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摘要:本文是一篇关于军人制裁的法律留学生论文案例,根据第2条和第3公约所述,我们有义务充实刑事法律的补救措施。正......

军人制裁
 

根据第2条和第3公约所述,我们有义务充实刑事法律的补救措施。正如附件规定介绍,法院一直认为,在他或她本人与其他人的关系中,该公约有效保护国家要求制定的国内立法,规定刑事制裁的行为会影响所保护的权利。此外,法院已明确表示,根据第2条有经缔约国有义务确保所施加的惩罚足以起到威慑作用,因此,有效地保护了人们生命和人身安全的权利。 
 

到目前为止,俄罗斯国内法律体系已明显不能确定保安部队成员犯下的侵犯人权行为的责任。接下来的部分将仔细研究发生在当今俄罗斯法律中的案例,如杀戮,酷刑,虐待和绑架犯等俄罗斯军人犯罪的法律规定。由于这些条文涉及个人的刑事责任,也将探讨侵犯其下属犯罪的可能性。最后,将简要探讨诉讼时效,因为它在不久的将来可能成为建立问责制的阻碍。  

Sanctions against servicemen

 

There is a positive obligation stemming from Articles 2 and 3 of the Convention to make criminal law remedies available. As stated in the Introduction to the Annex, the Court has consistently recognized that the effective protection of the individual in his or her relations with other persons requires the State to put in place domestic legislation which imposes penal sanctions for conduct which affects the rights protected under the Convention. In addition, the Court has made clear that under Article 2 there is an obligation upon the Contracting State to make sure that the punishments imposed are sufficient to act as a deterrent and accordingly thereby to effectively protect the right to life and physical integrity.

 

So far, the Russian domestic legal system has been manifestly incapable of establishing accountability of members of the security forces who commit human rights violations. The next parts will take a closer look at the legal provisions that are in place in Russian legislation today as regards crimes committed by Russian servicemen as regards killings, torture, ill-treatment and abductions. As these provisions concern individual criminal responsibility, the possibility of holding high ranking military officers accountable for violations perpetrated by their subordinates will also be examined. Lastly, the statute of limitations will be briefly examined as it may become an obstacle to establishing accountability in the near future.

 

Legal provisions

 

The Russian Criminal Code was amended in December 2003 when the President signed the Federal Law “On the Introduction of Changes and Amendments to the Criminal Code of the Russian Federation”. The new law has introduced into the Criminal Code the definition of “torture”. Article 117 of the Code was amended with the following paragraph: “For the purposes of this Article and other Articles of the Code torture shall be defined as infliction of physical and moral suffering aimed at coercing an individual into giving evidence or committing other acts against his will, as a punishment and for other purposes.” Until the introduction of these changes into the Criminal Code, Russian law lacked a definition of “torture” although torture is explicitly prohibited by the Russian Constitution (Article 21), the Criminal Procedure Code (Article 9) and the Criminal-Execution Code (Article 12), as well as by a number of other legal provisions. Olga Shepeleva of the Russian DEMOS Centre has argued that “the absence of the definition of torture in the national legislation contributed to the misunderstanding on the side of the law enforcement bodies of the obligations, taken by the Russian Federation under the Convention Against Torture, the European Convention on Human Rights and the International Covenant on Civil and Political Rights”. Shepeleva further noted that “the current wording of Article 117 does not cover the involvement of an official in the torture act. Thus the new wording of Article 117 has undoubtedly strengthened the protection of an individual against torture by private parties, but has failed to provide a definition of torture that would be in line with the definition given in the UN Convention Against Torture and other international documents. It is however possible that criminal prosecution of torture, committed by officials will be conducted not according to Article 117, but instead according to Articles 302 and 286, as it had been the case before the introduction of changes to the Criminal Code”. Rapporteur Mr Dick Marty has also found Article 117 to be inadequate due to, inter alia: the fact that the definition fails to include one of the key elements of torture, namely direct or indirect involvement of a public official; and neither the Criminal Code nor any other domestic act gives a definition of cruel, inhuman or degrading treatment. The Committee Against Torture has stated that ““the definition of the term 'torture' as contained in the annotation to article 117 of the Criminal Code does not fully reflect all elements of the definition in Article 1 of the Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment] which includes the involvement of a public official or other person acting in an official capacity in inflicting, instigating, consenting to or acquiescing to torture. The definition, moreover, does not address acts aimed at coercing a third person as torture.” Russia has argued that “the definition of torture in the Criminal Code of the Russian Federation is in certain respects somewhat broader than that in the Convention. While the Convention relates to torture ’inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’, the perpetrator of the offence covered by article 117 (Torture) of the Russian Criminal Code may be any person who has attained the age of 16, including officials.”

 

Accordingly, the use of torture is criminalized by Article 117 although it is debated whether the Article only deals with actions of private parties or if it also includes actions of officials. Torture under Article 117 is punishable by a term of three to seven years. In practice however, officials are prosecuted under other provisions than Article 117. Public officials may be prosecuted for acts of torture under Article 302(2) (Compulsion to Give Evidence) or Article 286 (Exceeding Official Powers) of the Criminal Code, both of which are lex specialis to Article 117. Article 302(2) provides imprisonment for two to eight years for the use of coercive measures, including torture, by the person in charge of the investigation, to compel a suspect, an accused person, a victim or a witness to testify. The Criminal Procedure Code further contains safeguards in relation to confessions received after torture. According to Article 75(2)(1) of the Criminal Procedure Code, the trial court should consider as inadmissible a confession by a suspect or an accused person at the pre-trial stage of criminal proceedings which he/she did not support in court. Exceptions are made where the confession was made in the presence of a lawyer. Also, according to Article 72(2) of the Criminal Procedure Code, no conviction may be based solely on an accused person’s confession of guilt, unless the confession is corroborated by all the evidence available in the case. Otherwise such conviction may be overturned by the appeal court on the ground of violating the Criminal Procedure Code (Article 379(1)(2)). Violations of Article 286 are punishable by imprisonment from three to ten years and a prohibition on holding a particular post for up to three years.

 

State officials who order the use of torture may be prosecuted under Article 286(2) and (3) of the Russian Criminal Code for “abuse of official powers”. Article 286 is more often applied in cases of torture than Article 302. However, the general wording of Article 286 does not give a clear and unambiguous signal to public officials that torture and other cruel treatment is criminalized insofar as the Article applies to other types of abuse of power, as well as to torture. As a result, the Russian authorities do not have specific statistics on torture and other types of ill-treatment.

 

If a state official commits murder in abuse of his or her powers he/she she may be prosecuted under Article 105 (murder) taken together with Article 286. Violations of Article 105 are punishable with deprivation of liberty for a term of eight to 20 years, or by deprivation of liberty for life, or by the death penalty.

 

Unlawful apprehensions

 

Article 301 of the Criminal Code (illegal detention, taking in custody and keeping in custody) penalizes the unlawful apprehension of a person. Knowingly illegal detention is punishable by imprisonment of up to three years with disqualification to hold specified offices or to engage in specific activities for up to three years, or without such disqualification. Knowingly illegal taking or keeping in custody is punishable by imprisonment of up to four years. If the deeds are considered grave, imprisonment is stipulated for three to eight years.

 

Statutes of Limitation

 

According to the Russian Government, a 15 year limitation period applies to “especially grave crimes”. Under Article 15 of the Criminal Code “especially grave crimes” are defined as:

 

[…] intentional acts, for the commission of which this Code provides a penalty in the form of deprivation of liberty for a term exceeding 10 years, or a more severe punishment, shall be recognized as especially grave crimes.

 

As noted above, the crimes committed by Russian servicemen in Chechnya have included killings, torture, ill-treatment and abductions. Neither Article 117 (Torture) nor Articles 301 (Illegal Detention, Taking into Custody, or Keeping in Custody), 302 (Compulsion to Give Evidence) or 286 (Exceeding Official Powers) of the Criminal Code stipulates deprivation of liberty exceeding 10 years. Only killings under Article 105 of the Code fall in this category. On the other hand, violations of Articles 302 and 286 are considered as “grave crimes” under Article 15 of the Code and according to Article 78(1)(c), a person shall be released from criminal responsibility 10 years after the commission of such crimes. A violation of Article 301 is considered a “medium gravity crime” unless the deeds are considered grave, in which case it constitutes a “grave crime” in accordance with Article 15 of the Criminal Code. A person is released from criminal responsibility six years after the commission of a crime of medium gravity (Article 78(1)(b)).

 

If these limitation period do indeed apply to crimes which are the subject of cases before the Court (dating back to the period 1999-2001), then there is an urgent need for the prosecuting authorities to meet their obligations and carry out effective investigations into these cases.

 

In accordance with the obligations stemming from the Convention, legal provisions to prosecute members of the security forces who commit human rights violations exist in Russia. The Secretariat has stated that “in order to assess the real impact of the existing provisions and their deterrent effect, an overview of the Russian court practice in this area would be useful”.

 

The most commonly used Article (Article 286 of the Criminal Code) is too general as it covers an array of abuses, from minor uses of excessive force to torture. Whether this Article is used to make the crimes seem less serious or if it is used because the acts committed by members of the security forces for some reason do not fall within the ambit of Article 117 of the Criminal Code is unknown. As regards Article 302, the UN Committee against Torture (CAT) stated in 2006 that “the State party should take measures to bring its definition of torture into full conformity with article 1 of the Convention, in particular to ensure that police, army, as well as prosecutorial officials, can be prosecuted under article 302 as well as under article 117 of the Criminal Code”.

 

It is now 10 years since the commence of the Second Chechen War and it is clear that the statute of limitation applies to crimes committed during that time. The issue of statutes of limitation is an important topic which has not been dealt with by the Committee of Ministers in its public Memorandums on Chechnya. As release from criminal responsibility comes into play ten years after the commission of the crime as regards torture, ill-treatment and unlawful apprehensions, there is an even more pressing need for the authorities to meet the requirements of effective investigations in these cases, if it is not already too late.

 

It is extremely unclear whether military commanders can be prosecuted for failure to prevent abuses by their subordinates. In many cases, the servicemen who actually committed the abuses are not known, but the regiments which participated in those crimes and consequently, their commanders, were identified by domestic investigations. The Secretariat has in this respect noted that “all provisions referred to by the Russian authorities regarding sanctions against servicemen provide for the personal responsibility of members of the security forces. The Committee of Ministers’ practice in similar cases[] has shown that the effectiveness of such sanctions in preventing abuses, such as ill-treatment or torture in police custody, is more dissuasive when not only the perpetrators but also other officials whose behaviour during the investigation encourage or make torture and ill-treatment possible are held to account”. The Secretariat has therefore asked for more information on whether the current legal framework allows the prosecution of commanding (superior) officers, investigators and prosecutors, who order, authorize and condone torture and ill-treatment by their acts or omissions.

 

In addition, the Secretariat has stressed that the Committee of Ministers’ experience in similar cases shows that “nothing is more effective to counter impunity and to put an end to the long-standing practice of ill-treatment in custody than a formal statement made at the highest political level announcing a ‘zero-tolerance’ policy in respect of such abuses”. Such a statement may remind the law-enforcement officials of their obligation to respect the rights of persons in their custody and of their criminal responsibility for ill-treatment of such persons.

 

As stated above, for the purpose of the present case study, the notion of impact is understood narrowly, having regard to the extent to which the relevant Chechen judgments and the measures taken by Russia in response thereto have had an impact on domestic prosecutions in Russia concerning prosecutions of servicemen for grave violations of human rights . This chapter analyses domestic prosecutions and statistics on prosecution rates as regards violations committed in Chechnya and starts by examining a few domestic cases in more detail.

 

Domestic prosecutions

 

It has been very difficult to gather information concerning domestic prosecutions in Russia concerning grave human rights violations committed by Russian servicemen in Chechnya. Below, three domestic cases on which it was possible to obtain some detailed information and their outcomes are examined before analysing collected statistics on prosecution rates etc.

 

The Budanov case was the first case concerning prosecution of a high ranking Russian official for crimes committed in Chechnya. In 2000, soldiers abducted Kungaeva, an 18 year old Chechen woman from her home. Medical reports indicated that she had been beaten, raped, and then strangled. Russian authorities promptly started an investigation and arrested Budanov, who confessed that he strangled the young woman in a fit of rage, claiming she was a rebel sniper. The investigation found that Budanov and three of his subordinates kidnapped Kungaeva at gunpoint from her home in Tangi-Chu and took her to Budanov's quarters. After he was alone with Kungaeva for about two hours, Budanov ordered his subordinates, who stood guard outside, to bury her naked corpse. Budanov was found “temporarily insane” and was acquitted by a military court. As the next section on statistics will show, in general, nearly all crimes against civilians in Chechnya have only received superficial investigations. Nevertheless, in the Budanov case, the Russian authorities devoted unprecedented resources, and launched a diligent investigation. Elizabeth Andersen, executive director of Human Rights Watch's Europe and Central Asia Division, has stated that "with this trial, Russia hoped to showcase a commitment to accountability. But even in this clear-cut case, justice was flouted. Russia's commitment was obviously shallow." Elizabeth Andersen continued that "the Budanov acquittal is simply a travesty of justice. If Russian authorities continue to shield servicemen from accountability and deny justice to their victims, the conflict in Chechnya may never be resolved. The vicious cycle of abuse and impunity must be broken." The fact that Budanov was found “temporarily insane” is a relatively common occurrence in Russia. According to the Rapporteur of the Committee of Legal Affairs and Human Rights (Parliamentary Assembly, Council of Europe), Mr. Rudolf Bindig, Russian soldiers responsible for killings of Chechen civilians and other human rights violations are often considered by the judges as non-accountable for their crimes because they were drunk or psychologically disturbed at the moment of the acts in question. However, according to information provided on Wikipedia, after a series of trials and retrials, Budanov was sentenced to 10 years imprisonment in July 2003 but then mysteriously disappeared.

 

The Ulman case regards the trial of four Russian servicemen accused of having killed six Chechen civilians, including a pregnant woman and a teenager, in January 2002. Captain Ulman and his men were acquitted by a jury in the town of Rostov-on-Don on the basis that they had obeyed orders from an unnamed commander. The acquittal was appealed by the prosecution, but following an order for retrial from the Military Collegiate of the Supreme Court, the men were again found not guilty by a jury at the same court in May 2005. Although the four had admitted to the killings, the court ruled that their actions were not punishable as they had been following orders. In August that same year, the Supreme Court overturned this verdict and sent the case back for retrial to the same court in Rostov-on-Don where a third retrial was scheduled for November 2005. While awaiting trial, the four men had not been suspended from service in the Russian military intelligence unit (GRU). On 14 June 2007, the military court in Rostov-on-Don found Ulman and his three subordinates guilty of the 2002 killing of the six civilians. Ulman and two other servicemen failed to show up in court but were sentenced in absentia for 14, 12 and 11 years, respectively. The fourth serviceman, present in court, was jailed for nine years. A demonstration was held in Grozny on 28 June 2007 to protest the searches that had been carried out in homes belonging to the relatives of the victims of officers on trial for killing Chechen civilians. According to Newsru.com, the protesters claimed that 15 relatives and a neighbour of the six victims have disappeared since the trial of the officers began and NGO representatives accused the federal Prosecutor General’s Office of returning to the practice of total zachistki, or security sweeps, of the kind carried out by the Russian military during the early years of the “counter-terrorist” operation in Chechnya.  

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