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Cite as: [2010] ECHR 589
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
|
Application no. 18299/03 |
Application no. 27311/03 |
The European Court of Human Rights (First Section), sitting on 18 March 2010 as a Chamber composed of:
Christos
Rozakis,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and
Søren Nielsen, Section Registrar,
Having regard to the collective applications lodged on 26 April 2003 (Finogenov and Others v. Russia, no. 18299/03, hereinafter Finogenov and Others), and on 18 August 2003 (Chernetsova and Others v. Russia, no. 27311/03, hereinafter Chernetsova and Others),
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the comments submitted within the proceedings in the case of Finogenov and Others by Interights,
Having deliberated, decides as follows:
THE FACTS
1. The applicants in the above two cases, listed in the appendix, are relatives of the victims of the hostage-taking in the “Dubrovka” theatre in October 2002 in Moscow. Some of them were also personally among the hostages. The applicants in the first application are represented before the Court by Ms K. Moskalenko and Ms O. Mikhaylova, lawyers practising in Moscow. The applicants in the second application are represented before the Court by Mr Trunov and Ms Ayvar, lawyers practising in Moscow.
2. The respondent Government were represented in both cases by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
3. The facts of the above two cases are disputed between the parties. Their submissions may be summarised as follows.
1. Hostage-taking
4. On the evening of 23 October 2002 a group of terrorists belonging to the Chechen separatist movement (over 40 people), led by Mr B., armed with machine-guns and explosives, took hostages in the “Dubrovka” theatre in Moscow (also known as the “Nord-Ost” theatre, from the name of a musical comedy which was formerly performed there). For three days more than nine hundred people were held at gunpoint in the theatre’s auditorium. In addition, the theatre building was booby-trapped and eighteen suicide bombers were positioned in the hall among the hostages. Another group of terrorists occupied the theatre’s administrative premises.
5. Over the following days several journalists and public figures were allowed to enter the building and talk to the terrorists. The terrorists demanded the withdrawal of Russian troops from the Chechen Republic and direct negotiations involving the political leadership of the federal authorities and the separatist movement. As a result of negotiations, the authorities persuaded the terrorists to release several of the hostages. However, the terrorists refused to surrender or to accept food or drinking water for the remaining hostages, while continuing to insist on their demands.
6. It appears that some of the hostages managed to maintain occasional contact with the outside world through their mobile telephones. Some even managed to talk to journalists.
7. The Government claimed that hostages who tried to escape or resist were shot by the terrorists. Thus, in the night of 23-24 October 2002 Ms R. asked the terrorists to release the hostages. She was taken out of the auditorium and executed by an unknown terrorist. Mr Vl., one of the hostages, was wearing a military uniform. He was shot by one of the terrorists on 25 October 2002. On the same day Mr V. was first beaten by the terrorists in the theatre auditorium and then taken out and executed. Mr G., who witnessed this, tried to escape, but the terrorists fired and wounded him, and he was then taken out, beaten and executed. While firing at Mr V., the terrorists wounded another hostage, Mr Z., who later died in hospital.
8. The applicants indicated that Mr V., Mr Vl. and Ms R. had not been in the building during the show, but entered it sometime later at their own initiative. They referred to the statements by several former hostages, in particular Ms Gubareva and Ms Akimova.
9. On 25 October 2002 FSB officers apprehended Mr Talkhigov, an alleged accomplice of the terrorists, who had spoken to them by telephone and had given them information about the situation outside the theatre.
10. On the same day the director of the FSB made a public statement on television following a meeting with President Putin. He promised to keep the terrorists alive if they released the hostages.
2. Preliminary plan of the rescue operation
11. Shorty afterwards the authorities created a “crisis cell” under the command of Mr P., the deputy head of the Federal Security Service (“the FSB”). The crisis cell was located in the premises of War Veterans Hospital no. 1, situated in the vicinity of the theatre building. It included representatives of various State services and organisations.
12. As follows from the materials submitted by the parties, the Federal Rescue Service was responsible for the evacuation of the hostages and for clearing away rubble if the building collapsed. From 24 October 2004 several teams of rescue workers were stationed in the vicinity of the theatre building. The Rescue Service placed various heavy machines, such as bulldozers, excavators, cranes, dump trucks, etc., about 400 metres from the theatre building.
13. The Moscow Centre for Urgent Medical Treatment (MCUMT), and the All-Russia Centre of Disaster Medicine (Zashchita) at the Ministry of Health of the Russian Federation were in charge of medical assistance to the hostages and their relatives. Mr Sl., the Head of the Public Health Department of the City of Moscow and a member of the crisis cell, coordinated the efforts of the MCUMT, Zashchita, ambulance teams, and city hospitals.
14. From 24 October 2002 five ambulances and one brigade of MCMUT medics with a special medical bus were permanently on duty near the theatre. Another brigade of MCUMT medics and psychologists provided aid to the relatives of the hostages in the building of Professional School no. 194. The MCUMT was functioning in crisis mode, so all of its workers were permanently on duty.
15. The patients of the War Veterans Hospital (the medical facility closest to the theatre) were re-located to other hospitals, which were not supposed to take part in the rescue operation. The staff of the War Veterans Hospital was reinforced with surgeons and emergency physicians from the Sklifosovskiy and Botkin Hospitals. Two additional reanimation and six surgery blocks were made available. By 26 October 2002 the admission capacity of the War Veterans Hospital had been increased to 300-350 beds.
16. The authorities designated several other hospitals which would admit the hostages initially. Besides War Veterans Hospital no. 1 (the closest), those were City Hospitals nos. 1, 7, 13 (the next closest hospitals), City Hospitals nos. 15, 23, 33, 53, 64, 68, 79, the Research Institute of Emergency Medical Treatment, the Sklifosovskiy and Botkin Hospitals, and Children’s Hospitals nos. 9, 13, and 20. Between 24 and 26 October 2002 Mr Ev., the Chief Emergency Physician of Moscow City, visited some of those hospitals and checked whether they were ready to admit hostages. The hospital officials were required to free up wards for the hostages, to ensure that the hospital staff were ready to arrive at short notice, and that additional equipment, emergency treatment rooms and medical supplies and bandages were prepared. The admission capacity of most of the hospitals was increased. Thus, Hospital no. 13 reported that it was prepared to admit up to 150 patients, including 50 in a critical state. Hospital no. 7 reported that it was prepared to admit up to 200 patients. There is no information about the admission capacity of other hospitals, but it appears that it too was increased. The MCUMT brigades were informed which hospitals were designated to participate in the rescue operation, and how many places they would have available for the hostages.
3. Storming and the rescue operation
17. In the early morning of 26 October 2002, at about 5-5.30 a.m., the Russian security forces pumped an unknown gas into the main auditorium through the building’s ventilation system. When the terrorists controlling the explosive devices and the suicide bombers in the auditorium lost consciousness under the influence of the gas, the special squad stormed the building. The suicide bombers were shot while unconscious; others tried to resist but were killed in the ensuing gunfire.
18. Soon afterwards Mr Ign., a member of the crisis cell with responsibility for public relations, made a statement to the press. He informed the journalists that the terrorists had executed two hostages and wounded several more and that, in response, the special squad had stormed the building and killed some terrorists and arrested others. He did not mention the use of the gas.
19. As a result of the operation the majority of the hostages were released (over 730 people1). However, a large number of hostages were affected by the gas; according to information gathered by the investigative authorities by the end of 20022, 129 hostages died: 102 died on the spot, including 3 people who were shot, 21 died in the course of evacuation and transportation to hospital, and 6 people died in the emergency rooms of various hospitals. Many of those who survived continue to suffer from serious health problems. For instance, one of the applicants, Ms Gubareva, who was amongst the hostages, was taken unconscious to the intensive therapy unit of City Hospital no. 7, where she underwent treatment until 28 October 2002. A week later she was hospitalised again. The applicants submitted medical records in respect of several former hostages from hospitals where they underwent medical treatment after their release.
20. The applicants alleged that the evacuation of hostages from the theatre building had been chaotic: the semi-naked bodies of unconscious hostages were piled up on the ground outside the building, where the temperature was 1.8ºC3. Some of them died simply because they were laid on their backs and subsequently suffocated on their own vomit or because their tongues were blocking their airways. According to the applicants, there were not enough ambulances, so the hostages were transported to hospitals in ordinary city buses without the accompaniment of medical staff and without any assistance from traffic police to facilitate their quick arrival at the hospitals. The medical staff in the hospitals were not equipped to receive so many victims, had not been informed of the properties of the narcotic gas used by the security forces and did not have appropriate equipment. In the first days after the events no information was provided about the number of victims, their names and the places where they had been taken. The victims’ relatives had to call the city morgues to find out where the corpses were being kept.
21. The authorities disputed that view. They argued (see below, the conclusions of the official investigation) that the medical assistance to the victims had been adequate, that the medics and rescue workers had had the necessary information, medicine and equipment to provide initial medical aid to the victims, that the evacuation of those hostages affected by the gas from the theatre building and their transportation to hospital had been quick and well-organised, that the hospitals had been equipped to admit them, and that, in general, the rescue operation had been conducted in the most efficient manner possible in the circumstances.
22. In the aftermath of the events of 23-26 October 2002 the Moscow City Administration paid the victims of the terrorist attack “compassionate compensation”: the survivors received 50,000 Russian roubles (RUB) and the relatives of the deceased hostages received RUB 100,000. In addition, the City Administration covered certain funeral expenses and paid a certain amount for the property lost during the rescue operation.
4. The criminal investigation
23. On 23 October 2002 the Moscow City Prosecutor’s Office (“the MCPO”) opened a criminal investigation into the events of 23 26 October 2002. The case was attributed no. 229133. The prosecution qualified the facts as “a terrorist attack” and “hostage-taking”.
24. On 24 October 2002 the MCPO formed an investigation team which included officials working in the Prosecutor’s Office, the FSB, and the Ministry of the Interior (police). The investigation team was headed by investigator K. from the MCPO. On the same day a judge of the Lefortovo District Court, at the request of the investigator, ordered the wiretapping of a telephone line which had allegedly been used by an accomplice to the terrorists. Also on the same day, a judge of the Moscow City Court authorised the wiretapping of a number of other telephone lines allegedly used by the terrorists.
25. On various dates in 2002-2003 the applicants (as well as the relatives of other victims) were given the status of injured parties. In that capacity they obtained access to the materials of the case file. Despite their requests, however, they were not allowed to make copies of the materials in the case file or to disclose their content to third persons, including independent medical experts. Furthermore, the applicants were not allowed to contact the experts who had examined the bodies.
26. On 17 December 2002 investigator K. requested the MCPO to extend the time-limit for the investigation in case no. 29133. The request contained a further action plan for the investigative team; the plan included measures to obtain further details of the terrorist attack itself, an examination of the explosives and the bodies of the deceased hostages, identification of the terrorists, and so on. The plan did not include consideration of the rescue operation as such.
27. The Government produced documents from case no. 229133. It is unclear whether these documents constitute the entirety of the materials in the case file or only parts of it. The documents include witness statements by those who participated in the negotiations with the terrorists; witness statements from several former hostages; witness statements from the officials of the public health service and rescue service who were involved in the rescue operation; witness statements from the head doctors of the hospitals which admitted the former hostages; witness statements from the field personnel directly involved in the evacuation of and medical assistance to the hostages (rescue workers, medics of MCUMT, medics from the ambulances, medics in the city hospitals). The questioning was carried out by investigators from the Ministry of the Interior, the MCPO and the FSB. The Government also produced a report on the examination of the explosive devices used by the terrorists, a report by the Public Health Department on the organisation of medical aid to the hostages, a summary of the medical records of the deceased hostages, results of forensic medical examinations of the deceased hostages, copies of official correspondence and decisions by the investigative bodies, and some other documentary evidence. The documents produced by the Government, in so far as relevant and readable, are summarised below.
(a) Witness statements by the negotiators
28. Mr Asl., a Duma Deputy and an ethnic Chechen, testified that he had spoken with the terrorists in the theatre building. According to Mr Asl.’s testimony, the leader of the terrorists told him that he was prepared to die; he was very nervous and was not open to dialogue.
29. Mr Yastr., another State official, testified that Mr B., the leader of the terrorists, had proposed to the authorities that several hostages be released in exchange for a partial withdrawal of Russian troops from Chechnya. He had also requested that the relatives of the victims organise a public march on Red Square in support of the withdrawal of the Russian troops. He had further requested that the federal authorities appoint a representative for talks with the separatists, someone who would be entitled to take political decisions. Among such persons he had named Mr Kz., the former commander of the federal troops in Chechnya.
30. Mr Yav., a Duma Deputy, testified that the terrorists had initially demanded the immediate withdrawal of Russian Federation troops from Chechnya, but they had then put forward other demands with regard to the federal forces, namely that the latter stop using artillery and air raids and cease “clean-up operations”, and that direct telephone negotiations between President Putin and Mr Maskhadov, the president of the separatist government, be organised. The terrorists had told Mr Yav. that they were prepared to die, and that they knew that they would not leave the city alive. Mr Yav. understood that if the requirements of the terrorists were not met, they would have been prepared to start executing the hostages.
31. Ms Plt., a journalist, testified that “Abu-Bakr” (another leader of the terrorists) put forward the following demands: the withdrawal of federal troops from any district of the Chechen Republic, and a public statement by President Putin that he would stop the hostilities. The terrorists had agreed to accept food and water; some time afterwards food and water had been supplied.
(b) Witness statements by former hostages
32. The investigators questioned 737 former hostages about the situation in the main auditorium of the theatre where they had been held. The materials of the case file contain a memo prepared by the investigator recapitulating their testimonies. In addition, the parties produced several full-text written testimonies by the former hostages. These documents, to the extent that they are relevant, can be summarised as follows.
33. Most of the hostages testified that there had been about 40-60 terrorists in the theatre building. Initially the terrorists allowed those hostages who had mobile phones to call their relatives and ask them to hold a “peace rally” against the war in Chechnya and require the Government not to storm the building. Later the terrorists confiscated the mobile phones, under threat of execution.
34. On 25 October 2002 one of the hostages, a young man, tried to escape from the auditorium and started to run; the terrorists fired at him, wounding him in the head, took him outside and executed him. While shooting at the escapee, the terrorists seriously wounded another person. At a certain point one of the leaders of the terrorists ordered the shooting of another person whom he considered to be an agent of the security forces, and who had penetrated the building from the outside.
35. It is clear from the witness statements that most of them took the terrorists’ threats seriously. Some of them, however, noted that they feared storming by the security forces more than the terrorists themselves.
36. When the gas penetrated the auditorium Mr B. (the leader of the terrorists) ordered that the windows be smashed for better ventilation. Those terrorists who were on the scene started to shoot around; they appeared to be aiming at the windows. The women terrorists sitting among the public did not try to blow up the explosives; they covered their faces with handkerchiefs and lay on the floor with the hostages. In 10 minutes most of the people in the auditorium were unconscious.
(c) Examination of the explosive devices
37. On 19 November 2002 the investigator commissioned an expert report on various technical aspects of the terrorist attack. In particular, the investigator sought to establish the destructive capacity of the explosives planted by the terrorists in the building. The examination was entrusted to FSB experts. The experts established that the terrorists had had about 76 kilos of various explosives (in TNT equivalent)1; that the latter’s simultaneous detonation would have killed or seriously injured most of the hostages in the auditorium through the blasts or shrapnel, but that it had been unlikely that the detonation would have led to the collapse of the entire building. The position of the stationary explosives and the placement of the “suicide bombers” within the auditorium guaranteed maximum efficiency in the case of detonation and showed the terrorists’ technical expertise.
(d) Report of the Public Health Department
38. On 20 November 2002 Mr Sl., the Head of the Public Health Department of the City of Moscow, submitted a report concerning the organisation of the evacuation of and medical assistance to the hostages. The report stated that 5 ambulances and 2 MCUMT teams had been dispatched to the scene immediately; in addition, city hospitals took measures to free places in preparation for the eventual arrival of hostages. At about 5.55 a.m. on 26 October 2002 458 medical emergency teams were sent to the site of the events. The hostages were evacuated by the rescue workers and the special squad officers in the “face-up” position. Coordination of the evacuation was ensured by the workers of the Zashchita (Protection) Centre of the Ministry of Health of the Russian Federation. The first 20 ambulance brigades arrived at the scene at 6.09-6.14 a.m.
39. In view of the victims’ symptoms, they were given injections of Nalaxone, an “antagonist of narcotic analgesics”. These injections were administered within the theatre building by the special squad officers. However, the efficiency of Nalaxone was low when applied to those who had been in a state of hypoxia for a long time. The rescue workers had been instructed to turn the victims face down if they showed signs of vomiting. There was sufficient Nalaxone available to the doctors, since it was part of the standard first-aid kit of an emergency team. Mr Sl. further testified that the majority of the hostages received an injection of Nalaxone inside the building. The injections had been administered by the officers of the special squad; the officers informed the medics which hostages had not received an injection; that group then received an injection from the medical emergency teams. The victims in a coma were transported in the ambulances; others were transported in city buses, but always accompanied by medics.
40. Most of the victims had been dispatched to War Veterans Hospital (no. 1) and City Hospital no. 13. The evacuation of 770 hostages had taken 1 hour and 15 minutes. Only 6 people died in hospital. 114 people were already dead on arrival at the hospitals. The report concluded that the efforts of the various services participating in the evacuation and medical assistance to the victims had been well coordinated, and that the evacuation operation had been efficient and adequate.
(e) Examination of medical records
41. On 27 November 2002 Ms Usm., one of the investigators, analysed the medical records of the surviving hostages and drew up a report containing information on the timing of the hostages’ arrival at various Moscow hospital. That report did not include statistics on the deceased hostages.
42. According to the report, on 26 October 2002 War Veterans Hospital no. 1 admitted 53 patients in the period between 6.30 and 7 a.m., 20 patients between 7 and 7.30 a.m., 10 patients between 7.30 and 8 a.m., and 6 patients after 8 a.m.
43. City Hospital no. 13 admitted 3 patients between 7.15 and 8 a.m. (two of them arrived “on their own”, one was brought in an ambulance); 213 patients arrived between 8 and 8.30 a.m. (153 arrived “on their own”, apparently in buses; 60 – in ambulances); between 8.30 and 9 a.m. the hospital admitted 21 patients (10 arrived in ambulances); between 9 and 9.30 a.m. the hospital admitted 27 patients (9 arrived in ambulances); between 9.30 and 10 a.m. the hospital admitted 20 patients (1 arrived in an ambulance); and after 10 a.m. the hospital admitted 45 patients (1 arrived in an ambulance).
44. City Hospital no. 7 admitted 8 patients between 7 and 8 a.m. (all brought in ambulances); 16 patients between 8 and 8.30 a.m. (6 were brought in ambulances); 13 patients arrived between 8.30 and 9 a.m. (5 were brought in ambulances), 8 arrived between 9 and 9.30 a.m. (2 were brought in ambulances); 15 arrived between 9.30 and 10 a.m. (1 was brought in an ambulance); and 17 arrived after 10 a.m.
45. City Hospital no. 1 admitted 9 patients between 7 and 8 a.m. (all were brought in ambulances), and 19 between 8.30 and 9 a.m. (12 in ambulances).
(f) Statements by public health officials and chief doctors
46. Witness Ev., the Chief Emergency Physician of the Moscow City, testified that as from 23 October 2002 he had been responsible for preparing War Veterans Hospital no. 1 to receive hostages. He had checked the staffing situation: the hospital had received support staff from other medical institutions, including surgeons and emergency physicians from the Sklifosovskiy Hospital. He had also verified the necessary equipment. Eight emergency operation tables had been prepared. On 24 and 25 October 2002 he had checked the readiness of City Hospitals nos. 7, 13 and 53. The two hospitals (nos. 7 and 13) had been prepared to admit up to 701 patients in a critical state. However, there was no decision as to the exact number of hostages to be dispatched to each hospital. He had learned about the storming of the building at 6 a.m. from the mass media. At 7.20 a.m. he arrived at the Sklifosovskiy Hospital, where he started to prepare additional emergency teams to be sent to the site of the events. At 10 a.m. he arrived at the War Veterans Hospital. By that time the victims had already been divided into several groups and the doctors had identified the most serious cases. He examined the victims personally; in most cases they were suffering from cardiac and respiratory insufficiency, aggravated by dehydration, “aeleontropic” (sic) disorder, a high level of ferments and “myoglobin”, and shock. He had learned from the mass media that the security forces had used gas. The victims had received, in the first place, artificial ventilation of lungs, cardiac support, etc. Two or three hours later he had left for Hospital no. 13, which had admitted a large number of the victims. As to the possible treatment, he testified that it had been difficult to prepare any antidote in advance, given the situation of the hostages at the time of the storming of the building. Nalaxone was a specific antidote for opiate drugs and was widely used from the beginning of the operation. The fact that the victims were suffering from opiate poisoning had been evident from their symptoms. However, the use of Nalaxone had not been effective, as it had not produced any tangible positive results.
47. Witness Ks., director of the MCUMT, stated that the information about the storming of the building was received by her on 26 October 2002 at 5.30 a.m. That information was immediately transmitted to several city hospitals. At 5.37 a.m. she received an order to mobilise 100 ambulances from the nearest medical emergency units. At 5.50 a.m. the MCUMT received information about the storming. The third MCUMT brigade (no. 6813) was ordered to move to the area near the theatre. That brigade was supposed to indicate the route for the ambulances. At 7.02 a.m. the third brigade received an order to approach the theatre building and to start the evacuation. The mass evacuation of hostages started at 7-7.05 a.m. in ambulances and city buses. The evacuation ended at 8.15 a.m. As a result of their training the emergency teams were well prepared for such situations, and they had all the necessary drugs, including Nalaxone. On the whole, the evacuation and medical assistance to the victims were well organised. Since there was a risk of explosion, it was impossible to treat the hostages near the building. The lack of information about the formula of the gas was irrelevant in the circumstances, and there had been no need to use military medics.
48. Witness N., another official from the MCUMT, testified that he had been on duty from 25 October 2002. He had not received any special briefing; however, he had information about the plan for evacuation of the hostages. On 26 October 2002 at 2 or 3 a.m. he had participated in the evacuation of two wounded people from the theatre building to the nearest hospital. At 5.45 a.m., after the beginning of the operation, he ordered that 20 ambulances be positioned a few blocks away from the theatre. At 6 a.m. he was informed that the building had been cleared of the terrorists and that the ambulances could start evacuation. They had arrived on site at 7.05 a.m. He had been responsible for placing the hostages in the city buses and dispatching them to the hospitals under the convoy of escort vehicles. The first examination had shown that the victims had suffered from gas poisoning; immediate assistance had consisted in removing the hostages from the building, opening their breathing passages, injecting Cardiomin and restoring normal heart and lung functions.
49. Witness Krt., the chief doctor of War Veterans Hospital no. 1 (which was the closest to the theatre) testified, inter alia, that on the eve of the storming they had received a machine for artificial lung ventilation. However, they anticipated that the hostages would have “traumatic injuries”. The hospital had had about 300-350 beds available, with a potential of 600 beds. The ground floor of the hospital had been allocated for emergency treatment, operating tables had been arranged and the doctors had prepared “materials for bleeding patients”. When the first victims started arriving at the hospital, it was unclear what had happened to them as most were unconscious. However, it was irrelevant whether or not there was information about the kind of the gas they had been exposed to.
50. Witness Skh, the chief emergency physician of City Hospital no. 1, testified that the first patients had been delivered to his hospital at 7.15 a.m. by ambulance. At about 8 a.m. a city bus had arrived with 32 victims. All of them had signs of acute respiratory insufficiency: they were unconscious, their external respiration was deficient and they had yellowish skin (cyanosis). The victims had been escorted by two uniformed men with machineguns, and a man in plain clothes with a video camera. The victims had been sitting or lying on the floor of the bus; bodies were piled on top of each other. Mr Skh. had taken five persons out of the bus himself; then other people had arrived and the people were taken into the hospital. Six out of the thirty-two were already dead. Mr Skh. described them.
51. Witness Ar., the chief doctor of Hospital no. 13, testified that on 26 October 2002 he had arrived at work at about 7.20 a.m. The first ambulance with the victims was already there. The main arrival of victims had been at 7.45 a.m., when about 47 ambulances, each carrying 2-3 people, and 5 buses with victims arrived at the hospital. It was later established that the hospital had admitted 356 former hostages, including 35 who had been in a state of clinical or biological death when they arrived at the hospital. 20 out of those 35 people had been at a stage where it was too late to carry out any reanimation procedures. In his opinion, it was immaterial whether the medics were informed about the gas used during the operation. He confirmed that there had been a stock of Nalaxone in the hospitals but it had been insufficient, so on 26 October 2002 they had received further supplies.
52. Witness Kz., chief emergency doctor of Hospital no. 13, testified that they had been prepared for the arrival of hostages; however, they had not been informed of any eventual diagnosis they might face. The victims who had arrived at his hospital had received artificial lung ventilation, oxygen masks, etc. The doctors had no information about the gas used by the security forces, but realised that the victims had been exposed to a narcotic gas and so decided to use Nalaxone as an antidote.
53. Witness Kn., the head of the emergency treatment unit of Hospital no. 13, testified that two of the hostages admitted to her hospital had been in a state of clinical death. At the same time, she noted that “there were no corpses” (in the buses transporting the victims).
54. Witness Af., the chief doctor at Hospital no. 7, stated that they had had enough staff to treat the hostages. They had not received any additional drugs as the hospital pharmacy had had sufficient amounts of medicine. The first ambulances had arrived at the hospital at about 7.15 a.m., and continued to arrive for about 45 minutes. People had been in a very weak state. 14 hostages had died, but it was hard to say whether the deaths had occurred during the transportation or after their admission to hospital. 30 minutes after the first ambulance arrived, a doctor on duty at the City Health Department had called him and said that “Nalaxone was on its way to the hospital”.
55. Witness Rm., the chief emergency physician at Hospital no. 7, testified that 50-70 minutes after the arrival of the first victims someone from the hospital’s administration office had told the medics that they should use Nalaxone. There had been about 40 dozes of the medicine in stock. 14 people died in the hospital within 30 minutes. 40 minutes later the hospital had received more Nalaxone. Nobody had died afterwards, except for one woman who had died 3 days later of a heart attack.
56. Witness Ks., the chief paramedic at Hospital no. 7, testified that on 26 October 2002 they had admitted 98 victims. All of the victims had been treated; the medical staff administered injections in their arms.
57. Witness Ksh., head of the toxicology unit at the Sklifosovskiy Hospital, testified that the victims had been transported to the hospital in ambulances. She had learned that the hostages were suffering from gas poisoning. The victims received ordinary treatment: they had not been subjected to any special procedures and the doctors had mainly tried to stop the hypoxia. Witness Ksh. also confirmed that the knowledge of the exact formula of the gas would not have helped the doctors. A statement in similar terms had been given by Mr Vd., an emergency toxicologist at the Sklifosovskiy Hospital.
(g) Statements by rescue workers
58. Witness Chz. was the head of the rescue service of the Moscow City Administration. He stated that he had participated in the planning of the rescue operation. However, he had not been informed of the possible use of gas; he instructed his staff to intervene in the event of an explosion. He stated that the evacuation of the hostages had been well-organised.
59. Witness Chs., another rescue service official, confirmed that the rescue workers had been expecting an explosion and had been equipped accordingly (bulldozers, cranes, etc). At 6 a.m. he received an order to start evacuation of the hostages. He had participated personally in the evacuation. They had carried victims face down in order to avoid suffocation by the tongue. On the way to the exit the medics gave injections to the victims, and the victims were then loaded into the buses. Mr Chs. also said that he had not known that gas had been used and had not smelled any gas in the building.
60. Witness Pt., a rescue worker, testified that he too had been unaware of the use of gas. He had also seen the medics giving injections to the hostages; he later learned that this was an antidote.
61. Witness Zhb., a rescue worker, also confirmed that he had not smelled gas when he entered the building. He also testified that the work of the special squad officers, rescue workers and the medics had been well-coordinated and that there had been no problem with the normal circulation of the buses.
62. The investigators questioned several other rescue workers. They testified that the victims had received injections on the spot, that the doctors’ actions had been properly coordinated and that there had been enough vehicles to bring the victims to the hospitals. Some stated that the victims had been transported face down. They all testified that they had not been informed about the use of the gas.
(h) Statements by ordinary doctors and paramedics
63. Witness Kr., a doctor from the MCUMT, testified that he had participated in the evacuation of the hostages. He had arrived at the scene at 7.02 a.m.; clinical examination of the victims had showed that they were suffering from poisoning by opiate drugs. The buses had been dispatched to various hospitals, and the victims who were in the most serious condition had been sent to the nearest hospitals.
64. Witness Vlk., another doctor from the MCUMT, noted that he had not received any information about the situation at the scene, that the ambulances had been used as escort vehicles for the city buses, and that on-the-spot coordination had been organised by the MCUMT people. There had been no appropriate place on the ground to sort the victims, and the circulation of the ambulances had been slow. The rescue workers and doctors had had to take into account the risk of an explosion and the overall complexity of the situation.
65. Witness A. entered the theatre building shortly after all the terrorists had been killed. He testified that he had seen special squad officers evacuating unconscious hostages from the auditorium to the ground outside the building. There the hostages had been placed on the ground near the entrance, where the doctors inspected their eyes with hand-torches and provided first aid, namely the administration of injections in the buttocks.
66. Witness Mkh., a doctor in the emergency treatment unit in Hospital no. 13, testified that when he approached the hospital at 7.45 a.m. he had seen the buses at the entrance. He also confirmed that he had not seen any corpses among the victims admitted to the hospital. He described the medical procedures he had used to unblock the victims’ airways.
67. Witness Zb., a doctor in Hospital no. 13, testified that she had arrived at work on 26 October 2002 at 8.05-8.10 a.m. By that time the buses with the hostages had already arrived. She had examined a number of patients; six of them were dead. The necessary records had been drawn up in the evening of that day, so the time of death had been indicated approximately, based on the time of the patient’s arrival at the hospital.
68. Several other doctors from Hospital no. 13 testified about the admission process for the victims and the treatment they had received (cardiac massage, lung ventilation, injections of Nalaxone and Cardiamine). Most of the doctors from the various city hospitals testified that there had been enough medical personnel to treat the hostages and that places had been freed up to admit hostages. The investigators showed the medics the photos of the victims for identification, and put questions about the record-keeping process on the day of the events.
69. Witness Bgr., a doctor from the War Veterans Hospital, stated that the first hostages had started to arrive at their hospital at about 6.30 a.m., mostly in ambulances. She learned from Ms Mkh., the chief emergency physician, that they were to use Nalaxone, but they had not had any Nalaxone in stock. However, they received supplies from an official of the Emergency Situations Ministry who arrived at the hospital with a plastic bag full of Nalaxone. Ms Bgr. testified that their hospital had had four machines for artificial lung ventilation. She said that if they had known about the use of the gas they would have tried to obtain additional equipment of that sort, and that the knowledge of the nature of the gas would have helped the doctors, although the treatment would probably have been the same.
70. Witness Kr, a doctor from the MCUMT, testified that when his team arrived at the theatre building, they saw that the special squad officers, firemen and rescue workers had already started evacuating people from the building. The victims had been placed in buses; each bus had an ambulance as an escort vehicle. Mr Kr. had dispatched two or three city buses to the hospitals. Those hostages who had been able to sit had been placed in the upright position (about 20 people in each bus); others had been put on the floor (about 10 or 12 people in each bus). The latter group had included several dead people. At a certain point Mr Sl., the Head of the Moscow City Public Health Department, informed him by walky-talky that they should use Nalaxone. Mr Kr. noted further that the evacuation of the hostages had been somehow hindered by the “absence of traffic routes for the vehicles”. At the same time he concluded that the overall organisation of the evacuation of the hostages had been satisfactory.
71. Witness Vl., a doctor from the MCUMT, testified that he had arrived at the theatre with his team at 7.13 a.m. According to Mr Vl., he had not had a predetermined procedure for action, but had organised the evacuation and coordination with other services “on the spot”. Not all of the buses which had transported the victims had a sufficient number of medical staff inside to accompany the victims. Some of the buses had only one paramedic. From his testimony it was unclear whether the buses had escort vehicles. Mr Vl. also noted difficulties in the circulation of the ambulances and the buses near the theatre. The efficiency of the medical assistance had been undermined by the lack of information about the gas used and by the risk of explosion.
72. The investigators also questioned the doctors who had worked in the nearest ambulance cells (ambulance stations) or at the scene of the events on 26 October 2002. Witness Pch., senior doctor in an ambulance cell, testified that she had not been at the scene of the events, but, in her opinion, the absence of information about the gas applied in the course of the operation had not adversely affected the efficiency of the medics working there: they had acted on the basis of “the clinical presentation (poisoning by an unknown gas and other acute conditions)”. It had been enough to perform “cardio- and lung-resuscitation operations” and apply antidotes, which had been at available to the doctors. She testified that there had been no problems with the circulation of the ambulances and buses. The presence of military medics had been unnecessary. A statement in similar terms was given by Ms Kr., another doctor from the ambulance cell.
73. Witness Fd., a doctor in another ambulance, testified that he had accompanied 40 victims in one of the city buses on their way to Hospital no. 13. Somebody from the MCUMT had given him 10 ampoules of Nalaxone and told him that he should give injections.
74. Witness Scht., a doctor in an ambulance, testified that necessary medical assistance had been rendered to the victims in a timely manner. He did not know who had been responsible for the oversight of the work of various ambulance teams on the spot. He also testified that the doctors had been unaware of the content of the gas, so they had been unable to apply any specific methods of treatment to the victims. Among the negative factors which had affected the efficiency of the rescue operation, Mr Scht. noted the transportation of the victims in the city buses, lack of information about the possible diagnosis and the gas used by the security forces, or at least about the pharmaceutical group it belonged to, and a failure to sort the victims on the basis of their medical condition.
75. Witness Fds., an ambulance doctor, testified that he had been in an ambulance located at the parking area near the building. His vehicle had transported two people to Hospital no. 7. They had not been informed about the use of the gas, and had not applied any special methods of treatment or any medicine. They had administered oxygen to the victims. Mr Fds. testified that there had been no problem with the circulation of the vehicles, but that there had been not enough medics to accompany the city buses which transported the hostages. The exact name of the gas had been irrelevant, but it would have been helpful if the doctors had known the content of the gas.
76. Witness Chr., an ambulance doctor, testified that when he had seen the first victims he realised that they were suffering from an overdose of opiates and applied Nalaxone, but had not applied any other special medicine. He stated that he had not known who was overseeing the actions of the medics at the scene. He also said, that, in his opinion, the lack of information about the gas used and possible antidotes played a negative role.
77. Witness Krg., a ambulance doctor, testified that at about 7.20 a.m. they had arrived at the theatre building, where their vehicle had waited for some time in the queue of other ambulances. When it was their turn to take a patient on board, somebody had opened the rear door and had placed two unconscious bodies inside the ambulance. Ms Krg. asked where she should deliver those people, but had received the reply: “Anywhere!”. She also asked who was responsible for the rescue operation, but the rescue workers had not known. Both victims had been in a state of grave narcotic intoxication; she had given them oxygen inhalations and lung ventilation.
78. Witness Sfr., an ambulance paramedic, testified that she had not been told where to transport the victims loaded in her ambulance by the rescue workers. She had to take the decision independently. She then decided to take them to Hospital no. 23, since she knew how to get there.
79. Witness Krl., who worked as a car dispatcher in the ambulance cell, testified that on 26 October 2002 he had been responsible for equipping and dispatching ambulances. At 8.15 a.m. he had received an instruction to increase the stock of Nalaxone in the ambulances.
80. Witness Msv., an ambulance doctor, said that there had been nobody at the entrance of the building to coordinate and direct the doctors’ work; there had been no place to treat the victims near the building, and the hostages had been transported in the buses without being accompanied by medical staff. He said that the ambulances had been able to circulate freely. Mr Msv. noted that the lack of information about the type of the gas used by the FSB had played a negative role.
81. Witness Nds., an ambulance paramedic, noted that the victims had not been sorted, and dead people had been placed in the buses alongside those still alive. Most of the buses had not been accompanied by doctors. Corpses had been loaded into the ambulances. That testimony was confirmed by Mr Knkh., another ambulance doctor. The latter also testified that he had not seen any coordinator on the scene organising the work of the rescue teams and doctors. He also noted that it would have been better if they had had some information about the gas.
82. Witness Os., a paramedic working in an ambulance, testified that the first hostages had been taken out of the building by soldiers, then the rescue workers started to put victims in the city buses and the ambulance, without any preliminary sorting. He had not seen anybody coordinating the evacuation of and medical assistance to the hostages, although he had seen people from the Emergency Situations Ministry and the MCUMT. He noted that the name of the gas applied during the operation had been immaterial.
83. Witness Blk., a paramedic working in an ambulance, testified that she had been asked by a rescue worker to travel in a city bus with the 22 hostages placed there. She had not been given any medical equipment or drugs. On the way to the hospital the bus had stopped at each red light. She had only been able to give indirect cardiac massage or “mouth-to-mouth” artificial respiration. A journalist from MK (a newspaper) had entered the bus with her; she had learned from him that gas had been used.
(i) Other evidence; results of the forensic medical examination of the victims
84. The investigators questioned an officer working in the public relations office of the FSB, Mr Al. He told the investigator that he had not participated in the planning of the operation. However, at about 6.30 6.40 a.m. on the morning of 26 October 2002 he had entered the theatre building on the order of his superiors. He had not smelled any gas in the auditorium because he had the flu. He had seen that the hostages were unconscious; their skin had been bluish. Special squad officers had been taking the hostages out of the auditorium and taking them to the ground floor of the building. On the ground floor medics had taken care of the victims: they had checked their eyes and given injections in the buttocks. The doctors had been wearing blue uniforms. Mr Al. toured the building, since he had had to take photos of the terrorists’ corpses. Shortly afterwards, when he returned to the main auditorium, the evacuation of the hostages had already ended. Mr Al. concluded that it had been done very quickly. Mr Al. had made a video recording of the auditorium, but only when the hostages had been removed.
85. In January-February 2003 the Bureau of Forensic Examinations of the City of Moscow Health Department, at the request of the MCPO, examined the materials of the case file, namely the medical files of the deceased victims and the witness statements which described the process of evacuating the hostages. Those reports indicate that the exact time of death was not always recorded by the medical staff of the ambulances or hospitals, but was established later as a result of the post-mortem examination. In most of the cases the post-mortem examination showed that the death had occurred on 26 October 2002 between 6 and 8 or 9 a.m. Where the medical file contained an entry with the exact time of the death (not all of the reports contained the information about the time of the death), the results were as follows: four people died before 7.29 a.m., seven people died between 7.30 and 7.59 a.m., twenty-four people died between 8 and 8.29 a.m., thirteen people died between 8.30 and 8.59 a.m., and twelve people died after 9 a.m.
86. The above forensic medical examination reports also contained information about the resuscitation procedures applied to the hostages. However, in 58 cases the reports mentioned that “there was no information about the provision of medical aid [to the victim]” (according to the applicants, this figure varied from 68 to 73)1. In over 15 cases the doctors discovered traces of intravenous injections in the victims’ arms, whereas in other cases the doctors testified that the diseased victims had received assisted lung ventilation, cardiac massage and similar resuscitation procedures. In many cases the reports stated that the patient had been admitted to the hospital in a critical state, with almost no breath or pulse.
87. The doctors established that all of the deceased hostages had suffered from various chronic diseases and pathologies which, together with physical and mental exhaustion and other negative factors related to the three days of captivity, had exacerbated the effects of the gas. The doctors concluded that the gas had had an “indirect effect” at best, and that the victims had died as a result of a coincidence of factors.
5. Conclusions of the criminal investigation
88. On 16 October 2003 the MCPO decided not to pursue the investigation into the planning and the conduct of the rescue operation. The investigation established that 5 people had been killed by the terrorists during the siege. Among them were Ms R., Mr Vl. and Mr V. – who were not among the hostages but had been shot by the terrorists while trying to penetrate the building from the outside. Mr G. was one of the hostages; he was shot while trying to resist. Mr Z. was killed by an accidental shot.
89. Since there had been a real risk of mass killing of the hostages by the terrorists, the security forces had decided to storm the building. The attack resulted in the death of a further 125 people. Almost all of them died as a result of:
“... acute respiratory and cardiac deficiency, induced by the fatal combination of negative factors existing ... on 23-26 October 2002, namely severe and prolonged psycho-emotional stress, a low concentration of oxygen in the air of the building (hypoxic hypoxia), prolonged forced immobility, which is often followed by the development of oxygen deprivation of the body (circulatory hypoxia), hypovolemia (water deprivation) caused by the prolonged lack of food and water, prolonged sleep deprivation, which exhausted compensatory mechanisms, and respiratory disorders caused by the effects of an unidentified chemical substance (or substances) applied by the law-enforcement authorities in the course of the special operation to liberate the hostages on 26 October 2002.”
The investigator concluded that:
“... the multi-factor nature of the causes of death excludes a direct causal link ... between the effects of [the gas] and the death [of the hostages]. In this case the link is only indirect, since there are no objective grounds to conclude that, in the absence of the other factors named above, the application of [the gas] would have led to [the] death [of the hostages].”
90. As a result of the attack, forty terrorists were killed – either because they resisted and fired back at the special squad officers, or because there was a real danger that they would activate the explosive devices which they had planted in the building. According to the MCPO, the decision to storm the building was justified in the emergency circumstances, and necessitated by the need to release the hostages and to prevent an explosion which could have caused the death of 912 hostages and “the erosion of the prestige of Russia on the international arena”. As a result, the prosecution refused to initiate a criminal investigation into the actions of the State authorities during the crisis.
91. The exact formula of the gas used in the course of the rescue operation has not been made public. According to a reply from the FSB of 3 November 2003, the security forces used a “special mixture based on the derivatives of phentanyl”. However, more precise information about this gas and its effects remain undisclosed for reasons of national security.
92. As to the investigation into the terrorist attack itself, it was decided to discontinue criminal prosecution of the forty terrorists killed on 26 October 2002. At the same time the investigation continued in respect of other presumed terrorists, in particular Mr Talkhigov, and the time-limits for completing that investigation have been repeatedly extended. On 27 January 2003 the proceedings in respect of Mr Talkhigov were severed from case no. 229133. On 22 April 2003 the case was transmitted to the trial court (case no. 229136). The applicants claimed that they learned of this from the press. The applicants requested the Zamoskvoretskiy District Court of Moscow to allow their participation in the proceedings in the capacity of victims. However, this was refused on the ground that the case had already been transferred to the court. The Moscow City Court upheld that decision. On 20 June 2003 Mr Talkhigov was found guilty of aiding and abetting the terrorist attack by the Moscow City Court. He was sentenced to eight and a half years’ imprisonment. On 9 September 2003 the conviction was upheld by the Supreme Court of Russia.
93. The most recent extension of the time-limit for the investigation of which the victims’ relatives were informed was on 19 June 2006. It was explained by the need to ascertain that one of the presumed organisers of the terrorist attack, Z. Yandarbiyev, was dead.
6. Materials produced by the applicants concerning the rescue operation
94. In support of their allegations the applicants submitted certain additional materials to the Court. It appears that whereas some of them were part of the case file of the official investigation, others were obtained from other sources. These materials, in so far as relevant, may be summarised as follows.
(a) “Amateur” video recording produced by the applicants
95. The first video recording (disc no. 1) shows the central entrance to the theatre building. The recording is made from the high window of one of the buildings across the street, from a distance of about two hundred metres.
According to the timing information on the video, the recording starts at 9.35 p.m. There is no date, but apparently it is the evening of 25 October 2002. It shows a group of people (negotiators?) coming out of the building.
At 11.23 p.m. a lone figure enters the building.
At 11.49 p.m. a man in red approaches the building but then returns to the point where the security forces are stationed.
At 2.05 a.m. (the early morning of 26 October 2002) two ambulances approach the building. The medics enter the building and then return carrying a body on a stretcher (2.15 a.m.), then another (2.17 a.m.). At 2.18 a.m. the ambulances leave the car park.
At 5.33 a.m. the sound of shooting can be heard from the building1. Two minutes afterwards there is an explosion in the foyer of the theatre.
At about 6.22 a.m. heavily armed officers from the special squad, wearing bullet-proof vests, helmets and masks, appear in the foyer of the theatre.
At 6.30 a.m. there are several explosions in the foyer.
At 6.46 a.m. the first three hostages come out of the building; a special squad officer helps one of them to walk. They are conveyed to an off-road vehicle parked on the car-park. No ambulance can be seen at that point.
At 6.51 a.m. a hostage comes out by himself.
At 6.52 a.m. another group of uniformed men enter the building; they are not wearing helmets. At the same time, special squad officers drag out an unconscious body by the hands and place it on the stairs just outside the main doors (6.51.32). An officer carries a woman in red on his shoulder.
At 6.53 a.m. an officer takes the man who was earlier left on the stairs of the building and drags him away. It appears that this person’s hands are handcuffed or tied behind his back. A woman in uniform with fair hair approaches them. She holds an object in her hand which looks like a handgun or something similar. She points it at the person prostrated on the floor (6.53.27 - 41), then other uniformed men bend over the body and push it closer to the wall.
More hostages come out of the building, and others are carried out by the officers. The first ambulance appears at the scene at 6.57 a.m. Then three rescue-service vehicles appear. People in yellow uniforms come out of the vehicles and enter the building through the main entrance. Within a few seconds new rescue-service vehicles arrive; more rescue workers enter the building, and some of them carry out unconscious bodies. It appears that some of those bodies have already been lying on the floor of the foyer, some of them face up (6.52.37). The recording ends here.
The next recording (no. 2) is made from the same position and starts a few second after the end of the first recording. It shows the beginning of the mass evacuation of hostages (7 a.m.). Rescue workers and special squad officers carry unconscious people out of the building. Most of the bodies are carried by their hands and legs, some of them are carried face down, others face up. A person near the entrance seems to be coordinating the actions of the rescue workers and showing them where to take the hostages.
At 7.05 a.m. the camera zooms out over the parking area. From this point on the image becomes quite blurred. There are no ambulances on the parking area; then one vehicle arrives. At 7.06 a.m. more ambulances start to arrive from the left, led by the rescue-service vehicles.
By 7.11 a.m. over a dozen bodies have been placed on the stairs outside the entrance. Several rescue workers are examining them and manipulating the bodies, but it is impossible to see what they are doing. It appears that some of them are giving heart massage. In the meantime the evacuation continues.
By 7.20 a.m. city buses appear on the parking area. The number of people in front of the building and in the foyer reaches its peak at about 7.30 a.m.
At 7.33 a.m. a person in a rescue worker’s uniform appears to give an injection to one of the victims lying on the floor.
In the following minutes several ambulances and buses leave the scene, while others arrive. The ambulances move slowly, but they do not seem to be completely blocked, or at least not for any length of time.
By 7.55 a.m. there are hundreds of people on the staircase of the building: special squad officers, rescue workers, police officers, medics, etc.
At 8.03 a.m. a line of city buses waiting for their turn can be seen on the car park. The evacuation of the victims continues, although at a slower rate.
The next episode starts at 8.58 a.m. It appears that by this time the mass evacuation of hostages is over. Nevertheless, several ambulances arrive at the parking area at 9.30 a.m. At 9.35 a.m. the military armoured cars start to leave the scene.
(b) The film made by the Moscow City Rescue Service
96. The applicants also produced a copy of the film made by the Moscow City Rescue Service, on three discs. It showed pictures of the evacuation of the hostages, interviews with doctors, public officials and former hostages. On minute 37 of the recording (disc no. 2 of the film) it shows a city bus with unconscious people sitting upright in the seats. It also shows the cordon line, and the passage of the ambulances and city buses through it.
97. The three discs contain extracts from the recording made by the rescue service. It appears that the recording was made from a different angle than the recording described above, and was of a better quality. However, only parts of the recording are available. The most relevant parts are on disc no. 3, starting from the 46th minute of the recording. It appears that this minute corresponds to 6.50 a.m. on the “amateur” video recording described above. It can be seen that more than a dozen unconscious bodies are lying on the ground before the theatre entrance in the face-up position (48th minute of the recording and onwards). From the 51st minute the recording shows the inside of the main auditorium. It shows rescue workers and officers of the special squad who are evacuating unconscious people. They are not wearing gas masks. The litter on the floor between the rows of chairs includes empty packs of juice.
(c) Reports by Dr Mark Wheelis, PhD, and Dr Martin Furmanski, MD
98. In 2007 one of the applicants commissioned an expert examination of the lethality of the gas used by the Russian security forces. The examination was carried out by Dr Mark Wheelis, PhD, a microbiologist, and a professor at the University of California in Davis, the United States. In his report dated 12 March 2007 Dr Wheelis concluded as follows:
“... Significant numbers of fatalities among the hostages inside the Dubrovka theatre should have been anticipated. Fatalities were certain to occur from two distinct mechanisms. First, fatalities and permanent injury should have been anticipated from direct toxic effects of the chemical agent. Although the Russian Federation has not identified the agent, they have said it is a member of the phentanyl class of synthetic opioids. Several of these are in medical use as analgesics for severe chronic pain, and as anaesthetics, and it is known that the margin between the effective dose for unconsciousness and the lethal dose is very small. Death is usually by respiratory depression. Phentanyl is also known as a drug of abuse, and many fatalities have been recorded among recreational users. Since all known phentanyls have similar, and very narrow, safety margins, fatalities from respiratory depression should have been anticipated.
Second, even if the chemical agent itself was safe, fatalities should have been anticipated as a result of asphyxiation from airway obstruction consequent upon sudden collapse from a seated or standing position. Some lethality or permanent injury should also have been anticipated as a result of aspiration of vomit, as vomiting is a common side effect of opioids.
I make no judgment on the wisdom of using an anaesthetic compound under the circumstances faced by the Russian Federation during this tragic event. However the decision to employ the agent should certainly have considered the likelihood of significant numbers of deaths among the hostages as a result, and should have recognized the necessity for immediate medical intervention to minimize them.”
99. The same applicant also asked for an evaluation of the autopsy report on his son. The examination of the report was carried out by Dr Martin Furmanski, who is a practicing toxicologist and a specialist on chemical weapons. On 22 February 2007 Dr Furmanski submitted a report. He agreed that the applicant’s son had died as a result of “acute respiratory and cardiac insufficiency ... caused by the action of the unidentified chemical substance” (quote from the autopsy report). At the same time Dr Furmanski considered that there had been no reduced oxygen in the theatre, at least to a biologically significant degree.
100. Further, in his view, many of the “multi-factor” findings that the official report cited could not have contributed to the victim’s death, because they are agonal changes seen only after the body had suffered terminal circulatory collapse as a result of a failure to breathe because of the effects of the special substance. In his opinion, pre-existing conditions would not have contributed significantly to the lethal effects of the special substance. Of the findings that existed prior to the introduction of the special substance, none would have significantly affected the victim’s chance of survival. Even the most severe of those findings (the erosive gastritis and loss of only 200 cc of blood), would not have been sufficient to compromise his blood pressure or circulation, particularly as he was confined and did not need to exert himself.
101. Dr Furmanski claimed further that some of the alleged pre-existing conditions could not be verified from the available record, and even if present would have been trivial. He compared the forensic histological study of 15 November 2002 and a repeat study report, and concluded that their findings were contradictory. He noted that the “repeat histological study” contained similar findings to the other two autopsy cases which were provided for his examination, namely the finding of chronic encephalitis and chronic meningitis. He said that these were very uncommon diseases, and it was a rare coincidence that three persons attending the same theatre on the same date suffered from them. Dr Furmanski further challenged the conclusions of the report concerning the fatty changes discovered in the victim’s liver: he concluded that the victim’s liver had not been compromised by fatty change, and, even assuming so, the function of the liver was unimportant to the effect of Phentanyl and its related compounds on the human body.
102. Dr Furmanski further stated that the effects of the Phentanyl family of drugs are well known. At moderate doses those drugs suppress pain, and at high doses they cause a sleep-like state, and at higher doses they cause a coma. All opiates also suppress the urge to breathe in a dose-dependent way. When unconscious the breathing may slow below the point that is needed to maintain sufficient oxygen in their blood to sustain normal body functioning. Even if breathing continues at a reduced rate, the relaxation caused by opiates can cause the neck and tongue to become limp and result in an occlusion of the airway. This positional asphyxia is a particular risk if the recipient is sitting upright. In addition, when opiates (and particularly Phentanyl-type drugs) are given rapidly, it causes muscular rigidity, and this can stop breathing entirely. The spasm of rigidity can result in violent pitching of the trunk. Such a forward pitching might well have caused a blow to the forehead from the theatre seat ahead.
103. Dr Furmanski noted that the clinical picture of no “medical” deaths for three days, and then scores within minutes of the release of the special substance strongly implicated the special substance in the subsequent deaths and disabilities. The report concluded that “the findings of [the victim’s] autopsy are fully consistent with a death caused solely by an overdose of an opiate such as Phentanyl or a related derivative, received from an aerosol delivery during the special operation”.
(d) Press interviews and other submissions
104. The applicants produced copies of press interviews with former hostages, rescue workers, bus drivers, etc. Thus, Ms Pvl., a former hostage, stated in an interview with Vremya Novostey that she had managed to get out of the main auditorium of the theatre by herself. She, together with other hostages who had been in relatively good shape, had first been taken to hospital, but the hospital in question refused to admit them. They had returned to the theatre, where they had been put in a bus and taken to another hospital (City Hospital no. 13). The driver of the bus had not known where to go and had had to ask for directions all the time. They had taken ninety minutes to arrive at the hospital.
105. Another participant in the events, Dmitri (who gave only his first name), stated in an interview with Sobesednik that he was an ambulance doctor. At about 5.30 a.m. he had received an order to go to the theatre. However, his vehicle had been stopped at the cordon by police because they had not yet received an order to let the ambulances through. This had delayed them for ten minutes. The traffic near the theatre had also been slow because of the heavy machines parked there. Some of the hostages had already been taken out of the building. An open box with syringes and Nalaxone was lying nearby. Somebody shouted: “Everyone, give injections!”. Those hostages who had received injections were not identified by a mark: as a result, some of them had received two or three shots of Nalaxone, which was a fatal dose. There had been no time to carry out artificial respiration because of the risk of explosion. His car had transported 8 unconscious people to the War Veterans Hospital, but it had been difficult to get close to the entrance because of the vehicles parked on the street. 500 beds were ready in the hospital, but the medical staff had not been prepared to cope with such a flow of patients. As a result, that hospital had admitted only 120 patients. In the meantime, the special squad officers had been piling up bodies in the city buses. The bus drivers, mostly from outside Moscow, had not known where to go. When the first ambulance arrived at the Sklifosovskiy Hospital, there had been nobody to meet the ambulance team and dispatch the patients to the appropriate departments. V. Mkh., the head of the Digger-Spas group testified that one person had been mistakenly taken for dead.
106. Mr Sng., in an interview with Komsomolskaya Pravda, submitted that he had seen that the bodies in the two buses which arrived at the Sklifosovskiy Hospital were piled up on the floor. In another interview published in the same newspaper, witnesses Mr Shb. and Mr Krb. described the conditions of transportation of the victims. Both were drivers of the buses used to transport the hostages to the hospitals. They stated that, in spite of all the efforts to clear up the area, traffic near the building had been slow, especially because of the ambassadors’ cars parked on the streets. Once the bodies were loaded in the bus, policemen had told the drivers to follow the ambulance. When the buses arrived at the Sklifosovskiy Hospital, the hospital did not have enough staff to take the bodies out of the buses immediately. They had first taken care of the people brought in the ambulances, then of those in the buses.
107. One of the former hostages, Ms Gubareva, described the conditions in the main auditorium of the theatre. In particular, she submitted that the female suicide bombers had never left the auditorium. One of them, who had been sitting nearby, always had a detonation device in her hands. She told Ms Gubareva that the biggest explosive device would be sufficient to “blow up three auditoriums like this one”. Another former hostage, Ms Akimova, confirmed that the suicide bombers had not let the detonators out of their hands. Witness Ms Zhirova stated that her relatives had been held in the theatre. She testified about the role of Mr Talkhigov, who had established contact with the leader of the terrorists. Ms Karpova, who had also had relatives among the hostages, said that the first official account of the operation had been very optimistic; there had been no information about any victims. Both she and Mr Kurbatov, whose daughter died in the theatre, testified how difficult it had been to receive any information about the former hostages. Similar testimony was given by Mr Milovidov.
(e) Report by the All-Russia Centre of Disaster Medicine
108. The applicants produced a report prepared by the All-Russia Centre of Disaster Medicine at the Ministry of Public Health (Zashchita). The Centre’s experts noted that the use of phentanyl had been justified in the circumstances. They described the medical effects of phentanyl and its possible side-effects. The experts also noted that phentanyl could be dangerous for people suffering from asthma, hyper-reaction, arterial and brain hypertension, hypoxia, and respiratory distress. The report noted that the majority of the deceased hostages suffered from different pathologies which led to their death. The report further stated that the various services (rescue workers, medics) involved in the rescue operation had acted in a coordinated manner. Almost all the victims had received injections of Nalaxone; all the victims in a critical state had been transported in ambulances and had received artificial respiration and “syndrome therapy”. The report noted, inter alia, that the effectiveness of the medical aid had been lowered by the following negative factors: (1) no information on the use of a chemical substance’ (2) absence of a “specific antidote” for the chemical substance used; (3) problems with simultaneous evacuation of the victims outside the building; (4) impossibility of using stretchers inside the building; (5) problems with the circulation of ambulances near the building. The report also noted the high concentration of the gas, which had led to instantaneous death.
7. Criminal-law complaints by the applicants and third parties
(a) Criminal-law complaint by Mr Nmt.
109. On an unspecified date Mr Nmt., a member of Parliament, requested the MCPO to conduct an inquiry into the process of evacuation of and medical assistance to the hostages. He alleged that the authorities had acted negligently, and that it would have been possible to avoid human losses by more adequate first aid to the gas victims on the spot and in the hospitals. Mr Nmt. submitted materials in his possession to the investigation team, namely a report by an expert team set up by the SPS political party, and several video recordings made at the scene of the events immediately after the building had been cleared of the terrorists (copies of the report and video recordings were submitted to the Court by the applicants).
110. On 2 December 2002 the MCPO refused to entertain the investigation. Investigator I. noted that the documents produced by Mr Nmt. were not properly signed or certified, and that they were tainted with various procedural informalities. As to the video recordings, they had been made from such a distance that it was impossible to reach any decisive conclusions. Nevertheless, based on those videotapes the investigator concluded that “the victims had been transported in different postures, particularly “on their backs”, and they had been placed before the entrance of the building pending further medical assistance. [The videotape showed] that the victims received injections or assisted respiration. There was no evidence that there had been any hindrance to the circulation of the transport by which the former hostages had been evacuated”.
111. Investigator I. further related the testimony of several witness (see below, the outline of the witness testimony collected by the investigative team). The investigator established that neither Ms Ks, the director of the MCUMT, nor Mr Sl., the Head of the Health Department, had been aware of the time and methods of the rescue operation; they had not been informed about the eventual use of the gas due to secrecy considerations. However, in the circumstances, and given the information available to them, they had acted in the best possible way. Most of the people (114 persons) had died in the theatre building; only a few had died in hospital. The investigator concluded that the above officials, as well as other State officials responsible for medical assistance to the hostages, were not guilty of negligence.
(b) Criminal-law complaint by Mr Finogenov
112. On 29 March 2003 Mr Finogenov, one of the applicants, complained to the General Prosecutor’s Office (the GPO) about the conduct of the investigation proceedings. He sought a more thorough examination of the cause of his brother’s death.
113. On 10 June 2003 Mr Finogenov asked the MCPO to enlarge the scope of the investigation and examine the lawfulness and expediency of the use of gas by the security forces. On 23 June 2003 the MCPO refused to investigate the conduct of the operation by the security forces.
114. On 26 July 2003 Mr Finogenov again complained to the GPO about the inadequacy of the investigation. He maintained, in particular, that the investigator had refused to examine the course of the rescue operation, specifically the use of a potentially lethal gas, and the failure to provide assistance to the hostages after their release. He also complained that he had no access to the materials of the case and that he was unable to participate effectively in the proceedings. The applicant’s complaint had been referred by the GPO to the MCPO without an examination on the merits. The applicant challenged before the courts the refusal of the GPO to entertain his complaint, but the court ruled that Mr Finogenov’s petition was not a proper criminal-law complaint which would require an inquiry. That judgment was upheld on appeal by the Moscow City Court on 19 January 2004.
115. On 13 October 2003 Mr Finogenov asked the prosecution authorities to allow him to participate in Mr Talkhigov’s case as an injured party, but this was refused on 23 October 2003. The investigator noted that the case against Mr Talkhigov (no. 229136) had been severed from the “main” criminal case (no. 229133) in which the applicant had victim status. The investigator further noted that Mr Talkhigov had not caused any harm to the applicant; furthermore, the Moscow City Court was considering whether it was possible to allow the relatives of the deceased hostages to participate in Mr Talkhigov’s trial.
116. On 14 October 2003 Mr Finogenov asked the MCPO to obtain information from the FSB, which had coordinated the rescue operation, about the nature and content of the gas used by the authorities. On 28 October 2003 he received a reply in which he was advised that “the information on the concentration and content of the gas ... is not relevant for establishing the cause of death of the hostages”.
117. On 6 November 2003 Mr Finogenov lodged a criminal-law complaint with the Zamoskvoretskiy District Court of Moscow concerning the inadequacy of the investigation carried out by the MCPO and the refusal to investigate the conduct of the rescue operation. He also sought to obtain from the MCPO copies of the decisions not to initiate an investigation into the conduct of the rescue operation. However, on 22 and 25 March 2004 the Zamoskvoretskiy District Court decided not to request those documents from the MCPO. On 25 March 2004 the Zamoskvoretskiy District Court dismissed Mr Finogenov’s complaint. The applicant appealed. On 17 June 2004 the Moscow City Court quashed the decision of 25 March 2004 and remitted the case to the Zamoskvoretskiy District Court for a fresh examination.
118. Mr Finogenov repeated his request for the disclosure of the materials of criminal investigation no. 229133, and the decisions refusing to open an investigation into the conduct of the rescue operation. In November 2004 the MCPO produced parts of the case file and some of the decisions referred to by the applicant.
119. On 30 May 2005 the Zamoskvoretskiy District Court dismissed Mr Finogenov’s application. The court established that the investigative actions had been carried out in conformity with the law and that all of the relevant evidence had been collected. The investigator had “fully and objectively” assessed the actions of the security forces and the medical staff during the crisis.
120. On 13 July 2005 the Moscow City Court upheld the judgment of 30 May 2005. The City Court confirmed that the MCPO’s decisions, contested by the applicant, “were in conformity with the law of criminal procedure, contained reasons, were taken by an authorised official and were based on evidence collected during the investigation”.
(c) Criminal-law complaint by Ms Gubareva
121. On 8 May 2003 Ms Gubareva asked the GPO to provide her with copies of medical documents relevant to the death of her relatives. However, the request was refused on the ground that, according to the law, an injured party could obtain access to the materials of a case only after the investigation had been closed.
122. On 23 October 2003 the applicant complained to the GPO about the inadequacy of the investigation carried out by the MCPO. This complaint was forwarded to the MCPO which, by letter of 21 November 2003, informed the applicant that on 17 October 2003 it had been decided not to prosecute the officials who had planned and participated in the rescue operation.
123. On 12 October 2004 the applicant lodged a criminal-law complaint with the Zamoskvoretskiy District Court of Moscow, seeking to obtain a more thorough investigation into the conduct of the rescue operation. In particular, she claimed that the investigation had failed to address the following allegations:
(a) lack of medical assistance to the hostages, and the circumstances of their evacuation from the theatre;
(b) thefts of the personal belongings of several hostages,
(c) poisoning of the hostages by an unknown gas;
(d) unlawful use of that gas by the security forces;
(e) killing of the unconscious terrorists;
(f) inactivity of the MCPO, responsible for the investigation;
(g) inaccurate medical examination carried out by the Forensic Bureau of the Public Health Department of the Moscow City administration.
124. On 5 May 2005 the Zamoskvoretskiy District Court of Moscow dismissed the applicant’s complaint. The findings of the Zamoskvoretskiy District Court are similar to those of the Zamoskvoretskiy District Court in Mr Finogenov’s case (see above). On 6 July 2005 the Moscow City Court upheld the judgment of 5 May 2005.
(d) Criminal-law complaint by Mr Kurbatov and Ms Kurbatova
125. On 29 May 2003 Mr Kurbatov asked the MCPO to carry out an additional investigation measure aimed at establishing certain facts relevant to the death of his daughter. On 5 June 2003 he was informed that all necessary investigative actions had been carried out and that he would be given access to the materials of the investigation once it had been completed.
126. On 26 June 2003 the applicant repeated his request for information. On 1 July 2003 the investigator in charge of the case informed him that his daughter had died in the theatre building; however, no further information or supporting documents were provided.
127. On 5 February 2004 the applicant asked the prosecution authorities to examine the circumstances of his daughter’s death more thoroughly. He claimed that his daughter’s death had been caused by the unknown gas employed by the security forces. On 8 April 2004 he received a reply from the MCPO advising him that the expert examination, carried out earlier, had not established a causal link between the effects of the gas and the death of the hostages.
128. On 26 May 2004 the two above applicants lodged a criminal-law complaint with the Zamoskvoretskiy District Court of Moscow, seeking to obtain a more thorough investigation into the conduct of the rescue operation. On 20 September 2004 the Zamoskvoretskiy District Court of Moscow dismissed the applicants’ complaint. The applicants appealed, but on 29 November 2004 the Moscow City Court upheld the District Court’s judgment.
(e) Criminal-law complaint by Mr Burban and Ms Burban-Mishuris
129. On an unspecified date the two applicants lodged a criminal-law complaint with the Zamoskvoretskiy District Court. They complained about the prosecuting authorities’ refusal to pursue the examination of the facts of the case in respect of the planning and conduct of the rescue operation. On 8 December 2005 the Zamoskvoretskiy District Court dismissed the applicants’ complaint. The court held that the investigation had been thorough, that the investigation team had gathered all possible evidence in accordance with the law, that they had been subjected to unbiased and comprehensive examination and that the investigative team’s conclusions were well-founded and lawful. The court further held that it had no power to examine the effectiveness of the investigation and the alleged failure of the prosecuting authorities to inquiry into certain factual aspects of the events, namely to establish the liability of the medical staff and the special squad officers who had been involved in the rescue operation. On 24 April 2006 that decision was upheld by the Moscow City Court.
8. Civil proceedings
(a) Civil proceedings concerning compensation before the Tverskoy District Court
130. In the aftermath of the events of 23-26 October 2002 some of the applicants who were Russian nationals contacted the Moscow City Administration in order to obtain compensation for non-pecuniary damage (moralniy vred) caused by the terrorist attack. They referred to section 17 of the Suppression of Terrorism Act of 25 July 1998, which provided that the damage caused by a terrorist attack should be compensated by the authorities of the federal constituency where the attack took place. However, the authorities refused to indemnify the applicants.
131. In November 2002 a group of the applicants who were Russian nationals brought civil proceedings against the City Administration before the Tverskoy District Court of Moscow. The applicants claimed that the 1998 Act imposed on the city authorities an obligation to compensate damage caused by a terrorist attack. They also maintained that the rescue operation had been inexpedient, that the actions of the authorities had been inept, that the hostages had not been properly evacuated from the building and had not received the necessary medical aid on the spot and in the hospitals. As a result, the applicants had been injured or lost relatives.
132. In the course of the preliminary hearings the applicants challenged the judge on the ground that the courts in Moscow were funded from the budget of the City Administration, the defendant in their civil case. This practice, they claimed, contradicted federal law and created dependence of the courts vis-à-vis the Moscow City authorities. They asked that the case be transferred to the Moscow City Court.
133. The applicants also requested the judge to summon a number of witnesses, namely the politicians who had participated in the negotiations with the terrorists, and the State officials who had planned and directed the rescue operation. They also requested the judge to obtain certain documentary evidence from the authorities and commission a forensic report in order to elucidate the cause of the death of the deceased hostages. The applicants also requested the court to admit certain evidence, in particular the report on an independent investigation of the events by the SPS political party. Finally, the applicants sought the recording of the hearing on audio- and video-tapes.
134. Judge Grb. examined those motions and dismissed almost all of them. Thus, she refused to withdraw from the case; she also refused to call the witnesses suggested by the applicants and to obtain the evidence sought by them; from the record of the hearing it appears that the judge considered it irrelevant. Finally, she prohibited any video- and audio-recording of the trial.
135. The hearings on the merits were held on 22 and 23 January 2003. In the course of the hearing many applicants testified about the circumstances of the rescue operation. The defendants made oral pleadings. The applicants, as plaintiffs, requested the adjournment of the case in order to prepare their arguments in reply to those of the defendants, but the court granted an adjournment of only a few hours. The next day the applicants repeated the request for adjournment, but it was refused.
136. On 23 January 2003 the Tverskoy District Court dismissed the applicants’ claims in full. On 28 April 2003 the Moscow City Court upheld that judgment. The courts found that, as a general rule, damage should be compensated by the tortfeaser (Article 151 of the Civil Code). Under Article 1064 of the Civil Code civil liability for tort could be imposed on a third person (not the tortfeaser) if this was directly stipulated by the law. However, the court found that the 1998 Act did not specifically provide for compensation of non-pecuniary damage by the State for an act of terrorism without the fault of the State authorities.
137. The court also refused to award damages for the allegedly inadequate planning and conduct of the rescue operation. It found that the Moscow authorities had defined a list of measures to be implemented in order to prevent terrorist attacks and help their victims, issued the necessary regulations to that end and created entities dealing with such situations. The court referred to the case-law of the European Court of Human Rights, namely the judgment in McCann and Others v. the United Kingdom (27 September 1995, Series A no. 324). It recalled that the use of lethal force might be justified under Article 2 of the Convention where it was based on an honest belief which could have been regarded as valid at the time1. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others.
138. The court finally noted that the criminal investigation into the events of 23-26 October 2002 was still pending, that the causal link between those events and the death of the applicants’ relatives had not yet been established, and the liability of those in charge of the rescue operation had not yet been established by any court decision.
139. As a result, all of the applicants’ complaints were dismissed. The court of appeal upheld the findings of the district court as to the merits of the case and did not establish any breach of the procedure by the lower court, without, however, giving any detailed analysis of the procedural complaints of the plaintiffs.
140. In the following months the Tverskoy District Court issued a number of similar judgments in respect of other applicants. Those judgments were upheld by the Moscow City Court on appeal. As appears from the motion lodged by the applicants’ lawyer on 10 December 2003, the applicants challenged the Moscow City Court, claiming that it was also partial because of the funding it received from the defendant. However, the Moscow City Court dismissed that argument.
(b) Civil proceedings concerning compensation before the Basmanniy District Court
141. The applicants who were foreign nationals, namely Ms Burban, Ms Burban-Mishuris, Ms Gubareva, and several other victims of the events of 23-26 October 2002, brought a civil action before the Basmanniy District Court against the federal government, claiming damages on the same grounds. The applicants sought to obtain the attendance of certain witnesses and examination of additional evidence, as in the proceedings before the Tverskoy District Court, but this was refused. On 6 August 2003 the court dismissed their claims. The court’s reasoning was broadly similar to the reasoning given by the Tverskoy District Court in its judgment of 23 January 2003. On 10 October 2003 that decision was upheld by the Moscow City Court.
(c) Defamation proceedings
142. On 20 September 2003 President Putin gave an interview to an American journalist concerning, inter alia, the events of 23-26 October 2002. In that interview, speaking about the cause of death of the 125 hostages who had died in the course of the rescue operation, President Putin stated, in particular, that the gas used in the course of the rescue operation had been harmless, and that people had died as a result of an unfortunate combination of various negative factors other than the gas.
143. Mr Kurbatov and Ms Kurbatova considered that the interview was defamatory. They brought proceedings against the President before the Tverskoy District Court; however, on 5 July 2004 the Tverskoy District Court decided to discontinue the proceedings on the ground that the applicants had no standing. On 16 September 2004 that decision was upheld by the Moscow City Court.
B. Relevant domestic law and practice
1. Legislation on suppression of terrorism
144. The Suppression of Terrorism Act of the Russian Federation (Law no. 130-FZ) of 1998 (in force until 1 January 2007) establishes basic principles in the area of fight against terrorism, including those concerning coordination of efforts of various law-enforcement and other State agencies. Section 2 of the Act establishes, inter alia, that:
(a) priority should be given to the interests of people endangered by a terrorist act,
(b) the State should make minimal concessions to terrorists,
(c) the State should keep secret, to the maximum extent possible, the technical methods of anti-terrorist operations and not disclose the identity of those involved in them.
Section 3 of the Act defines terrorism as follows:
“... violence or the threat of its use against physical persons or organisations, and also destruction of (or damage to) or the threat of destruction of (or damage to) property and other material objects which creates danger to people’s lives, causes significant loss of property or entails other socially dangerous consequences, perpetrated with the aim of violating public safety, intimidating the population or exerting pressure on State bodies to take decisions favourable to the terrorists or to satisfy their unlawful pecuniary and/or other interests; an attempt on the life of a State or public figure, committed with the aim of halting his or her State or other political activity or in revenge for such activity; or an attack on a representative of a foreign State or an official of an international organisation who is under international protection, or on the official premises or means of transport of persons under international protection, if this act is committed with the aim of provoking war or of straining international relations.”
145. Section 13 of the Act defines the legal regime in the zone of an anti-terrorist operation (identity checks, right of security forces to enter premises and search persons, etc.).
146. Section 14 of the Act permits negotiation with terrorists if this can save lives. However, it is prohibited to examine any demands from terrorists concerning the handing over to them of any persons, weapons or other dangerous objects, or any political demands.
147. Section 17 of the Act establishes that the damage caused by a terrorist act should be compensated by the authorities of the federal constituency where the attack took place. The damage caused to foreign nationals by a terrorist act should be compensated from the federal budget.
148. Section 21 establishes exemption from liability for damage caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of conducting an anti-terrorist operation, in accordance with and within the limits established by the legislation. That exemption covers servicemen, experts and other persons engaged in the suppression of terrorism.
2. General provisions on tort
149. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage.
150. Article 1064 of the Civil Code provides:
Article 1064. General grounds giving rise
to liability
for the infliction of damage
“1. Damage inflicted on the person or property of an individual ... shall be reimbursed in full by the person who inflicted the harm.
A law may oblige a person who is not a tortfeaser to reimburse the damage.
A law or a contract may establish an obligation of a tortfeaser to pay the victim compensation in addition to the reimbursement of the damage.
2. The person who inflicted the damage shall be liable for it unless he proves that the damage was inflicted through no fault of his. A law may provide for the reimbursement of damage in the absence of the tortfeaser’s fault.
3. Damage caused by lawful actions shall be subject to compensation in cases provided by law.
Compensation of damage may be refused if the damage was caused at the request or with the consent of the victim and the tortfeaser’s actions do not violate the moral principles of society.”
151. Under Article 1067, damage inflicted in a situation of absolute necessity, and notably for the elimination of a danger threatening the tortfeaser or third parties, if the danger, in the circumstances, could not be eliminated by any other means, shall be compensated for by the tortfeaser. Having regard to the circumstances in which the damage was caused, a court may impose an obligation to compensate for such damage on a third party in whose interests the tortfeaser acted, or release from such an obligation, partially or in full, both the third party and the tortfeaser.
152. Article 1069 stipulates that a State agency or a State official will be liable towards a citizen for damage caused by their unlawful actions or failure to act. Compensation for such damage will be awarded at the expense of the federal or regional treasury.
3. Funding of the courts
153. Under section 3 of the Judicial System Act of 1996, the courts are funded from the federal budget. The same provision is contained in section 1 of the Court Finance Act of 1999.
154. As follows from Decree no. 912-PM of 23 August 1999, as amended on 23 November 2000, in 1998 the Moscow City Administration allocated RUB 42,400,000 to the Moscow-based courts, of which RUB 11,700,000 were allocated personally to the judges. Furthermore, the city and municipal authorities provided funds for reconstruction of court buildings, including the building of the Moscow City Court and several district courts
155. In 1999 the Mayor of Moscow allocated funds to support the ongoing activities of the courts situated in Moscow, referring to the insufficiency of funds received by the courts from the federal budget. As follows from Decree no. 594-PM of 5 June 2000, the city authorities allocated RUB 33,800,000 to the Moscow-based courts in 1999. In particular, in the second half of 1999 the city authorities allocated RUB 2,650,000 for the equipment of district courts; RUB 6,250,900 for “extra pay” (doplata) and social benefits to judges, law clerks, etc.; and RUB 2,000,000 for renovation of the district courts’ buildings. In addition, the judges of the Moscow City Court obtained RUB 1,788,100 as “extra pay” and social benefits, and RUB 500,000 were spent on the renovation of the building of the City Court.
156. In 2001 (Decree no. 96-РП of 21 September 2001) the Moscow City Court received from the Moscow City Administration RUB 1,600,000 for re furbishing its building. Furthermore, the city authorities paid for enlarging of the premises of the Moscow City Court in 2001 (Decree no. 287 ПП of 27 March 2001).
157. It appears from the City Finance Act for 2002 (no. 60) that in 2002 the city authorities allocated RUB 300,000,000 to support the functioning of the courts.
4. Equality of arms in civil proceedings
158. Article 56 of the 2002 Code of Civil Procedure (“the CCPr”) which replaced the 1964 Code from 1 February 2003 provides that, as a rule, each party should prove the facts to which it refers and provide evidence. According to Article 57 the courts may assist a party to the proceedings in obtaining evidence if the party is unable to obtain that evidence by itself. The party should then submit a motion to the court specifying the evidence it seeks to obtain, describing the facts important for the correct resolution of the case it might prove or refute, explaining why the party itself is unable to obtain the evidence, and indicating where it is to be found.
159. Article 131 of the CCPr provides that the statement of claim should be submitted to the court in writing. Article 149 of the CCPr stipulates that during the preliminary stage of the proceedings the defendant “submits to the court or the plaintiff ... written objections concerning the claim”. Article 150 § 2 provides that the judge “invites the defendant to submit evidence in support of his objections. The judge explains to the defendant that his failure to submit counter-evidence and objections does not preclude the examination of the case on the merits on the basis of evidence in the case file”.
COMPLAINTS
160. Under Article 2 of the Convention the applicants in the case of Finogenov and Others argued that the authorities had failed to prevent the hostage-taking by the terrorists.
161. Under Articles 2 and 3 of the Convention the applicants in both cases complained that they had lost their relatives as a result of the use of the gas by the Russian security forces. Those applicants who were among the hostages complained that they had been subjected to extreme suffering and that their health had deteriorated as a result of the use of the gas.
162. Under the same Convention provisions the applicants further complained about the non-fulfilment by the State of its positive obligations to protect the life and health of the hostages. Thus, the rescue operation had been poorly planned and implemented.
163 Under Articles 2, 3 and 13 of the Convention the applicants complained that the investigation into the events of 23-26 October 2002 had been ineffective.
164. Under Article 3 of the Convention the applicants in the case of Chernetsova and Others complained that the hostages had been ill-treated while under the terrorists’ control.
165. Under Article 6 § 1 of the Convention the applicants in both cases complained that the findings of the domestic courts in the civil proceedings concerning compensation of non-pecuniary damages had been erroneous, irrational assessment of evidence and arbitrary interpretation of the legislation in force.
166. Under Article 6 § 1 of the Convention the applicants in the case of Chernetsova and Others complained that the Tverskoy District Court and the Moscow City Court which had examined their civil cases had not been “independent and impartial”. They referred to the practice of funding the district courts in Moscow from the budget of the Moscow City Administration, the defendant in their civil case.
167. Under Article 6 § 1 of the Convention the applicants in the case of Chernetsova and Others further complained that at the trial within the proceedings concerning compensation of non-pecuniary damage they had been in a disadvantageous position vis-à-vis the defendant. Thus, most of the evidence in their case had been in the hands of various State authorities, which had not agreed to disclose them. Moreover, the courts had refused to admit certain items of evidence to the case file (such as video recordings) or to examine witnesses proposed by the applicants. Further, they had not had enough time to formulate their arguments in the course of the trial. Thus, the law required the plaintiffs to send the statement of claims to the defendant in advance, whereas there was no requirement for the defendant to prepare a written reply and submit it to the plaintiff in advance before the oral hearing.
168. Under Article 8 of the Convention the applicants in the case of Finogenov and Others complained that as a result of the authorities’ failure to prevent the terrorist attack and the excessive use of force, they had been subjected to treatment which amounted to an unjustified interference with their right to respect for private life. Ms Gubareva also complained that the State did not fulfil its positive obligations to protect her private life from a terrorist attack.
169. Under Article 10 the applicants in the case of Finogenov and Others complained that the authorities had not disclosed all relevant information to them and, moreover, had misinformed the public about the real cause of death of their relatives.
170. Under Article 1 of Protocol No. 1 to the Convention, several applicants in the case of Finogenov and Others complained that their relatives’ belongings had been stolen during the rescue operation, and the authorities had done nothing to find those responsible.
THE LAW
A. Prevention of the terrorist attack
171. Under Article 2 of the Convention the applicants in the case of Finogenov and Others maintained that the authorities had not taken the necessary measures to prevent the terrorist attack. Thus, more than forty heavily armed men and women had made their way from the Chechen Republic to Moscow, through the territory of Russia. That would have been impossible without some form of support from law-enforcement officials. Further, the authorities had not taken any security measures in the theatre itself.
172. Article 2, in so far as relevant, provides:
“1. Everyone’s right to life shall be protected by law ...
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
173. The Court notes that, indeed, Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III; Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998-VIII; and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II). However, this positive obligation is not unqualified. Thus, the first sentence of Article 2 of the Convention, states that everyone’s right to life “shall be protected by the law”. The applicants did not suggest that the State had not complied with its general duty to secure the right to life by putting in place criminal-law provisions to deter the commission of terrorist acts, backed up by law-enforcement machinery (see Osman, cited above, § 115; Mastromatteo v. Italy [GC], no. 37703/97, §§ 67 and 89, ECHR 2002-VIII; and Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V; see also Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005-VII). As to more specific measures which would possibly have prevented the hostage-taking, the Court reiterates that not every presumed threat to life obliges the authorities to take concrete measures to avoid the risk. A duty to take specific preventive action (such as police protection, for instance) arise only if the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an individual or individuals (see, mutatis mutandis, Osman, cited above, § 116). This element is absent in the present case. There is no evidence that the authorities had any specific information about the hostage-taking being prepared (see, by contrast, the facts of the case of McCann and Others v. the United Kingdom, 27 September 1995, Series A, no. 324).
174. Thus, in the light of all the material in its possession, the Court finds that this aspect of the application does not disclose any appearance of a violation of Article 2 of the Convention or any other provision thereof. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Use of force
175. Under Article 2, quoted above, and Article 3 of the Convention the applicants in both cases complained that their relatives had suffered and/or died as a result of storming conducted by the Russian security forces. Those applicants who had been among the hostages also claimed that they had been exposed to extreme suffering in the course of that operation, and that their lives and health had been put at risk or had been damaged by it. Article 3 of the Convention provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The parties’ observations
(a) The Government’s observations
176. The Government claimed that the authorities had initially attempted to resolve the situation by peaceful negotiations. They even managed to reach an agreement with the terrorists about the release of children and foreigners, supply of food and water to the hostages, and medical assistance to those in need, but the terrorists later refused to honour that agreement.
177. It had been known that the terrorists were holding more than 900 persons in the theatre building. As was later confirmed by experts, the simultaneous detonation of the explosive devices installed by the terrorists in the building would have killed the hostages inside the theatre and could have led to the destruction of the auditorium’s pillars and a partial collapse of its ceiling panels.
178. The leader of the terrorist attack, Mr B., had previously carried out several terrorist attacks, in particular car bombings. Other terrorists belonged to a well-known terrorist group which had previously committed other terrorist acts, namely the attacks in Budenovsk, Kaspiysk, Buynaksk, Moscow, and other similar crimes. The sponsor of the terrorist attack (Mr Sh.B.) was connected to the terrorist organisation Al-Qaeda. The authorities received information that the terrorists planned to start executing hostages on 26 October 2002. In order to demonstrate their determination and intimidate hostages the terrorists had killed several people. Interception of a telephone conversation between Mr B. and Mr Yn., one of the political leaders of the Chechen separatists, showed that Mr B. was prepared to kill the hostages and to die himself if the Russian authorities failed to meet his demands.
179. The terrorists’ demands, namely that Russian troops should be withdrawn from the Chechen Republic, had been unlawful and anti-constitutional. Under the law it was impossible to fulfil terrorists’ political requirements. In such a situation the storming of the building was the only option left to the authorities which would enable them to minimise the number of victims.
180. As to the use of the gas, the Government claimed that the gas could not be regarded as a “lethal force”. It had been difficult to predict all of the possible effects of the gas, given the disparities in the physical condition of the individuals who would be exposed to it. The terrorists were healthy and physically fit young men and women, whereas the hostages were all weakened by the prolonged detention; moreover, some of them suffered from chronic diseases. In such circumstances the dose to be used was calculated on the basis of the physical condition of an average person. It was impossible to decrease the dose because in that case the gas would not have been sufficient to send the terrorists to sleep and the “surprise effect” of the operation would have been lost. The domestic forensic medical examination established that there had been no direct causal link between the use of the gas and the deaths of the hostages. Their deaths were caused by the fatal combination of negative factors existing during the siege and the effects of the gas.
(b) The applicants’ observations
181. The applicants maintained that the authorities had not made a genuine attempt to negotiate with the terrorists: no high-ranking State officials were involved in the negotiations. Furthermore, the negotiations had some success: in the evening of 25 October 2002 a group of hostages had been released. The terrorists agreed to free foreign nationals in the morning of 26 October 2002; foreign ambassadors and representatives of a humanitarian NGO had been prepared to come to the building to take part in the negotiations, but the authorities had opposed this. Following the negotiations with Mr Yav. the terrorists put forward more realistic demands. It would have been possible to pursue the negotiations; however, the dominant policy at that time in Russia was “no talks with terrorists”.
182. There was no evidence that the decision to storm the building had been triggered by the execution of hostages: the people killed by the terrorists were shot while trying to enter the building; the only person killed in the building was shot by accident, and nobody was subjected to exemplary execution. The fact that three civilians had penetrated the building from the outside suggested that the authorities had been provoking the terrorists to shoot in order to start the military operation.
183. The applicants claimed that the main cause of their relatives’ death was the gas used by the security forces. The Government’s assertion that the death had been caused by a combination of other negative factors could not be upheld. None of the victims had died during the three-day siege but had died soon after the gas was used, which confirmed the direct link between the gas and the mass and almost simultaneous death of the hostages. Furthermore, it was noteworthy that the authorities had kept the name and the exact formula of the gas secret from the victims, as well as from the general public. That implied that the gas was highly toxic, and prohibited for use.
184. The conclusions of the forensic post-mortem reports were vague, self-contradictory and untrue. The reports ignored the fact of intoxication, which was reflected in the medical history of the victims. The victims had not been completely deprived of food and water, as the Government suggested. The official medical examination had not revealed any concomitant diseases in respect of seventeen victims. An alternative medical examination conducted by independent experts from the USA concluded that the victims died as a result of an overdose of the gas and that their deaths would not have occurred had they not been exposed to the gas.
185. The applicants maintained that the use of the gas had increased the risk of an explosion rather than eliminating it. The fact that there was no explosion could not be attributed to the authorities, but to other factors. The terrorists did not lose consciousness: many of them actively resisted and fired back at the security forces who entered the building.
(c) Third party observations
186. In their written observations submitted within the framework of the proceedings in the case of Finogenov and Others Interights drew attention to certain general rules established by the European Court of Human Rights and other international bodies under Articles 2 and 3 of the European Convention. The concluding part of their observations, in so far as relevant, reads as follows:
“Where there is a foreseeable risk that a terrorist attack, a law enforcement operation in response to such an attack, or a combination of the two, will result in risk to the life or health of individuals, there is a positive obligation to take all possible steps to minimise and address that risk. Where a particular weapon or hazardous substance is used which is known, or should have been known, to create risks to life or health, then the use of that weapon by agents of the state triggers an obligation to mitigate the risk, including by ensuring adequate attention to and care for victims in the immediate aftermath of the incident. Inherent in this is an obligation to provide information essential for the care of victims. It accordance with the absolute nature of rights under Articles 2 and 3 of the Convention, public policy interests such as national security cannot be used to justify the failure to take positive steps necessary to protect life, or to prevent suffering amounting to inhuman and degrading treatment.”
187. The Government did not comment on the third party observations, since they did not contain an analysis of the situation at hand but rather an outline of the general principles applicable in such circumstances.
2. The Court’s analysis
188. The Court considers, in the light of the parties’ submissions, that the applicants’ complaints under Articles 2 and 3 about the use of force by the authorities raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
C. Planning and conduct of the rescue operation
189. The Court will turn now to the applicants’ next complaint under Articles 2 and 3 of the Convention, quoted above, namely that the State failed to fulfil its positive obligation to protect the life and health of the hostages because the rescue operation was poorly planned and conducted.
1. Exhaustion of domestic remedies
(a) The Government’s objection
190. In their observations on the application Finogenov and Others the Government claimed that some of the applicants had not exhausted domestic remedies. Thus, Ms Burban-Mishuris, Ms Kurbatova, and Mr Burban had not lodged a criminal-law complaint with the Prosecutor’s office in respect of the death of their relatives. At the same time the Government acknowledged that Mr Finogenov, Ms Gubareva Mr Kurbatov and Ms Kutukova had exhausted the domestic remedies in respect of their complaints under Articles 2, and 13 by challenging before the courts the MCPO’s refusal to proceed with the criminal investigation. Ms Gubareva had not exhausted remedies in respect of her complaint under Article 3 because she had failed to raise the issue of ill-treatment in the domestic proceedings.
191. Further, in their observations in the case of Chernetsova and Others, the Government indicated that the applicants had not brought a criminal-law complaint before the courts in connection with the criminal investigation into the events of 23-26 October 2002. The Government also claimed that the applicants had failed to pursue a hierarchical complaint in respect of various decisions taken by the MCPO investigators.
(b) General principles
192. The Court points out that under Article 35 § 1 of the Convention it may deal with an issue only after all domestic remedies have been exhausted. At the same time the Court reiterates that the application of the rule of exhaustion of domestic remedies must make due allowance for the context. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports 1996-IV).
193. The Court observes that Russian law provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State, namely civil procedure and criminal procedure (see Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, § 146, 24 February 2005). Within criminal procedure, a victim of illegal acts may lodge a criminal-law complaint with the Prosecutor’s Office and seek criminal investigation and prosecution of the perpetrators; further, an ordinary judicial appeal lies against the prosecutor’s decision not to pursue the investigation (see Belevitskiy v. Russia, no. 72967/01, § 61, 1 March 2007).
(c) Application to the present case
194. Turning to the present case, the Court notes that at least four applicants pursued a criminal-law remedy (Mr Finogenov, Ms Gubareva, Mr Kurbatov and Ms Kutukova), by lodging a criminal-law complaint before the prosecution authorities and then before the courts at two levels of jurisdiction (see paragraphs 112 et seq. above). That fact was acknowledged by the Government. In their complaints the above four applicants raised all of the major issues formulated in the present applications to the Court, namely the allegedly disproportionate use of force, the allegedly inadequate planning and conduct of the rescue operation, the allegedly ineffective investigation into it, and the alleged lack of effective remedies in these respects. Even if those complaints were not always supported by a reference to an appropriate Convention provision, that fact is of little relevance here. However, the courts found that the investigation carried out by the MCPO had been adequate and complete and that the conclusions of that investigation had been well-founded.
195. Other applicants tried a civil-law complaint (see paragraphs 130. et seq. above). However, they were unsuccessful here too: the courts held that the applicants were not entitled to compensation for non-pecuniary damage under section 17 of the Suppression of Terrorism Act and that the authorities had not acted negligently.
196. The Court further notes that all the applicants in the present case formed a restricted group: they had either lost their relatives as a result of the events of 23-26 October 2002, or had suffered personally from those events, they have essentially identical complaints, legal status, etc. In that capacity, some of them participated in the domestic criminal investigation, whereas others took part in the civil proceedings. The two legal remedies existing under domestic law proved to be futile. In such circumstances others applicants who did not pursue a particular remedy were absolved from doing so. The Court concludes that the Government’s objection should therefore be dismissed.
2. Compliance with the six-month rule
197. In their observations on the application Finogenov and Others the Government claimed that the applicants had failed to comply with the six-month time-limit established in Article 35 § 1 of the Convention. The Government indicated that the application form submitted by the applicant was dated 15 January 2004, whereas the statement of facts prepared by the Court mentioned 26 April 2003 as the date on which the application was lodged. Furthermore, according to the Government, final decisions in respect of those applicants who had exhausted domestic remedies were taken “mainly in 2004”.
198. The applicants insisted that they lodged their application on 26 April 2003, while the domestic proceedings were still pending.
199. The Court notes that the first letter from Mr Finogenov was sent to the Court on 26 April 2003. In this letter Mr Finogenov provided a brief summary of the facts of the case and presented an outline of the complaints which were later developed in the application form of 15 January 2004. In such circumstances the Court considers that the case was lodged on the former date. Even assuming that the case was introduced on the latter date, the Court notes that the domestic criminal investigation was still ongoing in January 2004, as well as the proceedings initiated by Mr Finogenov before the Zamoskvoretskiy District Court (see paragraphs 117 et seq. above). Article 35 of the Convention does not prevent the Court from examining an application lodged before the effective domestic remedies have been exhausted, provided that they are exhausted at the moment of the examination of the case. The Government’s objection should therefore be dismissed.
3. The parties’ observations on the substance of the complaint
(a) The Government’s observations
200. The Government claimed that the legislation of the Russian Federation in the area of the fight against terrorism was in line with major international instruments, such as the UN Convention Against the Taking of Hostages of 17 December 1979, the European Convention on the Prevention of Terrorism of 27 January 1977, the G8 Recommendation on Counter-Terrorism of 13 June 2002 and the Model Law on Combating Terrorism adopted by the CIS Inter-Parliamentary Assembly on 8 December 1998. In particular, under section 7 of the above Model Law, if a counter-terrorist body infringes upon the lawful interests of private persons while protecting other lawful interests, for example, protecting the life and health of other people, public order or State security, such acts cannot be regarded as criminal, provided that the counter-terrorist body has acted lawfully, the damage it prevented was greater than the damage actually caused and there was no possibility of attaining the same results by other means.
201. The Government further insisted that the activities of the State bodies in the instant case had had a legitimate basis, namely the Suppression of Terrorism Act (Law no. 130-FZ) of 25 July 1998, which established the principles of minimal concession to terrorists and minimal transparency of anti-terrorist operations, specifically with regard to the methods and tactics employed by the anti-terrorist bodies.
202. Section 11 of the Act provides that a counter-terrorist operation is to be conducted by a crisis cell which may use the human, technical and material resources of other State bodies involved in counter-terrorist activities. The crisis cell operates on the basis of the principle of “one-man command”. Under section 12 of the Act State agents attached to the crisis cell are responsible to the head of the cell and to no one else; they cannot receive any orders from other State officials.
203. The head of the crisis cell may authorise the commencement of negotiations with the terrorists. He or she appoints the persons responsible for the negotiations. However, it is forbidden to discuss the possible exchange of hostages for other people, the handing over of guns and other dangerous objects to the terrorists, and political negotiations. The President and the Government of the Russian Federation oversee the implementation of the counter-terrorist measures, whereas the GPO ensures that those measures are lawful.
204. The Government further claimed that the deaths of the hostages could not be attributed to improper medical assistance after their release. The evacuation and medical assistance had been organised by the staff of the Zashchita Centre and the MCUMT. They had permanent radio connection with the crisis unit and the rescue workers. It had been inexpedient to create a temporary ambulance point near the building of the theatre, since it would then have been located inside the “risk zone”. It had therefore been decided to evacuate people to the nearest hospitals, which would take only a few minutes.
205. The hostages evacuated from the building were divided into different groups depending on the seriousness of their condition. At the same time the hostages received first aid, including artificial respiration and intensive syndrome therapy. In the event of vomiting the rescue workers were told to ensure that the person was put on the floor in the “face down” position. The hostages were transported in ambulances and city buses, accompanied by medical staff. Use of city buses was permitted by the domestic regulations on relief of natural disasters. All victims who were in a coma or with serious respiratory troubles were transported in ambulances. Evacuation of the hostages to the hospitals took 1 hour and 15 minutes. In the reception units of the hospitals the victims were divided into four groups depending on the seriousness of their condition. The hospitals were staffed with extra personnel. All the victims underwent “complex intensive syndrome therapy” with modern medical equipment. Doctors specialised in toxicology and other specialist doctors were attached to the hospitals which received the hostages. 677 former hostages were hospitalised, including 21 in an agonal or pre-agonal state. Only 6 people died in hospital.
206. The operation of 26 October 2002 had been characterised as “brilliant” by a Polish MP, the former head of the counter-terrorist service in Warsaw. The German, Austrian and Greek mass media qualified it as successful and highly efficient. The same opinion was expressed by Mr Vershbow, a former US Ambassador to Russia.
(b) The applicants’ observations
207. The applicants alleged that many victims had been taken out of the building and placed on the ground in the “face up” position. They referred to the video-recording made by the Moscow rescue service.
208. The medical assistance to the hostages was poorly prepared. The medical records of the 68 deceased hostages contained the following entry: “There is no information about medical assistance having been provided” (other applicants indicated that this entry was made in respect of 73 victims). Many witnesses testified that the bodies of the victims showed no signs of first aid.
209. The Government’s assertion that, due to the risk of explosion, it had been impossible to provide adequate treatment on the spot or in the vicinity of the theatre was untrue. Thus, War Veterans Hospital no. 1 was located about 20 metres from the theatre building, and had been expected to receive those victims who were in a critical state.
210. There had been no sorting of unconscious hostages on the basis of the seriousness of their condition, contrary to what the Government maintained. Thus, corpses had been sent to the hospitals together with individuals who were still alive. According to the materials of the case file, 6 corpses arrived at City Hospital no. 1, 36 corpses arrived at Hospital no. 13, 15 at Hospital no. 7, and 8 at Military Hospital no. 1. If there had been a sorting of any kind on the spot, the corpses would have been delivered directly to the morgues. In contrast, some people who were still alive had not received any aid. Thus, Mr Karpov, the son of two of the applicants, Ms Karpova and Mr Karpov, died at 12.30 p.m., that is, 7 hours after the storming, in an ambulance. He had been put there after having spent several hours on the ground near the theatre building amidst corpses. The newspapers published interviews with people who had testified that living people had sometimes been treated as dead by the rescue workers and medical personnel. Lastly, the evacuation continued for more than four and a half hours after the beginning of the storming. The applicants referred to the report by the All-Russia Centre of Disaster Medicine at the Ministry of Public Health.
211. The transportation of the hostages to the hospitals had been chaotic. The applicants alleged that 60 additional ambulances had been on standby to take part in the evacuation, but for some reason they were not employed and remained in the ambulance cells’ car parks. Many of the doctors questioned by the investigative teams referred to the lack of organisation of the evacuation on the spot, the absence of accompanying medics in the city buses used for transportation of the victims and the lack of necessary medicine and equipment. Transportation of the hostages to the hospitals was not prepared in advance: thus, more than half of the 328 people dispatched to City Hospital no. 13 arrived in ordinary buses, of whom 44 arrived after 10 a.m. on 26 October 2002. Ms Letyago, Mr Burban and Mr Finogenov were transported to City Hospital no. 1 in an ordinary bus with 32 other victims. The hostages were accompanied by two uniformed men in bullet-proof vests and helmets, armed with machineguns, and a person in civilian clothes with a video camera. Hostages were sitting or lying on the floor; bodies were dumped on top of each other. The doctor who entered the bus diagnosed exogenous intoxication and started to take the bodies out of the bus; he removed five bodies before help arrived. The four victims of the gas who were in the most severe condition were the last to be transported to the ambulance unit. The applicants referred to the statement by Dr Skh. of City Hospital no. 1, and Dr Ps., who was on duty on that day, who testified that he had no experience with gas intoxication. The ambulance unit had only six people available. Dr Ps. also testified that he had not seen any traces of injections or other signs that the victims had received any medical aid at the scene of the events.
212. The circulation of ambulances near the building of the theatre was hindered by heavy machines (bulldozers and the like) and the cars of various officials who had arrived at the scene. The applicants referred to an interview with Dmitri, an ambulance doctor, published in the Sovremennik magazine. The dispatching of victims to various hospitals was had not been consistent. Thus, City Hospital no. 13 received 213 hostages within 30 minutes. 48 ambulances and five buses arrived at that hospital almost simultaneously. Overall, Hospital no. 13 received 356 hostages, whereas its maximum capacity, including that provided in the preliminary plan, was 150 people, including 50 for the emergency treatment unit. At the same time, Hospital no. 7 was prepared to accept 200 patients, but only 77 hostages were transported there.
213. The Government’s allegation that the evacuation had been quick was untrue. 185 hostages had been admitted to the hospitals after 8.30 a.m., and even after 10 a.m. Whereas the Government indicated in their observations that the evacuation took about 1 hour and 15 minutes, it was unclear how they calculated that time-period and when it started. Numerous witnesses testified that the evacuation had lasted much longer. It appears that intensive evacuation of the victims to hospitals started only at 7.25 a.m., that is, two hours after the beginning of the storming.
214. Analysis of the materials of the criminal investigation showed that the hospitals had been prepared to accept wounded rather than intoxicated people. Thus, the chief doctors of City Hospitals nos. 13 and 7 testified that they had assumed that the hostages would have traumatic injuries. They had not increased the number of personnel on duty.
215. The applicants challenged the Government’s assertion that only 6 people had died in the hospitals. According to the applicants, 71 people had died in three of the several hospitals which had participated in the treatment of victims (City Hospitals nos. 1 and 7, and War Veterans Hospital no. 1). The death rate was thus above 10% (25% for children).
216. The applicants argued that it was prohibited to use phentanyl (the main component of the gas used by the security forces) if there was no equipment available for artificial respiration. Children and elderly people were not allowed to receive phentanyl.
217. The applicants indicated that the major antidote applied during the rescue operation (Nalaxone) was in itself a narcotic drug. An overdose of Nalaxone could also be fatal. Its action was limited in time; without proper monitoring the effects of Nalaxone could disappear, whereas its use did not lead to a complete desintoxication; in other words, the poison (phentanyl) remained in the organism despite the use of Nalaxone.
218. The applicants concluded that most of the hostages exposed to the gas did not receive any medical aid on the spot, their evacuation and transportation was chaotic, the authorities failed to employ military medics capable of assisting the victims without revealing the formula of the gas, and the civil medical institutions were not prepared to deal with intoxicated individuals.
219. The applicants also argued that the authorities had breached Article 3 of the Convention in respect of, first, the former hostages, who had not received appropriate medical aid after their release, and, second, in respect of the relatives of the deceased hostages, who had been shocked by the lack of information and the indifference and sometimes hostile attitude of the State officials with whom they had to deal in order to accomplish the necessary formalities, participate in the investigative actions, organise funerals, obtain compensation, etc.
4. The Court’s conclusion
220. The Court considers, in the light of the parties’ submissions, that the applicants’ complaints under Article 2 and 3 of the Convention about the planning and conduct of the rescue operations raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
D. Effectiveness of the domestic criminal investigation
221. Under Articles 2, and 3 of the Convention, cited above, and Article 13 thereof the applicants complained about the ineffectiveness of the domestic criminal investigation into the events of 23-26 October 2002. Article 13 of the Convention provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
222. The Government submitted that the investigation had been effective. It was conducted by the prosecutor’s office. The prosecutor’s office was an independent body which was independent of any other branch of the federal government or the municipal bodies. The forensic medical examination was entrusted to experts who were also independent of both the security forces and the prosecution office. These experts concluded that almost all of the victims had died as a result of acute heart and respiratory distress, which was exacerbated by the combination of various negative factors (lack of water, lack of physical exercise, stress) and aggravated by the chronic diseases from which the victims suffered. Thus, the gas was not the sole factor in the victims’ deaths.
223. Further, the investigation established the terrorists’ sponsors and accomplices. Certain of their number were convicted in 2004, whereas others were killed as a result of a “special operation” by the Russian security forces. Two of the suspects were still hiding from the Russian authorities, so case no. 22535/93 was still open. The Government concluded that the investigation into the events of 23-26 October 2002 had been effective, that the applicants had had effective domestic remedies, and that the domestic investigation had responded to their allegations under Articles 2 and 3 of the Convention.
224. The applicants argued that the ineffectiveness of the investigation was demonstrated by the fact that it had not resulted in an open trial. After more than five years the investigation was still incapable of establishing the cause of death of the hostages and those responsible for it. All of the terrorists had been killed, although they would have been an important source of information. In particular, it remained unknown who had helped the terrorists to transport explosives and firearms into the heart of Moscow, and who had planned and sponsored the terrorist attack.
225. The materials of the domestic investigation had been kept secret from the press and would remain secret so long as the investigation continued. All of the motions brought by the applicants in order to obtain a further and more thorough examination of the facts of the case, namely the cause of death of the hostages, had been either ignored or dismissed. There was no certainty as to what had happened to the hostages immediately after the use of the gas. The investigation was unable to establish the most important facts of the case, such as the name of the gas, the exact timing of the rescue operation, the number of hostages released before the storming and the number of the people who died, and the place, the time and cause of the death of each of the victims. As followed from the letter from the FSB Department for the Protection of Constitutional Order, the case files of the crisis unit had been destroyed after the hostages’ release.
226. The applicants maintained that the investigative teams had commissioned three post-mortem medical examinations of the victims: on 26-28 October 2002, on 12 November 2002, and on 25 December 2002. However, the materials of the case file contained only two expert reports. On 12 November 2002 the investigator suggested that the experts examine the corpses of the victims, but this was impossible since by that time they had already been buried and no exhumation was ordered. The investigator’s decision of 12 November 2002 to commission a fresh examination contained a question about other lethal factors which could have caused the victims’ death (stress, lack of food and water, sleep deprivation, etc.), which predefined the experts’ answers. Most of the expert reports were stereotyped and lacked individual details relating to each victim (what kind of medical aid had been administered, when, by whom, etc.). The same description of the cause of death was given for a 13-year-old child, a 31-year-old man and a 49-year-old man, which showed that the examination had been superficial and unreliable. The pre-existing diseases named in the expert reports as factors which caused death (such as bronchitis, arachnofibrosis, pancreatic sclerosis) are not life-threatening. It was inexplicable how the medical experts could have reached the conclusions that the gas was harmless if they were unable to establish the nature of that gas.
227. The Court considers, in the light of the parties’ submissions, that the applicants’ complaints under Articles 2, 3 and 13 concerning the effectiveness of the domestic criminal investigation raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
E. Ill-treatment by the terrorists
228. Under Article 3 of the Convention, cited above, the applicants in the case of Chernetsova and Others complained that they had been ill-treated by the terrorists during the siege.
229. However, the Court reiterates that it is only competent to examine complaints directed against the States Parties to the Convention; human-rights violations committed by private actors are outside of the Court’s competence ratione personae. The Court has already held that in the circumstances the Russian Federation cannot be held responsible for not preventing the terrorist attack. Nor do the authorities bear any responsibility under the Convention for the related acts of the terrorists, such as those described by the applicants. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
F. Civil proceedings
1. Outcome of the civil proceedings
230. Under Article 6 § 1 of the Convention the applicants complained that the findings of the Tverskoy District Court and the Basmanniy District Court in their civil cases, as upheld by the Moscow City Court, were erroneous. In particular, they believed that the Suppression of Terrorism Act of 1998 enabled them to claim compensation for non-pecuniary damage from the Government, although the damage had been caused by the terrorists and not by the State.
231. Article 6 of the Convention, in so far as relevant, provides:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent ... tribunal ...”
232. The Court notes that in the present case the domestic courts gave a very narrow interpretation of the notion of “damage” as employed in the Suppression of Terrorism Act of 1998. It appears (and the applicants’ reading of the courts’ decisions corroborate this understanding) that the domestic courts interpreted the notion of “damages”, used in the 1998 Act, as excluding compensation for “non-pecuniary” damage. As a result, the applicants’ claims were dismissed. The Court reiterates that it is not for the Court to act as a court of appeal, or as is sometimes said, as a court of fourth instance from the decisions taken by domestic courts. It is the role of the domestic courts to interpret and apply the relevant rules of procedural or substantive law. Furthermore, it is the domestic courts which are best placed for assessing the credibility of witnesses and the relevance of evidence to the issues in the case (see, amongst many authorities, Vidal v. Belgium, 22 April 1992, § 32, Series A no. 235-B, and Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247-B). The Court finds no indication that the interpretation of section 17 of the Suppression of Terrorism Act was arbitrary or otherwise infringed the fairness requirement at the heart of Article 6 § 1 of the Convention.
233. Further, the applicants can be understood as complaining about the refusal of the courts to award compensation for damage caused by the rescue operation. The Court notes in this respect that the issue of the authorities’ responsibility for the death of the hostages in the course of the rescue operation has been examined by the Court under Articles 2, 3 and 13 of the Convention (see above), and will be examined further. The same complaint, formulated under Article 6 of the Convention, is nothing more than a “fourth-instance” type of complaint.
234. In such circumstances the applicants’ complaint about the outcome of the civil proceedings is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. Independence of the courts
235. Under Article 6 § 1 of the Convention, cited above, the applicants in the case of Chernetsova and Others complained that the courts which examined their civil claims against the authorities had not been “independent and impartial”. They referred to the practice of funding the district courts in Moscow from the budget of the City Administration, the defendant in their civil case. In their view, this practice created dependency of the courts vis-à-vis the Moscow City Administration.
236. The Government in their observations refuted the applicants’ allegation that the Moscow courts were not independent. They maintained that the applicants’ position was inconsistent, because they themselves requested the transferral of the case to the Moscow City Court. The Government further claimed that the laws on the city budget for 2002 and 2003 did not provide for any funding of federal courts on the territory of Moscow.
237. The applicants maintained their complaint. In addition to the documents produced earlier (see the laws of the City Administration summarised in the “Relevant Domestic Law” above) they submitted documents showing that in 2003 the Moscow City Administration had funded the construction of the new building of the Moscow City Court (Decree of the City Administration of 16 January 2003 no. 50-RP).
238. The Court first reiterates that, in order to determine whether a tribunal can be considered to be “independent” of one of the parties to a case, regard must be had to the manner of appointment of its members, the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see, inter alia, Campbell and Fell v. the United Kingdom, 28 June 1984, § 78, Series A no. 80).
239. In the present case the applicants cast doubt on the independence of the Moscow-based courts, referring to the fact that these courts had been partly funded by the City Administration, namely the defendant in the case concerning compensation of damage caused by the terrorist attack.
240. The Court notes that it has examined a similar complaint in another Russian case, namely Porubova v. Russia (no. 8237/03, 9 December 2004). In that case the Government submitted:
“... Pursuant to Article 124 of the Russian Constitution and section 33 of the Federal Constitutional Law “on the Judicial System of the Russian Federation”, all domestic courts are funded from the federal budget. In each annual budget, funds are specifically allocated for the financing of the Constitutional Court, the Supreme Court and other federal courts. The trial court was not therefore financially dependent on the regional government.”
241. The Court accepted that argument, stating that “the regional executive authorities do not allocate funds or provide otherwise for the courts’ functioning and therefore the applicant’s apprehensions in this regard cannot be held to be objectively justified.” Furthermore, the Court held as follows:
“As regards the specific allegations raised by the applicant concerning the acquisition of new furniture for the district court [by the regional government], the applicant has failed to show any link, beyond a mere temporal correlation, between her trial and the refurbishment of the court. It would be a logical fallacy to assume, in the absence of any other indication, that if the furniture was purchased in the wake of the trial, it was offered in recompense for the applicant’s conviction.”
242. Turning to the present case, the Court finds it established that the Moscow authorities provided certain financial support to the Moscow-based courts. Thus, the law on the City budget for the year 2002 allocated RUB 300,000,000 to the federal courts situated on the territory of Moscow. Although there is no information about subsequent budget years, it appears that the Moscow City Administration continued to provide at least some financial support to the Moscow-based courts.
243. It is unclear to what extent such a practice was compatible with the Judicial System Act of 1996 and the Court Finance Act of 1999, both of which provided that the courts were to be funded from the federal budget. However, even if this funding may have been unconventional in domestic terms, it did not make the Moscow-based tribunals automatically dependent on the City Administration. As follows from the reasoning in Porubova, for the funding of the courts to jeopardise their independence it should be connected to a particular trial and be a “bribe in disguise”. The funding in the case at hand was allocated to the courts by way of a normal legislative process; it was seemingly part of a wider budgetary policy of support of federal institutions located in Moscow. There is nothing extraordinary in that payment which would enable the Court to connect it to the civil proceedings at hand. In the opinion of the Court, such “extra funding” cannot cast doubt on the courts’ independence within the meaning of Article 6 of the Convention.
244. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. Equality of arms
245. Under the same Convention provision the applicants in the case of Chernetsova and Others further complained that they had lost their civil cases before the Tverskoy and Basmanniy District Courts (see paragraphs 130. et seq. above) because they had been unable to obtain the necessary documents and information from the authorities and the courts had refused to examine certain items of evidence which the applicants had been ready to produce. They also complained of the insufficient time given to them to react to the defendants’ oral pleadings.
246. The Government argued that the fact of the moral and physical sufferings of the plaintiffs in the civil proceedings had been acknowledged by the defendants, namely the State authorities. In such circumstances the courts’ refusal to admit additional evidence to the case file had been justified.
247. The applicants maintained their claims in this respect.
248. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
G. Other complaints
249. The Court has examined the remainder of the complaints in both applications (see paragraphs 168, 169 and 170 above). However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
250. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Decides to join the applications;
Declares admissible, without prejudging the merits, the applicants’ complaints under Articles 2 and 3 about the use of force by the authorities, and the planning and conduct of the rescue operation of 26 October 2002;
Declares admissible, without prejudging the merits, the applicants’ complaints under Articles 2, 3 and 13 about the domestic criminal investigation into the events of 23-26 October 2002;
Declares admissible, without prejudging the merits, the complaint of the applicants in the case Chernetsova and Others under Article 6 § 1 of the Convention concerning the refusal of the Tverskoy District Court and Basmanniy District Court to obtain certain documents and information from the authorities, to examine certain items of evidence, and to give the applicants more time to prepare a reply to the oral pleadings of the defendant;
Declares inadmissible the remainder of the application.
Søren
Nielsen Christos Rozakis
Registrar President
Appendix: List of Applicants
Note. The application form in the case of Chernetsova and Others v. Russia was lodged on behalf of 57 persons (see the list below). The application in the case Finogenov and Others v. Russia was lodged on behalf of 7 people. Two of them (Ms Burban-Mishuris and Ms Gubareva) were also mentioned as applicants in the case of Chernetsova and Others v. Russia. Later, the lawyers in the case of Chernetsova and Others v. Russia produced authority forms from five persons who had not been mentioned in the original application form. Two of those five (Ms Tolmacheva and Ms Alyakina) confirmed afterwards that they had indeed wished to participate in the proceedings before the Court, and that their names had not been included in the original application form by the lawyers’ mistake. In the circumstances the Court is prepared to accept this explanation. As a result, the final list of the applicants in both of the above cases is as follows (the applicants whose name is in bold were personally amongst the hostages):
|
No. |
Name of Applicant |
Year of Birth |
Nationality |
|
1 |
Aistova Yevgeniya Lvovna |
1960 |
RUS |
|
2 |
Akimova Yelena Gennadyevna |
1974 |
RUS |
|
3 |
Alyakina Olga Aleksandrovna |
1983 |
RUS |
|
4 |
Alyakina Alla Kuzminichna |
1950 |
RUS |
|
5 |
Apshev Timur Khasenovich |
1967 |
RUS |
|
6 |
Bessonova Anna Andreyevna |
1973 |
RUS |
|
7 |
Bochkov Sergey Leonidovich |
1950 |
RUS |
|
8 |
Bondarenko Nora Petrovna |
? |
RUS |
|
9 |
Bondarenko Viktor Grigoryevich |
1938 |
RUS |
|
10 |
Burban (Lobazova) Yelena Leonidovna |
1979 |
UKR |
|
11 |
Burban-Mishuris Lyubov Grigoryevna |
1939 |
USA |
|
12 |
Burban Mark Naumovich |
1939 |
USA |
|
13 |
Chernetsova Zoya Pavlovna |
1954 |
RUS |
|
14 |
Finogenov Pavel Alekseevich |
1974 |
RUS |
|
15 |
Frolova Larisa Nikolayevna |
1945 |
RUS |
|
16 |
Generalova Svetlana Nikolayevna |
1967 |
RUS |
|
17 |
Gorokholinskiy Sergey Aleksandrovich |
1968 |
RUS |
|
18 |
Grinberg Yekaterina Vyacheslavovna |
1975 |
RUS |
|
19 |
Gromovich Sergey Vladimirovich |
1977 |
RUS |
|
20 |
Gubareva Svetlana Nikolayevna |
1957 |
KAZ |
|
21 |
Gunyasheva Olga Vladimirovna |
1971 |
RUS |
|
22 |
Karpov Ivan Sergeyevich |
1982 |
RUS |
|
23 |
Karpov Sergey Nikolayevich |
1954 |
RUS |
|
24 |
Karpova Tatyana Ivanovna |
1946 |
RUS |
|
25 |
Khaziyev Tukay Valiyevich |
1947 |
RUS |
|
26 |
Khomontovskiy Mikhail Yuryevich |
1971 |
RUS |
|
27 |
Khramtsov Aleksandr Fedorovich |
1975 |
RUS |
|
28 |
Khramtsova Irina Fedorovna |
1982 |
RUS |
|
29 |
Khramtsova Valentina Ivanovna |
1955 |
RUS |
|
30 |
Khudovekova Eleonora Vasilyevna |
1962 |
RUS |
|
31 |
Kiseleva Lyudmila Vasilyevna |
1945 |
RUS |
|
32 |
Koletskova Anna Aleksandrovna |
1983 |
RUS |
|
33 |
Konyakhin Aleksey Yuryevich |
19701 |
RUS |
|
34 |
Kovrizhkin Anatoliy Ivanovich |
1938 |
RUS |
|
35 |
Kutukova Nina Fedorovna |
1937 |
RUS |
|
36 |
Mr Kurbatov2 |
1959 |
RUS |
|
37 |
Ms Kurbatova3 |
1960 |
RUS |
|
38 |
Lyubimov Nikolay Alekseyevich |
1931 |
RUS |
|
39 |
Malenko Viktor Ivanovich |
1951 |
RUS |
|
40 |
Matyukhin Oleg Valeryevich |
1970 |
RUS |
|
41 |
Matyukhina Yekaterina Vladimirovna |
1978 |
RUS |
|
42 |
Milovidov Dmitriy Eduardovich |
1963 |
RUS |
|
43 |
Milovodova Olga Vladimirovna |
1966 |
RUS |
|
44 |
Panteleyeva4 Viktoriya Yevgenyevna |
1979 |
RUS |
|
45 |
Paramzin Vitaliy Sergeyevich |
1982 |
RUS |
|
46 |
Ponomarenko Eduard Nikolayevich |
1969 |
RUS |
|
47 |
Ryabtseva Aleksandra Aleksandrovna |
1983 |
RUS |
|
48 |
Rybachok Lyudmila Viktorovna |
1947 |
RUS |
|
49 |
Senchenko Vyacheslav Nikolayevich |
1975 |
RUS |
|
50 |
Shalnov5 Aleksandr Borisovich |
1957 |
RUS |
|
51 |
Shalnova Olga Aleksandrovna |
1957 |
RUS |
|
52 |
Sidorenkov Petr Ilyich6 |
1929 |
RUS |
|
53 |
Simonov Dmitriy Vladimirovich |
1960 |
RUS |
|
54 |
Solodova Olga Yevgenyevna |
1973 |
RUS |
|
55 |
Tolmacheva Galina Aleksandrovna |
1938 |
RUS |
|
56 |
Troitskiy Sergey Stanislavovich |
1964 |
RUS |
|
57 |
Volkov Nikolay Aleksandrovich |
1955 |
RUS |
|
58 |
Yakubenko Alexandr Vyacheslavovich |
1978 |
RUS |
|
59 |
Yegorova Svetlana Igorevna |
1982 |
RUS |
|
60 |
Yemakova Yuliya Vladimirovna |
1977 |
RUS |
|
61 |
Yuftyayev Yevgeniy Aleksandrovich |
1962 |
UKR |
|
62 |
Yuftyayeva Yekaterina Yevgenyevna |
? |
UKR |
|
63 |
Zabaluyev Mikhail Petrovich |
1959 |
RUS |
|
64 |
Zhirov Oleg Aleksandrovich |
1964 |
NLD |
1. The exact number is unknown since, following their release, not all of the hostages reported to the authorities.
2. These figures were later adjusted or revised – see paragraph 7 above and paragraph 40 below, see also the conclusions of the official investigation summarised in paragraph; apparently, the discrepancy in figures is mainly due to the fact that different methods of calculation of the number of victims was applied by various State authorities and that not all the necessary information (cause of death, time of death, etc.) was put on record in the hospitals and/or morgues.
3. According to a report by the Moscow Meteorological Bureau.
1. Some of the applicants dispute this figure – they claim that the overall mass of explosives was lower.
1. In some documents the number comes to 80: 30 for hospital no. 7 and 50 for hospital no. 13.
1. This difference can be explained by the interpretation of the wording of certain forensic reports, which is not always clear.
1. Most of the victims testified that the operation started at 5.30 a.m.; thus, the timing on the video recording seems to fit closely with the real timing of the events.
11. It appears that the domestic court was quoting the following sentence from the McCann judgment (§ 200): “... The use of force by agents of the State ... may be justified ... where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken.”
1. “1971” in the authority form
2. No first name in the application form
3. Idem.
4. “Panteyeva” in the application form
5. “Shalnoy” in the application form
6. “Ivanovich” in the application form