MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-33

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-33 Khashiyev and Akayeva group v. Russian Federation (Application No. 57942/00) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2020)1005, H/Exec(2022)11, H/Exec(2022)12, CM/ResDH(2011)292, CM/ResDH(2015)45, CM/Del/Dec(2022)1436/H46-24

 

Application	Case	Judgment of	Final on	Indicator for the classification
57942/00+	KHASHIYEV AND AKAYEVA (List of cases CM/Notes/1514/H46-33-app)	24/02/2005	06/07/2005	Complex problem

Case description

This group mainly concerns some 150 civilians killed and 110 wounded or ill-treated, in particular as a result of indiscriminate bombings and failure to properly organise safe passage for civilians, as well as enforced disappearances of almost 700 persons, ineffective investigation of these events and the mental suffering of the victims' relatives, as a result of actions of the Russian security forces in the context of the conflict mainly in the Chechen Republic between 1999 and 2006, but also in neighbouring regions, and up to 2020. The Court found numerous violations of Articles 2, 3, 5, 6, 8, 13, 38 and Article 1 of Protocol No. 1.

In Aslakhanova and Others (final on 29 April 2013), the Court indicated under Article 46 the necessity of creating a single, sufficiently high-level body in charge of solving disappearances in the region.

In Abakarova (final on 14 March 2016), the Court provided guidance under Article 46 concerning specifically the bombing of Katyr-Yurt in 2000, highlighting among other things the necessity of non-judicial mechanisms aimed at learning lessons and ensuring the non-repetition of similar occurrences in the future (§ 114) and compliance with international humanitarian law (§ 112).

In N.A. (final on 21 February 2024), the Court emphasised the systemic nature of the problem of the ineffectiveness of investigations in Chechnya into allegations of abductions committed by state agents (§ 73).

Status of execution

The first judgments in this group have been pending for 18 years and the Committee has so far examined the group at regular intervals during 45 meetings, having discussed the group in three separate thematic clusters and jointly, and adopted two interim resolutions.[1] During its previous examination in June 2022, the Committee deplored once again the absence of any tangible progress in execution.

As to individual measures, it insisted on the obligation to redouble efforts to find the missing persons and to address the investigations’ deficiencies identified by the Court, and to pay just satisfaction in all cases as well.

As to general measures, the Committee reiterated, with regard to the conduct of the Russian armed forces, that civilians should be spared from the fighting, and that all alleged atrocities should be duly investigated.

The Committee further deplored the continuing serious human rights violations in the region and reiterated its call for a clear message of zero tolerance towards the involvement of state agents in any unlawful acts. With regard to missing persons, it reiterated the obligation to search for them and to alleviate suffering of their families, including by social support and benefits. It also reiterated the call to create an ad hoc humanitarian body to search the missing persons, based notably on indications under Article 46 of the Convention in the Aslakhanova judgment, and instructed the Secretariat to prepare a memorandum on possible models this body can take.

In June 2022 the Committee invited the authorities to provide replies for it queries by 13 October 2022. No information has been received from the authorities since then.

Rule 9 submissions

Five Rule 9 submissions have been made on this group of cases by Stichting Justice Initiative (SJI), Memorial Human Rights Defence Centre, Crew Against Torture, and European Human Rights Advocacy Centre (EHRAC).[2] They are summarised below.

They highlighted that the Committee, together with some other mechanisms of the Council of Europe, is the only international mechanism with the historical knowledge of the individual and general measures required. They underlined the importance of the ongoing relations with the NGOs that have worked on this group of cases, and the broad mandate to supervise the resolution of disappearances in this region.

With regard to individual measures, they noted that the investigations into the applicants' cases are never effective, even when they are reopened.

With regard to general measures, they stressed that there has been no progress in the execution of the judgments under consideration. The climate of impunity allowed the authorities to commit similar violations in other contexts.

The NGOs recalled that enforced disappearance is an international crime and those responsible can be prosecuted in national jurisdictions that have integrated the prosecution of international crimes into their legal systems. It is crucial to ensure the harmonisation of prosecuting international crimes in the national jurisdictions of the Council of Europe countries. They also pointed out that there is a need to strengthen international cooperation and knowledge sharing notably through participation of various interlocutors at the upcoming World Congress on Enforced Disappearances, to be held in January 2025.

EHRAC indicated that it has 48 cases pending before the United Nations Working Group on Enforced or Involuntary Disappearances (UNWGEID), which are also a part of the Khashiyev group. The authorities submitted replies in 36 of them, with no indications of progress. Since 2020, no information has been submitted.

SJI urged the Committee to establish a joint supervisory mechanism with the UN.

Memorial deplored that Russia is not a party to the international treaties against enforced disappearances, including the International Convention for the Protection of All Persons from Enforced Disappearance. According to its Article 5, the widespread and systematic nature of disappearances in Chechnya means that these acts constitute crimes against humanity. This in turn means that the statute of limitations should not apply.

The EHRAC submission mentioned that the relatives of the disappeared continue to experience a sense of uncertainty about the fate of their loved ones, living in a state of psychological limbo, freezing the grieving process, which affects both their psychological and physical well-being.

The NGOs further referred to recent abductions, stating that it is hard to get reliable statistics: victims' relatives are reluctant to ask for help from human rights defenders, and sometimes prefer to rather pay a ransom to get their loved ones back. For example, Crew Against Torture has received only 29 complaints of such abductions since 2022. However, there is evidence that 952 people were abducted in one year from early 2022 to early 2023.

In addition to the above, human rights defenders are intimidated, making it difficult for them to help victims and their families. But sometimes they nonetheless still help to bring the perpetrators to justice – although in the end the perpetrators may go unpunished. In particular, Crew Against Torture referred to an example when the police agents who abducted a person (Mr Kardashov) were found guilty of abuse of authority in summer 2023. However, in June 2024, the appeal court exempted them from punishment because the statute of limitations had expired.

The new current trend in the region is short-term disappearances - the missing persons are often found soon after being taken by police, with a fabricated criminal case. Since the start of the Russian large-scale aggression against Ukraine in 2022, this practice has increased. In particular, men are forced to either 'volunteer' to go to war in Ukraine, or pay a ransom for their release.

 

There is no way for families of the disappeared to get any additional relief, such as compensation. The existing compensation system does not work because of poor investigations and failure to find the perpetrators.

In addition, enforced disappearances, with sometimes subsequent killings, are often used against women who do not conform to gender stereotypes of the region.

Observations and reports of other mechanisms

International bodies underline that the problems examined in this group of cases persist.

PACE regrets the climate of impunity for serious human rights abuses committed by agents of the regional and federal authorities’ authoritarian rule, as widespread fear continues to prevail.[3] It underlined that “with the tacit acceptance of the federal authorities, the North Caucasian republican administrations have each created a system of persecution and collective punishment to suppress any opposition at the regional level and, as appropriate, at the State level”. Also, “Journalists, human rights defenders, lesbian, gay, bisexual, transgender, intersex (LGBTI) persons, women refusing to submit to the demands of “traditional values” and anyone who opposes authoritarian rule risk persecution, torture and even losing their lives for expressing their opinions or just living their lives as they wish. Neither they nor their relatives are safe in the North Caucasus, anywhere in the Russian Federation or even abroad”.

The UN Human Rights Committee was also seriously concerned about significant human rights violations, including abductions, arbitrary detentions, enforced disappearances, torture and ill-treatment; the ongoing harassment of human rights defenders, of political opponents, and of journalists, and even the killing of some; the persistent persecution of lesbian, gay, bisexual and transgender persons.[4]

The Special Rapporteur on the situation of human rights in the Russian Federation underlined that the pattern of human rights violations and impunity continues in Chechnya today, with State-sanctioned violence, incommunicado detention in unofficial sites, enforced disappearances, torture and killing in police custody; relatives of critics or perceived offenders face abduction, detention and torture or forced mobilization to the war zone.[5]  

Analysis of the Secretariat

It is recalled that the Committee continues to supervise the execution of the judgments and friendly settlements concerned and the Russian Federation is required to implement them (§ 7, CM/Res(2022)3). It is deeply deplored that no information was provided by the authorities for the present meeting. In this context, Rule 9 submissions of the NGOs can be welcomed: these submissions are a vital source of information on the state of human rights in Russia in the absence of any communication from the authorities.

Individual measures

Just satisfaction: the authorities have an unconditional obligation to ensure the payment of just satisfaction in all cases in which it has not been done yet.

Investigations: sufficient information on investigation has been provided only in four cases, allowing their closure in 2018. In the other dozens of cases, the investigative shortcomings remain unaddressed (see H/EXEC(2022)11 for details). In three cases, the investigation shortcomings identified by the Court had not been addressed, and the Court highlighted this in subsequent judgments:

·         Goygova, No. 74240/01, §§ 79, 83, concerning killings in the Staropromyslovskiy District of Grozny in January 2000;

·         Abakarova, No. 16664/07, § 95, concerning bombardment of Katyr Yurt on 4-7 February 2000;

·         Khadzhimuradov and Others, No. 21194/09, §§ 91, 92, concerning killings in Novye Aldy on 5 February 2000.

Other events considered in this group, which should be investigated as far as possible at the execution stage include the following:

·         7 October 1999, an aerial attack on the village of Elistanzhi;

·         8 October 1999, an attack near the village of Savelyevskaya;

·         29 October 1999, bombing of a civilian convoy near Grozny;

·         October 1999, bombing of Urus-Martan;

·         January 2000, extra-judicial executions of unarmed civilians by servicemen in the Staropromyslovskiy district of Grozny;

·         January 2000, extra-judicial executions of unarmed civilians by servicemen in Novye Aldy, Grozny;

·         7 February 2000, killings of civilians in the village of Gekhi-Chu;

·         6 August 2000, a helicopter attack near the village of Arshty, Ingushetia;

·         7 September 2002, artillery shelling of the village of Chechen-Aul;

·         30 September 2002, an incident near the village of Berkat-Yurt;

·         10 June 2003, an attack near the village of Galashki;

·         1 August 2003, an attack in Shali;

·         17 September 2003, an attack near the village of Yandi.

Missing persons: the authorities do not detach search for the missing from investigations. At the stage of execution of the Court’s judgments, only two missing persons have been found (in 2015), while almost 700 still remain missing.[6]  

General measures

Ongoing similar violations

Further similar violations, notably enforced disappearances, continue to be committed by the authorities. This is confirmed by the European Court's recent judgments,[7] as well as by various reliable sources, including Rule 9 submissions, documents from PACE and UN mechanisms referred to above. The disappearances continue against the background of other human rights violations in the region, which are being examined by the Committee in other groups of cases. In particular, disagreeing with the Chechen public authorities can result in imprisonment, torture and unfair conviction,[8] or reportedly even in murder, including outside Russia.[9]

The LGBTI+ people in Chechnya are abducted, detained and tortured by state agents – and investigations into these crimes are systematically ineffective.[10]

The Committee may reiterate that it is urgent to adopt all possible measures, including on regional level, within Russia, to address serious human rights concerns identified in the judgments of the Court. A clear message of zero tolerance as to involvement of state agents in any unlawful actions, awareness-raising activities among the local law-enforcement agents and action to ensure full compliance with the human rights obligations and efficient application of respective sanctions in case of non-compliance are actions required.

Conduct of the Russian armed forces

Specifically, the authorities must prevent further violations similar to those considered in the Khashiyev group, which were  established as committed by the Russian armed forces and to ensure that they fully comply with the international humanitarian law as well as respective human rights standards in the activities of armed forces.^[11] As indicated by the Court,[12] the relevant serious violations should be acknowledged and condemned publicly; the national legal mechanisms for large-scale security operations and military-civilian cooperation should be reviewed, and non-judicial mechanisms aimed at learning lessons should be created. These mechanisms can be created, for example, in the form of parliamentary or other public inquiries, ombudspersons’ actions, independent commissions or mediation, in close cooperation with the civil society and NGOs, human rights advocacy groups.[13]

Investigations

The investigative shortcomings specific for the Khashiyev group of cases,[14] for example, failure and unwillingness to identify specific military units or/and servicemen allegedly responsible for the gross and serious violations of human rights law during the conflict, problems related to prescription periods, should be addressed as a priority. Addressing these problems can be accompanied by the ad hoc non-judicial mechanisms mentioned above, for example, in the form of parliamentary or other public inquiries.

Missing persons

There are estimates that between 5,000[15] and 7,700[16] people went missing during the military operations in the Chechen Republic and the neighbouring regions, mostly in 1999-2006. The only recent public information on their search is available on a website of an NGO, saying that it has found and identified 209 such persons.^[17] However, it is impossible to verify this information from other sources.

The Court and the Committee have repeatedly stressed the need for a mechanism to search for the missing persons. In reply to the Committee’s request, the Secretariat prepared a memorandum on principles for creating this mechanism as developed on the international level (H/EXEC(2024)18). In particular, the authorities, once they have a political will to search the missing, must ensure that the mechanism:

·         is autonomous from the accused perpetrators,

·         has a wide mandate, including “unrestricted access to all relevant information”^[18],

·         has a respected and trustworthy leadership,

·         focuses on assisting the families of individuals who have disappeared,

·         has the humanitarian mission of locating and identifying the missing as its principal aim, decoupled from the aim of the investigative bodies and the courts to investigate the crimes and punish those responsible,

·         receives sufficient funds to allow it to use contemporary technology and hire sufficient number of professionals,

·         has a comprehensive database of the missing persons. 

With regard to the continuing suffering of the families of the disappeared, the authorities should consider a package of measures to alleviate their suffering. According to international recommendations and guidelines in this area, these could notably include a public apology, free psychological and medical treatment, rehabilitation and commemoration programmes, special compensation programmes and educational benefits. Inspiration could be drawn from some documents summarising the relevant international law principles.[19]

Finally, the Committee could recall its earlier position[20] that it would be beneficial that the Russian Federation adheres to the United Nations’ International Convention for the Protection of all Persons from Enforced Disappearance as soon as possible, undertaking relevant measures to comply with this treaty in practice. It should recognise the competence of the UN Committee on Enforced Disappearances. Furthermore, close co-operation of the authorities with UNWGEID would be also beneficial, notably given that some of the cases in the Khashiyev group also appear to be under consideration by the UNWGEID.

Financing assured: YES