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Written by   
, 15 2012

 :The European Court reached a decision in the case of Finogenov et al, better known as the 'Nord-Ost' case, on December 20th, 2011. Itdetermined that the Russian authorities violated Article 2of the European Convention (the right to life), and on June 4th, 2012, this decision becamefinal.

This did not take place on March 20th, 2012 typically a decision enters into force three months after its delivery but only in early June because a group of five judges at the European Court, headed by the Court President, had to act on a petition for the case to be considered by the Grand Chamber in order to get an acknowledgement of yet another

violation on the part of the Russian authorities. Thisappeal was filed by a small group of applicants, as most of the applicants agree with the court's decision. Ifmost do not quite agree, in any case they filed no complaints that Iknowabout.

I do not know if the five judges found it easy to reach a decision to not transfer the case to the Grand Chamber, but my principals in the transfer petition found it very difficult. Andwhy is that? Whatis so complicated about the situation? Thefact is that, in general, the applicants agree with the Court's recognition of the violation of the right to life and do not contest the entire decision, but rather have just one question as a matter of principle.

In what way are all the applicants in agreement with the decision of the Court?

The applicants argue that their loved ones died by being poisoned as a result of negligence and improper action on the part of the authorities. TheCourt held that the Russian authorities violated the right to life of those who were not saved, and this was due to an incorrectly organized rescue operation. Theoperation was so erroneously organized that for the relatives of our applicants it turned out not to be an operation to rescue, but to destroy and this was the main object and purpose of our clients' appeals.

In addition, the applicants saw a violation on the part of the authorities in CONCEALING the most important circumstances of the case, FAILURE TO INSTITUTE criminal proceedings against those responsible officials and security officers, as well as those who in charge of the hostage rescue operation, and a FAILURE TO CONDUCT a proper, objective, timely, and effective investigation. Forits part, the European Court also found these to be violations namely, violations of the right tolife.

In the end, the Court held:

“ Itis safe to conclude that the gas remained a primary cause of the death of a large number of the victims” (p. 202of the Court’s decision);

“ There existed a nexus between the use of lethal force by the security forces and the victims’ death. Thegas remained the primary cause of casualties amongst the hostages” (p. 273).

Thus, the Court has repeatedly shattered the repeated falsehood concerning the “harmlessness” of the gas, as Vladimir Putin stated to the Washington Post on September 20th, 2003: “These people did not die as a result of the gas, because gas was not harmful, it was harmless. Andit could not cause any harm to people.”

Recognizing all of these violations, the Court also reached a decision about the payment of compensation for non-pecuniary damages to all 64applicants. Thenumbers are impressive: the total exceeds a millioneuros.

So, it would seem that justice has been done. Yesit has, but

In what way do the applicants not agree with the conclusions of the Court?

In the part concerning the ‘negative obligations’ (of the State), the Court did not recognize these as violations of the right to life, i.e.: despite the loss of life, the Court recognized “the legitimacy of a military solution with the use of lethal force.” The court also held that the Russian authorities had every reason to believe that an assault was the “lesser evil” under the given circumstances.

The applicants did not agree with this view and, though they recognize the existence of a crisis, they believe that there were a whole host of circumstances not taken into account:

- The authorities had not exhausted the possibility of negotiating before the assault,

- The assault could not prevent the terrorists from blowing up the building (had they such an intention),

- One cannot justify the use of a gas, the name and composition of which the authorities stubbornly conceal this bars it from being considered legitimate.

I will state right away that we had not originally counted on a very tough decision on the part of the Court here. Notbecause there was no such violation, but because in order to prove misconduct on the part of the State, we would have to overcome some basic presumptions: presumption of the State's integrity, presumption of the State's authority, presumption of innocence of certain officials Suchconclusions can only be drawn based on evidence obtained as a result of an impartial investigation, but that was really never done and the European Court found this in its decision as well. Without conclusive results from an investigation, one cannot shed light on the true facts of the case and bring those responsible to justice. Thus, the Russian government informed the Court that ALL documents from the operational headquarters that had been demanded by the Court had been destroyed.

And so, have we come full circle? Yes, if you like Without a proper investigation, there can be no objective results, and in the absence of such a set of results there is no way to judge someone's misconduct and bring perpetrators to justice

Yes, for now we have come full circle, but, according to established Court practice, authorities who act in bad faith by covering up the actual circumstances and consciously violating their obligation to conduct an investigation they are still responsible, and the Court finds they are responsible for a violation of the right to life under the positive obligations (of a State), including procedural.

“The Court has sufficient evidence to conclude that the investigation into the authorities’ alleged negligence in this case was neither thorough nor independent, and, therefore, not “effective”. TheCourt concludes that there was a breach of the State’s positive obligation under Article 2of the Convention on this account.” (p. 282).

Thus was recognized a violation of the right to life of a very large group of people, our fellow citizens, their spouses, children and parents. Lettheir memories be eternal! Andthis memory does not allow us tostop

An interpretation of the Court's decision: results and lessons

The Court held that the improperly conducted hostage rescue operation resulted in the peoples’ deaths:

“ Inthe circumstances the rescue operation of 26October 2002was not sufficiently prepared, in particular because of the inadequate information exchange between various services, belated beginning of the evacuation, limited on-the-field coordination of various services, lack of appropriate medical treatment and equipment on the spot, and inadequate logistics. TheCourt concludes that the State breached its positive obligations under Article 2of the Convention.” (p. 266).

There is an interpretation going around, that the military operation was performed BRILLIANTLY, but, supposedly, the doctors were disappointing. Thisis not simply wrong, but a VILE interpretation. Thismyth was created to justify the actions of the authorities. Thefact is, these acts cannot be divided into two, three or five different operations it was a single rescue operation and there was but one leadership for it. Andit was done badly, because they did not save those all who could have been saved had the operation been planned and executed correctly, taking into account that poisoned people immediately needed to be provided first aid and adequate assistance that took into account what the poison was, to which substances the people had been subjected.

Instead, the government lied and said that the gas is harmless and that people did not die of gas poisoning.

And casting blame on the medics is unfair: the medics worked where and when they were allowed and only had the information they were provided. Inorder to avoid a false interpretation of the Court’s decision, and stop any more peculation on this subject, see the quotes reminiscent of the decision that the Court actually reached.

What is next?

Here is what carrying out the European Court’s decision. Infull!

Open the case and investigate it. Establish all who were responsible for the deaths of people and bring them to justice. Toall who deserve awards honor and obeisance, but drop all of these phony awards in the trash and make those who so generously handed out these bogus honors answer forit!

Give us fair and competent professional autopsies and bring to justice all of the physicians whose lies the authorities used to cover up their collective false diagnoses!

Give social support to the former hostages and their families, provide correct diagnoses and medical and psychological care to all who still needit.

Give us action against the culprits, whose identities must finally be determined, and take from the guilty any funds collected from Russia for the applicants and return it to the Russian budget, so that the amounts paid to the victims in this case should not a burden on the budget (i.e.: you and I).

Undertake general measures to prevent such human rights violations for continuing!

Karinna Moskalenko
Radio ‘Echo of Moscow’, June 15th, 2012

Views: 5263| E-mail

Comments (1)
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