3.1. Analysis of grounds for the assault

“The Commentary to the Criminal Code edited by Vyacheslav Mikhailovich Lebedev, Supreme Court Chairman, says that the harm caused must be commeasurable to the harm being prevented, therefore the loss of life of one individual in order to rescue the life of another individual constitutes the excess of extreme emergency limits … And the practice of measuring by quantities — we’ll kill two hundred so as to preserve the lives of two thousand -  is ruled out for the lawyers. Each human life is beyond any price. Any human life. It is impossible to apply quantity standards here» (M. Barshchevsky, lawyer, representative of the Russian Federation Government at Constitutional, Supreme and Supreme Arbitration Courts, radio “Echo of Moscow”, March, 02 2006).

The state of emergency is the basic argument to justify the need for taking a resolution about assault with the use of “special means”. According to Clause 39 of the Criminal Code of the Russian Federation “harm caused by actions of the State constitutes no crime when produced by emergency measures aimed at elimination of danger, if:

1) all other methods for its elimination have been exhausted,

2) extreme emergency actions at least eliminate the danger,

3) all possible and necessary measures to minimize the harm and not to exceed the limits of emergency have been taken by the State.

However from investigation materials it follows, that none of such circumstances were present in Dubrovka case:

1) law enforcement bodies flatly rejected all other (bloodless) ways to resolve the situation by choosing the violent scenario – the assault;

2) the actions of special forces who used the gas, not only failed to eliminate the danger of explosion and death of hostages, but also provoked active resistance on the part of the terrorists, thus giving them a chance to carry out their threat of explosion. The reasons why they did not use the opportunity are still not found out;

3) minimization of the number of victims was not among the priorities of the assault: the formerly reached arrangements about setting free foreigners who were among the hostages were disregarded, and it is evident from the documents of the criminal case (evidence given by medical workers who provided first aid to the victims) that saving the lives of poisoned hostages was not the primary goal of the HQ that were conducting the operation to destroy terrorists.

Several versions related to the shooting of hostages were offered by the authorities to justify the necessity of the assault.

The first version made public to the mass-media at 05:40 a.m. by Mr. Pavel Kudryavtsev, an Operations HQ representative, was false information that “in the past 2 hours … 2 hostages were killed by the terrorists”, and for that reason the HQ had to make a decision to launch the assault. Nevertheless, the investigation proved that there were no hostage killings either on the 24th, or the 25th, or on the 26th day of October. Olga Romanova and Gennady Vlakh were not hostages, they freely entered the TC and were shot because they made the terrorists even more aggressive.

The second version was voiced to the mass-media at 06:30 a.m. by Mr. Ignatchenko, an Operations HQ representative. He misinformed the public by saying that in the course of an attempt to escape from the building two hostages had been killed and some had been wounded. The special troops advanced in order to support them. The attempt of a breakthrough was attributed to Pavel Zakharov and Tamara Starkova who had been badly wounded by stray bullets a few hours earlier and by the time the storming began had been at the hospital for about 3 hours.

The versions that were sounded later offered as causes for the assault the refusal by terrorists to carry on further negotiations and their refusal to release the hostages. But it had been agreed to release US and Kazakhstan hostages at 8–00 a.m. of October 26. (Appendix 28.7), and negotiations with General Kazantsev had been appointed for 10–00 a.m. of the same day.

The investigation materials proclaim the decision to consider actions of special services as performed in the state of extreme emergency and to acknowledge the existence of the state of extreme emergency disregarding real facts and independent opinions on the situation that could have been obtained and used in an adversary trial in order to establish the validity and legality of the use of the gas.