ITEMID: 001-108231
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF FINOGENOV AND OTHERS v. RUSSIA
IMPORTANCE: 1
CONCLUSION: No violation of Art. 2 (substantive aspect);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 6. 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 and/or were themselves among the hostages.
7. The facts of the above two cases are disputed between the parties. Their submissions may be summarised as follows.
8. 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.
9. 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. Following those talks the terrorists released several hostages and accepted some food and drinking water for the remainder, while continuing to insist on their demands.
10. 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.
11. 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 V., 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 VI. was first beaten by the terrorists in the theatre auditorium and then taken out and executed. Mr G. tried to escape, but the terrorists fired at him, and he was then taken out, beaten and executed. While firing at Mr G., the terrorists wounded another hostage, Mr Z., who later died in hospital.
12. The applicants indicated that Mr V. and Ms R. had not been in the building during the show, but entered it some time later at their own initiative. They referred to the statements by several former hostages, in particular Ms Gubareva and Ms Akimova. They also relied on the conclusions of the investigator in the report of 16 October 2003, stating that Ms R. and Mr V. had tried to penetrate the building from the outside. As to Mr G., he was among the hostages from the very beginning, but the investigator had failed to establish where, when and in what circumstances he had been shot.
13. 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.
14. 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.
15. At 9.33 p.m. on 23 October 2002 the local branch of the All-Russia Centre for Disaster Medicine received information about the hostage-taking.
16. Shorty afterwards the authorities created a “crisis cell” (operativniy shtab, literally “operative headquarters”) 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.
17. 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 2002 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.
18. 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. The MCUMT was functioning in crisis mode, so all of its workers were permanently on duty.
19. From 24 October 2002 five ambulances and one brigade of MCUMT medics with a special medical bus were permanently on duty near the theatre. According to the Government’s submissions, “2–3 teams of the Zaschita Centre and 2–4 ambulances were permanently stationed in the vicinity of the theatre building”. Another brigade of MCUMT medics and psychologists provided aid to the relatives of the hostages in the building of Professional School no. 194. In total, the psychologists examined 606 cases and ordered eight hospitalisations.
20. The patients of the War Veterans Hospital (the medical facility closest to the theatre) were relocated to other hospitals which were not earmarked to receive individuals from 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 units and six theatres for surgery were made available. By 26 October 2002 the admission capacity of the War Veterans Hospital had been increased to 300-350 beds. According to the Government’s submissions, “515 persons were relocated from the War Veterans Hospital to other city hospitals”.
21. The heads of the city hospitals concerned with the evacuation plan, ambulance stations and other relevant medical services were summoned for a briefing and required to secure reinforcement of staff on duty and an emergency work regime. The authorities designated several hospitals which would admit the hostages. The hospitals were divided into three priority groups. The Government did not explain how those three priority groups were defined. Besides War Veterans Hospital no. 1 (the closest), those were City Hospitals nos. 1, 7 and 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 Anaesthesiologist of Moscow City, visited some of those hospitals and checked whether they were ready to admit rescued hostages. He had been instructed by the crisis cell to check whether the hospitals were ready to accept patients with missile and explosion wounds. 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 the 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.
22. In the early morning of 26 October 2002, at about 5-5.30 a.m., the Russian security forces pumped an unknown narcotic gas into the main auditorium through the building’s ventilation system. The applicants insisted that both the terrorists and the hostages were capable of smelling and seeing the gas. A few minutes later, 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. Most of the suicide bombers were shot while unconscious; others tried to resist but were killed in the ensuing gunfire.
23. Soon afterwards Mr Ign., a member of the crisis cell with responsibility for public relations, made a statement to the press. He informed 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.
24. As a result of the operation the majority of the hostages were released (over 730 people). The exact number is unknown since, following their release, not all of the hostages reported to the authorities. However, a large number of hostages were affected by the gas; according to information gathered by the investigative authorities by the end of 2002, 129 hostages died: 102 died on the spot (114 according to the report of 31 December 2002), including three persons who were shot; 21 died in the course of evacuation and transportation to hospital; and six persons died in the emergency rooms of various hospitals. These figures were later adjusted or revised – see paragraph 11 above and paragraph 48 below, see also the conclusions of the official investigation summarised in paragraph 99. Apparently, the discrepancy in figures is mainly due to the fact that different methods for calculating the number of victims were applied by various State authorities and that not all the necessary information (cause of death, time of death, etc.) was recorded in the hospitals and/or morgues. Many of those who survived continue to suffer from serious health problems. For instance, one of the applicants, Ms Gubareva, a former hostage, was taken in an unconscious state 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 applicant Ms Khudovekova, who was also amongst the hostages, lost her hearing. The applicants submitted medical records in respect of several former hostages from hospitals where they underwent medical treatment after release.
25. 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, according to a report by the Moscow Meteorological Bureau, the temperature was 1.8ºC. 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 rapid 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 held.
26. The authorities disputed that view. According to the Government, at 5.39 a.m. the crisis cell informed the ambulance stations involved in the operation that 100 reserve ambulance teams should be prepared for the evacuation of the hostages. Between 5.48 and 5.55 a.m. 458 ambulance teams received an order to go to the scene. In addition, 21 hearses were dispatched. All medics who were on duty in the vicinity of the theatre were ordered to gather at the main entrance to the theatre. At 6.09-6.14 a.m. ambulances started to arrive, so that the medics who were already there received reinforcement. The coordination of the medics on the spot was carried out by the head of the Moscow branch of the Centre for Disaster Medicine. The victims were divided into several groups, depending on their condition, on the ground near the main entrance to the theatre. Medical assistance to the victims had been adequate: those in a serious condition received “symptomatic therapy” including artificial lung ventilation. The witnesses who showed signs of an emetic reflex were placed face down. Injections of Nalaxone were given by the special squad officers within the building. Information about those who had already received injections was transmitted by the special squad officers to the medics. Those who had not been injected with Nalaxone in the building received it after the evacuation. Nalaxone was on the list of pharmaceuticals recommended for the ambulances and Disaster Medicine teams. The victims were transported in ambulances and city buses accompanied by ambulances; those victims who were in a coma or other serious condition were transported in the ambulances. The evacuation was fully completed one hour and fifteen minutes after the liberation of the hostages. All victims were dispatched to city hospitals nos. 1, 7, 13, 15, 23, 33, 53, 64, 68, 79, Botkin Hospital, Sklifosovskiy Hospital, the War Veterans Hospital, Filatov Paediatric Hospital, Saint Vladimir Paediatric Hospital and hospitals nos. 38 and 84 of the Ministry of Health of the Russian Federation. The majority of the victims were transported to War Veterans Hospital no. 1 and city hospital no. 13, which were the closest medical institutions. In the hospitals’ reception areas all of the victims were divided into four groups, depending on the gravity of their condition. The hospitals immediately received reinforcement from the leading medical schools, and the best specialists in toxicology and psychiatry were sent to provide assistance.
27. In the Government’s account, the most serious cases were characterised by the following symptoms: “dysfunction of the central nervous system, impairment of consciousness, from torpor to deep coma, inhibition of tendon reflexes, pupillary and corneal reflexes, breathing dysfunction of a central type, with a frequency of 8-10 times per minute, as well as manifestations of mechanical asphyxia and airway aspiration obstruction, [and] glottidospasms. These symptoms were accompanied by cyanosis of the visible parts of the airway mucus and of the skin, which disappeared after the emptying of the airways, reinstatement of their patency and artificial lung ventilation. Low arterial pressure and tachycardia were also noted. In the most serious cases [the medics observed] bradycardia, bradypnoea to the extent of apnoea, non-effective blood circulation and cardiac arrest, as well as clinical death.” The medium-gravity patients were suffering from “impairment of consciousness in the form of torpor and the loss of orientation, fever-like hyperkinesias, miotic pupils. As to the cardio-vascular system, [the doctors] noted tachycardia, nausea, [and] repeated bile vomiting”. The Government also described the symptoms of the victims whose state was characterised as relatively satisfactory.
28. As to the medical procedures administered, the Government mentioned “suppressing dysfunctions of the vital organs, liberation of the upper airways, artificial lung ventilation, oxygenotherapy, correction of metabolic dysfunctions caused by hypoxia”. In the Government’s words, this therapy had quick positive dynamics. The Government further described the effects which the therapy had on the victims, and the results of the laboratory examination of the victims’ blood and tissues, which showed that the victims developed a “post-hypoxia condition with manifestations of multiple organ failure of various degrees of gravity”. According to the Government, that condition was caused by the effects of a “composite chemical compound of a general narcotic action”, which were aggravated by “prolonged psychological stress, hypoxia, dehydration, prolonged immobility, and chronic diseases”.
29. According to the Government’s submissions, in toto rescue services evacuated from the theatre 778 hostages, including 101 dead bodies. 677 persons were dispatched to the hospitals, 21 arrived at the hospital in a pre-agonal or agonal state or were in a state of clinical death and could not have been saved. Out of 656 persons who were hospitalised, seven died, including three persons who died from causes unrelated to the use of gas. Consequently, the death rates in the hospitals amounted to 0.9%.
30. On 23 October 2002 the Moscow City Prosecutor’s Office (“the MCPO”) opened a criminal investigation into the events of 2326 October 2002. The case was attributed no. 229133. The prosecution qualified the facts as “a terrorist act” and “hostage-taking” (Articles 205 and 206 of the Criminal Code).
31. 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 of 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.
32. 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 certain materials of the case file, namely the medical files of the victims to whom they were related. Despite their requests, however, they were not allowed to make copies of those materials from 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.
33. On 17 December 2002 investigator K. requested the MCPO to extend the time-limit for the investigation in case no. 229133. The request contained a further action plan for the investigative team; it 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.
34. On 29 January 2003 investigator K. proposed a new action plan for the “concluding stage of the investigation”. The plan provided for further investigative measures aimed at identification of the dead terrorists and their possible accomplices, examination of explosives and firearms used by them, questioning of the victims and examination of objects found on the scene of the crime. According to the action plan, by that date 60 rescue workers and 60 medical workers had been questioned, 600 medical histories of victims had been obtained, and 129 post-mortem examinations had been carried out. The investigator ordered that an additional expert examination be conducted into the cause of death of 125 victims (those who had not died of bullet wounds). The investigator also ordered that additional witnesses be questioned. However, it appears that the purpose of that questioning had no relation to the rescue operation itself.
35. At the admissibility stage the Government produced some documents from case no. 229133. The documents include witness statements by those who participated in negotiations with the terrorists; witness statements from several former hostages; witness statements from officials from the public health service and rescue service who had been 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 from the Moscow Centre MCUMT, ambulance medics, 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. Following the Court’s decision on admissibility of the case the Government submitted further documents from case no. 229133 and several other “parallel” investigations related to the terrorists and their accomplices. The documents produced by the Government, in so far as relevant and readable, are summarised below.
36. 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.
37. 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 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.
38. 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 be organised between President Putin and Mr Maskhadov, the president of the separatist government. 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.
39. 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.
40. The investigators questioned 737 former hostages about the situation in the main theatre auditorium 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 submitted several full-text written testimonies by the former hostages. These documents, to the extent that they are relevant, can be summarised as follows.
41. Most of the hostages testified that there had been 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, threatening execution for non-compliance.
42. 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, then 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.
43. It is clear from the witnesses’ 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.
44. 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 in the auditorium 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. Within 10 minutes most of the people in the auditorium were unconscious.
45. 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); and that the latter’s simultaneous detonation would have killed or seriously injured most of the hostages in the auditorium through blasts or shrapnel, but it was 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.
46. 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 five ambulances and two 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 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 teams arrived at the scene at 6.09-6.14 a.m.
47. 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, Nalaxone was only slightly effective when administered 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 special-squad officers; the officers informed the medics which hostages had not received an injection; that group then received an injection from the medical emergency teams. Victims in a coma were transported in the ambulances; the others were transported in city buses, but always accompanied by medics.
48. 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.
49. 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 hospitals. That report did not include statistics on the deceased hostages.
50. 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.
51. City Hospital no. 13 admitted three 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 (ten arrived in ambulances); between 9 and 9.30 a.m. the hospital admitted 27 patients (nine arrived in ambulances); between 9.30 and 10 a.m. the hospital admitted 20 patients (one arrived in an ambulance); and after 10 a.m. the hospital admitted 45 patients (one arrived in an ambulance).
52. City Hospital no. 7 admitted eight patients between 7 and 8 a.m. (all brought in ambulances); 16 patients between 8 and 8.30 a.m. (six were brought in ambulances); 13 patients arrived between 8.30 and 9 a.m. (five were brought in ambulances), eight arrived between 9 and 9.30 a.m. (two were brought in ambulances); 15 arrived between 9.30 and 10 a.m. (one was brought in an ambulance); and 17 arrived after 10 a.m.
53. City Hospital no. 1 admitted nine patients between 7 and 8 a.m. (all were brought in ambulances), and 19 between 8.30 and 9 a.m. (12 in ambulances).
54. Witness Ev., the Chief Anaesthesiologist of Moscow City, testified that he had been responsible from 23 October 2002 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 operating 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 70 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, high ferments and “myoglobin” levels, 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 lung ventilation, 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 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.
55. Witness Ks., director of the MCUMT, stated that she received information about the storming of the building 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. Ks. herself stayed in the hospital. 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.
56. Witness N., another MCUMT official, 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 to evacuate 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 the evacuation. They had arrived on site at 7.05 a.m. Circulation near the building had been hindered by the heavy trucks which had been blocking the road. Witness N. had been responsible for placing the hostages in the city buses and dispatching them to hospitals under the convoy of escort vehicles. The initial examination had shown that the victims were suffering 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.
57. 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 expected that the hostages to 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 gas to which they had been exposed.
58. Witness Skh, the chief emergency physician of City Hospital no. 1, testified that the first patients had been delivered by ambulance to his hospital at 7.15 a.m. At about 8 a.m. a city bus had arrived with 32 victims. All of them showed 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.
59. 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 victims was already there. The main arrival of victims had been at 7.45 a.m., when 47 ambulances, each carrying two or three people, and five buses 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. Twenty 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 some Nalaxone stocks available in the hospitals but it had been insufficient, so on 26 October 2002 they had received a further supply of about 100 doses.
60. 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 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.
61. 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).
62. 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 stocks. The first ambulances had arrived at the hospital at about 7.15 a.m., and continued to arrive for about 45 minutes. Af. himself had not seen any signs of medical intervention on the victims’ bodies. People had been in a very weak state. 14 hostages had died, but it was hard to say whether the deaths had occurred during 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”.
63. 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 subsequently, with the exception of one woman, who had died three days later of a heart attack.
64. 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 gave injections in their arms.
65. 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.
66. Witness Bgr, deputy Chief Doctor at Main Military Hospital no. 1, testified that she had seen no signs of medical intervention on the victims. Ms Mkhl., head of the emergency treatment unit of the War Veterans Hospital no. 1 testified that there had been no Nalaxone stocks in their hospital.
67. Witness Chz. was the head of the rescue service at the Moscow City Administration. He stated that he had participated in planning 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.
68. 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 evacuating 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.
69. 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.
70. 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 buses’ circulation in traffic.
71. 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.
72. Witness Vlk., an MCUMT doctor, 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 MCUMT staff. 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. A lack of information about the gas, and of doctors and paramedics in the city buses transporting victims to the hospitals had played a negative role.
73. Witness Kr., a doctor from the MCUMT, testified that he had participated in evacuation of the hostages. He had arrived at the scene at 7.02 a.m.; clinical examination of the victims had shown that they were suffering from poisoning by opiate drugs. 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 walkie-talkie 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 hostages’ evacuation had been satisfactory.
74. 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 ambulances and 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.
75. 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-held torches and provided first aid, namely the administration of injections in the buttocks.
76. 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.
77. Witness Zb., a doctor in Hospital no. 13, testified that she had arrived at work at 8.05-8.10 a.m. on 26 October 2002. By that time the buses with hostages had already arrived. She had examined a number of patients; six 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.
78. 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 Cardiomin). Most of the doctors from the various city hospitals testified that there had been enough medical personnel to treat the hostages and that premises 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.
79. Witness Psd., emergency physician at City Clinical Hospital no. 1 testified that he had seen no traces of injections or incubatory tubes on the victims. He also testified that he had had no previous experience with gas poisoning. He further testified that the emergency treatment team in the hospital consisted of two doctors and five paramedics.
80. 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.
81. 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 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.
82. 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.
83. 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.
84. Witness Fds., an ambulance doctor, testified that he had been in an ambulance located at the parking area near the building. At 8 a.m. he arrived to the scene and took two people to Hospital no. 7 in his vehicle. 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.
85. 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.
86. 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.
87. 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. She had not been warned about her possible participation in the rescue operation and had not been given any specific instructions about the methods of treatment to be applied to the hostages.
88. 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.
89. 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 nowhere 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.
90. 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 medic. 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 the medics had had some information about the gas. He had not been warned about his possible participation in the rescue operation before he had received the order to go to the theatre. He had received no specific instructions about procedures to follow or about any particular medical treatment to be applied to the hostages.
91. Witness Osp., an ambulance paramedic, 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 ambulances, 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. He also testified that he had not been warned about his possible participation in the rescue operation in advance, and had received no specific instructions.
92. Witness Blk., an ambulance paramedic, 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 learned from him that gas had been used. At the entrance to the hospital the bus was stopped by the hospital’s security guards. One hostage was dead on arrival at the hospital.
93. The applicants referred to testimony by several other medics who had participated in the rescue operation, namely Mr Zkhr., Mr Lrn., Ms Suschn., who all stated that they had not received any prior warning about their possible involvement in the rescue operation or instructions about specific procedures or treatment to be applied. Mr Zkhr. testified, in particular, that he had received only six doses of Nalaxone, whereas the bus he had been in charge of had contained 17 victims, including four who were seemingly dead. Mr Msln., an ambulance paramedic, testified that he would have been better prepared if he had had more syringes with Nalaxone. Ms Vlv., an ambulance paramedic, testified that when she received a victim for further transportation to the hospital she was not told whether or not that person had already received any medical treatment. Her colleague, Ms Klv., also testified that she had not been told whether the victims had received any medical assistance. Ambulance paramedics and drivers Mr Kzm., Ms Bgtr., Ms Vlv., Mr Ptkh., and Ms Krgl. testified that either they had not had a walkie-talkie in their cars or the system had not been operational. Paramedic Mr Kp. testified that he had not been told where to go. Paramedics Mr Prkh. and Ms Suschn. testified that their vehicles had followed other ambulances (in order to find the way to the hospital).
94. The investigators questioned Mr Al., an officer working in the public relations office of the FSB. He told the investigator that he had not participated in the planning of the operation. However, at about 6.306.40 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 were taking 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.
95. In January-February 2003 the Bureau of Forensic Examinations of the City of Moscow Health Department, at the MCPO’s request, 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 cases the post-mortem examination showed that death occurred on 26 October 2002 between 6 a.m. 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 such information), 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.
96. 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). In over 15 cases the doctors discovered traces of intravenous injections in the victims’ arms, whereas in other cases the doctors testified that the deceased 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 hospital in a critical state, with almost no breath or pulse. The medical files of 17 people contained an entry that “no chronic diseases were detected”.
97. In their general conclusions the doctors of the Bureau of Forensic Examinations of the City of Moscow Health Department established that most 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.
98. 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 five persons had been killed by the terrorists during the siege. Their number included 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 in the incident involving Mr G.
99. 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].”
100. 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.
101. 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 derivatives of phentanyl”. However, more precise information about this gas and its effects remain undisclosed, even to the investigative authorities, for reasons of national security.
102. 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.
103. The time-limits for the completion of the investigation were extended several times. It appears that the investigation has not yet been formally completed.
104. 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.
105. The first video recording (disc no. 1) shows the central entrance to the theatre building. The recording is made from an upper-floor 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 coming out of the building. The applicants explained that those people were five Azeri hostages released by the terrorists.
At 11.23 p.m. a lone figure enters the building. Again, the applicants explained that this was Mr Vl. entering 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. According to the applicants, the doctors evacuated Ms St., who had been wounded by an accidental shot during the incident with Mr G., and Mr Z. The ambulances arrived two hours after the terrorists requested them.
At 5.33 a.m. the sound of shooting can be heard from the building. 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 this 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 approaches 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 more 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 seconds 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 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 the workers 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.
Over 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.
106. 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.
107. 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 in front of 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 special-squad officers 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.
108. The tape also contains a number of interviews with former hostages, doctors, and officials. One former hostage told the interviewers in the hospital that the terrorists had planned to liberate all foreign citizens at 8 a.m.
109. 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.”
110. 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 toxicologist practicing in the United States 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.
111. 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.
112. 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.
113. 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 the individual is unconscious breathing may slow below the point that is needed to maintain sufficient oxygen in the 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, this causes muscular rigidity, which 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.
114. 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”.
115. 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.
116. 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 eight 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.
117. 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.
118. 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 Mr Zhirov stated that his relatives had been held in the theatre. He 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.
119. 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 [in some cases].
120. On an unspecified date Mr Nmt., a Member of Parliament, requested the MCPO to conduct an inquiry into the evacuation process 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 providing 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).
121. 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”.
122. Investigator I. further related the testimony of several witnesses (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 intended 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.
123. 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.
124. On an unspecified date Mr Finogenov asked the MCPO to disclose the post-mortem medical examination report on his brother’s body, in order to conduct an alternative medical examination of the causes of his death. By a letter of 8 April 2003 the MCPO refused to give permission for disclosure.
125. 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 15 June 2003 he repeated his request for disclosure of the post-mortem examination report. On 23 June 2003 the MCPO refused to investigate the conduct of the operation by the security forces and to give permission for disclosure of the medical report.
126. 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.
127. 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.
128. 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”.
129. 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.
130. 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. On 30 March 2005 Mr Finogenov supplemented his claims in view of the materials received from the prosecution.
131. 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.
132. 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”.
133. 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.
134. 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.
135. 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.
136. 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 paragraph 131 above). On 6 July 2005 the Moscow City Court upheld the judgment of 5 May 2005.
137. In 2007 Ms Gubareva introduced several motions with the investigator in charge of the case. She requested access to certain materials of the case, including written testimonies of some witnesses. Some time later she was given access.
138. 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.
139. 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.
140. 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.
141. On 26 May 2004 the above two 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.
142. 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.
143. 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.
144. On an unspecified date in 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.
145. 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.
146. 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 on the Moscow City authorities by the courts. They asked that the case be transferred to the Moscow City Court.
147. 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.
148. 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.
149. 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.
150. 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 in the absence of fault on the part of the State authorities.
151. 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 noted 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 time. 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.
152. 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.
153. 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.
154. 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.
155. Those 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.
156. The Suppression of Terrorism Act of the Russian Federation (Law no. 130-FZ, hereinafter also called Anti-Terrorism Act) of 1998 (in force until 1 January 2007) establishes basic principles in the area of the fight against terrorism, including those concerning coordination of the 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.”
157. Section 11 of the Act provides that the operative headquarters, the inter-agency body responsible for a given anti-terrorist operation, may use the resources of other branches of the federal government in the anti-terrorist operation, including “weapons and [other] special-purpose hardware and means” (oruzhiye and spetsialniye sredstva). 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.).
158. 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.
159. 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.
160. 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. The exemption covers servicemen, experts and other persons engaged in the suppression of terrorism.
161. Article 205 of the Criminal Code of the Russian Federation of 1996 establishes liability for terrorism, which is defined as “commission of an explosion, arson or another act terrorising the population and creating risk to human lives [...] aimed at influencing decisions taken by the [public] authorities ...”. Article 206 of the Criminal Code establishes liability for a hostage-taking, which is defined as “capturing or retaining a person as a hostage, committed with a view to compelling the State [...] to act [in a particular manner] ...”.
162. The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Havana, Cuba, 27 August to 7 September 1990), provide, inter alia, that “law-enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law-enforcement officials”.
163. The Basic Principles further encourage law-enforcement agencies to develop “a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing death or injury to persons”. At the same time “the development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled.” Whenever the lawful use of force and firearms is unavoidable, law-enforcement officials must, in particular, “ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment”, and ensure that arbitrary or abusive use of force and firearms by law-enforcement officials is punished as a criminal offence under their law. The Basic Principles also stipulate that “exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles”.
164. On 15 February 2006 the German Constitutional Court declared the Aviation Security Act, insofar as it authorised the armed forces to shoot down, by the direct use of armed force, aircraft that are intended to be used as weapons in crimes against human lives, unconstitutional.
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 2