Complaint of the victims of the ‘Nord-Ost’ tragedy - Мемориал погибших в Норд-Осте. Книга памяти

2007

Complaint of the victims of the ‘Nord-Ost’ tragedy

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Complaint of the victims of the ‘Nord-Ost’ tragedy

Written by Ольга Бычкова, Лев Гулько

Вторник, 23 Октябрь 2007

Complaint of the victims of the ‘Nord-Ost’ tragedy in the European Court of Human Rights

Radio station ‘Echo of Moscow’

http://www.echo.msk.ru/programs/razvorot/55806/

October 23^rd, 2007

O. BYCHKOVA: On what might a now take place in the ‘Nord-Ost’ hostage case, we are talking with attorney Karina Moskalenko, who should be on a direct phone line with us. Karina, good afternoon.

K. MOSKALENKO: Good afternoon.

L. GULKO: Hello.

O. BYCHKOVA: Thanks for finding a few minutes for us, please tell us what is this complaint that they have made with the European Court of Human Rights in Strasbourg?

K. MOSKALENKO: Thank you for finding me in Strasbourg, because I consider it my duty and honor today to talk about what is happening in the ‘Nord-Ost’ case. This case has been going on for several years, starting all the way back when these tragic events took place. We ended up having to go to the European Court of Human Rights, and here there are two complaints, from two groups of applicants. They are basically similar, but there is still some difference, and one complaint has already been communicated. Our complaint, which was filed April 26th, 2003, exactly six months after the events, was filed first, in order not to miss the deadline.

It still has not been communicated, even though, according to our calculations, this should happen very soon. Communicated — this means, I am sorry for the terminology, to make it short, this is the stage of the proceedings at the European Court when the government sets specific questions that the government must respond to, and then gives the applicants an opportunity to object to these responses, or subject them to criticism. So, our complaint is perhaps a bit complicated, it is more complicated because we are looking at all aspects of the right to life. As far as the negative aspects of the right to life, it is a well-known formula that the state cannot take the lives of its citizens arbitrarily, and besides, there is a whole layer of issues related to the positive aspects of the right to life, or rather with the positive obligations of governments to ensure that each of us has the right to life. This includes a whole range of issues. Preventing any such violations, such as in this case, in a terrorist attack, which should have been avoided, prevented by the authorities, because it is obvious how could it be possible to make it all the way into the heart of Moscow with a large quantity of weapons. That is, I mean, it is not obvious how they made it, it is obvious that it should have been impossible, had it not for certain circumstances that are still hidden. Next, to avoid the death of anyone is a huge task. Sometimes this is referred to ‘minimization of losses’, a term that we use. Finally, saving someone, if we have already applied something, whether a gas or some substance, which, I note, has never been named, that is, to rescue then, provide medical assistance so as to already prevent death after this rescue operation, which, for many, and not just for a few as they sometimes say, but for many, ended tragically. The last aspect of the positive obligation of the right to life is that a proper investigation be performed. You probably understand why I started talking about this now, because the biggest claim of the claimants, whom we are representing in front of the European Court of Human Rights, is that a proper investigation was not performed. It is still, sorry if I interrupt you, it is still unknown how many people died. Everyone says — 130, they said 129, so we started to count up the figures, and there were tens of casualties that were undercounted. If you take documents from the investigation, there is maybe a difference of twenty or thirty, but these are people, human lives. How can you make a mistake about even a single life?

O. BYCHKOVA: Yes, of course. Tell me, please, what should happen next? What should happen next at the court in Strasbourg, for example, as you said the term?

K. MOSKALENKO: Communicated, communicated the ‘Nord-Ost’ case.

O. BYCHKOVA: This is happening now, and what happens next?

K. MOSKALENKO: The government submits its response, and accompanies its response with all possible evidence that they have put forth to justify the absence of fault or liability on the part of the State.

O. BYCHKOVA: Understood, but are there deadlines for responses by the State, Karina?

K. MOSKALENKO: What?

O. BYCHKOVA: Is there a set deadline for the State to respond?

K. MOSKALENKO: Yes, the government has certain deadlines. There was a lot of material, sometimes the State really asks for a delay, but certainly it must provide materials and documents, a memorandum in a form that somehow fully argues the position of the State. I will not discuss the topic of what will be our answer to the State in the communicated complaint, because we still have to write our objections. In addition, as I told you, our part of the complaint has not been communicated, and there will be many complex issues concerning legal approaches, but what I can tell you about the other complaints is not forbidden. It is not confidential information, and the state very casually provided the documents. If another group of applicants finds many contradictions in these, and they decide to go to court with respect to falsifying documents, I must tell them that my group of applicants has already gone through all the criminal courts. We started, a long time ago we started filing complaints in court for unlawful conduct of the investigation, for violations committed in the investigation. All of them, by the way, that concerned the right to life. This is all regulated by the very same second article of the European Convention, which guarantees…

O. BYCHKOVA: Karina, please tell us, after all I am asking you about the deadlines set for the State’s reply. Now, when will the next time be that we hear answers from the Russian state on all the questions you raised?

K. MOSKALENKO: Firstly, I must tell you that I do not expect to hear answers to all of the questions.

O. BYCHKOVA: But are they not obliged to do under their obligations to the international court?

K. MOSKALENKO: They are obliged, of course, they are obliged, but you know that at one point we had our greatest progress when we received a majority, or at least a large number, of the volumes from the criminal case. This happened when we appealed to the investigation in court, and I must tell you that these materials are very incomplete, and very contradictory. Most importantly, among them…hello?

O. BYCHKOVA: Hello, yes-yes, please proceed.

K. MOSKALENKO: Among them there were no materials about the use of the gas, that is, it is still unclear whether or not they treated the people correctly, or if they assisted them properly. If they are still living, those who survived the application of this substance, in the long term are they receiving the correct care, and should they be taking some kind of medication?

O. BYCHKOVA: Yes, understood.

K. MOSKALENKO: It is totally illegal to conceal this information.

O. BYCHKOVA: Absolutely, please tell me, what is the end result that can be achieved or not achieved from all these legal actions?

K. MOSKALENKO: That decision, which is made by the European Court.

O. BYCHKOVA: Yes, what are the options?

K. MOSKALENKO: The European Court, I emphasize, does not itself conduct investigations.

O. BYCHKOVA: Yes.

K. MOSKALENKO: Sometimes in exceptional cases there is an organization, the so-called ‘Fact-Finding Mission’, and, by the way, I consider this case to be quite exceptional. If the answer from the Russian government is found to be so unsatisfactory that considering the merits of the case cannot be done without this fact-finding mission, then I do not rule out that I will apply that the Court assume this burden, since, apparently, our government agencies, our investigative authorities, do not wish, do not want to investigate this properly.

O. BYCHKOVA: This is a story that could drag on for years anyway.

K. MOSKALENKO: In general, yes, but most importantly, what can the European Court do, if it does not make an exception and does not take up this mission? It makes decisions. It makes decisions not condemning anyone or condoning anyone, it decides what’s what. Was there a violation of the right to life, or not? In this case, I repeat, they will consider not only the negative obligations, not only the question of…

O. BYCHKOVA: If it is decided that the right to life was violated, then what happens?

K. MOSKALENKO: Then, recognizing that the State violated the right to life, in this case there will other decisions relating to compensation. Then compensation will be determined.

O. BYCHKOVA: So, if the State is to blame, it must pay?

K. MOSKALENKO: It must pay.

O. BYCHKOVA: To put it bluntly.

K. MOSKALENKO: This is something, by the way, that the state has not done using its own internal judicial mechanisms in a majority of the cases.

O. BYCHKOVA: Karina, thank you.

K. MOSKALENKO: And the most important lacuna in this case, and it is something that has now been debated for how long? Five years. There is this persistent misconception that the gas, whatever you want to call it, we cannot say what it was, that it was used in order to prevent an explosion.

O. BYCHKOVA: To neutralize the terrorists, yes.

K. MOSKALENKO: This has been a persistent misconception for at least five years, and for the sake of those we represent, for the peace of mind of my trustees, the survivors, stop talking about how this gas or substance could have somehow prevented an explosion. It is known for certain from the case materials, which we finally were shown, that those who seized the hostages fired back for a long time. They showed resistance, but did not set off their explosives. Since the gas, the substance, could not take effect immediately, therefore an explosion could have occurred had that been their intention. Why it was not their intention, I think, again, we have not been given the entire truth, but that’s another issue.

O. BYCHKOVA: So the story of the gas was, at a minimum, meaningless, at a maximum…

K. MOSKALENKO: Absolutely.

O. BYCHKOVA: …we cannot even say what.

K. MOSKALENKO: At a maximum we can say there was a violation of even the negative obligations of the right to life.

O. BYCHKOVA: Well, Karina, thank you very much. Sorry, that our time on the air is already running out. Thank you, and good luck and success.

K. MOSKALENKO: Thank you for your attention to these issues.

O. BYCHKOVA: Thank you.

K. MOSKALENKO: On behalf of my applicants and clients.

O. BYCHKOVA: Thank you, all the best. That was attorney Karina Moskalenko, who, as you understand, is based in Strasbourg where they are considering the next stage in the case of deaths during the terrorist attack at ‘Nord-Ost’.

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