Paris, Moscow, 18 January 2022 — The Basmanny court in Moscow announced today its rejection of the complaint filed by lawyers Ilya Novikov and Piotr Zaikyn against the inaction of the Investigative Committee of the Russian Federation. The Committee (SKRF), which has the power to open an investigation into the 2017 brutal murder of M.Elismail by alleged members of private military company (PMC) Wagner (“Wagner group”) in Syria, has failed to provide the attorneys with any information regarding the criminal complaint brought over 10 months ago on behalf of the victim’s brother.
The Syrian Center for Media and Freedom of Expression (SCM), Memorial Human Rights Center, and the International Federation for Human Rights (FIDH), assisted in the preparation of the complaint. The organisations engaged lawyers Ilya Novikov and Piotr Zaikin to represent M.Elismail’s brother. Much of the information and evidence was provided to the human rights activists by newspaper Novaya Gazeta, which conducted its own investigation.
This is the third complaint on the inaction of the SKRF, the first of which was filed nine months ago. Two previous complaints were returned, and the decision on the third one came only after two months of deliberations.
On 18 January, Judge E. Nikolaeva refused to satisfy the complaint of the lawyers, citing the absence of any grounds for the conduct of a procedural investigation with respect to the criminal complaint. Specifically, citing the Response to the lawyers’ complaint filed on the same date by A. Pakhtusov, head of the SKRF’s Main Investigations Directorate, the Court held that the March 2021 complaint “lacked information regarding circumstances establishing elements of a crime,” and is therefore “not subject to registration [in the crimes registry] and does not require a procedural investigation.”
In its Responses, the SKRF, whose representative did not show up at the hearing, argued among other things that: the fact of M. Elismail’s death has not been established and has not been documented; the video recording (which shows the brutal murder of the plaintiff’s brother, M. Elismail., and clearly shows the face of the victim (identified by the brother) as well as those of some of the killers) has not been authenticated and the place of recording has not been identified. Moreover, while the applicant alleged that the murder took place in Syria, no relevant information or requests for legal assistance were received from the Syrian authorities; the applicant’s arguments that Russian citizens were involved in the murder are only “suggestive”; and the “fact of M. Elismail’s death was neither established nor documented.”
A representative of the prosecutor’s office at the trial, Y. Nagumanova supported the SKRF’s position and argued that the plaintiff had been promptly notified of the decision taken by the SKRF, but did not provide any evidence in support of her statements.
Attorney Piotr Zaikin, who represented the interests of the plaintiff, stated that the SKRF had not notified anyone about its decision and that it was unlawful in any case. The investigation was provided with enough information necessary for the verification of evidence. Moreover, the complaint identified the specific person involved in the crime.
The judge agreed with the SKRF’s arguments. While she did address the fact that the SKRF had not notified the Plaintiff of its decision to not commence a criminal investigation, she decided that the problem was resolved since his lawyer was notified of such a decision at the hearing.
Mazen Darwish, the general director of SCM, criticised the court ruling, indicating that the Russian Court has become a guardian of the criminals: “It is not acceptable for any justice system to become a tool protecting those who perpetrate gross human rights violations — like members of the Wagner Group —and help criminals enjoy impunity rather than holding them accountable for their crimes and ensuring justice for victims. This decision is a legal validation of impunity for all crimes perpetrated by Russian citizens in Syria. This is exactly why we have advocated since 2011 for the referral of the Syrian situation to the International Criminal Court.”
“The decision highlights the importance of Russian courts in politically sensitive cases,” added Ilya Nuzov, Head of Eastern Europe and Central Asia Desk of FIDH. “ The Investigative Committee has failed to discharge its procedural obligation to investigate the complaint for over 10 months, effectively delegating this obligation to the plaintiff. The Court’s failure to qualify this as “inaction” demonstrates its collusion with the investigative authorities.” he concluded.
- On March 11, 2021, A.Elismail’s brother filed a complaint with SKRF, with the direct assistance of the Syrian Center for Media and Freedom of Expression (SCM), demanding the opening of a criminal case of murder with particular cruelty against alleged perpetrators of his brother’s murder. He also asked to check whether there were any signs of other crimes, including war crimes, in their actions.
- Since then, his lawyers twice — on March 26 and October 13 — asked the SKRF for information about the complaint’s registration, about the progress and results of the preliminary investigation, as well as copies of procedural documents, to no avail. Three complaints were subsequently filed with the Basmanny Court: on 19 April, 4 May, and 19 July. Twice they were returned on dubious technical grounds; the lawyers had to undertake significant efforts to get information about the fate of the complaints and the rulings justifying their return.
- On October 1, lawyer Piotr Zaikin filed an application with the chairman of the Basmanny court with a request to inform him in writing of the decision on the third complaint. Today, the long-awaited hearing took place.