. Moreover, the effectiveness of these measures will first be tested at national level either in trial court or otherwise through the remedies available to the victims, provided they are properly involved in this process (more details on these remedies, see §§ 65 and seq. below).

B. Prosecutors’ control over the investigations

Information provided by the Russian authorities

24. Following the amendments introduced to the CCP and to the Federal Law “On the Prokuratura” (i.e. the reform which created the Investigating Committee), the prosecutors continue to represent the accusation in trial courts as well as to supervise the procedural activities of the investigating bodies6.

25. This supervision is exercised ex officio over a number of decisions taken by the investigators. It may also be exercised at any stage of criminal proceedings upon request of the participants in criminal proceedings or other persons whose rights and interests are allegedly infringed by investigators’ decisions, actions or omissions.

1) Role of the prosecutor in ensuring the effectiveness of domestic investigations

• Prosecutors’ control during the investigation

26. The most important procedural decisions taken by the investigators are subject to the prosecutors’ supervision:

    - the decision to initiate criminal proceedings;
    - the decision to terminate criminal proceedings;
    - the decision to suspend criminal proceedings; and
    - the refusal to initiate criminal proceedings.

27. This control is subject to strict time-limits set out either in the legislation or in the internal acts adopted by the Prosecutor General7. Should the prosecutor find a decision unlawful or unjustified, he would have to take all necessary measures to ensure that the shortcomings identified are remedied by the investigators. He notifies the decision or injunction to the head of the investigating body and raise the question of annulment of the procedural decision as being unlawful and unjustified as well as the question of the commencement of disciplinary proceedings against the persons responsible, should there be grounds for that.

28. In order to increase the effectiveness of the prosecutors’ control in the Chechen Republic, 49 circular letters and methodological recommendations were sent to the local prosecutors in the Chechen Republic in 2008.

• Prosecutors’ control once the investigation has been completed

29. The Russian authorities indicated that prosecutors’ control after the investigation has been completed and before the case file is sent to the trial court also constitutes an important guarantee. Once the investigation is completed, the case-file is sent to the prosecutor. If the prosecutor considers that the case is ready for trial, he submits it to the trial court. However, if the prosecutor finds procedural shortcomings or that the investigation has been incomplete and thus the case is not ready for trial, he returns the file to the investigator in order to remedy the shortcomings.

    • Additional measures to strengthen supervision in cases which gave rise to applications to the European Court

30. On 12 May 2009 the Deputy Prosecutor General issued circular letter No15-17-09 on the need to strengthen the supervision over the investigations resumed following a judgment of the European Court.

31. In this letter, the Deputy Prosecutor General stressed that the Convention was a part of Russian law. Consequently, its requirements should be incorporated in the prosecutors’ supervision (see full text in DD(2009)303). This letter addresses the concrete shortcomings identified by the European Court in its judgments and invites prosecutors to reinforce their supervision in this domain. In particular, the prosecutors were invited to discuss the judgments of the European Court regularly at operative meetings.

32. Moreover, the Deputy Prosecutor General underlined that the openness of the prosecutors to mass media contributes to increasing public confidence. In addition, he invited prosecutors to organise regular meetings with the regional Ombudsmen as well as with representatives of NGOs in order to discuss problematic issues related to violations of human rights, to the ineffectiveness of investigations and to identify concrete measures to solve them.

2) Role of the prosecutor in ensuring compliance with victim’s rights at the pre-trial stage of criminal proceedings

a) ex officio control of investigative bodies’ respect for victims’ rights

33. While supervising the lawfulness of the investigation, prosecutors are to pay particular attention to the situation of victims8. This supervision starts as from the very early stages of criminal proceedings. For instance, prosecutors are to review whether the persons who reported a crime have been duly notified of the registration of their complaint as well as whether the investigative authorities have complied with the procedural time-limits while checking such complaints9.

34. In 2008 the General Prosecutor’s Office carried out a survey of the implementation of the rights of victims in 28 regions of the Russian Federation. The analysis of the practice shows that 80% of the requests lodged by the victims are granted by the investigators. These requests concern in particular:

    - termination of criminal proceedings because of reconciliation of the victim with the accused;
    - additional investigative steps (expert examination, interrogation, seizures), joining written materials to the investigative file, indicting other persons;
    - granting victim status, etc

b) Examination of complaints lodged by victims at the pre-trial stage of criminal proceedings

35. According to Article 124 of the CCP, the victim has the right to challenge the actions and omissions of the investigating authorities before the head of the investigating body or the prosecutor. Prosecutors must also take part in the examination of complaints lodged by victims directly with the court under Article 125 of the CCP.

• Prosecutors’ examination of complaints

36. While examining complaints lodged under this provision, the prosecutor must thoroughly check all allegations made in the complaint. The prosecutor must request investigating files and documents related to the preliminary verifications, if necessary. The decision taken by the prosecutor as a result of the examination of the complaint must be notified to the person who lodge a complaint.

37. If the prosecutor decides to allow the complaint, a copy of his decision should be notified to the head of the investigating body requesting him to remedy the shortcomings found. If the complaint contains a request to carry out specific investigative measures, in his decision the prosecutor must give his opinion on the well-foundedness of such requests10.

38. While examining victims’ complaints the prosecutor is not bound by the allegations made but may check the lawfulness of other procedural decisions taken by the investigators.

39. In 2006 prosecutors and heads of the investigating bodies examined 5,799 complaints from victims lodged in connection with pending investigations (in 2007 – 6,432 and in the first 6 months of 2008 – 3,087). The increase in the number of applications demonstrates, according to the Russian authorities, that victims started playing more important role in criminal proceedings and that they more actively make use of their procedural rights.

40. Subsequent to applications lodged by victims, 11 304 of decisions to suspend the investigation due to the failure to identify the perpetrators were annulled in 2006, 9 308 in 2007 and 4 358 in the 6 months of 2008. 4 687 of decisions to terminate criminal proceedings were annulled in 2006, 2 829 in 2007 and 1 337 in the first 6 months of 2008. However, more than 70% of applications lodged by victims were rejected by the prosecutors as unsubstantiated.

    • Prosecutors’ participation in judicial review of complaints lodged at the pre-trial stage of criminal proceedings

41. The participation of the prosecutor in the examination of a complaint made under Article 125 CCP is mandatory. If the court finds a violation, the prosecutor should take steps to initiate disciplinary or other proceedings against the person responsible for the shortcoming.

42. Prosecutors must ensure that the heads of the investigating bodies transmit to them all relevant information in order to allow them to take a position and to ensure an objective examination of the complaint. If the complaint is allowed by the court, prosecutors examine whether it is necessary to raise the issue of disciplinary proceedings against the persons responsible before the head of the investigating body11.

Preliminary remarks and further information expected

43. Although prosecutors are no longer competent to initiate criminal proceedings and to carry out investigations, they continue to ensure the supervision of lawfulness of these investigations.

44. It results from the General Prosecutor’s Orders cited above that particular importance is attached to the supervision of compliance with individuals’ constitutional rights and freedoms at all stages of criminal proceedings.

45. This change of the prosecutors' role might significantly strengthen the capacity of the Russian legal system to ensure, at domestic level, effective compliance with Convention rights during criminal investigations, provided the direct effect to the Convention in the application of domestic law. Examples of the domestic practice in this regard would be useful.

46. There are concrete efforts in this direction and the adoption of the circular letter issued on 12 May 2009 by the Deputy Prosecutor General underlining that the Convention forms an integral part of the Russian legal order is a good example (§§ 30-32 above).

47. As regards prosecutors’ power to examine citizens’ complaints, it remains to be determined whether the possibility of lodging a complaint with a prosecutor may, in the light of the changes introduced by the reform which created the Investigating Committee, constitute an effective remedy from a Convention point of view12. More details on the procedure of the examination of complaints by prosecutors would be useful.

48. As regards prosecutors’ participation in judicial examination of complaints, this issue will be addressed in the context of the general examination of the effectiveness of this remedy below.

C. Victims’ rights at the pre-trial stage of criminal proceedings

49. General information on victims’ rights in criminal proceedings provided by the Russian authorities has already been summarised in Memorandum CM/Inf/DH(2008)33 (see §§ 101-102). The right to receive information pending investigation is examined below.

Information provided by the Russian authorities13

50. The Russian CCP provides that pending investigation the victim may have access to

    - the documents related to the investigative steps taken with his/her participation (Article 42§2 10));
    - the decision ordering an expert examination of the victim and the experts’ conclusions (Article 42§2 11));
    - the decision or the refusal to initiate criminal proceedings (Article 146 §4);
    - the decision to suspend the investigation (Article 209§1);
    - all materials and documents in the case file after the investigation has been completed.

51. The investigation is considered to be completed when the accused and/or the victim are notified that the investigation is completed and the case file is either sent to the trial court or when the investigation is terminated on other grounds.

52. Victims’ rights pending investigation were further clarified by the decisions of the Constitutional Court14.

53. In these circumstances, the Russian authorities indicated that the current legislation as interpreted by the decisions of the Constitutional Court provides that victims should be granted access to all documents which affect their rights as well as to other main procedural decisions, such as decision to initiate criminal proceedings, apprehension protocol, indictment, final and intermediate procedural decisions and a number of other documents. Victims shall in particular be granted access to relevant information enabling them to lodge an application immediately with the court, the prosecutor or the superior of the investigating organ if their rights have been violated.

54. Whether or not the information requested affects the rights and interests of the victim is determined by the investigator. In doing so, the investigator should strike a balance between this right and the rights of other participants to criminal proceedings, such as witnesses, suspects, etc, in order to prevent any risk of pressure or collusion. For these reasons, requests to grant access to the case file pending investigation should be dealt with on case-by-case basis. The refusal to grant such a request is subject to appeal before a court.

55. The Russian authorities indicated that these provisions are strictly complied with. They further underlined that Russian legislation provides no obligation on the part of investigative authorities’ to provide victims “with up-to-date and exhaustive information on the investigation15 or on the strategy adopted by the investigator.

56. In 2008, the General Prosecutor’s Office carried out checks in 28 regions of the Russian Federation on the implementation of the legislation concerning victims’ rights. In the course of these checks, violations of victims’ rights at the pre-trial stage of criminal proceedings were identified. For example, victims were not granted the procedural status of victim or were granted it with delay. These shortcomings may be explained in certain cases by objective circumstances, such as the victim’s having moved in another region or the victim’s hospitalisation. Certain violations were caused by failings of bodies responsible for investigation and lack of appropriate internal control over their activities. These violations in principle give rise to disciplinary sanctions of persons responsible. However, there are no general statistics in this respect.

57. The Russian authorities concluded that the current state of Russian law does not always clearly provide for the victims’ rights pending investigation, in particular with regard to the right to receive information on the progress of the investigation.

58. The Russian authorities indicated that they are currently reflecting on further improvement of victims’ rights at the pre-trial stage of criminal proceedings, not least through amendments to the relevant legislation.

59. Finally, the Russian authorities indicated that the practice of making use of the right to be represented in accordance with Article 42§2 8) CCP is being spread. In the period between 2006 and the 6 months of 2008 victims were represented by a lawyer in 303 cases in 15 regions (out of 83) of the Russian Federation.

Preliminary remarks and further clarifications expected

60. It would appear in the light of the Constitutional Court’s case-law that the victim should be notified of the most important procedural decisions taken by the investigators, such as the decision or the refusal to initiate criminal proceedings16, the decision or the refusal to grant victim status17, the decision to suspend the investigation18, the decision to prolong the term of the investigation19, the decision to order an expert examination (including the experts’ conclusions)20, the decision to indict a person or the decision to terminate criminal proceedings21.

61. The competent Russian authorities indicated that no particular amendments were made to the relevant criminal legislation nor were instructions issued following the rulings and decisions of the Constitutional Court mentioned earlier. Thus, how to ensure that these decisions are applied in practice remains to be assessed.

62. For instance, it remains unclear whether the bodies responsible for investigation have a clear obligation to notify the victim automatically of all procedural decisions referred to above (§60) or whether these decisions are notified to the victim only upon his/her reasoned request in which he/she in particular specifies that he/she requests the decision concerned in order to challenge it before the court. Clarifications in this respect are expected.

63. It also remains unclear whether the right to receive information pending investigation referred to by the Constitutional Court in its decisions is limited to the procedural decisions mentioned above or whether it includes other elements. Clarification on this point would also be helpful. In particular, it is unclear what information may be requested by the victim if he/she wants to challenge the investigator’s inactivity.

64. In this context, information would be useful on the current reflection initiated by the Russian authorities with regard to further improvement of victims’ rights at the pre-trial stage of criminal proceedings.

D. Judicial review at the pre-trial stage of criminal proceedings

Information provided by the Russian authorities

65. Article 125 of the Code of Criminal Procedure lays down the judicial procedure for the consideration of complaints. Orders of the investigator or prosecutor to refuse to institute criminal proceedings or to terminate a case, and other decisions and actions or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede individuals’ access to justice may be appealed to a local district court, which is empowered to check the lawfulness and grounds of the decisions at issue.

66. On 10 February 2009 the Plenum of the Supreme Court of the Russian Federation adopted a Ruling to provide lower courts with clear guidelines on the application of Article 125 CCP. This Ruling is based on the lower courts’ case-law (prior to its adoption, a detailed questionnaire concerning the practice of application of this Article was sent to all Regional Courts) and on the relevant decisions of the Constitutional Court.

67. The Russian authorities particularly emphasised that the exercise of this remedy is not contingent on the formal procedural status of the party in criminal proceedings. In its Ruling, the Supreme Court underlined that any limitation of the right to challenge the investigators’ decisions, actions or omissions under that Article on the sole ground that the complainant was not granted a procedural status in criminal proceedings was unacceptable.

68. Prior to the examination of the complaint, the judge shall

    - verify whether a similar complaint has already been lodged with a prosecutor under Article 124 CCP and allowed by him. If so, the judge should reject the complaint unless the complainant does not agree with the prosecutor’s decision or the complaint was only partially allowed;
    - ensure that all persons whose rights are affected by the challenged decisions, actions or omissions are duly notified of the hearing, including the prosecutor whose presence at the hearing is mandatory;
    - request, either upon a request of the participants in the hearing or on his/her own initiative, the documents underlying the challenged action or omission of the investigator as well as other information necessary for the examination of the complaint. All the participants should have access to the documents related to the examination of the complaint and should be able to submit additional documents.

69. If the judge finds that the decision, action or omission is unlawful or unjustified, he cannot himself annul the investigator’s decision or order the official concerned to revoke the decision found unlawful or unjustified but instead orders him to remedy the violation identified.

70. Finally, if the judicial decision adopted on the basis of Article 125 CCP is not executed by the investigating bodies, the complainant has the right to challenge their inactivity. The judges are invited to issue injunctions drawing the attention of the officials concerned to the violations and require the adoption of the necessary measures. The Russian authorities provided statistics with regard to the execution of judicial decisions delivered under Article 125 CPP.

71. According to statistics provided by the Supreme Court of the Russian Federation, the number of applications lodged with national courts under this Article is constantly increasing. In 2006 the national courts examined 60 265 complaints, in 2007 they examined 68 825 and in 2008 – 85 488. The number of complaints allowed by national courts diminished: 15 885 in 2007, 15 865 in 2008. The Supreme Court of the Russian Federation indicated that 40% of all applications are lodged by victims.

72. The Russian authorities indicated that the investigating bodies and prosecutors comply with the judicial decisions delivered on the basis of this Article. According to statistics, only 0,7% of persons challenged the investigating bodies’ inactivity following a judicial decision delivered on the basis of Article 125 CCP. In these cases, the courts adopt, according to Article 29§4 of the CCP, injunctions in which they draw the attention of the civil servants concerned to the violations and require them to remedy these violations. The Secretariat was provided with relevant statistics and copies of domestic judicial decisions and injunctions.

73. According to statistics provided by the Supreme Court of the Chechen Republic, during the period of 2005-2009, the courts of the Republic examined 377 applications lodged under Article 125 of CCP.

    year

    General number of applications

    Number of applications granted

    Number of applications rejected

    2005

    37

    22

    15

    2006

    54

    33

    21

    2007

    99

    65

    34

    2008

    164

    111

    53

    1st quarter 2009

    23

    14

    9

Decisions challenged

General number of applications

granted

rejected

Refusal to grant access to the case file

123

87

36

Decision to suspend the investigation

149

111

38

Refusal to initiate criminal proceedings

74

17

 

Other decisions

31

   

74. The Secretariat was also provided with a number of concrete examples of national case-law.

Preliminary remarks and further clarifications expected

75. Article 125 CCP provides that the investigating authorities’ refusal to institute criminal proceedings or decision to terminate a case, and other decisions and actions or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede individuals’ access to justice may be appealed to a court.

76. The European Court has already found that the possibility of challenging before a court a decision not to institute criminal proceedings was a substantial safeguard against the arbitrary exercise of powers by the investigating authorities22.

77. However, except for this specific possibility the European Court tends to find this remedy ineffective23. For example, in the Khatsiyeva and others judgment, the Court considered that it was highly doubtful that the remedy at issue had had any prospects of success “in a situation where the effectiveness of the investigation was undermined from a very early stage by the authorities’ failure to take the necessary investigative measures, where the investigation was repeatedly suspended and reopened, where the applicants were never declared victims and were unable to consult the case file at any stage, and where they were only informed of the conduct of the investigation occasionally24. In another case, the European Court held that the applicants could not be required to challenge in court every single decision of the district prosecutor’s office25.

78. The remedy provided by Article 125 CCP was clearly not designed for the situation of general breakdown of all public institutions or to combat general unwillingness or incapacity of the authorities to carry out the investigations. However, the current situation appears to be different from that existing at the time of the events.

79. The Plenum of the Supreme Court of the Russian Federation adopted on 10 February 2009 a Ruling on the application of that Article which provided lower courts with clear guidelines in this respect.

80. In these circumstances, it remains to be assessed whether this remedy could constitute an efficient safeguard for victims’ rights in the present situation.

81. As regards the victim’s lack of procedural status in criminal proceedings, the investigator’s refusal to grant victim status may be subject to appeal under this provision26. The Russian authorities further clarified that the right to have recourse to this remedy is not contingent upon the victim’s procedural status in criminal proceedings. Any person who considers that his/her access to justice has been impeded by the investigator’s decision, action or omission may lodge a complaint under Article 125 CCP27.

82. As regards the lack of information provided to the victim and in particular his/her lack of access to the case file which would impair the victim’s right to exercise this remedy, this lacuna seems to be remedied by the Constitutional Court which held that the investigating authorities shall secure the victim’s access to the information necessary to lodge a complaint with the court against the investigators’ decisions, actions or omissions28. However, the implementation in practice of the findings of the Constitutional Court remains to be demonstrated.

83. In this context, it emerges from the analysis of the European Court’s judgments at issue that national courts’ practice is changing on this particular point. While the Urus-Martan Town Court found in September 2004 that the right to have access to the case file did not arise before the completion of the investigation29, one year later in another case the same court granted a similar request and ordered the Urus-Martan prosecutor’s office to give the applicant access to the case file pending investigation30.

84. It would thus appear that the remedy provided by Article 125 CCP may, provided that the national case-law develops in this direction, constitute a safeguard for victim’s rights at the pre-trial stage of criminal proceedings. Further examples of domestic case-law concerning the examination of complaints lodged by victims would be appreciated.

85. It also remains to be determined whether this avenue can constitute an effective remedy at domestic level for redressing the shortcomings of investigations. In certain cases, the European Court found that the successful exercise of that remedy still had no impact on the ineffectiveness of the investigation.

86. While examining applicants’ complaints in August 2004 and in September 2005 about investigating authorities’ inactivity, the courts limited themselves to the finding that the investigation had already been resumed and thus dismissed the complaints31. In another case, although the town court considered in August 2004 the applicant’s complaint concerning the suspension of the investigation. It found that the investigators had not taken all the measures indicated by the prosecutor’s office, indicated the measures still to be taken and ordered the resumption of the investigation. However, the investigation was suspended again one month later32.

87. During the consultations, the Secretariat requested information as to whether there are repetitive applications before courts. This information was provided to the Secretariat together with relevant examples of national case-law and is currently being assessed. Further examples of the domestic case-law in particular on complaints lodged with regard to the investigating bodies’ inactivity would be particularly helpful.

88. Additional clarifications on the scope of judicial review in such cases would be useful, in particular on whether national courts take into account the length of the investigation and address the investigating authorities’ conduct in particular in the light of the Convention requirements.

89. Finally, information is also expected on the follow-up given by prosecutors (whose participation in the examination of such complaints is mandatory) to the judicial decisions issued under Article 125 CCP.

Note 1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.

2 The Secretariat’s participation in these consultations was made possible thanks to the project financed by the Human Rights Trust Fund of the Council of Europe.

3 The present document does not address issues related to disappearances and ill-treatment (prevention, investigations, supervision and sanctions of abuses) since they will be the main subject of the next set of consultations.

Note 4 The setting up of these groups is governed by the Joint Order of the Head of the Investigating Committee’s Directorate in the Chechen Republic and the Head of the Military Investigating Directorate of the Allied Group of Armed Forces in the Northern Caucasus of 10 July 2008.
Note 5 These meetings are organised at least once a month and are attended by the representatives of the Military Investigating Directorate, the SIU and members of the Special Unit of Procedural Control.

6 As regards the offences which now fall within the competence of the Investigating Committee, prosecutors no longer have the right to initiate criminal proceedings, to carry out pre-trial investigation, to take procedural decisions, to give binding instructions to investigators or annul investigators’ decisions except the decision to initiate criminal proceedings.

Note 7 For example, the prosecutors shall, within one month upon the receipt of the relevant materials, control the lawfulness and well-foundedness of the investigators’ decisions to terminate criminal proceedings or to suspend them (point 1.11 of the General Prosecutor’s Order of 6 September 2007 No. 136 on the organisation of prosecutors’ oversight over the procedural activities of the bodies responsible for investigation).
Note 8 Point 1.2 of the General Prosecutor’s Order of 27 November 2007 No 189 on the organisation of prosecutors’ supervision over compliance with individuals’ constitutional rights in criminal proceedings.

9 Point 1.2 of the General Prosecutor’s Order of 6 September 2007 No136 on the organisation of the prosecutors’ supervision over the procedural activities of the bodies responsible for investigation and the General Prosecutor’s Order of 10 September 2007 No 140 on the organisation of the prosecutors’ supervision over the investigating bodies’ compliance with laws while recording and examining complaints related to criminal offences.

Note 10 point 1.14 of the order no 136 cited above.

11 point 1.15 of the order no 136 cited above.

Note 12 The European Court has found so far that an appeal to a superior prosecutor was not an effective remedy – see notably Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003 and Slyusarev v. Russia (dec.), no. 60333/00, 9 November 2006.
Note 13 This information is provided in particular in response to the issues raised in the Memorandum CM/Inf/DH(2008)33 (§§ 105-108).
Note 14 The Russian authorities referred to the Constitutional Court’s Ruling no5-P of 23 March 1999, Decisions no43-O of 14 January 2003, no 430-O of 4 November 2004 and no 300-O of 11 July 2006.
Note 15 See the Kukayev v. Russia judgment, §§ 107-110 referred to in the Memorandum CM/Inf/DH(2008)33, § 105.
Note 16 Article 146 CCP.
Note 17 See e.g. the Constitutional Court’s Decisions No 306-O of 12 July 2005 and No 67-O of 16 March 2006.
Note 18 Article 209 CCP.
Note 19 See the Constitutional Court’s Decisions no 43-O of 14 January 2003 and no430-O of 4 November 2004.
Note 20 See e.g. the Constitutional Court’s Decision no 300-O of 11 July 2006.
Note 21 A non-exhaustive list of such decisions is also given in the Ruling of the Supreme Court of the Russian Federation no1 of 10 February 2009, § 2.
Note 22 Trubnikov v. Russia (dec.), no 49790/99, 14 October 2003; more recently see Medov v. Russia, judgment of 8 November2007, final on 8 February 2008, no 1573/02, §§ 102-105.
Note 23 Medov v. Russia, cited above, §§ 98-99; Chitayev and Chitaeyv v. Russia, judgment of 18 January 2007, final on 18 April 2007, §§ 139-140; Estamirov v. Russia, judgment of 12 October 2006, final on 12 January 2007 § 94; Luluyev and others v. Russia, judgment of 9 November 2006, final on 9 February 2007, § 100.
Note 24 Khatsiyeva and others v. Russia, no. 5108/02, judgment of 17 January 2008, final on, 7 July 2008, § 150; see also Shakhgiriyeva and others v. Russia, no. 27251/03, judgment of 8 January 2009, not yet final, § 174; Zubayrayev v. Russia, no.677797/01, judgment of 10 January 2008, final on 7 July 2008, § 65; Magomed Musayev and others v. Russia, no. 8979/02, judgment of 23 October 2008, final on 6 April 2009, § 105; Gekhayeva and others v.Russia, no.1755/04, judgment of 29 May 2008, final on 1 December 2008, § 107.
Note 25 Ibragimov and others v. Russia, judgment of 29 May 2008, final on 1 December 2008, § 99.
Note 26 See for example, the Constitutional Court’s Decisions No 306-O of 12 July 2005 and No 67-O of 16 March 2006.
Note 27 See the Constitutional Court’s Decision No119-O of 22 January 2004 and in particular the Ruling of the Supreme Court of the Russian Federation no1 of 10 February 2009, § 5.
Note 28 See the Constitutional Court’s decisions No 430-O of 4 November 2004 which confirmed the Constitutional Court’s position previously expressed in the Ruling of 18 February 2000 and the Decision No 43-O of 14 January 2003.
Note 29 Ibragimov and others v. Russia, cited above, §§ 64-67.
Note 30 Bersunkayeva v. Russia, judgment of 4 December 2008 §§ 64-65.
Note 31 Ibragimov and others v. Russia, cite above, § 66 and Bersunkayeva v. Russia, cited above, §65.
Note 32 Akhmadova and Akhmadova v. Russia, judgment of 25 September 2009, final on 6 April 2009, §§ 37-40.


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