Rasul Kudaev: An Injustice Too Far

Rasul Kudaev, a Russian national from the Kabardino-Balkaria Republic (KBR) in the North Caucasus region, has spent almost all of the 21^st century behind bars in prisons in three different continents, yet no substantive evidence have ever been produced to link him to any criminal offence. On 23 December 2014, he was convicted in Russia’s longest-running contemporary criminal case, a show trial lasting over 9 years, to life imprisonment.

Rasul Kudaev showing his Russian passport, shortly before his arrest in 2005, courtesy of Amnesty International

Afghan & US Detention

In 2001, then aged 23, Rasul Kudaev left home to study Islam in Pakistan. Travelling via Afghanistan, after the outbreak of the war that year with the US and allied forces, he was captured by the Northern Alliance. In a prisoner uprising in November 2001, he sustained a bullet wound to his right hip; due to inadequate medical attention ever since, the bullet remains lodged there making it difficult for him to walk and causes him frequent pain.

He was sold to the US military who held him at the Kandahar detention centre, before being taken to Guantánamo Bay in mid-February 2002. The US accused him of being a member of an Uzbek militant group and fighting for the Taleban but he was quickly deemed to have no “valuable or tactically exploitable” information of use to the US military or affiliation to the Taleban. He was cleared for release by the end of that year.

Although the US military reported that he was in “otherwise good health”, aside from a “previous gunshot wound” when he arrived at Guantánamo, by the time he returned to Russia in March 2004, he was diagnosed with “hepatitis A, B and C, pyelonephritis, gastric ulcer, arrhythmia and chronic bronchitis”. Kudaev described Guantánamo as a “concentration camp”. He claims to have been tortured by the US at both Kandahar and Guantánamo. He was never charged and was quickly deemed to have no “further intelligence value to the US.”

Home Sweet Home?

Kudaev was released from Guantánamo Bay on 28 February 2004 and arrived in Moscow on 1^st March, along with six other Russian nationals held there. Another Russian national remains there. None were ever charged or found to have engaged in any form of combat in Afghanistan.

The Russian authorities visited the men at Guantánamo Bay and their release was negotiated on the basis of diplomatic assurances that Russia, a state known for its use of torture, would treat the men humanely upon return. Such agreements are non-binding and Russia is already bound not to torture as a signatory of the UN Convention Against Torture and other international instruments prohibiting the use of torture. Under the principle of non-refoulement, such assurances do not relieve a state of its obligation not to send a person to a state where they are at risk of torture. The US was fully aware of this and breached its own legal obligations. None of the men had wanted to return to Russia, a state some of them had fled in the first place.

On Home Ground

A standard requisite for release from Guantánamo, Russia also agreed to incarcerate the men upon return. The men were immediately taken to a detention centre in Pyatigorsk. They were charged with a number of offences, including illegal crossing of a state border, mercenary activities and participation in a criminal gang. On 24 June 2004, a court ordered their release and the seven men were released shortly after. The charges were dropped later that year. In Pyatigorsk, Kudaev claims that he was visited by the FSB (Russian Federal Security Service) and was threatened that they would not leave him alone.

The intimidation did not stop there. He returned home to live with his mother and brother in the village of Khasanya, just outside Nalchik, the capital of the KBR. Following visits by the security services to his home, he reported that he would stay at home and did not go out alone in the evenings. On 15 August 2005, he was kidnapped by masked security agents but was released a few days later following intervention from international human rights organisations.

There were other forms of harassment. Kudaev is in need of regular medical attention since his return from Guantánamo. Access to medical care was hindered by the delay in the authorities making his identity documents available to him. He received his passport in late 2005; according to journalist Maxim Shevchenko, this was a deliberate ploy by the authorities who “were saving him for the events of [October] 2005”.

Nalchik Attacks

On the morning of 13 October 2005, groups of armed men launched coordinated attacks on government installations in and around Nalchik, including Nalchik Airport, police stations, military posts and security installations. The Russian authorities were only able to bring the situation under control the next day. During the attacks, 35 law enforcement agents and soldiers, 14 civilians and 92 attackers were killed, with over 100 people injured. It is estimated that more than 200 people were involved.

Two local militia groups claimed responsibility for the attacks, the Kabardino-Balkaria Jamaat and the Caucasian Front of CRI Armed Forces. The response by the authorities has unfurled as the kind of show trial Stalin would have been proud of.

On 13 October, Kudaev claims he was at home in the morning. This was confirmed by witnesses, including human rights activists and journalists, who had called him at home to ask what was happening in Nalchik and to check on him. Later in the day, a number of people reported having seen him and spoken to him at a funeral near his home. The next day he was ill and remained in bed. On 15 October, an ambulance was called and he was given medication and injections.

Arrest and Torture

In the days following the attacks, the authorities arrested over 2000 people involved in or related to those involved in the attacks. Some people voluntarily handed themselves in for questioning. By the end of 2005, 59 people were under arrest. By the end of 2007, charges had been pressed against all of them.

Officers from the UBOP (organised crime police unit) came to Rasul Kudaev’s home on 23 October 2005. No arrest warrant was produced and although he did not resist arrest, he was kicked and punched and pushed along as he had difficulty walking. This was witnessed by neighbours. His house was searched and no weapons were found.

He was taken to the UBOP where he says he was taken to an office and beaten to confess to involvement in the Nalchik attacks. He was then taken to another office, “where the beatings continued, the police officers kicking and hitting him and applying electric current to his fingers. They also prodded him with an object under his right eye and hit him on the heels and ears. [… He] fainted several times because of the pain inflicted on him.” An ambulance had to be called; the report stated that he had closed craneocerebral injury, possible concussion, bruises and haemorrhaging of the eyeball.

He signed a confession drawn up for him to stop the torture. On 25 October, Kudaev was charged before the court with a series of offences including murder, attempted murder of law enforcement officers, hostage taking and organisation of a criminal association. He was taken to the Nalchik pre-trial detention centre (SIZO) where he and his co-defendants have been held ever since. He was beaten upon his arrival there. His lawyer filed a complaint on his behalf. On 28 October, he was taken to the FSB where again he was beaten as evidenced by medical records.

Images of the bruised faces of the detainees emerged in the press and on social media in November 2005. It caused a scandal but no investigations or prosecutions have ever been carried out. In 2006, he filed a petition at the European Court of Human Rights (ECtHR) which was admitted for a breach of Articles 3 (prohibition of torture) and 13 (right to effective remedy). The ruling is still pending.

Life in Detention

Kudaev’s persecution in detention in the Russian Federation was far from over. In March 2011, Kudaev and several other defendants were placed in solitary confinement as a punitive measure when detainees were being transferred to a new building in the Nalchik SIZO. Shortly after his transfer, he was severely beaten by the guards. At the time, his lawyer was also denied access to him. He filed another petition to the ECtHR which was admitted partially later that year. Since the hearing came to a close in January 2014, he has been held in solitary for different lengths of time on a number of occasions.

He has also been denied adequate medical attention and access to medication for his illnesses, even when these are brought in by his mother. The prison authorities are supposed to provide such medications to prisoners. He and his co-defendants have consistently been denied access to independent doctors. In 2009, a stomach ulcer caused him to cough up blood in court during a trial hearing but prison doctors insisted he was fit to attend.

Justice Delayed is Justice Denied

Nine years is not how long it takes to establish innocence or guilt in legal proceedings. Preliminary hearings were held in 2007. When it proved impossible to form a jury to hear the criminal case by the end of 2008, the law was instead changed and the trial went ahead in 2009 with a 3-judge panel.

The hearings were largely for show and the evidence against the defendants non-existent. Many of the defendants retracted their torture confessions at trial. Following a protest by the prisoners in the specially-built courthouse in March 2013, in which they were made to sit in two cages, more than half of the defendants, including Kudaev, were permanently excluded from the proceedings.

The evidence against Kudaev, that he led a 6-man subgroup who attacked a police station in Khasanya killing one police officer and a civilian and injuring over a dozen people, stealing weapons as well as causing damaging to property and being one of the main leaders plotting the attacks, came from five confessions beaten out of co-defendants. During the trial, they refuted the evidence, claiming they had been tortured to testify. Most admitted they had never met him before. Nonetheless, in September 2013 the prosecution pressed for Kudaev to be found guilty of all the charges against him and be given a life sentence.

The militants who claimed responsibility for the attacks said they did not know him either and wondered why anyone would implicate a man who had returned “crippled and on dialysis” from Guantánamo Bay. An interview with a militant from the Kabardino-Balkaria Jamaat, used as evidence by Kudaev’s lawyers, shows that there was a deliberate case of mistaken identity, to confuse Rasul Vladimirovich Kudaev, who was held in Guantánamo Bay, with Rasul Dzemalovich Kudaev, a militant: “They are trying to name him as one of us in order to accuse us of international terrorism.”

Why Rasul Kudaev?

This question was posed by his lawyer Mogamed Gagiev in summing up his defence in November 2013. Kudaev had a watertight alibi with many witnesses to vouch for him. Known as the “Afghan prisoner”, Kudaev’s previous imprisonment in Afghanistan and at Guantánamo Bay made him a perfect scapegoat for the heavy-handed response of the Russian authorities and their human rights violations.

Gagiev told the court, “It appears that someone is very keen to lend an international dimension to the event in Nalchik in October 2005 and draw a connection between the KBR Jamaat and the Afghan Taliban or other foreign forces.” In identifying Kudaev as a political prisoner, Russian human rights NGO Memorial stated that the Russian law enforcement agencies are using his status as a former Guantánamo prisoner to “justify the existence of foreign involvement in the events in Nalchik on 13-14 October 2005.” Furthermore, a Channel One Russia television documentary about Guantánamo and featuring Rasul Kudaev was strategically aired in December 2005 to emphasise this point.

The Stamp of Guantánamo

While the Russian government uses the detention camp at Guantánamo as a means of asserting moral superiority over the US, its own treatment of returnees leaves much to be desired: in almost every case, the persecution has continued.

However, it is not just the Russians who found an expedient scapegoat for breaches of human rights and international law in Rasul Kudaev: in 2009, the Pentagon used Kudaev’s torture confession and Russian imprisonment as an example of “recidivism” among former Guantánamo prisoners in a report.

A 2009 diplomatic cable leaked by Wikileaks shows the sheer duplicity of the US: following pressure by human rights NGOs the US government raised his case with the Russian Foreign Ministry. When the Russian Foreign Ministry representative asked if the US opposed the Russian government trying Kudaev among the Nalchik 58, the response was simply “We reinforced the need for a fair and transparent legal process and again stressed our concern over Kudaev’s treatment during three years of pre-trial detention and his immediate need for medical care.”

Sentence

In spite of the clear case in his favour, Rasul Kudaev was found guilty and sentenced to life imprisonment in a penal colony on 23 December 2014. All the defendants in the case were found guilty. Demonstrating the sham nature of this trial, in proceedings hinging on the killing of over 100 people, all of the defendants were acquitted of the murder charge. In other words, while this mass terror trial concerned mass murder, none of the 58 convicted actually killed anyone. Indeed, only 4 defendants were found to be in possession of any arms. All of the defendants plan to appeal. They thus remain at the Nalchik SIZO. Those given life sentences have been placed in solitary confinement.

Amnesty International slammed the verdict as “a textbook case of criminal injustice, where the authorities manifestly refused to investigate allegations of torture, despite overwhelming evidence, and the defendants languished for nine years in pre-trial detention, all in violation of international law” and called Kudaev’s case “a stark illustration of the unfair trial that the defendants in this case have been subjected to. It exposes the deplorable state of the Russian criminal justice system and the impunity of law enforcement officials alleged to have committed severe human rights violations.”

Alexander Cherkasov, Memorial chairman stated, “There was no proof during the trial that he had any involvement in these events. The charges were built solely on a false confession […] The court delivered the verdict that the prosecution was demanding – a life sentence for Rasul Kudaev. The Memorial Human Rights Centre has recognised him as a political prisoner.”

Commenting on Kudaev’s sentence, journalist Maxim Shevchenko stated, “Rasul showed himself to be a leader and a fighter, a man who cannot be broken, a man capable of becoming a moral authority. The System cannot allow such people to live, but it does not have the spirit to simply kill them openly and in public. Letting them go is impossible, worrisome, unthinkable. That is why they thought up this terrible, depraved and inhumane “life sentence””. Moreover, Rasul Kudaev is living proof of the false nature of the “justice” and “values” preached by both the US and Russia in their competition to claim moral leadership of the world, and more importantly of the indomitable nature of the human spirit.