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Home » Interviews

M.Nowak: “There is a Direct Link to Kadyrov on Israilov Case”

Submitted by on Sunday, 3 June 2012.    1,210 views No Comment
M.Nowak: “There is a Direct Link to Kadyrov on Israilov Case”

Manfred Nowak, the Scientific Director of the “Vienna Master of Arts in Human Rights” at the University of Vienna and the UN’s former Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, gave a special interview to the Russian journalist Oksana Chelysheva and it was first published by the dissident Russian website Kasparov.Ru.

Here is the interview:

– Professor Novak, you devoted six years to your work as U.N. Special Rapporteur. How do you assess the situation with torture in the world?

Manfred Nowak: I can not assess the situation with torture in general terms. In some states, it has improved. However, the situation as a whole has deteriorated. I carried out 18 fact-finding missions.

These eighteen countries, where I went, were chosen so that they serve as a representative slice of the world: big and small countries, countries with different political systems, countries where I expected to find torture, and countries where I thought I would not establish such facts. Out of the eighteen countries, I discovered torture in seventeen. Sometimes these were isolated episodes. Nevertheless, torture is still applied.

The only country that has not been revealed not only the facts, but even apprehensions of possibility of torture is Denmark with Greenland. I think that in the rest of the Nordic countries the situation is similar. I used to live in Sweden, where I visited prisons. In Finland, the situation in this area is the same. That is to say, the so-called Nordic countries have eradicated torture.

If you look at other parts of Europe, the picture is different. For example, in Greece, I found absolutely appalling conditions of detention of immigrants, which are regarded as torture as such. I then visited two European countries outside the EU: Georgia and Moldova. In both, I found quite widespread use of torture.

However, I must say that I came to Georgia at the beginning of my term. This was my first mission in February 2005. At that time there were many cases of torture. We sat down and discussed the situation personally with President Saakashvili to whom I explained in detail my recommendations. Last year, I again visited Georgia with a verification visit. I must say that many of my recommendations have been implemented. In modern Georgia torture has become a much lesser evil. Conditions of detention have improved a lot. On the other hand, the incredible increase in the number of prisoners. In 2005 in Georgia there were 7,000 inmates. And in 2011 – about 24,000. This is due to stricter penalties for crimes such as corruption, but also is evidence of U.S. influence. In Moldova, torture is widespread. However, I can see that that the Moldovan government really wants to change this practice, to ensure the entry into the EU.

Now let’s go around the world. The most negative example in terms of torture is Equatorial Guinea. Torture is systematically practiced. Torture is part of governmental policy. In Nepal we also found systematic torture. But I was there in 2005, in the midst of the conflict between the Maoists and the king. Both sides were engaged in torture. The same is true for Sri Lanka. I visited this country in 2008, and the situation there was very disturbing. At that time, the military finally decided to rid of guerrillas.

More than 50 percent of torture are not isolated episodes. They belong to the daily routine. It is applied systematically, and the situation was much worse than I imagined.

Secondly, we are experiencing a global crisis in the prison system. Disgusting prison conditions. A similar situation with the detention conditions of administrative detainees, and detainees in police stations, psychiatric hospitals and immigration centers. Just a disaster. In most countries, the situation is very bad. People who were spared the fate of the prison, can not imagine how crowded prison are. People suffer from lack of food, from lack of medical care. From lack of everything. Many people are treated worse than the animals. That’s why I call for fundamental changes in the criminal jurisdiction.

-Is there any way for the international community to motivate national governments to start such changes?

Manfred Nowak: Should be, yes. Of course, if you look through the judgments of the European Court for Human Rights in relation to so many countries in Europe, torture is rampant. Most cases of torture you will find in the Russian Federation, Ukraine, Moldova and Turkey, Romania to some extent. Of course, there should be the incentive to make them more bound to implement the judgments of the Court. I think one of the main things that needs to be changed is to change the philosophy of the criminal justice system. I think, as more retributive it is, punitive, retaliative the criminal justice system is, as more persons are in prison, the higher is the risk of torture. Of course, one should distinguish between dictatorships and democracies, because… the countries with the highest number of detainees per a number of residents is the United States of America but that is a clear expression of punitive philosophy of justice. It means that they have seven times more persons in detention than an average Western European country has. With the Russian Federation the picture is also drastic. As the Soviet Union had this kind of punitive retributive means of justice… Georgia is now very high. It is number 3. And there are a few Caribbean islands. These are the countries which have the highest number of detainees per capita. And, of course, it goes hand in hand with very harsh prison conditions. And also the death penalty and other things. So, that is one way that, I think, that the criminal justice system and again the majority of the countries it is not functioning the way it should. It is not aimed at re-socializing and rehabilitating. The Covenant on Civil Rights clearly says that the essential aim of the penitentiary system should not be just lock away. It should be aimed at people life after prison to be re-socialized, reintegrated into society and that is only possible if you treat them in a nice way. The principle of Denmark is the principle of normalization. They say, “Life in prison should resemble as much as possible life outside prison. That means you should have recreation, you should be free, you should not be locked away. There should be open prisons where you can go around, where you can work, where you can interact with others, do sports, have educative classes. In all, to be prepared for the life after prison. Because then you will have much less recidivism. If you just lock people away in a punitive way, when they are out of prison, the risk is much higher that they commit crime again . That is a vicious circle. The higher the crime rate is, the higher incarceration rate is. And, of course, administration of justice in many countries is corrupt. It means that to be imprisoned, to be tortured is very often the privilege of the poor. In ordinary criminal justice system if you are political prisoner, it is a different issue.

In Russia prison population is equal to the population of some small European country. We also have growing number of those who are charged on political grounds. In many cases there have been grounded claims that the charges against those people are fabricated. I refer not only to those who are charged under article on extremism but also to people involved into political, social and human rights movements accused of libel, for instance, or in the extreme cases drugs being planted on them. When the list of 31 people all of whom were recognized by the society and human rights organizations as political prisoners was submitted to Dmitry Medvedev in the last weeks of his presidency as the plea for his clemency, he pardoned only one of those. Still, what happened after the presidential decision to pardon Mokhnatkin when the administration of the colony refused to release him until they see the original document signed by the president was a strong indication of lack of control on the penitentiary system.

As far I know, Khodorkovskiy was also on that list… Legally speaking, there is no right to be pardoned. There is a digression of the President whether or not he makes use of this norm. Here we can’t criticize him on violating any kind of international obligations for not granting pardon. Of course, you can criticize the fact that in many of those trials, they fail to be fair trials. In this sense the deprivation of liberty is not necessary in conformity with the right of a person for liberty and the right for fair trial. Only during the three latest year, 2009-2011, of the Human Rights Committee of the UN which deals with more than a hundred states in all regions of the worlds, it was striking for me that by far the highest number of violations found were primarily ex-Soviet states whether it is Belarus, or all Central Asian states, Kyrgyzstan, Uzbekistan, Tajikistan, Turkmenistan… Turkmenistan actually less…. Then the Russian Federation. That is striking because not the Central Asian states, as they have no other way of it was neither Belarus with which violations only the UN Human Rights Council deals as it is not a member of the Council of Europe. But I saw that most people was in the case of the RF who feel that have been tortured. Mostly it concerns prohibition of torture, right for life, fair trial and partly also personal liberty. These are all rights that are also guaranteed with the European Convention. There are thousands of cases at the ECHR. 26% of all cases that are presently pending before the ECHR are Russian cases. In most cases if you look through, which is the country with the highest number of violations, it is again the Russian Federation. And usually these are not cases which deal with the right to marry. These are cases of disappearances, summary executions, torture cases, arbitrary detention cases and unfair trial cases. Both ordinary criminal justice system but of course in politically sensitive cases, not only in relation to Chechnya, but in general. And if you look into the practice of the UN Committee on prevention of Torture, the highest number of visits that the CPT is carrying out is to the Russian Federation, primarily to Chechnya and Ingushetia, and other North Caucasus. Its so because no other body can investigate those cases or has access to prisons and detention facilities. The Russian Federation is the only country which doesn’t allow the publication of the CPT reports. Turkey allows. Ukraine allows. Only Russia is afraid of the CPT publishing its reports. Only one report was published and a few public statements. It all gives a strong indicator about unfair trials. In that one case of Sergey Mokhnatkin being pardoned, the delay in his release might have been caused with the “surprise” of the prison director with the fact that just one person had been pardoned, the prison authorities might have easily not believed that pardoning was to be expected .

-Why was not your visit approved? RF did treat you in a less friendly way than Jil Robles or Louise Arbour. What was the problem?

Manfred Nowak: I developed, not only I but my predecessors too, but I developed it a little bit further, what we call Terms of Reference. It means that if a state invites me for an official fact-finding mission, I have certain Terms of Reference, which I communicate to the government and which is known as I also communicate them to the Human Rights Council. Then I request the government to ensure that the government would actually comply with it. Since torture always takes place behind closed doors, since it is always denied, the fact-finding on torture is different than the fact-finding on the right for education. If I was a special reporter on the right on education, I take a lot of statistics, I speak to the Minister of Education, I visit a few schools. I don’t have to come unannounced. It is a totally different way. There is a lot of information available, I compare it and look into the laws. Perhaps., I visit a few schools to see whether they are overcrowded or what school facilities are. Torture is denied. There is no torture statistics in any country in the world because they claim that there is no torture. So you have to develop different fact-finding methods. That means unannounced visits to all places of detention. And unannounced means unannounced. I never tell the government where I am going and the government is not supposed to know. Secondly, of course, if you go to a prison or a police facility, or an isolator, you speak to detainees, but you have to speak in private. If you ask a detainee in front of a police officer, he or she would never tell you anything. Another thing is that the government has to ensure that there will be no reprisals, for the fact that the prisoner talked to me. The fact that somebody talked to me is difficult to conceal. They know about it. I only tried and, in principle, we were very successful, that the discussions with the prisoners remain confidential. I also always take a forensic expert with me. It also means that not only that nobody should listen to our interview but also not see us. If they say, “We will be standing in a far corner…”, I tell, “No”. Because if a doctor asks to take off a prisoner’s shirt, even if the guards are far away, they can see it. It must be a place of which we can be sure that nobody see or hear us. That is the minimum. And I always take a photo and video camera with me in order to document injuries but also prisoners’ overcrowding, etc. That is not for publication. That is for my own documentation. In the end very often if the government tells me or the police tells me… very often I often to the cells or interrogation rooms, I interview the detainees and in the end I speak to the police chief. If the police chief tells me that he has never heard of any torture, and I establish profound evidence of torture, I show him the photos. The modern advantage that you can immediately download pictures to your laptop and show them on the spot. And it often helps. Seeing evidence, they admit by telling, “Oh, these things… But a little bit of torture really helps to investigate a crime”, I often heard.

These are common sense requirements. Nothing extraordinary. If the government is honest and say, “We invite you”… because we want to have an objective external assessment how wide spread is torture in our country, how good or bad are the prison conditions, then any government is in bona fide by inviting. We should understand that these are the conditions. The Russian understood that. They assured that they are complying with my terms, that it is all right. And one week before when everything was prepared and that is exactly why I dislike most… If the government says from the very beginning like Egyptians, “No, we don’t invite you”, that is OK. I just know that. No country in the whole Arab world, with just one exception of Jordan… responded. I asked all of them if they would invite me. Because torture is very widely practiced in all those countries. I am very grateful to the Jordanian government that they invited me. Nobody else. But if one first invites me and then cancels the invitation, it is different. There is a lot of work to prepare the trip in such a huge country as the RF is. I have my staff and myself. Of course, you prepare as good as you can, you establish what are the most infamous prisons where we should go, where is the risk of torture bigger: either in a military or in a pre-trial detention, or in police custody. Everything was prepared for meeting with the ministers. Even with Kadyrov we had a meeting already prepared. And a week before I was told that there were “difficulties” with the law and private discussions with the detainees. So I had to cancel the trip. I always told the governments that those conditions of my visits are non-negotiable. Either you invite me and then you know what you have or you don’t have to invite me. But nobody can invite me and then tell, “We are postponing it”. For me there was nothing to think about. I have my Terms of Reference. They are public. It is you who should think if you like to. The European Commission on Prevention of Torture could also come. You must do the legal changes so that they can also work… They told me, “We did special changes for the ECPT”. I told, “If you did it for them, you can do it for me as well”. Of course, it was not a real reason. They just invented it. It was ;postponed for ever. When Mr Putin came to Vienna, even the Austrian president and the prime minister, everybody raised it with him…

I remember the events of that year exactly because there is one very sad part of it. It was October 2006. I also planned a meeting with Anna Politkovskaya. On the very day when I was to arrive in Moscow, she was murdered. Of course, I talked to many people, you don’t know, of course, but many people told me that her murder must have been planned long time before and that it had nothing to do with my visit. But I blamed myself that it might have been a certain… I don’t know but for me it was a terrible blow. I knew her from before. I always had a very high esteem of her work and her courage needed for what she did. And she was coming back from Chechnya. And we would meet before I go to Chechnya. We arranged that she would give me her latest facts and knowledge. Perhaps, it was just a coincidence.

-Since there have been so many coincidences…

Manfred Nowak: Of, yes, it was Putin’s birthday… and two days before Kadyrov celebrated his birthday.

-Another coincidence was that Natasha Estemirova was abducted and killed on the very day when we together with the Memorial and NN Committee against Torture were holding a press conference in Moscow as a launch of our book. The same very day Natasha Estemirova was supposed to me the Prosecutor General. Therefore, I have to express my personal appreciation with your desperate attempt to initiate an international investigation into Estemirova’s murder. What were your feelings?

Manfred Nowak: Certainly, one can say that all those ideas we have are just speculations. Still, there is a fact. No effective investigation has been carried out. Either domestic or international. I think that in this kind of well-known cases of people being internationally highly recognized for their professional work… And in the RF there are so many cases when human rights defenders and journalists are killed or tortured or disappeared. Thus, in such well-known cases, if there was some kind of effort to investigate it although there are no legal obligations or political will to find out what really happened. You see, such investigatory group might not be purely international. There might be a few Russian experts together with a few international experts. But if it is not a purely Russian but international investigation, international experts must have access to all the documents on the cases. That was never done which is the indicator…. And there was a lot of pressure by Human Rights watch and other organizations. Thus, it is an indicator that there was no will to really find out whoever was behind the crimes. But still it is very difficult to say as it is still speculation. Especially, though I have been to the RF but not in my official function of the UN special rapporteur on torture. I never really investigated myself apart from the secret detention study that we did. To do it, I spoke to a few persons who had been in secret detention, also in Chechnya but not only.

We did that global study in 2010. We found 66 countries in the world that used it. Not only in the fight against terrorism. Many cases were related to the United States war in terror. But others were not related like in the RF. Of course, there were many from Arab countries, Jordanians, Libyans, whatever… But I have not seen anybody of the people who had been in secret detention, whom we interviewed and who had been that much afraid than the people who fled the RF. We didn’t go to the Rf to interview those people. We did it in various countries. They were kind of paranoiac. That is also an indication of the fears. Wherever we were, they always looked around. They didn’t trust anybody. It took me quite long to persuade them, “Nobody knows that we are here”. But they didn’t believe. They kept telling that the Russian intelligence certainly knew where we were. That is also an indication.

I usually don’t speak about speculations or facts that I didn’t really investigate myself.

-Right now in Finland a public campaign was launched proposing that the criminal code of Finland be amended so that the espionage on refugees and other foreigners be criminalized. It has indirect connection with what happened in Austria in 2009.

Manfred Nowak: Of course.

-Could you comment on the situation in Vienna and Israilov’s case?

Manfred Nowak: That is a very clear case. All the evidence so far is very clear. There is a direct link to Kadyrov. In my knowledge, Israilov was the only one who in his petition to the ECHR has not only named Ramzan Kadyrov but also said that he has direct evidence because he worked as his former body guard with him. Israilov testified that Kadyrov had committed not only torture but also killings. Israilov was a witness. There is a link which is for me beyond any reasonable doubt that people who have been arrested, all those Kalterbrunner…. All of them have specific links to kadyrov. It is difficult to prove this kind of command responsibility as we don’t have possibility to speak directly to Ramzan Kadyrov. He would not come. But there is evidence that he was himself involved. For me, all the evidence that I know from the prosecutor’s office and other sources, proves that there is a very clear link. The case is still on-going now. Not all the things have been finalized. And there is now another suspect in the UK. If this person would be extradited to Austria, that might add a missing detail into the whole chain. I think the Austrian prosecution and courts do a fairly comprehensive investigation. They are interested to clarify the case and also prevent future cases. In the beginning Mr Israilov had asked for the police protection. Police underestimated it although even the HRW clearly said that there was big danger. It was not taken seriously. But they later admitted to that. They never said that they had made a mistake but they stated that “they had learnt the lesson”. After that murder, people were provided with the police protection. And they were in similar situations like Israilov.

-Thus, it was a move towards a positive change… In your view, this attempt in Finland is also justifiable in many ways?

Manfred Nowak: Definitely.

-In the case of Russia, police brutality is factor No1 in the wide-spread use of torture. A coalition of HR organizations, including NN Committee against Torture, Agora, Memorial initiated a campaign lobbying for the establishment of a separate investigatory body responsible for looking into crimes committed by police force. Do you think that this kind of legislative change, structural change might bring positive results?

Manfred Nowak: Yes, first of all, it is one of my recommendations that I have presented to most countries. To fight impunity for torture is one of the most effective preventive measures. If police officers know that they can be held accountable, they might think twice. In the most countries of the world no police officer has ever been brought to justice for torture because torture is seen in many countries… of course it is prohibited, it is seen as kind of disciplinary infraction or something where you just close your eyes. “it is not really a crime…”, I have heard. And of course, usually if a detainees says, “I have been tortured”, it is not taken seriously. Even if it is written down in a complaint, and is investigated, it is investigated usually by the same people who are also investigating his crime. Thus, they are investigating against themselves, against their neighbors. That is a big problem. In a case of corruption, the investigation can be in the hands of another department, but torture always is committed by the police or security forces. So the only way of making a complaint mechanism effective is to have two things. A “police police” as I call it which is the police outside the normal structures and independent from the police command structures. It even should not be under the same minister. Really outside but at the same time having all the powers of the investigative police. Powers of arrest, search and seizure, summoning, whatever… And you have to do it very quickly. Almost no country really has it. That is the problem. British police complaint body is fairly effective. I can say that the UK is one of the best examples. But in Austria I have been fighting for that for the last ten years. Now we are at a point when they perhaps establish something like this. I can’t give you many positive examples. In the fighting corruption – yes. There we have quite a number of positive examples. Nigeria, for instance. There we found a fairly effective anti-corruption squad outside the normal police. In Austria we have fairly good anti-corruption police and also a special anti-corruption prosecutor. Corruption is seen as a more serious crime than torture. We need to do quite a lot to combat torture. If there is a move in this direction, we will have to see how really effective and how independent they are, how much pressure there will be but in principle it is certainly a positive step if you have a special police investigation but it must be outside a normal police.

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