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Memorandum
Karinna Moskalenko   
08.02.2013

ImageCommittee of Ministers


Memorandum on implementation of judgment of the case "Finogenov and others v. Russia (18299/03 and 27311/03)

1. Introduction

We turn to you with a request to take measures to urge the Russian Federation to follow its obligations under the European Convention of Human Rights. TheConvention, ratified by the Russian Federation, creates an obligation for the state to fully implement ECtHR judgments (Art. 1and Art.46).

On December 20, 2011the European Court of Human Rights (ECtHR) passed the judgment in the case "Finogenov and others v. Russia (18299/03 and 27311/03). OnJune 4, 2012, the judgment becamefinal.

In the judgment, the Court stated a violation of the right to life of the hostages and their familiesby the State by way of inadequate planning and conduct of the operation to rescue the hostages, as well as by failing to conduct an effective investigation of the incident:

Holds that there has been a violation of Article 2of the Convention on account of the inadequate planning and conduct of the rescue operation,

Holds that there has been a violation of Article 2of the Convention on account of the authorities failure to conduct an effective investigation into the rescue operation.

The applicants submit that full implementation of the Court's judgment would require the initiation of criminal proceedings, which according to the judgment (273-282) were not conducted in accordance with the principles of an effective investigation.

2. Obligation to conduct an investigation

Analyzing the results of the investigation, the Court stated that the investigation had not been properly carried out, and that it was not initiated on the fact of deaths as a result of the rescue operation.

The Court applied the common criteria to define proper investigation: efficiency (timeliness, comprehensiveness, and completeness), independence, access to the investigation for the victims.

With regard to establishing the cause of death of the hostages, the investigation did not meet any of the above criteria. Moreover, it was not carriedout.

In accordance with Courts assessment (273-282), the applicants compiled a list of the minimally required investigative steps and issues to be examined. On26 October 2012the applicants submitted a motion including this list to the offices of the General Procurator and of the Chief Investigator (Attachment 1). Thelist contained the following items:

- Determine the detailed and truthful circumstances of the planning and conduct of the rescue operation;
Provide a list of members of the crisis cell and of their responsibilities;
Conduct a questioning of members of the crisis cell to establish the content of the documents on the basis of which the crisis cellperformed their tasks and took decisions, and which have been destroyed;
Investigate into the question of who was responsible for the decision and the order to destroy the documents;
Investigate into the question whether alternative ways to rescue hostages were considered and if so, which ones;
Determine the position of the crisis cell leadership and of its individual members on the necessity to negotiate;
Determine whether a member of the crisis cell has been authorized to negotiate with the terrorists;
Determine whether when deciding on the use of gas, the members of the crisis cell disposed of information on the composition, properties, effects of the gas and the outcomes of its use, including the remote outcomes;
Ensure access to information on gasthatwasused;
Investigate into the question of who made the decision to attack. Investigate the reasons the attack was carried out at this specific time.Investigate into the question whether the planned release of foreigners has been taken into consideration when planning the attack;
Provide information on the identity of the members of the crisis cell who personally coordinated the operation to rescue the hostages;
Provide information on who was personally responsible for the medical part of the operation;
Provide information on who personally took the decision and ordered the killing of all the terrorists (including women) or whether the rescue commandosacted in excess of their authority when conducting those killings; and
Establish the exact number of victims with regard to the contradicting numberscontained in investigation documents, i.e. in the decision dated 31.12.2002.

The applicants have various other specific questions about the circumstances of the deaths of their loved ones, which they intend to formulate after the initiation of criminal proceedings and the start of an investigation.

Further, in accordance with the Courts analysis of the causes of death of the hostages (201), applicants in their submission to the General Procurator demanded that a re-examination of the causes of death of hostages is conducted. Onlywhen the actual cause and the circumstances of death of each the hostages is established reliably will it be possible to evaluate measures taken to rescue the hostages, and to draw conclusions about the responsibility of officials for the loss of life and damage to the health of the surviving hostages.

Finally, in accordance with the Courts judgment which found a violation of the positive obligations of the government in Article 2of the Convention (282,) the applicants demanded that persons responsible for the deaths of people are held accountable and prosecuted, along with persons who have not fulfilled their obligation to institute criminal proceedings.

These claims are joined by 35new applicants, who are also victims of the Nord-Ost event (Attachment 2 list of new applicants and Attachment 3 copy of the appeal of 17applicants).

The General Procurators replied on 26.11.2012 and on 24.12.2012 that the applicants submission has been forwarded to the Moscow Procurators Office (Attachments 4and 5).

On 12.12.2012 the Moscow Procurators Office replied that since the case has been dealt with by the various courts, the office can neither overturn thecourtsdecisions nor appoint the resumption of investigations (Attachment 6). Theletter also mentioned that a group of applicants in the Nord-Ost case did take some steps with various courts attempting to achieve the initiation of an investigation.

Probably, this legally unfounded route was taken due to their unawareness of the fact that the Criminal Procedure Code (CPC) of the Russian Federation (Article 413and 415) makes the quashing of a final judgment the competence of the Supreme Court only:

413.
4. Seenas new circumstances shall be:

2) a violation of the provisions of the Conventionfor the Protection of Human Rights and Fundamental Freedoms, established by the European Court of Human Rights, during the examination of the criminal case by a court of the Russian Federation, involved in:
a) an application of the federal law, not corresponding to the provisions of the Conventionfor the Protection of Human Rights and Fundamental Freedoms; b) other violations of the Convention on the Protection of Human Rights and Basic Freedoms;

415.
5. Revision of the court sentence, ruling or resolution in accordance with the circumstances, indicated in Items 1and 2of the fourth part of Article 413of the present Code, shall be performed by the Presidium of the Supreme Court of the Russian Federation at the presentation of the President of the Supreme Court of the Russian Federation not later than one month from the day of arrival of the given presentation. Onthe results of examining this presentation, the Presidium of the Supreme Court of the Russian Federation shall either cancel or amend the judicial decisions on the criminal case in conformity with the resolution of the Constitutional Court of the Russian Federation or with the resolution of the European Court on Human Rights. Copies of the resolution of the Presidium of the Supreme Court of the Russian Federation shall be forwarded within three days to the Constitutional Court of the Russian Federation, to the person, with respect to whom the given resolution is passed, to the public prosecutor and to the Authorized Person of the Russian Federation in the European Court on Human Rights.

In this way, ironically, the Moscow Procurators Office correctly assessed that it is not authorized to take any action at a point where the previous decisions of the courts entered into force and were not quashed by the Supreme Court of Russia.

3. Further steps of the victims

This was also the reason why our initial submission to the General Procurators Office of 26October2012 was addressed only to the supreme prosecutorial and investigative authorities, which are the only competent organs to take appropriate action based on a judgment of the ECtHR. Since the provisions of the CPC state that only the Supreme Court may quash a judgment, reopen a case and order a review, it is clear that the only legal way to achieve the implementation of the ECtHR judgment is to achieve that prosecutorial action is taken with the highest prosecutorial and investigative authorities.

Therefore, the submissions of some applicants and their lawyers which are directed to the lower courts as mentioned by the investigator will have to turn out as absolutely futile. Unfortunately, these actions can not result in the restoration of rights of the applicants, since all decisions of the courts on the refusal to prosecute have been made, were challenged by our group of applicants, and entered into force. Without the quashing of these decisions it is impossible under Russian law for these issues to be re-considered. Inaddition, the quashing of those decisions as well as of decisions of the Prosecutors Regional office can be carried out only through a decision of the supreme prosecutorial and investigative authorities.

But these authorities persist in their refusal to initiate criminal proceedings, thus completely ignoring the Courts judgment in general as well as the obligatory nature of the judgment and of the Russian Constitution. Moreover, these authorities simply dismissed the submission of the applicant Finogenov and others supported by dozens of other potential victims. Forthis last group of victims the implementation of the Courts judgment in the Nord-Ost case is particularly important, because they did not even receive the compensations which the Court awarded to the rest of the applicants. Onlyunder the condition that criminal proceedings are initiated by the authorities on the issues mentioned in the ECtHR judgment will these applicants be recognized as victims and be able to participate as a party in a criminal case as well as be admitted as civil plaintiffs. Ascivil plaintiffs they will have the possibility to file a civil action in a criminal case (Article 44of the CPC). Otherwise, the applicants only choice will be to submit a new application toECtHR.

The fact that the General Prosecutors Office simply dismissed our appeal by forwarding it to an authority which is unauthorized to take action on the matter shows that while the Office is the only authority entitled to initiate implementation of ECtHR judgments, the mechanisms behind the implementation are uncertain and the procedure is not regulated. Thisdemonstrates that not only is the decision of the ECtHR presently not being implemented but that there is no intent on the part of the Russian government to proceed with the implementation. Moreover, the actions of the General Prosecutors Office directly preclude the implementation of the European Courts judgment on the case "Finogenov and others v. Russia (18299/03 and 27311/03).

4. Compensation

Some of the applicants have not received compensation in full and timely. Someof them after more than 5months- have not received any compensation atall.

It is stated in the judgment that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points

Therefore, the government must be obliged to pay the awarded compensation to all the applicants. Further, the government must be obliged to pay the compensation in accordance with the awarded amounts including interest since the three-months period has expired.

5. Request to the Committee of Ministers

Therefore, we kindly ask the Committee of Ministers to consider the following issues raising our concern:

I.The government of the Russian Federation does not take measures to implement the judgment in the Nord-Ost case, which is of utmost importance. Moreover, it shows no intent to do so;

II. There is no procedure in place, which regulates the implementation of ECtHR judgments. Thisunfortunate fact influences not only the implementation of the present judgment, but has the same detrimental effect on the implementation of many other judgments, i.e. Chechen cases (on which the Centre de la Protection Internationale currently prepares further memoranda);

III. Itis necessary to oblige the government of the Russian Federation to provide an action plan in accordance with the requirements of the standard supervision procedure:
the standard supervision procedure is based on the principle that member states provide an action plan or action report as soon as possible and in any case at the latest within six months from the date upon which the judgment became final. Itis also based on the assumption that the execution process functions efficiently. Therefore, it seems logical that the Committee of Ministers rests mainly on states action and limits its intervention to ensuring that adequate action plans or reports have been presented and verifies the adequacy of the measures announced and/or taken at the appropriate time.

We hope for your consideration of the above points.

Respectfully,

KarinnaMoskalenko
On behalf of the Applicants


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