ECCHR-COMPLAINT AGAINST AUSTRIA IN CASE OF CHECHEN PRESIDENT KADYROV
Austria fails to investigate torture allegations
The European Center for
Constitutional and Human Rights, on June 25, 2009, submitted a formal
communication to the United Nations Special Rapporteur for Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Prof. Manfred
Nowak. In the communication, ECCHR accuses Austria of violating its duties
under the Convention Against Torture by failing to investigate and act on
accusations of torture leveled against President Kadyrov of the Russian
Republic of Chechnya, who visited Austria in June of 2008. The fight against
impunity being the main pillar in the effort to eradicate torture worldwide,
Austria's failure to act on the accusations against Kadyrov is considered an
extremely serious matter.
President Kadyrov
Ramzan Kadyrov became President of the Russian Republic of Chechnya in 2007, after having been Prime Minister and Deputy PM, and has been widely accused of overseeing human rights abuses, including torture, during his reign. Details of violations committed under Kadyrov's brutal regime have been described in reports written by the U.S. State Department, Human Rights Watch, Amnesty International, International Crisis Group, Freedom House and murdered Russian journalist Anna Politkovskaya. Kadyrov also stands accused of being personally involved in torture activities. One of the main witnesses for this allegation was Umar Israilov, Pres. Kadyrov's former bodyguard, who claimed to have been detained, tortured and beaten by Kadyrov in 2003. Israilov had managed to recently flee from Chechnya to Austria, where he received asylum. There he was able to give detailed testimonies about his experiences in Chechnya, and Kadyrov's practices in particular. In January 2009, days after he once again notified Austrian police that he was concerned for his life, Israilov was killed in broad daylight on a street in Vienna.
Criminal complaint filed
Having received information that Pres. Kadyrov was to visit Austria on 13 June 2008, ECCHR, through an Austrian lawyer, submitted a criminal complaint with the Austrian Department of Public Prosecution. In the complaint, ECCHR accused Pres. Kadyrov of torture and other cruel, inhumane and degrading treatment committed in contravention of Article 1, Article 5 and Article 6 of the UNCAT and numerous provisions of the Austrian criminal code. In the complaint, ECCHR concluded that in light of the accusations leveled against Pres. Kadyrov, and given Austria's obligations under UNCAT, the Public Prosecutor must issue a warrant for the arrest of Pres. Kadyrov during his visit to Austria. The complaint contained and referenced numerous sources of evidence for the accusations made, including testimonies by Umar Israilov.
Obligations under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
The main aim of the UNCAT is the criminalization of torture and the enforcement of the ban on torture through international and domestic criminal law so as to eradicate impunity for perpetrators. Austria ratified the UNCAT in 1987, and implemented the relevant provisions into Austrian law. Austria is therefore bound, both on the international and domestic levels, to comply with and give effect to the operative provisions of the UNCAT. The core obligations on "third states" in relation to torture suspects found on their territory are contained in UNCAT articles 5, 6 and 7.
Article 5 (2) explicitly provides for the obligation of the State Party to enable, through legislative or other means, their courts to exercise jurisdiction when a person suspected of torture is present on the territory regardless of where the relevant acts occurred. Articles 6 and 7 oblige the "third state" to either prosecute or extradite the torture suspect found on its territory.
The Austrian authorities failed to act, and violated UNCA
Ample evidence - available in the public domain - had been provided by ECCHR regarding the occurrence of torture in Chechnya, for which Pres. Kadyrov may be personally responsible, to trigger Austria's obligations under Articles 5, 6 and 7 of UNCAT. Austrian authorities were obliged to investigate the case, to issue an arrest warrant, to take Pres. Kadyrov into custody upon his arrival in Austria and, if the allegations were substantiated, to prosecute or extradite Pres. Kadyrov. Despite the formal complaint and request for an arrest warrant, Austrian authorities failed to act. President Kadyrov visited Austria during the weekend of 12-13 June 2008 and managed to leave without intervention by the Austrian authorities.
ECCHR's request to the Special Rapporteur
If third states do not fulfill their UNCAT obligations of investigation and prosecution, this important UN-Convention will loose its relevance. Accountability is essential to the eradication of torture around the world, and third states have a key role to play on this front. In light of the serious shortcomings shown by Austria in this respect, ECCHR calls on the Special Rapporteur to demand that Austria fully investigate the decision made by Austrian judicial authorities not to act on the complaint filed by ECCHR; to remind Austria of its obligations under UNCAT; to express his dissatisfaction with Austria's failure to comply with the Convention on the event of Pres. Kadyrov's visit; and to urge Austria to prevent future violations of UNCAT.
Special Rapporteur Nowak, speaking in another context on the topic of enforcement of the UNCAT, has himself said:
"The only alternative to prosecuting an alleged torturer present in its territory is for a State to extradite him or her, in accordance with the principle aut dedere aut iudicare provided for in Article 7, to the State where the act of torture allegedly was committed (the territorial State), or to the flag State, or to a State exercising jurisdiction on the basis of the active or passive nationality principle. If none of these States requests an extradition, the State where the alleged torturer is present (the forum State) has no legal alternative than to thoroughly investigate the allegations of torture and, if the evidence found seems to be sufficient, to prosecute the person concerned before its criminal courts."
"Widespread Torture in Chechnya", HRW Briefing Paper for the 37th Session UN Committee against Torture, available at http://www.hrw.org/en/reports/2006/11/13/widespread-torture-chechen-republic"Russian Federation Preliminary briefing to the UN Committee against Torture", Available at: http://www.amnesty.org/en/library/asset/EUR46/014/2006/en/32d30e80-d444-11dd-8743-d305bea2b2c7/eur460142006en.htmlInternational Crisis Groups "Russia's Dagestan: Conflict Causes Europe Report N°192", 3 June 2008, available at http://www.crisisgroup.org/home/index.cfm?id=5466Country Report 2008 Chechnya [Russia], available at: http://freedomhouse.org/template.cfm?page=22&year=2008&country=7539See interview from August 2004 with R. Kadyrov in "A Russian Diary" (April 2007), abstract in the British Guardian, 20 March 2007,see, e.g. http://sedulia.blogs.com/sedulias_quotations/2007/03/anna_politkovsk.htmlSee, e.g. http://www.nytimes.com/2009/02/01/world/europe/01torture.html?_r=1&hpSee, e.g. HRW's report http://www.hrw.org/en/news/2009/01/14/austria-bring-killers-chechen-exile-justiceArticle 5 (2) of UNCAT provides:
"Each State Party shall ... take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article."
Article 6 of UNCAT provides:
1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. ....
2. Such State shall immediately make a preliminary inquiry into the facts.
Article 7 provides:
1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
See the aforementioned Art. 6 UNCAT.
Report of the Special Rapporteur on torture, Manfred Nowak, A/HRC/4/33, 15 January 2007, available at: http://daccessdds.un.org/doc/UNDOC/GEN/G07/102/15/PDF/G0710215.pdf?OpenElement [accessed on 24 March 2009] p. 14.
President Kadyrov
Ramzan Kadyrov became President of the Russian Republic of Chechnya in 2007, after having been Prime Minister and Deputy PM, and has been widely accused of overseeing human rights abuses, including torture, during his reign. Details of violations committed under Kadyrov's brutal regime have been described in reports written by the U.S. State Department, Human Rights Watch, Amnesty International, International Crisis Group, Freedom House and murdered Russian journalist Anna Politkovskaya. Kadyrov also stands accused of being personally involved in torture activities. One of the main witnesses for this allegation was Umar Israilov, Pres. Kadyrov's former bodyguard, who claimed to have been detained, tortured and beaten by Kadyrov in 2003. Israilov had managed to recently flee from Chechnya to Austria, where he received asylum. There he was able to give detailed testimonies about his experiences in Chechnya, and Kadyrov's practices in particular. In January 2009, days after he once again notified Austrian police that he was concerned for his life, Israilov was killed in broad daylight on a street in Vienna.
Criminal complaint filed
Having received information that Pres. Kadyrov was to visit Austria on 13 June 2008, ECCHR, through an Austrian lawyer, submitted a criminal complaint with the Austrian Department of Public Prosecution. In the complaint, ECCHR accused Pres. Kadyrov of torture and other cruel, inhumane and degrading treatment committed in contravention of Article 1, Article 5 and Article 6 of the UNCAT and numerous provisions of the Austrian criminal code. In the complaint, ECCHR concluded that in light of the accusations leveled against Pres. Kadyrov, and given Austria's obligations under UNCAT, the Public Prosecutor must issue a warrant for the arrest of Pres. Kadyrov during his visit to Austria. The complaint contained and referenced numerous sources of evidence for the accusations made, including testimonies by Umar Israilov.
Obligations under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
The main aim of the UNCAT is the criminalization of torture and the enforcement of the ban on torture through international and domestic criminal law so as to eradicate impunity for perpetrators. Austria ratified the UNCAT in 1987, and implemented the relevant provisions into Austrian law. Austria is therefore bound, both on the international and domestic levels, to comply with and give effect to the operative provisions of the UNCAT. The core obligations on "third states" in relation to torture suspects found on their territory are contained in UNCAT articles 5, 6 and 7.
Article 5 (2) explicitly provides for the obligation of the State Party to enable, through legislative or other means, their courts to exercise jurisdiction when a person suspected of torture is present on the territory regardless of where the relevant acts occurred. Articles 6 and 7 oblige the "third state" to either prosecute or extradite the torture suspect found on its territory.
The Austrian authorities failed to act, and violated UNCA
Ample evidence - available in the public domain - had been provided by ECCHR regarding the occurrence of torture in Chechnya, for which Pres. Kadyrov may be personally responsible, to trigger Austria's obligations under Articles 5, 6 and 7 of UNCAT. Austrian authorities were obliged to investigate the case, to issue an arrest warrant, to take Pres. Kadyrov into custody upon his arrival in Austria and, if the allegations were substantiated, to prosecute or extradite Pres. Kadyrov. Despite the formal complaint and request for an arrest warrant, Austrian authorities failed to act. President Kadyrov visited Austria during the weekend of 12-13 June 2008 and managed to leave without intervention by the Austrian authorities.
ECCHR's request to the Special Rapporteur
If third states do not fulfill their UNCAT obligations of investigation and prosecution, this important UN-Convention will loose its relevance. Accountability is essential to the eradication of torture around the world, and third states have a key role to play on this front. In light of the serious shortcomings shown by Austria in this respect, ECCHR calls on the Special Rapporteur to demand that Austria fully investigate the decision made by Austrian judicial authorities not to act on the complaint filed by ECCHR; to remind Austria of its obligations under UNCAT; to express his dissatisfaction with Austria's failure to comply with the Convention on the event of Pres. Kadyrov's visit; and to urge Austria to prevent future violations of UNCAT.
Special Rapporteur Nowak, speaking in another context on the topic of enforcement of the UNCAT, has himself said:
"The only alternative to prosecuting an alleged torturer present in its territory is for a State to extradite him or her, in accordance with the principle aut dedere aut iudicare provided for in Article 7, to the State where the act of torture allegedly was committed (the territorial State), or to the flag State, or to a State exercising jurisdiction on the basis of the active or passive nationality principle. If none of these States requests an extradition, the State where the alleged torturer is present (the forum State) has no legal alternative than to thoroughly investigate the allegations of torture and, if the evidence found seems to be sufficient, to prosecute the person concerned before its criminal courts."
"Widespread Torture in Chechnya", HRW Briefing Paper for the 37th Session UN Committee against Torture, available at http://www.hrw.org/en/reports/2006/11/13/widespread-torture-chechen-republic"Russian Federation Preliminary briefing to the UN Committee against Torture", Available at: http://www.amnesty.org/en/library/asset/EUR46/014/2006/en/32d30e80-d444-11dd-8743-d305bea2b2c7/eur460142006en.htmlInternational Crisis Groups "Russia's Dagestan: Conflict Causes Europe Report N°192", 3 June 2008, available at http://www.crisisgroup.org/home/index.cfm?id=5466Country Report 2008 Chechnya [Russia], available at: http://freedomhouse.org/template.cfm?page=22&year=2008&country=7539See interview from August 2004 with R. Kadyrov in "A Russian Diary" (April 2007), abstract in the British Guardian, 20 March 2007,see, e.g. http://sedulia.blogs.com/sedulias_quotations/2007/03/anna_politkovsk.htmlSee, e.g. http://www.nytimes.com/2009/02/01/world/europe/01torture.html?_r=1&hpSee, e.g. HRW's report http://www.hrw.org/en/news/2009/01/14/austria-bring-killers-chechen-exile-justiceArticle 5 (2) of UNCAT provides:
"Each State Party shall ... take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article."
Article 6 of UNCAT provides:
1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. ....
2. Such State shall immediately make a preliminary inquiry into the facts.
Article 7 provides:
1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
See the aforementioned Art. 6 UNCAT.
Report of the Special Rapporteur on torture, Manfred Nowak, A/HRC/4/33, 15 January 2007, available at: http://daccessdds.un.org/doc/UNDOC/GEN/G07/102/15/PDF/G0710215.pdf?OpenElement [accessed on 24 March 2009] p. 14.
