on the world: a view on human rights
Does it get much worse than torture and illegal detention at Guantánamo Bay? In February 2004, 35-year old Russian national Rasul Kudaev was released from Guantánamo Bay after more than two years of detention without due process. His return home has seen him held in pre-trial detention since the end of 2005, and a defendant in the longest court case in contemporary Russian history.
Born in the Prokhladnenskiy Raion district in the Kabardino-Balkaria Republic (KBR) in the North Caucasus (southern Russia) in 1978, Rasul Kudaev was a promising and keen wrestler, a sport popular in parts of Russia and Central Asia. He was hoping to travel to Pakistan at the beginning of the millennium to study the Islamic faith. He travelled through Iran and Afghanistan, where he was imprisoned by the Taleban who accused him of being a Russian spy. After 9/11, he was handed over to the US military by the Northern Alliance, who had attacked the prison where he was held, and arrived in Guantánamo Bay in mid-February 2002. Accused by the US of being a member of an Uzbek militant group and fighting for the Taleban, he was quickly deemed to have no “valuable or tactically exploitable” information of use to the US military, and was cleared for release by the end of that year. He was released in February 2004 once the Russian authorities agreed to incarcerate him upon return and to share any intelligence it acquired from him, even though he was deemed to have no “further intelligence value to the US.”
Rasul Kudaev was one of seven Russian prisoners who returned to the country in 2004 under this US-Russia agreement; an eighth Russian prisoner, Ravil Mingazov, remains at Guantánamo Bay. In statements given to Reprieve and Human Rights Watch (HRW), the released men reported being subject to torture in Afghanistan, including stress positions, sleep deprivation and sexual humiliation. Although not beaten, the abuse continued at Guantánamo Bay. However, one of the returnees reported that their experiences in Russia have been worse.
Arriving in Russia on 1st March 2004, Rasul Kudaev was detained along with the six other men at a jail in Pyatigorsk, southern Russia. Charged with participation in a criminal conspiracy and crossing the national borders unlawfully, they were all released in June that year due to a lack of evidence. Rasul Kudaev returned home in poor health and still suffers from hepatitis and stomach ulcers. Due to almost continuous incarceration since 2001 and inadequate medical care by the US and in Russia, a bullet lodged in his right pelvis remains there.
The Kabardino-Balkaria Republic (KBR) is a poor region of southern Russia with high unemployment and low living standards. Since the Beslan school shooting in 2004 in North Ossetia, the Russian government has increasingly pursued individuals alleged to have links with Chechen militant groups in the KBR. On 13 October 2005, a large group of armed men attacked Russian military installations in the city of Nalchik, the regional capital, in which around 150 people were reported to have died, mainly militants. Living in a village just outside Nalchik with his mother and brother, on 23 October, as part of a wave of arrests related to the attack, Kudaev was arrested at home. Two dozen armed men came to arrest him and according to his mother, he was beaten as he was taken away. According to HRW, what has happened to him since “presents the strongest case of mistreatment in Russian detention [of a former Guantánamo prisoner] because eyewitness testimony, photographic evidence, and official medical documents exist to prove it.”
He met his lawyer the next day, who reported that he was beaten and bruised and was
holding his stomach; he had been forced to sign a testimony he had not given. Brought before the Nalchik Court on 25 October, he was charged with suspicion of terrorism, participation in an illegal armed formation, attempt on the life of a law enforcement official, and murder. He has been held ever since at a pre-trial detention centre. Upon arrival there, he and the other 58 defendants were beaten. By early November, pictures of the abuse he and other prisoners had suffered at the hands of prison guards circulated. Kudaev’s face was shown to be swollen and bruised; he was beaten so badly that human rights investigators fear he has suffered permanent facial disfigurement. Lawyers for Kudaev applied for an investigation into the claims of torture and abuse during his early imprisonment, but these were turned down by the Russian authorities. A petition was filed at the European Court of Human Rights (ECtHR) in 2006 and admitted for a breach of Articles 3 (prohibition of torture) and 13 (right to effective remedy). The ruling is still pending and is likely to await the outcome of the trial for further evidence to emerge.
With a criminal justice system geared towards conviction and one of the highest prisoner populations in the world, abuse and torture are not uncommon in Russian jails. In November 2012, the UN Committee Against Torture (CAT) strongly condemned Russia “over persistent reports of the widespread practice in the State party of torture and ill-treatment of detainees, including as a means to extract confessions”, the failure to investigate and prosecute such claims, which resulted in the death of two prisoners in 2012, coerced confessions and failure to monitor detention centres. In recent years, convicted prisoners and those held in pre-trial detention have won cases at the ECtHR for abusive treatment, failure to provide life-saving drugs to sick prisoners and extended pre-trial detention without charge. Beatings and abuse by prison guards are common, including of women and the mentally ill. Where prisoners are accused of involvement in terrorism-related offences, the treatment can be particularly harsh. Accused of spying for the US and Britain during interrogations, Rasul Kudaev was told more than once that prison officials could do whatever they wanted to him as he had been held at Guantánamo Bay.
During his period in detention, Rasul Kudaev has not received adequate medical care for his ailments. Although a legal requirement of the prison authorities, and as is the case for many other prisoners in Russian jails, most of his medicines are provided privately by his mother, who has reported that his health has deteriorated considerably over the past few months. Kudaev has not been seen by a doctor for some time. In spite of numerous applications by his family and lawyers and urgent actions by Amnesty International, Kudaev has never been allowed an independent medical examination and the prison authorities do not consider his illnesses to be of concern.
The UN CAT findings also criticised attacks and harassment of human rights defenders, journalists and lawyers in Russia, including those working in the Caucasus. Last week, Amnesty International published a report into the threats and harassment faced by such lawyers, Confronting the Circle of Injustice, including Rasul Kudaev’s. The report states that the Russian “criminal justice system [is] geared to delivering convictions” and thus “torture is frequently used in Russia as a means of securing confession.” Lawyers representing defendants held at the Nalchik pre-trial detention centre have reported difficulties in meeting their clients due to inadequate facilities, making it difficult for them to do their job and ensure due process for their clients. All 57 defendants in the 2005 Nalchik attack case are held there. Complaints of mistreatment made by lawyers are ignored and denied, just as complaints of abuse made by their clients are.
Arrested and detained since 2005, preliminary hearings first took place in late 2007. The trial was then delayed by over a year due to problems in finding a jury. When the court later decided to go ahead with a three-judge panel instead, the proceedings had to be restarted. The actual trial started in 2009 and has since continued in fits and bursts over the past four years. The prosecution gave its evidence in each individual case. Some witnesses for the prosecution were able to corroborate the time and the incident but could not place the defendants at the scene. The latest round of defence hearings started several months ago and are likely to end next month, with the case for each defendant heard individually. During the hearings, the defendants are all made to attend the court and sit in three cages with a microphone at the front of each for the defendants to address the court.
Rasul Kudaev maintains that he was at home on the date of the incident. Unable to walk without crutches and suffering pain due to the bullet still lodged in his pelvis, he has limited mobility. His mother has corroborated that he was at home. On 25 March, witnesses were called to testify that he had been at home. Human rights activists, lawyers and journalists who had befriended Kudaev on his return to Russia in 2004 had called him throughout the day on 13 October 2005 to be able to vouch for his presence and for updates on the situation in Nalchik. Neighbours also testified having seen him at home on the day. Kudaev was due to give his own evidence, his only opportunity to be heard publicly throughout the case, on Monday 25 or Tuesday 26 March, however following an incident in the courtroom last week, he and 30 other co-defendants have been permanently excluded from the court.
One of Kudaev’s co-defendants, who was already in a poor state of health but refused medical assistance, had gone on hunger strike to draw attention to his plight. Ignored by both the court and the prison officials and forced to attend court, on 20 March, he slashed his stomach in desperation. In spite of the additional pain and loss of blood, coupled with weakness caused by his hunger strike, he was still brought into the courtroom. His lawyer sought an adjournment so that he could be seen to, but this was refused by the judges. Lawyers for the other defendants intervened and also asked for an adjournment. When this was refused again, the other defendants banged on the cages and made noises in protest and solidarity with their co-defendant. As a result, the judges decided that 30, or more than half, of the defendants would be banned from attending the trial until the judgment is handed down. Kudaev’s lawyer is likely to appeal as the inability to have his day in court is a further blow to his right to a fair trial; however, he has already been threatened with a ban from court if he acts too “cleverly”. The appeal is likely to be rejected in any case and in a separate incident, Kudaev’s mother was banned from court on 14 March. All of this increases the pressure on the defendants, undermines their right to a fair trial and is likely to be additional discrimination against them in view of this being a terrorism-related trial.
With Orthodox Easter falling in early May, the deliberations are likely to end before then in this case which has lasted almost eight years. A ruling and sentences may follow in the early summer. Lawyers for the defendants believe that all the men will be found guilty. The question then remains, particularly given how long they have already been remanded, of how long their sentences will be. As well as the extraordinary length of this case, the number of defendants – 59 in total, including one who died in detention in 2008 – is quite unprecedented. While in 2005, brutal, heavy-handed and extralegal tactics may have seemed appropriate methods to deal with the attack, with an expedient victim in Rasul Kudaev as a former Guantánamo prisoner to add a veneer of legitimacy, it seems that after many years, the authorities no longer know what to do with the majority of the defendants who are clearly innocent. This show trial simply highlights the worst aspects of the Russian legal system. Having gone on for so long, the case no longer even attracts much media attention.
For Rasul Kudaev, the impact has been a decade of detention without due process by both the US and Russia, coupled with the agony of untreated or poorly treated physical pain and the uncertainty of when his ordeal will end or what the outcome will be for him. He has spent almost his whole adult life as a witness to and a victim of the worst of the brutalities that can be afforded in both the east and the west under the so-called “war on terror”. The chances of seeing those individuals responsible for the torture, humiliation and abuse of due process Rasul Kudaev has been subject to, for political and personal expediency, are as remote as him ever being given a fair trial or afforded the least justice.
Many thanks to Amnesty International and Fatimat Takaeva for their assistance.