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DAYMOHK, 24.12.06.

 

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Experts Conclusion for the public Investigation Commission

If we open the Constitution, in the very first article we see "Russia is a democratic federate civilized state''. Unfortunately, this declaration doesn't reflect the reality. We badly need such state but we haven't it as yet.

Still, the assertions that the society has no levers to curb the dictate of executive power are hardly justified. The Constitution and our other domestic acts, the principles and norms of the international law gave grounds for more optimistic approaches. Let's examine some of them.

1. The charter of the Nuremberg International military tribunal and its verdict go far beyond the cases of Hering, Hess and other war criminals.

Dec. 11, 1946, the General Assembly of UN confirmed the principles of the international law, endorsed by the charter and reflected in its verdict. The world public links the charter contents with the notion of the war crimes, listed in the Geneva conventions for the protection of victims of war, dated to August 12, 1949, the notion of the crimes against humanity, no matter whether they were committed during peace time or during the war, as well as a notion of genocide crime. (Nurenberg trial over the main German war criminals. Materials in 7 volumes. Vol. p.67; vol. 7, p. 327).

The Soviet Union has ratified the Convention on the prevention of genocide and punishment for it. According to the Convention, "the following actions perpetrated with the intention of exterminating completely or partially some ethnic, national, race or religious group are regarded as genocide:

a) killing of members of this group;
b) infliction of serious bodily or mental injury to members of such group;
c) deliberate creation of the living conditions designed for a complete or partial extermination of such group..." (USSR and international cooperation in the sphere of human rights, p.135).

The subjects of responsibility for genocide could be a state, a person and an organization (for example, a party, or secret police); possibility of responsibility following the announcement of a verdict of not just international, but also an a national court of a concrete state: the priority force of the principles and norms of the international law.

Nowadays, all this is particularly important for Chechens and Ingushies. They remember 1944, when 478479 of their tribesmen were deported in cold and dirty freight-cars and sent to the North-Eastern Kazakhstan and Kirghizia and 2016 were arrested. They also remember that in a few years only 300,000 of them survived.

Guided by the international rooms, defining the genocide as a crime, April 26, 1991, the Supreme Soviet of Russian Federation recognized the reprisals of the people as genocide. (Bulletin of the Congress of peoples deputies of the Russian Federation, 1991, #18, p.572).

October 18, 1991, the Supreme Soviet stated that the mass terror against the people of Russia is illegal and carries criminal responsibility. (Ibid., 1991, #44, p. 1428).

The UN General Assembly resolutions dated Feb. 13, 1946 and Dec. 11, 1946 clearly denounce as crimes against humanity the violation of economic and political rights of the population. The crimes against humanity are regarded as the most serious ones, the responsibility for them is an important factor in the protection of human rights and main freedoms, strengthening trust, encouraging cooperation between the nations and ensuring peace throughout the world. Nov. 22, 1968, the UN General Assembly recognized that responsibility is applied to those who play the role "of perpetrators of such crimes, or conspire to commit them, no matter if they are completed, as well as representatives of state authorities allowing them to take place". (USSR and international cooperation in the sphere of human rights... P. 327-331).

According to the declaration of the main principles of justice for the victims of crimes and abuse of power dated November 1985, the states, members of the UN, are expected to take steps for criminal prosecution and punishment of the culprits. (Ibid. P. 538).

2. The charter of the International Tribunal envisages the possibility of "recognizing that a group or an organization, of which the defendant is a member, is a criminal organization" (art. 9).

At June 1957 plenary meeting of the CPSU Central Committee, Malenkov, Kaganovich and Molotov, to escape the responsibility for the crimes, shifted the blame on Stalin. None of them was brought to criminal justice.

Those few security officers who were tried for their crimes, justified themselves by the fact that they followed the party and its General Secretary's directives and obeyed their superiors' orders.

Nuremberg military tribunal gave assessment to such references "The fact that they implemented the orders of dictators do not exonerate them from responsibility for the crimes committed by them. The relations between the boss and an perpetrator are no more exonerating that similar relations in a tyranny state between the members of an organized gang and their boss."

The problem of Implementation of a criminal order is of special significance for servicemen. They have always been objects of mass ideological attack. Year after year the army grew in size and became corrupt. Decent people found hard to serve there. Still, the first deputy commander of the North Caucasian military district, LTG Shaposhnikov didn't follow his superiors' orders. In 1962 in Novocherkassk he ordered "Discharge the sub-machine guns and hand over the ammunition to the companies' commanders. He didn't follow the orders of the military district commander Pliev to attack. Had Shaposhnikov's tanks attacked the crowd thousands would have died. Shaposhnikov wasn't punished at the time and he served another 4 years. But in 1966 he was charged, in accordance with art. 70 of the Criminal Code, with anti-Soviet propaganda. His case was later closed though. But he was rehabilitated only in 1989.

Deputy battalion commander of one of Sverdlovsk units, V. Trofimov, protesting against the use of the army for police purposes, refused to go to Baku to take part in the punitive Jan. 20, 1990. Trofimov was discharged immediately without a pension for discrediting the title of a soviet officer.

The army cannot be used against the people and every servicemen, ranging from a soldier to a marshal, has the right to disobey the illegal, criminal orders. But no CPSU official or heads of the power structures has been brought to justice for giving the criminal orders.

The charter of the Nuremberg international trial, envisaging the possible references to the implementation of the order as an exonerating evidence, solved this question in art. 8 "The fact that the defendant followed the government or superior's orders doesn't exonerate him from responsibility but can be regard as evidence lessening the punishment if the tribunal finds that it's in the interests of justice". (Nuremberg trial. Vol. 1, p. 68).

Thus, it was found that the implementation of the orders doesn't excludes the responsibility for the offenses perpetrated.

The use of the army in Kremlin's political games is extremely dangerous. That's what the CPSU and army political bodies did. Thanks to their efforts, the servicemen were expected to obey any orders, including criminal ones. The words of Russian philosopher I. Ilyin are still potent "The army driven by the sense of honor is a real pillar of the country and guarantor of its security; the army which has lost the sense of honor is simply a bunch of rapists, marauders and murderers".

As the use of the army in politics and against the people is illegal, the question rises about legal guarantees, excluding its use by political adventurers.

The Constitution of April 1992 edition stated "The implementation of a clearly criminal order carries the legal responsibility", (art. 67, point 4). The absence of such provision in 1993 Constitution is compensated by the fact that it envisages the priority of the widely-accepted norms and principles which are part of the Russian legal system (art. 15, 17).

According to the 1993 Constitution, in the case of aggression against Russia or its immediate threat the president imposes martial law on its territory or some of its part with the immediate notification of parliament's chambers (art. 87). "The state of war, said the law on defense, is announced in the case of an armed attack on Russian Federation, other state or groups of states" (art. 20, 21). Russia wasn't attacked. The president didn't impose a martial law and didn't address the parliament on this score.

"The servicemen cannot be given orders and directives, set up tasks which have nothing to do with the military service or aimed at the violation of the law" (part 3 of the art. 36 of the law "On military draft and military service". Art. 40 of the military articles, endorsed by the presidential decree of Dec. 14, 1993 says the same. It determines the responsibility of a commander for abuse of power (art. 38).

What's the position of the acting Prosecutor General? He regards as deserters those "who are absent without leave from the unit for more than 2 days", while their commanding officers who refused to lead their units in battle against their own people as violators of the article of the Criminal Code which punishes for the "disobedience".

But the order can be criminal one. And its implementation, as it is said before, is criminal.

What's to be done in the case of illegal prosecution and sentencing? As this is quite possible, complaint is the only way out. If the means of legal protection within the country are helpless, the complaint can be lodged with the UN committee for human rights.

Y. Stetsovsky
DAYMOHK

 

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