TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Further, the basic and uncontested failings of the local police departments constitute failings of subordinate state agents acting in their official capacity and are therefore attributable to the state in violation of its obligation under Article 2.
AP1 (Applicant): Madam President, I will now answer the court's third question regarding the functioning of the operative headquarters, which I will refer to as the OH, with respect to Article 2 obligations.
AP1 (Applicant): In assessing whether the use of force is compatible with Article 2, the court's practice is to scrutinize whether the security operation was planned and controlled by the authorities so as to minimize recourse to lethal force and human losses.
AP1 (Applicant): McCann and Erge.
AP1 (Applicant): Once the authorities had failed to prevent the attack on school number one, no one disputes that they were confronted with an extremely challenging scenario in which more than 1,000 hostages were embedded with terrorists.
AP1 (Applicant): For this reason, the careful planning and control of the operation was particularly critical.
AP1 (Applicant): In this case, unlike Finoginev, the authorities had prior warning of an attack of this nature on this date and therefore had time to coordinate a plan.
AP1 (Applicant): They had two days from the moment of the attack to prepare a rescue operation.
AP1 (Applicant): They were also aware of the particular vulnerabilities of these hostages, mainly children, weak and exhausted from lack of food and drink.
AP1 (Applicant): The applicants submit it is evident from the testimonies of OH members that there were no clear lines of command, control, or communication throughout the siege.
AP1 (Applicant): It took a day and a half for the official OH, as opposed to the spontaneously created informal structure under President Zasovov, to be established.
AP1 (Applicant): And even then, we submit, it was established in name only.
AP1 (Applicant): Half the officials named by the government as OH members testified they were unaware of their appointment and or took no part in meetings or decisions.
AP1 (Applicant): The North Ossetian Minister of Interior, Mr. Ziantiev,
AP1 (Applicant): stated he was not informed he had been appointed deputy head of the OH until after the siege was over and was excluded from the meetings.
AP1 (Applicant): The four members responsible for evacuation and provision of EMERCOM services stated they received no information or guidance from the OH beyond the misleading figure of 354 hostages.
AP1 (Applicant): Two deputy directors of the federal FSB, Pronechev and Anisimov, who were not members of the OH, acted throughout as key conduits of information and gave significant verbal orders concerning the operation to, for example, Gutseriev about negotiations and Ziantiev, outside the structure of the OH, contributing to the lack of coherence.
AP1 (Applicant): Further, the absence of any written records of orders or decisions is deeply unsatisfactory, considering the gravity of the situation and the significance of the decisions made and has hampered an effective investigation.
AP1 (Applicant): Ms. Ayeva.
AP1 (Applicant): Whilst the extent of negotiations with terrorists may be within a state's margin of appreciation, we submit that the coordination of the strategy as part of the planning and control of the operation is within the court's purview.
AP1 (Applicant): In this case, the conduct of negotiations appears to have been uncoordinated, with various strategies pursued simultaneously by different people.
AP1 (Applicant): Mr. Ziantiev, FSB negotiator, has
AP1 (Applicant): stated he was unaware of parallel negotiation attempts by Mr. Rochal and Mr. Gutseriev,
AP1 (Applicant): the latter at the behest and supervision of Mrs. Pronyshev and Anisimov.
AP1 (Applicant): Mr. Zasovov and General Aushar, apparently acting independently,
AP1 (Applicant): made attempts to contact Zakhaev and Masadov as potential negotiators.
AP1 (Applicant): The lack of a coherent command structure meant that operational decisions were made on an ad hoc basis, independently of other OH members whose expertise could have contributed to the available intelligence, constituting a failure to ensure appropriate decisions were taken and communicated.
AP1 (Applicant): Madam President, I will now turn specifically to the planning and use of lethal force.
AP1 (Applicant): Mr. Andrea, head of the OH, has admitted, and I quote,
AP1 (Applicant): that no plan consisting of resolving the situation by force had been considered.
AP1 (Applicant): That this was the case three days into a highly unpredictable siege is a fundamental failing of his leadership.
AP1 (Applicant): It was likely, given the hostages' deteriorating condition, that intervention might be required at any point and incumbent on the OH to devise a plan.
AP1 (Applicant): This lack of foresight was exacerbated by the fact, as we have heard from the government today, that FSB special forces, Wimphel and Alpha, were simultaneously away training in Vladikavkaz at the moment of the storming, leaving the operation without specialist units.
AP1 (Applicant): Such a plan should have included a comprehensive evaluation into the limits and constraints of the use of combat weapons on a civilian hostage population, as required by the court in Issyk-Keva.
AP1 (Applicant): Under Article 2, the use of lethal force must be no more than absolutely necessary and strictly proportionate to the aim.
AP1 (Applicant): The UN basic principles on the use of force require states to develop a range of weapons for differentiated use, including non-lethal incapacitating weapons to minimize endangering uninvolved persons.
AP1 (Applicant): Surely this was such a situation.
AP1 (Applicant): Article 11 of the domestic anti-terror law allows use of weapons and specialist hardware, but does not indicate the types of weapons nor the circumstances in which they can be used.
AP1 (Applicant): In this case, there is no evidence that such an evaluation was undertaken.
AP1 (Applicant): Mr. Andreev, solely responsible under Article 2
AP1 (Applicant): of the anti-terror law for decisions on the use of force and resources, and to whom specialist units were explicitly subordinate, admitted that he had no authority in this regard, and decisions on the types and use of special weapons were solely within the competence of the Special Task Center under General Tikhonov.
AP1 (Applicant): General Sobolov, commander of the 58th Army, confirmed in court that heavy military weaponry was transferred to the FSB because the army does not have the right to use heavy machinery during peacetime.
AP1 (Applicant): The government has conceded that it deployed both tank explosives and flamethrowers.
AP1 (Applicant): The RPO Bumblebee, also known as a fuel air or thermobaric weapon, is intended for military use to destroy personnel undercover in buildings and installations.
AP1 (Applicant): I refer the court to the statement of Mr. Tomchik, the government's explosives expert, who
AP1 (Applicant): details its devastating destructive impact in confined spaces of up to 80 square meters.
AP1 (Applicant): These weapons were used by the Russian military in Chechnya.
AP1 (Applicant): There is ample credible evidence from hostages, witnesses, and police to conclude that both tanks and flamethrowers were used while hostages were in the building.
AP1 (Applicant): More than 50 witnesses, including trained tank officers, gave evidence at the Kulayev trial that they saw tanks fire on the canteen and the school when women and children were visible in the windows.
AP1 (Applicant): Some of these witnesses tried vainly to stop the shelling.
AP1 (Applicant): Police officers Kucherov, Friyev, Mertesov, and Bitsilov testified to the use of RPO flamethrowers between 2 and 4 PM.
AP1 (Applicant): These are not exhaustive lists.
AP1 (Applicant): The government has provided no evidence to indicate that the numerous international law prohibitions on carrying out indiscriminate attacks have been taken into account.
AP1 (Applicant): The burden of proof of absolute necessity rests with the government, Orhan against Turkey.
AP1 (Applicant): The government has provided no adequate explanation as to the need for the use of indiscriminate combat weapons.
AP1 (Applicant): Section 2 of the Anti-Terror Act requires that specific technical methods of such operations be kept secret.
AP1 (Applicant): And it is notable no testimony from General Tikhanov has been disclosed.
AP1 (Applicant): In this case, the vagueness of the domestic legal framework and lack of regulation of the use of force is directly relevant to the court's considerations with regard to the proportionality of the attack.
AP1 (Applicant): Isayeva.
AP1 (Applicant): The failure of the OH leadership to make a comprehensive assessment of the dangers entailed by the use of such combat weapons.
AP1 (Applicant): The use of these weapons in circumstances when hostages, 800 children, were in the building or at all, and the lack of supervision and regulation of the use of lethal force constitute serious operational violations of Article 2.
AP1 (Applicant): Madam President, I will now address the coordination and provision of EMICOM services.
AP1 (Applicant): The court stated in Phnogenet that the planning and conduct of the rescue operation can be subjected to a more thorough scrutiny than the political and military aspects of the operation.
AP1 (Applicant): It noted first that the rescue operation was not spontaneous.
AP1 (Applicant): Second, the authority should have been in a position to rely on some generally prepared emergency plan.
AP1 (Applicant): Third, they had some control of the situation outside the building.
AP1 (Applicant): Finally, the court stated that the more predictable a hazard, the greater the obligation to protect against it.
AP1 (Applicant): All these considerations apply equally in the present case.
AP1 (Applicant): We submit that the accurate assessment of the number of hostages should have been a priority for the OH from the outset, vital to ascertaining the level of the threat to life and facilitating adequate preparation of medical and evacuation resources.
AP1 (Applicant): Mrs. Goncharov, Dzhai Goev, and Soplivenko,
AP1 (Applicant): responsible for EMICOM and evacuation, only learned the correct number of hostages on the 2nd of September, either from General Aushev after he'd been into the school or from the released nursing mothers.
AP1 (Applicant): They took no part in OH meetings, received no centralized coordination or guidance, and worked independently.
AP1 (Applicant): General Sobolev has confirmed that the lack of organization of assistance in evacuation and delivery of the wounded as causing repeated outrage amongst medical staff and subordinate units.
AP1 (Applicant): Further, according to Mr. Goncharov,
AP1 (Applicant): the failure of the OH to ensure the integrity of the scene made it difficult to maintain security around the school and the hospital and facilitate access.
AP1 (Applicant): With respect to the response to the fire in the gymnasium, we rely on the evidence of EMICOM Minister Mr. Dzhai Goev
AP1 (Applicant): and at least 10 interior officers that the fire broke out shortly after the first explosion at around 115.
AP1 (Applicant): And by the time the firefighters arrived on the scene at about 320, the roof had started to collapse, and there were no living hostages in the gym.
AP1 (Applicant): Despite requests, General Tikhonov refused to deploy the fire service until 310 PM, two hours after the fire started.
AP1 (Applicant): Lack of clear command and coordination again appears to have contributed to inadequate planning.
AP1 (Applicant): Neither Dzhai Goev nor Romanov, his subordinate in charge of firefighting, appear to have taken responsibility for basic preparatory steps, such that despite two days to prepare and the high forcibility of fire resulting from explosions, no fire engines were on standby.
AP1 (Applicant): No reconnaissance of the area had been undertaken to ascertain the availability of water hydrants.
AP1 (Applicant): No provision of protective clothing had been made as required by the firefighting manual.
AP1 (Applicant): The route was blocked by parked cars.
AP1 (Applicant): There was a shortage of water and delays in laying down supply lines.
AP1 (Applicant): A fire engine broke down, blocking access to a hydrant.
AP1 (Applicant): The number of fire engines deployed was seriously inadequate.
AP1 (Applicant): Witnesses testify seeing between one and three.
AP1 (Applicant): In any event, they were deployed too late to save anyone in the gym.
AP1 (Applicant): 116 adults and children were burnt beyond recognition in the gym.
AP1 (Applicant): Their cause of death remains unknown.
AP1 (Applicant): The issue for this court is whether the state as a whole complied with its obligations to take all feasible precautions in the choice and means and methods of a security operation mounted against an opposing group with a view to avoiding, and in any event, minimizing incidental loss of life.
AP1 (Applicant): Ergie.
AP1 (Applicant): The applicants submit for the reasons outlined.
AP1 (Applicant): It did not.
AP1 (Applicant): I now hand over to Mr. Korotayev, who will
AP1 (Applicant): answer the court's question two.
Isabelle Berro-Lefèvre (JudgeP): Thank you, Mrs. Gavron.
Isabelle Berro-Lefèvre (JudgeP): I give the floor to Mr. Koroteyev.
AP2 (Applicant): Madam President, I will deal with the court's second question on concerning the effectiveness of the investigation under Article 2.
AP2 (Applicant): With regard to the court's question 2A, we submit that the investigation failed to determine the causes and circumstances of the deaths and injuries incurred.
AP2 (Applicant): Internally against Turkey, the court unequivocally ruled that an autopsy should provide a complete and accurate record of possible signs of untreatment and injury and an objective analysis of clinical findings, including the cause of death.
AP2 (Applicant): In this case, firstly, as confirmed by the evidence of Ms. Olenik, head of the forensic
AP2 (Applicant): laboratory, only external examination was conducted, and the causes of death were not established.
AP2 (Applicant): She testified before the Promotional District Court of Vladikavkaz that an external examination would have been capable of confirming the cause of death and distinguishing between those who died in fire and those who received post-mortem burns.
AP2 (Applicant): However, the investigators only requested the experts to undertake a general external overview of the bodies and to establish the identity of the dead, not the causes of death.
AP2 (Applicant): She also confirmed that the experts lacked information about the events at the school regarding the fire, explosions, or shooting.
AP2 (Applicant): As a result, the cause of death of 116 persons found in the gym remains unknown, and the government assertion of massive post-mortem burns is not founded upon credible forensic examination.
AP2 (Applicant): The authorities justified this by the urgent need to identify and bury the bodies.
AP2 (Applicant): We submit that such a justification is inadequate and violates the USSR autopsy rules applicable at the time.
AP2 (Applicant): Those rules unequivocally require that internal examination be conducted and the cause of death be established.
AP2 (Applicant): So do, by way of comparison, the UN Model Autopsy Protocol and the UK Autopsy Guidelines.
AP2 (Applicant): Conclusions that the victims died from explosion or gunshot wounds were also reached without conducting full autopsies, as confirmed by expert Tekhov.
AP2 (Applicant): He further failed to explain why a number of the expert reports drawn up by him were identical.
AP2 (Applicant): According to the forensic expert reports, no bullets, shells, or shrapnel were extracted from the bodies for identification, preventing the attribution of responsibility for the deaths.
AP2 (Applicant): The bodies were buried with spent ammunition inside.
AP2 (Applicant): Secondly, the applicants were not given opportunity to put questions to the forensic experts about the cause of death of their relatives.
AP2 (Applicant): Investigator Malov justified this by the fact that when the reports were commissioned, the applicants had not yet been granted formal victim status in criminal proceedings.
AP2 (Applicant): This is wholly inadequate.
AP2 (Applicant): Thirdly, the difference in the way the bodies of victims and those of the terrorists were treated is striking.
AP2 (Applicant): With respect to the bodies of terrorists, full autopsies were conducted.
AP2 (Applicant): The cause of death was established, and even parts of their stomachs were examined to ascertain whether they were under influence of toxic substances.
AP2 (Applicant): Nothing of the kind for the victims.
AP2 (Applicant): The failure of forensic experts to establish the causes of death of the hostages led to other implorable conclusions made by the investigation.
AP2 (Applicant): The decisions not to charge any firefighting officers, or any member of the OH, or any military and security officers with any crime were based on the assumption that no hostage died in the fire or was killed by the agents of the Russian state.
AP2 (Applicant): In exactly the same circumstance as the Grand Chamber found a violation of Article 2 in Salmon and Turkey.
AP2 (Applicant): Madam President, I now move to the court's question 2B.
AP2 (Applicant): We submit that the investigation did not sufficiently establish the use of indiscriminate weapons upon the school building.
AP2 (Applicant): The government's contention that heavy weaponry, tanks and flame throwers, was used only after 6 PM to neutralize the terrorists, and after the release of all hostages, does not stand up even on its own evidence.
AP2 (Applicant): Firstly, there is no evidence that any actual assessment was undertaken to check that no one of the 1,200 hostages remained alive in the building.
AP2 (Applicant): Secondly, General Tikhonov testified before the Parliamentary Commission that flame throwers and grenade launchers were first used at the school at 3.05 PM.
AP2 (Applicant): Thirdly, the government's submissions are rebutted by the credible testimony of numerous hostages, for example, those of Jean Natsirikhov, present here today, witnesses, and police, as you have heard from Ms. Gavin.
AP2 (Applicant): Their detailed statements, as well as Mr. Savelyev's report,
AP2 (Applicant): were entirely disregarded by the investigation.
AP2 (Applicant): It also follows from the statements of Private Kharasov and Captain Jogin, made to the domestic investigation, that at least two APCs, numbers 824 and 832, fired at the school from the Comintern Street between 1.50
AP2 (Applicant): PM and 2.30 PM.
AP2 (Applicant): According to the ammunition reports of the 58th Army, these APCs were armed not only with machine guns, but with cannons, firing the same high explosive fragmentation shells as tank cannons.
AP2 (Applicant): Furthermore, although the use of combat weaponry was within the sole authority of General Tikhonov, the applicants had no opportunity to question him, because his testimony was secret.
AP2 (Applicant): It was not referred to in any decision taken by the investigation, and the government failed to disclose it to this court.
AP2 (Applicant): The applicants also note the actions of AmeriCom on the 4th of September hampered assessment of the use of indiscriminate weapons.
AP2 (Applicant): In sum, it cannot be said that all the circumstances of the use of indiscriminate heavy weapons were sufficiently considered and established.
AP2 (Applicant): Madam President, turning to the court's question 2C, we note that the investigation's approach to the compilation of a list of weapons and ammunitions is strikingly inadequate.
AP2 (Applicant): The court ruled on numerous occasions that the investigation must locate spent cartridges of ammunition used in security operation, record their locations, and order a ballistic examination that would establish the trajectories in which the weapons were fired.
AP2 (Applicant): We refer in particular to Onan against Turkey on the obligation to properly record spent cartridges.
AP2 (Applicant): In the present case, the government has failed to produce one single document listing all the weapons used by the security forces in the course of the military operation.
AP2 (Applicant): The records of use of flamethrowers and tank cannons can be found in the reports of the military regiments produced by the government.
AP2 (Applicant): The decision not to charge military and security forces lists several dozen Kalashnikov rifles and machine guns, but not any weapon heavier than that.
AP2 (Applicant): The decision merely notes that heavier weapons, including indiscriminate ones, had been used in conformity with applicable legislation.
AP2 (Applicant): No assessment of this conformity was given, though.
AP2 (Applicant): Madam President, as regards the events at the school site on 4 September 2004, we submit that the site inspection report was unspecific as to the detail of damage to the building and location and state of the victims' bodies.
AP2 (Applicant): Further, the examination of the site occurred simultaneously with Amercom clearing debris with forklift trucks, severely compromising the investigation.
AP2 (Applicant): As evidenced by the statement on page 23 of the site inspection report about the southern wing, I quote, the said wing is almost destroyed, and the Amercom servicemen are clearing the debris, as a result of which no examination of this wing is carried out, end of quote.
AP2 (Applicant): No persons involved in the operations on the school site were questioned by the investigation, and at no point did the investigation rebut the serious allegation of mishandling the school site.
AP2 (Applicant): Madam President, in reply to the court's question 2E, the applicant submitted that the decision not to persecute military and security officers was not taken after thorough and effective investigation.
AP2 (Applicant): First, the court found in Finoganov that the speed of taking a decision of no case to answer is a relevant consideration, and was not satisfied that such a decision had been taken less than two months after the events.
AP2 (Applicant): In the present case, in which the number of victims is twice that of Finoganov, and the circumstances of the storm are highly contested, it took the investigation only two months to rule there was no case to answer.
AP2 (Applicant): Secondly, this decision was taken before many of the key witnesses were interrogated, including the victims, police, military and security personnel, firefighters, and members of the OAH, who testified between 2005 and 2006.
AP2 (Applicant): Thirdly, the two main forensic reports concerning the functioning of the OAH and the firefighting operations were commissioned to the institutions and experts dependent on or employed by the agencies implicated in the events, Ministries of Defense in Ontario and the FSB.
AP2 (Applicant): This, together with the fact that the FSB officers were interrogated by the FSB investigators and military servicemen by military investigators, cast doubt, as in Finoganov, on the independence of the investigation.
AP2 (Applicant): Fourthly, the focus and remit of the investigation in the case number 20-849 was on the actions of terrorists, not on those of the Russian military and security forces.
AP2 (Applicant): This consideration is crucial to the assessment of the effectiveness of the investigation as it was established, again, in Finoganov.
AP2 (Applicant): Accordingly, the decision that the military and security officers had no case to answer was not taken after an investigation in compliance with the requirements of Article 2 of the Convention.