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Hostages of a principle
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, 19 2007

By Elena Milashina in Novaya gazeta

Was the assault on ‘Nord-Ost’ avoidable? It is hard to imagine how our government will answer the questions from Strasbourg

In the beginning of April, the Strasbourg court began working on a complaint by 57victims of the ‘Nord-Ost’ case, under the collective name “Chernetsova and others against Russia” (see Novaya Gazeta #27 from April 16th, 2007).

Attorney for the ‘Nord-Ost’ people, Igor Trunov, received a letter last week from Strasbourg, in which he was informed about the start of the communications phase of the hearing. This means that the government of Russia also received the same papers with questions from the case, and a short attachment of circumstances from the complaint. The plaintiffs (the victims of the act of terror) and the defendant (the government of the Russian Federation) must present proofs and objections to the violations stated in the complaint: Article 2of the European Convention (the right to life), Article 3(prohibition of torture), paragraph 1of Article 6(the right to a fair judicial hearing), and Article 13(the right to effective means of protection).

* The ‘Nord-Ost’ complaint can lead to another scandal. Attorney Igor Trunov sent papers to the European Court that, in his opinion, confirm that the Moscow courts are financed from the Moscow city government’s budget, which at that moment was a defendant in numerous civil cases by victims of the terror act at Dubrovka. The fact of the matter is that the financing of courts in the Russian Federation should come from the federal budget. Such ‘sponsorship’ could qualify as a violation of the principle of an independent court. If Strasbourg considers Trunov’s evidence convincing (the Russian government will have to present the amount of financial support that the Moscow city authorities provided federal courts and courts operating in the capital), then this could seriously compromise the Russian court system.

U R EUROPEENNE E U R O P E A N C O U R T

DES O F

DROITS DE L'HOMME H U MA N R IG H T S

CONSEIL DE L'EUROPE COUNCIL OF EUROPE

STRASBOURG STRASBOURG

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/RUSSIE

FIRST SECTION

ECHR-LE4.1bR 4 April 2007

GID/nsh

Application no. 27311/03

Chernetsova and Others v. Russia

Dear Sir,

I write to inform you that following a preliminary examination of the admissibility of the above application on 2April 2007, the President of the Chamber to which the case has been allocated decided, under Rule 542 (b) of the Rules of Court, that notice of the application should be given to the Government of Russia and that the Government should be invited to submit written observations on the admissibility and merits of the case.

The Government have been requested to deal with the questions set out in the annex to this letter.

The Government have been requested to submit their observations by 27June 2007. These will be sent to you in order that you may submit written observations in reply on behalf of the applicants. Under Rule 344 (a), the Government have been authorised to submit their observations in Russian if they so prefer, but they must provide the Court with a translation into English or French no later than four weeks after the above time-limit.

I would inform you that at this stage of the proceedings, according to Rule 343, all communications of applicants or their representatives shall as a rule be made in one of the Court's official languages, English or French.

I enclose for your information a statement of facts prepared by the Registry.

Yours faithfully,

Søren Nielsen, Section Registrar


03 April 2007

FIRST SECTION

Application no. 27311/03

by Zoya Pavlovna CHERNETSOVA and Others

against Russia

lodged on 18August 2003

Questions to the parties

QUESTIONS

1. Theapplicants are invited to explain what was their relation to the hostages who died as a result of the tragic events in the Dubrovka theatre. Those applicants who were among the hostages are invited to give details of physical and mental effects that the events of 2326October 2002had on them.

2. Didthe applicants exhaust effective domestic remedies in respect of their complaints under Articles 2, 3, and 6of the Convention?

3. Hasthe right to life of the applicants' relatives, ensured by Article 2of the Convention, been violated in the present case (see in this respect Ergi v. Turkey, judgment of 28July 1998, Reports of Judgments and Decisions 1998-IV, 81; see also Isayeva v. Russia, no. 57950/00, 179 et seq., 24February 2005, and Andronicou and Constantinou v. Cyprus, judgment of 9October 1997, Reports 1997-VI, 181)? Hasthe right to life of those applicants who were among the hostages been violated in the present case? Inparticular, did the authorities try to bring an end to the crisis through persuasion and dialogue? Wasthe recourse to lethal force absolutely necessary? Didthe authorities take sufficient precautions while planning, controlling and implementing the rescue operation in order to protect, to the maximum extent possible, the lives of the hostages?

4. Havethe applicants been subjected to inhuman or degrading treatment, in breach of Article 3of the Convention? Inparticular, have the applicants, who were among the hostages, been subjected to ill-treatment as a result of the allegedly inadequate rescue operation and the alleged lack of proper medical assistance to them? Havethe applicants whose relatives died as a result of the events of 2326October 2003been subjected to ill-treatment as a result (see Bazorkina v. Russia, no. 69481/01, 139 et seq., 27July 2006; see also Gongadze v. Ukraine, no. 34056/02, 181 et seq., ECHR 2005-)?

5. Having regard to the procedural obligations of the State under Articles 2, 3and 13, namely the obligations to carry out an investigation capable of leading to the identification and punishment of those responsible for the use of lethal force or of inhuman and degrading treatment and to provide for the payment of compensation where appropriate (see, inter alia, Mehmet Emin Yuksel v. Turkey, no. 40154/98, 36, 20July 2004), were the domestic proceedings in conformity with these Convention provisions?

The Government are invited to produce materials of the official criminal investigation, in particular, criminal case no. 229133and the criminal case against Mr Talkhigov, as well as other investigations (if any).

6. Werethe civil proceedings concerning compensation of damage caused by the terrorist attack and the rescue operation compatible with the requirements of Article 61 of the Convention? Inparticular:

(a) Were the courts independent and impartial, in view ofthe
financial support provided to them by the Moscow City Government?

The Government are invited to indicate the amount of the financial support (monetary and other) provided by the Moscow city authorities (including circuits, prefectura) to the Moscow-based courts of general jurisdiction (of the first and second instance) and their judges in 20022003. TheGovernment are also invited to indicate what was the overall funding of the Moscow-based courts from the federal budget within that period.

(b) Did the applicants have access to court in respect of their complaint about the conduct of the rescue operation?

Was the principle of equality of arms respected as regards the courts' refusal to obtain evidence from the defendant and the third parties and admit certain pieces of evidence produced by the applicants?

(d) Did the applicants have sufficient time to prepare for countering the arguments of the defendant?

03 ril 2007

FIRST SECTION

Application no. 27311/03

by Zoya Pavlovna CHERNETSOVA and Others

against Russia

lodged on 18August 2003

Statement of Facts

THE FACTS

The applicants listed in the attached table lost their relatives as a result of the hostage-taking in Moscow in October 2002 in the Dubrovka theatre; some of them were among the hostages themselves. Theyare represented before the Court by Mr and Ms Trunov, lawyers practising in Moscow.

A.The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. The hostage taking and the rescue operation

In the evening of 23October 2002 a group of Chechen guerrilla fighters armed with machineguns, hand grenades and explosives took hostages in the Dubrovka theatre in Moscow (also known as the Nord-Ost theatre after the name of a musical comedy which used to be performed there). Forthree days more than seven hundred people were held at gunpoint in the concert hall without food, water or medicines. Moreover, the theatre building was mined and suicide bombers sat in the concert hall among the hostages. Another group of terrorists occupied the administrative premises of the theatre. Theleader of the terrorists contacted the authorities and demanded immediate retreat of the Russian army from the Chechen Republic.

The authorities started negotiations and in the following two days persuaded the terrorists to liberate several hostages. However, the terrorists refused to surrender and did not accept food or drinking water for the hostages. Theterrorists continued to insist on their demands.

In the early morning of 26October 2002the Russian security forces dispersed an unknown gas in the main concert hall of the theatre building through the ventilation system. Whenthe terrorists controlling the detonation device and suicide bombers in the hall fell asleep under the influence of that gas, the special squad stormed the building. Suicide bombers were shot while asleep; others tried to resist but were killed in the skirmish. Thesecurity forces also arrested Mr Talkhigov who was not in the building with the terrorists but was suspected of supplying information to them from the outside.

Most of the hostages were also affected by the effects of the gas; more than a hundred persons (the exact figure is a subject of controversy) died on the spot or in the hospitals in the following days. According to the applicants, the hostages were evacuated in disarray: semi-naked bodies of unconscious hostages were piled up on the ground outside the building where the temperature was 3C.There were not enough ambulance vehicles, so the hostages were transported to the hospitals in regular buses where some of them suffocated under the weight of the other bodies. Manyof those who survived continue to suffer from serious health problems.

In the following months the Moscow City Government paid the victims of the terrorist attack compassionate benefits: the survivors received 50,000 Russian roubles (RUR) and the relatives of the deceased hostages received RUR 100,000. Inaddition, the city government covered minimal funeral expenses and paid a certain amount for the property lost during the rescue operation.

2. Civil proceedings

Soon after the events of 2226October 2002the applicants addressed themselves to the Government of the City of Moscow in order to obtain compensation for non-pecuniary damage (moralniy vred) caused by the terrorists attack. Theyreferred to Article 17of the Law On fight against terrorism of 25July 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. Instead they advised the applicants to recover the damages from the wrongdoers, namely the terrorists.

In November 2002the first group of applicants brought civil proceedings against the Government of Moscow to the Tverskoy District Court of Moscow. Theymaintained that the rescue operation had been inexpedient, that the actions of the authorities had been inept and that the hostages had not been properly evacuated from the building and had not received necessary medical aid on the spot and in the hospitals. Asa result, the applicants were injured or lost relatives. Theapplicants also claimed that the law of 1998imposed on the city authorities an obligation to compensate damage caused by a terrorist attack.

At the trial the applicants were represented by Mr and Ms Trunov, and MrMatveyev, advocates at the Moscow Bar Association. Thecourt was composed of a single judge, Ms Gorbacheva.

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 government, the defendant in their civil case. Thispractice, they claimed, contradicted the federal law and created the dependence of the courts vis-a-vis the Moscow City authorities.

The applicants also requested the judge to summon a number of witnesses, namely the politicians who participated in the negotiations with the terrorists, and the State officials who planned and directed the rescue operation. Theyalso requested the judge to obtain certain documentary evidence from the authorities and commission a forensic report in order to elucidate what was the cause of the death of the deceased hostages. Theapplicants also requested the court to admit certain evidence, in particular, the report on the independent investigation of the events by a group of MPs. Finally, the applicants sought the recording of the hearing on audio and video-tapes.

Judge Gorbacheva examined those motions and dismissed almost all of them. Thus, she refused to withdraw from the case; she also refused to call witnesses suggested by the applicants and obtain evidence sought by them. Finally, she prohibited any video and audio recording in the course of the trial.

The hearings on the merits were held on 22and 23January 2003. Thedefendants made oral pleadings. Theapplicants, 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. Thenext day the applicants repeated the request for adjournment, but it was refused.

On 23January 2003the Tverskoy District Court dismissed the applicants' claims in full. On28 April 2003the Moscow City Court upheld that judgment. Thecourts found that, as a general rule, the damage should be compensated by the tortfeaser (Article 151of the Civil Code). Under Article 1064of the Civil Code civil liability for tort may be imposed on a third person (not the tortfeaser) if the law directly stipulated so. However, the court found that the law of 1998did not provide specifically for compensation of non-pecuniary damage by the State for an act of terrorism without the fault of the State authorities.

The courts also refused to award damages for allegedly inadequate planning and conduct of the rescue operation. Itfound that the Moscow authorities defined a list of measures to be implemented in order to prevent terrorist attacks and help their victims, issued necessary regulations to that end and created entities dealing with such situations. Thecourt referred to the case-law of the European Court of Human Rights, namely the case McCann and Others v. the United Kingdom (judgment of 27September 1995, Series A no. 324). Itrecalled that the use of lethal force might be justified under Article 2of the Convention where it was based on an honest belief which could have been regarded as valid at the time[1]. Tohold 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.

The court finally noted that the criminal investigation into the events of 2326October 2002was still pending, that the causal link between those events and the death of the applicant's 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.

As a result, all of the applicants' complaints were dismissed. Thecourt of appeal confirmed 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.

In the following months the Tverskoy District Court rendered a number of similar judgments in respect of other applicants. Those judgments were upheld by the Moscow City Court on appeal. Asappears from the motion, lodged by the applicants' lawyer on 10December 2003, the applicants challenged the Moscow City Court, claiming that it was also partial because of the funding it had received from the defendant. However, the Moscow City Court dismissed that argument.

The applicants who were foreign nationals brought a civil action to the Basmanny District Court against the federal government claiming damages on the same grounds. On6 August 2003the court dismissed their claims. Thecourt's reasoning was broadly similar to the reasoning given by the Tverskoy District Court in its judgment of 23January 2003. On10 October 2003that decision was upheld by the Moscow City Court.

3. Criminal investigation (case no. 229133 and the proceedings against Mr Talkhigov)

On 23October 2003the Moscow City Prosecutor's office opened a criminal investigation into the events (case no. 229133). Theprosecution qualified the facts as Terrorist attack and Hostage taking. Theapplicants who were either among the hostages or lost their relatives as a result of the rescue operation entered the proceedings in the capacity of victims (postradavshiye). Asregards the conduct of the rescue operation, the investigation established that the security forces had acted lawfully and had not been liable for the loss of lives of the hostages as a result of that operation. Asa result, the prosecution refused to initiate a criminal investigation into the activities of the State authorities during the crisis.

The proceedings in respect of Mr Talkhigov were severed from case no. 229133and transmitted to the trial court. Theapplicants claimed that they had learned of it from the press. On2 June 2003they requested the Moscow City Court to allow their participation in the proceedings in the capacity of victims. However, this was refused. On20 June 2003Mr Talkhigov was sentenced to eight years' imprisonment for the complicity in the terrorist attack.

The applicants have provided no information as to the results of the investigation in case no. 229133.

B.Relevant domestic law and practice

Under Article 3of the Law On the Judicial System of 1996, the courts are funded from the federal budget. Thesame provision contains in Article 1of the Law On courts' finances of 1999.

As follows from Decree no. 912-PM of 23August 1999, as amended on 23November 2000, in 1998the Moscow City allocated RUR 42,400,000 to the Moscow-based courts, out of which RUR 11,700,000 were allocated personally to the judges. Furthermore, the city and municipal authorities provided funds for reconstruction of the courts buildings, including the building of the Moscow City Court and several district courts activities of the courts situated in Moscow, referring to the insufficiency of funds received by the courts from the federal budget. Asfollows from Decree no. 594-PM of 5June 2000, the city authorities allocated RUR 33,800,000 to the Moscow-based courts in 1999. Inparticular, in the second half of 1999the city authorities allocated RUR 2,650,000 for the equipment of the district courts; RUR 6,250,900 for the extra pay (doplata) and social benefits to the judges, law clerks etc.; RUR 2,000,000 for renovation of the district courts' buildings. Inaddition, the judges of the Moscow City Court obtained RUR 1,788,100 as extra pay and social benefits, and RUR 500,000 were spent on the renovation of the building of the City Court.

In 2001(Decree no. 96- of 21September 2001) the Moscow City Court received from the Moscow Government RUR 1,600,000 for re-furbishing its building. Furthermore, the city authorities paid for enlarging the premises of the Moscow City Court in 2001(Decree no. 287 of 27March 2001).

As appears from the Law on the city finances for 2002(no. 60), in 2002the city authorities allocated RUR 300,000,000 to support the functioning of the courts.

COMPLAINTS

1. Under Article 2of the Convention the applicants complained that they had lost their relatives as a result of the rescue operation conducted by the Russian security services on 26October 2002. Intheir view, the rescue operation was poorly planned, prepared and conducted.

2. Under Article 2of the Convention, combined with Article 13of the Convention, the applicants complained that the investigation into the events of 26October 2002had been ineffective. Thus, neither they nor their lawyers had access to the materials of the criminal investigation into these events (case file no. 229133). Theinvestigation did not aim at investigating the activities of the authorities during the crisis. Furthermore, they had not been allowed to participate in the proceedings against MrTalkhigov (the accomplice of the terrorists).

3. Under Article 3the applicants those who had been among the hostages and those who had lost their relatives complained that the hostages had been subjected to ill-treatment while under control of the terrorists. Thus, the hostages were left without food, water, and medicines for three days; they were unable to use toilets. Furthermore, the evacuation of the hostages from the building and the medical assistance to them was also incompatible with the requirements of Article 3.

4. Under Article 61 the applicants complained that the courts had failed to review the actions of State officials involved in planning and implementing the rescue operation. Thus, the courts failed to establish the nature of the gas employed by the security forces, the expediency of its use, cause of death of the hostages etc.

5. Under Article 61 the applicants complained about the fairness of the proceedings before the Tverskoy District Court. Thus, most of the evidence in their case was in the hands of various State authorities, which did not agree to disclose them. Theapplicants tried to obtain that evidence through the domestic courts, but their motions to that end were rejected. Moreover, the courts refused to admit certain pieces of evidence to the case file (such as video record made by the terrorists inside the building) or examine witnesses proposed by the applicants.

6. Under Article 61 the applicants complained that the courts which had examined their cases had not been independent and impartial. Theyreferred to the practice of funding the district courts in Moscow from the budget of the city government, the defendant in their civil case. Intheir view, this practice created the dependence of the courts vis-a-vis the Moscow City authorities.

7. Under Article 61 the applicants complained that the findings of the domestic courts were erroneous, based on the reversal of the burden of proof, irrational assessment of evidence and arbitrary interpretation of the legislation in force, namely Article 17of the law of 1998. Thus, that provision provided for compensation of damage which included both pecuniary and non-pecuniary damage. However, the courts erroneously interpret this term as excluding non-pecuniary damage.

8. Under Article 61 of the Convention the applicants complained that at the trial they had been in a disadvantageous position vis-a-vis the defendant. Thus, the law required the plaintiff to send the statement of claims to the defendant in advance, whereas the defendant was allowed to present his arguments orally at the hearing. Ithappened in their case; the plaintiffs requested the adjournment of the case, but the judge gave them only few hours to prepare their arguments.



[1] It appears that the domestic court was quoting the following phrase from the McCann judgment: The use offeree by agents of the State may be justified where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken.

The Strasbourg court must carefully analyze what provoked the counter-terrorist operation. Was it the desire to save the hostages, or to destroy the terrorists, come what may? And here it will be a precedent; a very important decision for victims of other acts of terror, first of all those from Beslan. Thanks to the complaint by the ‘Nord-Ost’ people we finally have a chance to receive an independent judicial evaluation of the legality of harsh principle: “We do not negotiate with terrorists!”

Personally, Ihave no idea how our authorities will reply regarding their taking the necessary measures to ‘minimize losses’, or about the quality of the investigation. There is no quality whatsoever the investigation is a mere formality, and for several years has been conducted by one (!) single investigator. Those members of the operational headquarters who planned and led the assault have never been officially determined, even though the headquarters chiefs were awarded Hero of Russia stars. This was made public thanks to Yuri Shchekochikhin, a member of the Russian parliament. Without a sufficient examination of the actions of the ‘siloviki’ (military, police, and secret services) and rescuers, a resolution was made to not open a criminal case against them for the deaths of the hostages. The ingredients of the gas used during the assault are still classified, and antidotes to be used against it were not known back then, or even today. The investigation did not even try to determine exactly how the hostages were saved from the effects of this gas, or just how effective their treatment was. What was determined? A huge number of facts came to light on the chaos of the rescue operation, and how more than half the hostages who perished received no medical assistance whatsoever (this is from the criminal case materials).

In the case of the complaint by the ‘Nord-Ost’ people, there are extremely important facts that confirm the violation of the European Convention’s second article (the right to life).

One need not expect the defendant to act conscientiously, and answer Strasbourg fully and truthfully. In many legal cases our government has hidden facts from the European Court, but each time Strasburg took this into account in making decisions on the side of Russian citizens and against the Russian government.

It is one matter when Russian citizens demand an answer, but something else entirely when the demand comes from the European Court. It means that the government will finally be unable to sidestep the issue.

One needs to note that the Strasbourg questions essentially coincide with the demands of the former hostages and relatives of those hostages who died. For five years they have been trying to receive a normal investigation of the criminal case relating to ‘Nord-Ost’.

Was the court independent and objective, considering that the courts receive financial support from the Moscow city government? *

Did the government take into account all circumstances in identifying and punishing those responsible for employing force?

Were the hostages subject to humiliation and inhumane treatment in connection with the absence of medical assistance?

Did the authorities adopt the necessary measures during the planning of the operation to ensure that the rescue operation would be maximally effective and protect the lives of the hostages as much as possible?

Was the decision to end the crisis situation through force (by using gas E.M.) absolutely unavoidable?

Did the authorities do everything possible to solve the given crisis (the capture of hostages in the theatrical center at Dubrovka E.M.) by means of negotiations?

The jurists of the European Court formulated questions from facts found in the complaint, which, we will say straight out, are very uncomfortable for our government. Here are a few of them:


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