B Explanatory memorandum
by Mr Emanuelis Zingeris, rapporteur
1 Introduction
1. The present report is based
on a motion for a resolution tabled by Ms Kerstin Lundgren and other members
of the Parliamentary Assembly on 28 January 2016. The Committee
on Legal Affairs and Human Rights appointed me as rapporteur at
its meeting on 18 May 2017.
2. The motion recalled that Mr Boris Nemtsov had been assassinated
in Central Moscow in February 2015 and that whilst five alleged
perpetrators, all men of Chechen origin, had been charged with his
murder, its organisers were still at large and there had been no
investigation of the alleged involvement of the Chechen authorities.
It highlighted Mr Nemtsov’s public profile as a former Russian Deputy
Prime Minister and a current leader of the political opposition,
who had played a prominent role in criticism of Russian aggression
in Ukraine.
3. The motion stated that the international community should
monitor the course of results of the investigation into Mr Nemtsov’s
death, to help ensure that all relevant aspects are examined and
the background exposed. This should be done in co-operation with
the competent Russian authorities, as well as with Mr Nemtsov’s
family and friends who fear that only the immediate perpetrators
will be punished, with the organisers of the murder being protected.
4. During the preparation of the report, the committee held a
hearing with Ms Zhanna Nemtsova, Mr Nemtsov’s daughter, Mr Vadim
Prokhorov, the family’s lawyer during the trial of the murder suspects,
and Mr Vladimir Kara-Murza, former political associate of Mr Nemtsov.
I also made multiple requests, including via the President and Secretary
General of the Parliamentary Assembly, to the Russian authorities
to conduct a fact-finding visit to the Russian Federation in order
to meet officials and other interlocutors and to give the authorities
the possibility of responding to criticisms of their response to
the murder. I even wrote myself directly to the Speakers of the
Council of the Federation and the State Duma. The letter to the
former was returned, marked “address unknown”; I received confirmation
of receipt of the letter to the State Duma, but no reply to it.
2 Mr Nemtsov’s political career and profile
5. Boris Nemtsov first entered
politics as a reformist during the late 1980s. In 1990, he was the
only non-Communist elected from Nizhny Novgorod to the Supreme Soviet
of the Russian Republic. Appointed governor of Nizhny Novgorod region
by President Yeltsin, a position to which he was re-elected by popular
vote in 1995, he introduced free-market reforms to the regional
economy. President Yeltsin appointed him First Deputy Prime Minister
in 1997, with special responsibilities for reforming the energy
sector, restructuring monopolies and reforming the housing and social
sectors. Having left this post, in 1999 he co-founded the Union
of Right Forces, a liberal-democratic coalition, for which he was
elected to the State Duma that same year, becoming its Deputy Speaker.
6. From 2004 onwards, Mr Nemtsov became an increasingly prominent
critic of President Putin, warning of the impending danger of dictatorship.
He remained at the forefront of efforts to create a united opposition, being
involved in 2004 in the creation of the “Committee 2008” opposition
group and, in 2008, of the Russian “Solidarnost” movement. In 2009,
he formed the “For Russia without Lawlessness and Corruption” party,
which was refused registration; in 2012, he became co-chair of the
“Republic Party of Russia – People’s Freedom Party”, which was registered.
In 2013, he was elected to the Yaroslavskaya regional parliament.
He was due to lead a large-scale opposition rally in Moscow the
day after his death.
7. Mr Nemtsov was repeatedly critical of official corruption
under the Putin government, amongst other things publishing a report
on the perks, privileges and luxury goods that President Putin had
accumulated during his time in office. He later accused the presidential
administration of incompetence and corruption in the organisation
of the 2014 Sochi Winter Olympics, claiming that up to $30 billion
had been stolen from the allocated funds. He also criticised restrictions
on media freedom and regional democracy imposed on the pretext of
fighting terrorism. He spoke out against President Putin’s military,
political and financial support for the Kadyrov regime in Chechnya;
in 1996, he had presented a million-signature petition against the
first Chechen war to President Yeltsin. From 2010, he was a vocal
advocate for the introduction of the Magnitsky sanctions on Russian
officials responsible for human rights violations. He was one of
the few leading Russian politicians to support Ukraine’s independence
and territorial integrity, accusing President Putin of responsibility for
the war in Ukraine, whose preference for a “European way” characterised
by democracy and the rule of law was a “direct threat to Putin’s
power”. At the time of his death, he was preparing a detailed report
on Russia’s direct military involvement in eastern Ukraine, which
was at the time being denied by the Russian Government. The results
of his investigation were presented to the committee by his political
associate Vladimir Kara-Murza in January 2016, in the framework
of the report by Ms Marieluise Beck (Germany, ALDE) on “legal remedies for
human rights violations on the Ukrainian territories outside the
control of the Ukrainian authorities”.
Note
8. Mr Nemtsov was arrested on several occasions on account of
his political activities: in 2010, when he was held in administrative
detention for 15 days after an authorised rally against government
restrictions on public protest, following which he was convicted
of disobeying the police by a court that refused to admit defence
evidence including witness statements and video evidence; and in
2014, in the course of mass arrests at a protest in Moscow, following
which he was held in administrative detention for 10 days. He was
also systematically attacked and humiliated by the official Russian
media in relation to his political activities. In 2012, Mr Nemtsov
stated repeatedly that he was afraid for his life at the hands of
the Russian authorities, having criticised the fairness of the Russian
presidential and parliamentary elections. In the weeks before his
murder, he had on several occasions expressed fears of being killed.
3 The
established circumstances surrounding Mr Nemtsov’s death
9. On the evening of 27 February
2015, Boris Nemtsov was shot to death on the Bolshoi Moskvoretsky Bridge,
which crosses the Moskva River close to Red Square and the Kremlin,
whilst walking with his companion, Anna Duritskaya.
10. Russian President Putin condemned the killing and assumed
“personal control” of the investigation, writing a personal letter
to Mr Nemtsov’s mother in which he vowed to bring those responsible
to justice. Various theories were put forward in the days following
the murder. President Putin suggested that his death was a “provocation”
intended to damage Russia’s reputation. Several theories were put
forward in the (largely State-controlled) media, including that
Nemtsov was a “sacrificial victim” whose killing by other opposition forces
was intended to stimulate opposition unity and action; that one
or the other side in the conflict resulting from the Russian aggression
in Ukraine was responsible, or that the Ukrainian secret service
was responsible, its aim being to foment unrest in Russia; and a
connection to Mr Nemtsov’s support for the Charlie
Hebdo journalists following the terrorist attack on their
Paris office. A Federal Security Service (FSB)-linked website suggested
connections to his personal affairs. Ramzan Kadyrov, head of the
Chechen Republic, blamed “western spy agencies”.
11. Within little more than a week of the murder, five suspects
had been arrested, all Chechens: Zaur Dadayev, alleged to have fired
the gun; Anzor Gubashev, alleged to have driven the car; Shadid
Gubashev, Khamzat Bakhayev and Temirlan Eskerkhanov. A sixth suspect,
Beslan Shavanov, alleged to have accompanied Mr Dadayev and Anzor
Gubashev in the car, died when a hand grenade exploded while special forces
tried to arrest him at his apartment in Grozny, the capital of Chechnya;
although his death was presented as an accident or even suicide,
there are suspicions that he was in fact killed.
4 The
investigation and prosecution to dateNote
12. The head of the investigative
team appointed for the Nemtsov murder, Igor Krasnov, had previously investigated
murders and attempted murders of other prominent public figures.
Within a week of the murder, the investigation had established the
movements of the killers immediately before and after the shooting,
and found the car that had driven the killer away from the bridge.
13. On 7 March 2015, the head of the FSB, Alexander Bortnikov,
announced the arrest of Zaur Dadayev and Anzor Gubashev. The following
day they were formally charged with the murder. Under interrogation, Mr Dadayev
confessed to the crime and told investigators that his role had
been overseen by “Rusik”, who provided money, a car (of the same
type as that recovered and identified by the investigators) and
a gun. His detailed confession, as well as that of Anzor Gubashev,
was recorded on video. “Rusik” was suspected to be Ruslan Geremeyev,
a senior officer in the Chechen Sever special
forces battalion of which Mr Dadayev had been deputy commander (and
from which he was dismissed two days after the murder, prior to
his arrest) and Mr Shavanov a member. Mr Geremeyev was traced back
to Chechnya. His exact whereabouts remain officially unknown. General
Alexander Bastrykin, head of the Russian Investigative Committee,
reportedly twice refused to sign an indictment against him prepared
by investigators. An FSB operation to have him brought to court failed,
reportedly because no-one answered when they knocked at the door.
14. Mr Dadayev later retracted his confession, claiming that he
had made it under torture, to secure the release of another person
who had been arrested with him and in order to avoid “what happened
to Shavanov”. In September 2015, Anzor Gubashev also retracted his
confession. A member of the presidential Council for Civil Society
and Human Rights, Andrei Babushkin, visited the suspects in detention
and reported that Mr Dadayev, as well as Anzor and Shadid Gubashev,
had probably been tortured, although on 18 March 2017, Anzor Gubashev
stated that he had not been ill-treated. (See also below.)
15. Anzor and Shadid Gubashev, who are brothers, were arrested
in Ingushetia, which borders the Chechen Republic, and brought back
to Moscow for questioning. Khamzat Bakhayev and Temirlan Eskerkhanov
were both arrested in the Moscow region and denied any involvement.
Mr Eskerkhanov claimed that he had been in a bar at the time and
could not have been at the murder scene.
16. In October 2015, the investigators named Ruslan Mukhudinov
as the organiser of the crime. Mr Mukhudinov was a subordinate of
Mr Geremeyev, for whom he acted as driver. Like Mr Geremeyev, his whereabouts
are no longer known, but an indictment was issued against him in absentia. On this basis, General
Bastrykin announced in January 2016 that the case had been solved.
17. The murder trial began in Moscow district military court in
July 2016, on the basis of an indictment signed by Victor Grin,
Deputy General Prosecutor. On 27 June 2017, the jury began considering
its verdict; two days later, it pronounced all five defendants guilty,
finding that they had committed the murder in return for a payment of
15 million Roubles (equivalent to €200 000). On 13 July, the court
sentenced Dadayev to 20 years’ imprisonment (although prosecutors
had called for a life sentence) and the others to between 11 and
19 years; they were each also fined 100 000 roubles.
18. On 21 July 2017, Zhanna Nemtsova, who is a legally recognised
victim in the case, appealed to the Military Chamber of the Russian
Supreme Court against the ruling of the Moscow District Military
Court over its refusal to reclassify the offence under Article 277
of the Russian Criminal Code (see below). The convicted defendants’
lawyers also appealed, against both the verdict and the sentence,
raising a series of arguments concerning evidential and procedural
shortcomings, including a lack of impartiality on the part of the
judge. The Supreme Court gave judgment on the appeal on 10 October
2017, confirming the trial verdict, whilst waiving the fines on
procedural grounds, and dismissing Ms Nemtsova’s appeal.
19. Ms Nemtsova currently has a case pending before the European
Court of Human Rights claiming that Russia has violated the right
to life under Article 2 of the European Convention on Human Rights
(ETS No. 5, “the Convention”), including through failure to conduct
an effective investigation into the murder of her father. Amongst
other things, the application also invokes Article 18 of the Convention
to allege a political motivation behind the authorities’ failure.
5 Concerns
relating to the investigation, prosecution and trial
20. Although the prosecutors asserted
that they had identified those directly responsible for the murder,
a number of important, indeed fundamental questions remain concerning
the credibility, scope and efficacy of the investigation and the
propriety of the trial proceedings.
5.1 Issues
concerning evidence
21. There are a number of irregularities,
discrepancies and inconsistencies in the evidence, as set out in
the case files. These raise questions in relation to the effectiveness
of the investigation and the reliability of the version of events
portrayed in the court’s verdict.
22. For example, in relation to the bullets and bullet casings
that were recovered, and the injuries suffered by Mr Nemtsov:
- for Mr Dadayev to have fired
all six shots, he would have had to do so within 2.4 seconds (the
time during which he was obstructed by a passing garbage truck from
the view of the TVTs television station’s weather camera), including
– according to his own testimony – a pause during which he changed position.
There was no investigation into whether this was physically possible,
either in principle or for Mr Dadayev in particular;
- four of the shots that struck Mr Nemtsov did so from the
back; the fifth struck him from the front. Of those four shots that
struck him in the back, one had a downward trajectory, one went
straight in whilst the two others travelled upwards – as did the
shot that struck him in the front. There was no explanation of how this
could be consistent with Mr Dadayev’s account of having fired three
shots into Mr Nemtsov’s back whilst he was walking, and another
two or three at him whilst he tried to raise himself from the ground;
- metallic grey-black particles were found in one of the
wounds but in none of the others. There was no explanation for this
discrepancy;
- experts noted that although three shots passed through
Mr Nemtsov’s body, there was only one mark on his pullover corresponding
to an exit point and no marks on his coat. They suggested that this
could have been due to the different penetrating power of the bullets,
which could indicate different weapons and firing conditions, or
to the pullover and coat having been pulled aside when these shots
were fired. Neither of these scenarios is consistent with the prosecution’s
case;
- traces were found in Mr Nemtsov’s coat suggesting that
shots were fired within the range of projection of powder gases.
Mr Dadayev claimed to have fired all his shots from a distance of
five metres. Experts recommended that experimental shooting be conducted
to ascertain the distance at which shots fired would leave such
powder gas traces, but this seems never to have been done;
- the crime scene record did not include precise details
of the relative locations of the body, bullets and casings. It did
not record the weather or lighting conditions under which observations
were made. Investigators said that they did not film the crime scene
and no such film was presented, yet other footage shows a man filming
at the scene;
- the crime scene was contaminated by the presence of numerous
people visible in videos but not mentioned in the crime scene record;
- the ambulance crew who arrived at the scene at 23:50 identified
four bullet casings close to the body. The crime scene investigation,
conducted between 00:30 and 01:53 the following morning, found only one
casing close to the body, but also one five metres away, one in
the road, one on the staircase leading up to the bridge and two
under the bridge. No effort was made to locate or explain the possible
further three casings suggested by the testimony of the ambulance
crew;
- although six casings were found, only five bullets were
recovered. No explanation was given for the additional casing/missing
bullet;
- the bullet casings found next to the body and on the staircase
both bore one manufacturer’s mark whereas the other four casings
all bore another mark. The location of the impact point on both
of the first two casings was different from that on all of the other
four casings;
- the forensic treatment and chain of evidence for the casings
was irregular. There were no photographs of the casings in the exact
situation in which they were originally found. There was wet weather
on the night of the murder and wet snow, yet the casings shown in
photographs purportedly taken at the scene were dry. The crime scene
record did not indicate the evidence seals or where the casings
were sent. After the first visual review two months after the murder,
all of the casings were placed together in a single envelope, potentially
tainting possible evidence;
- no gun was recovered;
- there was no forensic explanation of the order in which
the shots were fired or the distance and direction from which they
were fired, such as could account for the varying locations in which
casings were recovered and the differences in location and trajectory
of the injuries;
- the forensic medical experts concluded that the gunshots
clearly fell into two groups, proposing that the differences could
be explained by different weapons, different ammunition or the use
of a silencer;
- the FSB’s first ballistics study concluded that all of
the shots had been fired by a single weapon, with the same angle
of strike on all of the casings. The study only presented measurements
for a single casing, however, with no photos or other descriptions
for each of the casings, making comparison and identification at
trial impossible;
- a second FSB ballistics study was inconclusive. It noted
the presence of groups of traces from the inside of the barrel on
the bullets but did not identify or describe them, individually
or at all, noting only that they were weak. It concluded that it
was “not possible to credibly state or exclude that the five bullets
and six casings from a 9 mm Makarov pistol cartridge were from the
same cartridge”;
- despite the above discrepancies, the trial judge refused
to order a further ballistic study, asserting that the available
study was “full, comprehensive and science-based”.
23. There were also significant deficiencies in the gathering
of potential video evidence. For example:
- the Federal Protection Service (FSO), responsible for
security in and around the Kremlin, claimed that none of its cameras
were trained on the location of the shooting. FSO video camera recordings
were, however, recovered for other locations.
- no videos of the scene taken by street and traffic surveillance
cameras were obtained. There was no explanation for why this was
not done.
- no forensic evidence of any kind was obtained from the
garbage truck that passed by Mr Nemtsov at the moment he was shot.
No videos from another garbage truck nor from three passing public
transport vehicles that crossed the bridge at the time of the murder
were obtained. There was no explanation for why this was not done.
- videos from three of the eight cameras operated by the
authority responsible for the bridge were obtained, with views only
under the bridge. There was no explanation for why videos from the
other five cameras were not obtained.
- only three videos from dashcams carried in private vehicles
using the bridge around the time of the crime were obtained.
- investigators accepted without question the Moscow Police’s
claim that the crime scene was not within the “control zone” of
any camera feeding images into its “United Centre of Data Storage”.
- investigators stated that they did not record video footage
of the crime scene, yet public videos show a man with a camera filming
the scene.
- defence lawyers requested video evidence from the night
of the murder showing the Moscow apartment building where the defendants
had been staying, said to provide an alibi. The judge ruled this
video inadmissible on the basis that the footage produced had been
shorter in length than that requested by the investigator.
24. Investigators also failed to locate, analyse or disclose other
forms of possible evidence. For example, data on mobile phone connections
of persons on or near the bridge were gathered, but only those relating
to the phones of Mr Nemtsov, his companion and the five convicted
Chechens were analysed. This meant that other possible witnesses
have not been traced.
5.2 Issues
concerning witnesses
25. Various individuals known to
have been near the scene or in the surrounding area around the time
of the murder were not traced or interviewed. For example;
- the official analysis of the
TVTs television channel video mentions “several people in dark clothing”,
“a person in dark clothing” and “a person walking past” being seen
at or near the crime scene. None of these were identified;
- the TVTs weather camera video appears to show around 130
vehicles crossing the bridge between 23:30 and 23:40. Most were
not traced and thus nor were their drivers/passengers identified;
- five vehicles were identified – a Skoda Octavia, a Hyundai
Solaris, a Mercedes-Benz E200, a Ford Galaxy and a Ford Mondeo –
but their drivers and any passengers were not interviewed;
- video taken from “Gormost Camera No. 4” shows two police
cars, a dark-coloured car, a light-coloured car, a car with a trailer,
another car and a man on foot in the vicinity of the bridge between
23:12 and 23:36. None of them were traced;
- video taken from one of the dashcams shows, amongst other
things, three other cars and a man entering the bridge (along with
what is probably Mr Nemtsov’s body lying on the ground), but none
of the drivers, any passengers or the man were identified;
- another dashcam video shows a white sedan car on the bridge,
two women walking along the bridge, a “lad” bent over something
lying on the bridge (possibly Mr Nemtsov’s body) and, beyond the
garbage truck that passed by Mr Nemtsov at the moment he was shot,
another, silver-coloured car. None of the people or vehicles were
traced.
26. The Nemtsov family lawyers made repeated applications to the
Investigative Committee and the courts to have the investigation
widened to explore leads going beyond the persons immediately responsible
for the killing, and even beyond the disappeared suspects Mr Mukhudinov
and Mr Geremeyev, to more senior Chechen military and political
officials. Specific requests were made for interviews to be conducted
with Mr Geremeyev; Vakha Geremeyev, head of the Shelkovskiy District
Police Department in Chechnya, of which Mr Eskerkhanov was a member;
Artur Geremeyev, who was caught on video in the company of the killers
at a flat owned by him that they used; Aslanbek Khatayev, a member
of the Shelkovskiy District Police who met the killers at a hotel
in Moscow the day before the murder; Shamkhan Tazabayev, former
head of the Chechen riot police, whom investigators had identified
as being of interest but who was never interrogated; Alibek Delimkhanov,
Commander of the Sever battalion,
who had signed a permit allowing his immediate subordinate Dadayev
to carry small arms to Moscow from September 2014 onwards; Adam
Delimkhanov, Alibek’s brother, a member of the Russian Duma and
one of Ramzan Kadyrov’s closest confidants; Suleyman Geremeyev, uncle
of Ruslan and brother of Vakha, and a representative of Chechnya
on the Russian Federation Council, who had earlier stayed in a Moscow
hotel room for which a keycard was found in the flat owned by Artur Geremeyev;
Victor Zolotov, Commander-in-Chief of Russian Ministry of the Interior
troops, of which the Sever battalion
forms a part, who had close connections with Chechnya and its head,
and with President Putin; and Ramzan Kadyrov, head of the Chechen
Republic, who had in the past made death threats against Mr Nemtsov as
an “enemy of Russia”, and who publicly praised Mr Dadayev as a “true
patriot” in the days after the murder. These applications were based
on public information and evidence from the case-files, all of which
was known to the investigators. Apart from those concerning Alibek
Delimkhanov, all of the family’s lawyers’ applications and appeals
were dismissed.
27. There were serious problems with the evidence given by several
key witnesses:
- Mr Dadayev,
in his initial statements, said that he had taken the gun out with
his right hand but then transferred it to his left hand, with which
he fired, since he was left-handed. At trial he asserted that he was
right-handed and produced photographs and witnesses to prove it;
- Mr Dadayev retracted his confession, stating that it had
been obtained under torture and made in order to secure the release
of an associate, who had family (unlike Mr Dadayev). Andrei Babushkin,
a representative of the Moscow Public Monitoring Commission, a human
rights body, visited Mr Dadayev and others in detention and recorded
“multiple wounds” on Mr Dadayev’s body;
- Mr Babushkin also recorded injuries to the nose, wrists
and legs of Anzor Gubashev (the driver of the getaway car). Although
Mr Gubashev did not complain of ill-treatment at the time, his younger
brother, who was also detained, said that Anzor had been beaten
and forced to confess. Anzor Gubashev later retracted his confession,
stating that he had indeed been tortured;
- in May 2017, the prosecution unexpectedly produced Sergei
Budnikov, the driver of the garbage truck, and Evgeniy Molodykh,
an eye-witness, in court, having previously asserted that they could
not be located;
- Mr Molodykh had told investigators that he only saw the
shooter from behind, in the dark, and did not see his face, and
that he would probably not be able to identify him. During the trial,
however, he said that he had seen the shooter in profile and that
he had stubble on his face. He also made a court-room identification
of Mr Dadayev as “looking like” the shooter;
- Mr Molodykh also gave inconsistent statements concerning
whether Mr Nemtsov’s companion, Ms Duritskaya, was present when
he approached the body; how many people Ms Duritskaya spoke to at
the garbage truck; and the presence of two women near the crime
scene, mentioned in his second statement but never traced. Mr Molodykh’s
second statement was taken in the middle of the night, a day after
the murder, shortly after TVTs released its video;
- a witness who had cleaned the Moscow apartment where the
defendants had stayed was unable to identify them to investigators
but did so at trial. Her explanation was that she had previously
been afraid to do so;
- a witness who had sold the getaway car had been unable
to identify the person who bought it from him when questioned by
investigators but during the trial said that he could do so;
- Ms Duritskaya was taken away from the scene by the police
but not allowed to see a lawyer until the following day, nor the
Ukrainian consul until two days after that. Her witness statement
was on several points not consistent with other testimony: she stated
that Mr Nemtsov had been shot from a passing car; she said that
Mr Budnikov had refused to call the police from her phone, whereas
he described in detail how he had; and she did not mention the two
people who can be seen on the TVTs video who approached, spoke to
then led her away from the garbage truck, to which she had gone
following the shooting, and towards the staircase leading down from
the bridge. Ms Duritskaya declined to sign the statement that investigators
drew up for her.
5.3 Issues
concerning the conduct of the investigation and the prosecution
case
28. Various aspects of the investigation
and the prosecution case presented appear implausible or even impossible.
For example:
- the TVTs video
appears to show two people approaching Ms Duritskaya, speaking to
her and leading her away towards the staircase leading down from
the bridge. After this happened, a man approached Mr Nemtsov’s prone
body and stood over it. Ms Duritskaya’s statement does not mention
these two people (see further above);
- before the date on which investigators said they were
first examined, Russian media reported information on the bullet
casings, consistent with the evidence given at trial;
- before the dates on which the photos appeared in the case
files, Russian media reported that photographs of suspects had been
obtained, showing that they were probably from the southern regions of
the Russian Federation;
- the suspects were detained on 5 and 6 March, yet the information
by which they were supposedly identified seems not to have been
analysed until later, including mobile phone data from the bridge
at the time of the murder, video recordings from the GUM store where
Mr Nemtsov had been before crossing the bridge, and video from the
location at which the getaway car was abandoned and later recovered;
- the police stated that they located and seized the getaway
car on 28 February 2015 and towed it away on 1 March, yet the car
was identified driving at different locations in Moscow on 5, 6
and 13 March. The FSB’s explanation was that the subsequent identifications
related to the car as it was being towed away;
- evidence relating to the car was weak in general: there
was inconsistent witness testimony on the car, including its likely
model and colour; no witness testimony on its registration number;
no video identifying it on the bridge, just images showing four
similar cars leaving the bridge together; and inconsistent evidence
on its use to conduct surveillance of Mr Nemtsov in the months prior
to the murder;
- there was no explanation as to why Mr Budnikov, driver
of the garbage truck, drove away after the police had been called
but before they arrived, leaving Ms Duritskaya alone with the body;
- there was no explanation as to why the killers would leave
a mobile phone at the Moscow apartment when they had supposedly
taken the trouble to dispose of clothing and the gun;
- there was no explanation as to how Mr Mukhudinov, an army
driver, obtained 15 million roubles to pay for the murder;
- there was no evidential basis for the alleged motive of
revenge for comments Mr Nemtsov had made defending freedom of speech
in the case of the Charlie Hebdo cartoons
of Mohammad. Indeed, the prosecution asserted that the car used
in the getaway had been following Mr Nemtsov two months before he
even made these comments and had been purchased one month before
that.
29. As a prominent opposition politician and critic of the government,
involved in organising an imminent, major opposition demonstration
and about to publish a report on Russia’s then-secret military intervention
in Ukraine, it seems unlikely that Mr Nemtsov was under no form
of surveillance by the Russian security services. If so, one would
ask why this surveillance had not revealed that other parties were
following Nemtsov, especially if this had been continuing since
the previous autumn. If they had been aware of this, one must also ask
why the security services did not intervene.
30. Nemtsov’s killers were charged with the crime of ordinary
murder under Article 105 of the Russian Criminal Code (and with
illegal possession of a firearm). Article 277 of the Criminal Code
establishes an aggravated offence of attack on the life of a State
or public figure and is not subject to any statute of limitations. Mr Nemtsov
was not only a leading opposition politician and member of the Yaroslavl
regional parliament at the time of his death, playing a leading
role in organising opposition political activities in the days before
his death, but had formerly been a first deputy prime minister,
deputy speaker of the State Duma and regional governor. Prosecution
for the aggravated offence would thus have been fully justified.
The Nemtsov family’s lawyers’ requests that the offence be reclassified
accordingly were rejected by the trial court, on the basis that “it
has been established beyond reasonable doubt during the investigation
that the murder of Mr Nemtsov was not linked to his political or
social activities. Hence there is no reason to bring charges under
Article 277”. This reasoning is difficult to understand; of all
the various explanations put forward for the murder, only the most absurd
– that it was linked to his private life – suggests no connection
with his political activities. The Supreme Court’s decision on Ms Nemtsova’s
appeal concluded that since the sole purpose of the murder was a
“contract killing”, the request to reclassify the offence under
Article 277 and remit the case to the prosecutor was “untenable”.
31. Other circumstances surrounding the investigation and trial
add to the impression of reluctance on the part of the authorities
to extend the case beyond those immediately responsible for the
killing and to identify the masterminds behind it. The case against
the purported organiser, Mukhudinov, for example, along with that of
other “unidentified individuals” who offered payment to the defendants,
was severed from the rest of trial of the others. With the whereabouts
of Geremeyev unknown and Shavanov dead, this effectively cut the investigation
of possible links between the defendants and higher levels of authority
in the Chechen Republic.
5.4 Issues
concerning the conduct of the trial
32. There were numerous irregularities
in the judge’s conduct of the trial. For example:
- in November 2016, the judge,
supported by the prosecution, attempted to impose a new, additional lawyer
on Mr Bakhaev. Mr Bakhaev and his existing lawyer, Zaurbek Sadakhanov,
stated that this was unnecessary, and even the new lawyer said that
her participation would be impossible if Mr Bakhaev did not want
it. The judge nevertheless appointed the new lawyer as Mr Bakhaev’s
second representative. The new lawyer was permitted to withdraw
only when it became apparent that the time needed for her to acquaint
herself with the evidence would delay proceedings by up to a month;
- in December 2016, Mr Sadakhanov applied to the court for
permission to interrogate President Putin. A week later, he was
accosted in public by a man who threatened to kill him. In February
2017, his car tyres were slashed; two days later, his car was broken
into and his copy of the case files, recordings of the hearings
and personal documents stolen. In July 2017, he was physically assaulted
by several people who referred to his request to question President
Putin;
- one of the jurors, Aleksandra Karaseva, an academic historian
who had twice previously served as a juror, was highly critical
of the attitude of the judge towards the prosecution and the defence. Ms Karaseva
described how the judge “played up to the prosecution, placing the
[defence] attorneys in an inferior position”. This included allowing
the prosecutor to present evidence discrediting the defendants which
should have been inadmissible, such as photographs of them smoking
marijuana, and to interrupt the defence when presenting evidence;
and joining the prosecutor in interrupting the closing speeches
of the defence;
- in March 2017, the judge removed Ms Karaseva from the
jury on the grounds that she had represented someone in a labour
dispute (lawyers are prohibited from serving on Russian juries,
although Ms Karaseva was not a lawyer). Ms Karaseva believes that
her removal was linked to her having repeatedly asked to see evidence
of mobile phone conversations of one of the accused;
- the judge removed another juror from the case for having
stated her view of the defendants’ guilt to other jurors – although
other jurors said that she was far from the only one to have done
so;
- the judge also removed other jurors: one who reported
that he had been approached by a relative of one of the defendants,
but said that this would not influence his objectivity; and two
more right at the end of the trial, one because she had not disclosed
that her husband had a conviction, the other because of an anonymous
report that she had shown evidence to colleagues.
6 Alternative
theories of the case
33. These various concerns have
led to alternative theories of the case being advanced. As noted
above, Mr Nemtsov’s family lawyers are convinced that the killers
could not and would not have acted without at least the knowledge
and approval of their hierarchical superiors in Chechnya. Indeed,
this, combined with the lack of any convincing motive on the part
of Mr Mukhudinov, gives rise to a strong suspicion that the murder
had in fact been ordered by hierarchical superiors, possibly even
by Mr Kadyrov himself, who may have felt motivated to eradicate
a source of personal annoyance and political danger to his patron
and protector, President Putin.
34. The theory of the Nemtsov family’s lawyer is supported by
evidence from various sources of threats to Mr Nemtsov’s life. In
October 2018, Akhmed Zakayev, an eminent Chechen political figure
in exile, gave a sworn statement in which he said how in February
2012, he had received information from sources in Chechnya whom
he considered completely reliable concerning a plan by “senior officials
of Russia” to kill Mr Nemtsov. Mr Zakayev believed that President
Putin did not put the plan into effect at the time as he still hoped
to improve relations with western countries. After 2014, this was
clearly no longer possible, and the plan was reactivated. In March
2018, Andrey Piontkovskiy, a former political associate of Mr Nemtsov,
gave a statement concerning his presence at a February 2012 meeting
in Oslo where Mr Zakayev informed Mr Nemtsov of the plot, confirming
what had been said. It can be recalled that President Putin awarded Mr Kadyrov
the Order of Honour on 9 March 2015, one day after Mr Kadyrov praised
Mr Dadayev as a “true patriot” the day after Mr Dadayev was arrested.
35. On 30 November 2018, Mr Prokhorov forwarded the statements
of Mr Zakayev and Mr Piontkovskiy to the Russian Investigative Committee
with a request to take further investigative action on the information
they contained. On 7 December 2018, the Investigative Committee
rejected the request, describing the statements as being “based
on conjectures and speculations” and not offering “any further details
of the criminal offence committed against Mr. Nemtsov, or any specific
information demonstrating that the individuals specified in the interview
records were implicated in his killing.” Interrogation of Mr Zakayev
or Mr Piontkovskiy would thus “not … be sufficient to establish
any facts on the basis of which the investigator would be able to
establish the existence or non-existence of facts to be proved in
criminal proceedings, or any other relevant facts”.
36. The Nemtsov family’s theory is in many ways more consistent
with the evidence and the overall circumstances of the case than
that presented by the prosecution and reflected in the convictions.
Given the situation in Chechnya, the way in which it is governed
and the close family and professional connections between the killers
and senior Chechen officials, it seems extremely unlikely that the
defendants would have travelled to Moscow to kill a high-profile
public figure in front of the Kremlin without direct instructions
from other, more powerful persons. The official explanation that
persons intimately connected with Chechen power structures committed
such an audacious and risky act merely in return for payment by
a driver is hard to believe. Furthermore, in some cases, apart from
the various close personal and professional connections between
the persons implicated by the Nemtsov family, there was damning
material evidence linking them to the killers’ preparatory movements
in Moscow – evidence of which the investigators were aware.
37. At the same time, it would be astonishing – and surely a matter
of grave concern for the Russian authorities – that a group of armed
men, closely connected to the Chechen security forces and political authorities,
can have even considered murdering a prominent public figure at
the very gates of the Kremlin, the heart of Russian Government.
The apparent reluctance of the investigation to explore all possible
avenues of responsibility for the murder is thus all the more surprising.
38. Other commentators have proposed different theories, attempting
to account for important evidence that was effectively ignored in
the official account. These theories find particularly significant
the following matters:
- the
presence of the two people/women who led Ms Duritskaya away from
Mr Nemtsov’s body at the time when Mr Molodykh approached, and the
fact that these two people were never traced or questioned;
- the actions of Mr Molodykh and his inconsistent evidence,
which changed when the TVTs video became publicly available;
- the implausible absence of much of the expected video
evidence from State sources, including the FSO, responsible for
security in and around the Kremlin yet apparently without any cameras
directed at a principal entrance route;
- the lack of detailed analysis of much of the available
video evidence;
- the inadequate treatment of the crime scene, which failed
to record important information on the location of bullets and casings;
- the inconsistencies in the forensic evidence concerning
the bullets, shell casings and Mr Nemtsov’s injuries, and the suggestion
that he was shot with bullets fired from two different guns.
39. In order to account for these matters, it has been suggested
that two guns, in the hands of two different people, were used to
shoot Mr Nemtsov. The second shooter was Mr Molodykh, who intervened
to “finish off” Mr Nemtsov, possibly after Mr Dadayev’s gun misfired.
Analysis of dashcam video is said to show Mr Molodykh in the process
of firing these shots.
40. The role played by other, non-Chechen parties, is said to
be FSB involvement. This would explain the absence of FSO videos
and the fact that the Chechens were arrested before the evidence
by which they were identified had been examined by the official
investigators. Instead, there was a parallel (or even prior) FSB investigation,
intended to climb the hierarchical chain in Chechnya in order to
implicate Mr Kadyrov. This would explain why the FSB announced the
arrests. The FSB, or at least a faction thereof, are said to have
been motivated by a desire to discredit Mr Kadyrov and end his regime,
the installation of which, following the second Chechen War, they
considered to have deprived them of the possibility of final victory.
Only the personal intervention of President Putin himself put a
stop to the FSB’s efforts.
41. The most radical theory denies that the convicted Chechens
were involved at all, dismissing evidence from the bridge as utterly
inconclusive and other evidence as fabricated. Instead, the murder
was a large-scale FSB operation on and around the bridge, involving
the two untraced women and the driver of the garbage truck (amongst
many others).
7 Conclusions
and recommendations
42. It is regrettable that the
Russian authorities chose not to co-operate with the preparation
of this report. I would like to have asked for their explanations
of the flaws in the investigation, trial and verdict. I would like
to have ascertained their views on the alternative theories. The
absence of this input has not, however, prevented me from reaching
conclusions.
43. Taken as a whole, the available evidence shows that the Russian
authorities did not investigate the murder thoroughly, effectively
and in good faith. Too much evidence was either not obtained, not
properly analysed or not consistent with the prosecution case and
the result of the trial. Too many explanations for omissions and
inconsistencies were implausible. Too many reasonable requests,
from lawyers for both the defendants and the Nemtsov family, were
unreasonably rejected. Too much preference was shown to the prosecution
during trial, and too much hostility towards the defence. The refusal
to recognise murder as a political killing was unjustifiable. The
decision to artificially limit the case to those immediately responsible seems
designed to prevent public inquiry into who might have ordered the
killing.
44. In order to ensure an effective investigation of the full
circumstances of the murder, including identification of those who
ordered it, the Russian authorities should take a series of measures,
as detailed in the draft resolution. Mr Nemtsov’s murder was an
event of international significance and the governments of all Council
of Europe member States should take every opportunity to remind
the Russian authorities of the need to identify and prosecute all
those involved, including the organisers and instigators.
45. On 16 May 2019, the US Department of the Treasury imposed
Magnitsky Act sanctions on Ruslan Geremeyev for “acting as an agent
of or on behalf of Head of Chechen Republic Ramzan Kadyrov in a
matter relating to extrajudicial killings, torture, or other gross
violations of internationally recognized human rights”, noting that
“Russian investigators twice tried to bring charges against Geremeyev
as the possible organizer of Boris Nemtsov’s murder, but were blocked
by the head of the Investigations Committee”.
Note Those member States that have introduced
“Magnitsky laws” permitting targeted sanctions in response to serious
human rights violations, as supported by the Parliamentary Assembly
in
Resolution 2252 (2019) “Sergei Magnitsky and beyond – fighting impunity by
targeted sanctions”, should consider applying such sanctions on
persons implicated in the murder of Mr Nemtsov, as well as those
responsible for the failures to fully investigate it, reflecting
the clear lack of political will involved.