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Once again on 'Nord-Ost'
Written by   
, 26 2013

ONCE AGAIN ON 'NORD-OST' AND THE MANDATES OF THE EUROPEAN COURT'S DECISIONS

ImageDue to health reasons, this year it was not possible for all of us to gather at that tragically famous spot on Dubrovka, the place where we lost brothers and sisters, children and parents, during the course of an operation more aimed at destroying terrorists than rescuing hostages. Certainly, history will answer the questions in full, but right now former hostages and relatives of deceased victims have already been fighting for the truth for 11years. Theyare fighting for the truth about the case and the truth about the deaths of their lovedones.

Last year on this day dozens of hostages and their families gathered for a sad anniversary of the event 10years since the tragedy of 'Nord-Ost'. Onthat day, October 26th, 2012, our principal applicants in this case old and new signed an appeal to those obligated to assure the appropriate work of investigative bodies in our country so that they finally organize a thorough and independent investigation, pursuant to the decision of the European Court in the 'Nord-Ost' case ("Finogenov & Others v. Russia "), and to determine all those circumstances that the authorities so carefully conceal from its own citizens.

Since the authorities continue with impunity to hide the truth about 'Nord-Ost' from us at all levels they have refused initiate a criminal case, or even conduct an investigation on February 8th, 2013, the victims in the 'Nord-Ost' case filed a memorandum. Init, we reported on their behalf that in this case mandates of the European Court of Justice have not been carried out. Thismemorandum was posted on the website of the Committee of Ministers, the chief executive of the Council of Europe that keeps track of the strict implementation of the European Court's decisions (reference number: DH-DD (2013) 173).

On May 15th, 2013, the Russian authorities, undaunted, reported on the implementation of these decisions. Theyfound that they had implemented a decision in so far as they compensated victims by more than a million rubles (note that this was out of our own, the taxpayers’ pockets, but they still have yet to determine who was responsible). TheRussian authorities decided that this fulfilled the Court’s decision (reference number: DH-DD (2013) 553).

We argue that after the June 4th, 2012, decision became final, the Russian Federation did not implement it through its competent agencies, and that it convincingly demonstrates an absence of intent to implement a decision of the European Court that acknowledges one of our government's most shameful violations the violation of the right to life of several dozen innocent victims, the hostages in the Dubrovka theater.

Recall that the Court found several violations. TheRussian authorities did violate the hostages' right to life:

- In terms of the inadequate planning, organization, and execution of the assault on the theatrical center where the hostages were located, as well as by the lack of proper coordination between different services as well as the lack of adequate medical measures, supplies and equipment during the rescue operation (paragraph 266of the Court’s decision);

- Also through the failure to conduct an effective, comprehensive, and independent investigation into circumstances of the case, which should be completed with judicial proceedings (paragraph 240).

Thus we say with our inherent optimism: it is not overyet!

The time has come and today is the day to declare to the Committee of Ministers that the Russian authorities are unwilling to enforce the judgment of the European Court, that the authorities have demonstrated a complete disregard for its obligations under the European Convention as well as the binding nature of the European Court's decisions. Thishas led to a continuing violation and abolition of the victims' rights.

In today’s Memorandum, what would we accept as individual measures of a general nature?

We ask that the Committee of Ministers provide all possible assistance in implementing the European Court's decision. Atthis point it should be recognized that the Russian authorities de-facto refuse to carry out the decision. Inthis case, acting in accordance with the special procedures laid down in Rule 11of the Code of Rules of Committee of Ministers of the Council of Europe, it follows that the case be re-submitted to theCourt.

What will come of it? Dowe even know how this measure works in practice? No, we do not, because when all nations ratified Protocol 14of the European Convention, it was assumed that no state would ever be brought to task using this extremely unpleasant measure.

Among measures of a general character, we note in today's Memorandum that other victims of the same violation were not offered even some amount of compensation by the authorities commensurate with compensation awarded by the Court to the applicants and other victims of the same violation. Ithad already been noted in the initial Memorandum that other victims joined the complaint against the Prosecutor General of the Russian Federation.

Carrying out decisions Russian style

The Russian authorities, reporting to the Committee of Ministers, stated that Russian courts had reexamined the case and that their decisions, based on legal grounds, were to be enforced.

Some victims did indeed march through the very same district courts through which they had passed so many years ago. Unfortunately, it was all a ploy on the part of the Russian authorities so that they may report to the Committee of Ministers on the many decisions made by the Russian courts. Inorder words, the authorities had once again, in the immortal words of Arkady Raikin, included a fool.

Obviously, according to the Chairman of the Russian Supreme Court, only the Presidium of the Russian Supreme Court could have and should have to the power to cancel decisions reached in accordance with new circumstances. TheRussian authorities know this well, since decisions by the European Court are implemented only at the highest political level. Why? Forone simple and practical reason: at the time when they appealed to the European Court of Human Rights, especially when this court found there to have been a violation of rights guaranteed by the European Convention, the applicants SHOULD HAVE ALREADY EXHAUSTED ALL DOMESTIC GOVERMENTAL REMEDIES. Thus, low-level prosecutors or courts are not to alter a single letter in earlier decisions.

This is a well-known fact, but, unfortunately, the applicants have been forced to pass through all those same courts that had earlier shown them the door. Atthe same time, this created the illusion of a flurry of activity on the part of the Russian authorities concerning the ruling in the 'Nord-Ost' case. Notonly did this have a negative effect, in the sense that the it let the Russian government simulate activity in carrying out an ECHR decision, it caused the applicants to despair, and for no good reason, that a violation recognized by the European Court does not oblige the Russian authorities to provide compensation. Thisis false, good sirs! Donot try to pull the wool over oureyes.

You, the Russian authorities, are obligated to take a number of steps, but you have not done a thing about it. Didyou cancel unwarranted resolutions to forgo prosecution? Didyou open a criminal case? Didyou conduct an investigation? Didyou perform repeat the medical examinations (not by butchers who set out to prove the harmlessness of gas, but by competent physicians)? Didyou restore documents from the operational headquarters? Didyou question every member of its staff? Didyou determine what gas was used, and to put it bluntly: was it tested on humans? Didyou determine who made the decision to use a harmless gas? Didyou find the responsible and guilty parties? Didyou conduct an open trial? No?

Get to work, please. Report! Butnot only the Committee of Ministers of the Council of Europe, but first of all to your own people! Report to the victims to whom you owe so much, and this, more than anything else, is that moral duty which repeatedly and ruthlessly looks you in the eye and causes you such fear andshame.

So far, instead of all of the above, you have included a fool. Either that, or you think that we are stupid. Youforget, however, that according to the ruling by the European Court, a violation of the right to life is the responsibility of the authorities not only for what they did not do in order to save lives, but also since they did not allow an investigation into this case. Weare, however, interested in everything, including who would not investigate the case, andwhy?

Think about it: the rulers of a great state are found guilty of violating the right to life of many dozens of people and thus express satisfaction in this regarding (!) Ijust do not know: are these people clinically ill, or simply just terrible scoundrels?

So, now when Ihear that the Russian authorities have lost another case before the ECHR, declaring their great satisfaction at losing (recently they sounded this optimism in the Khodorkovsky case, otherwise figuring out how they would carry out, or not carry out, the legal decision which by the way entered into force yesterday), this tells me that they have already found a loophole. Either that, or they do not think that we, as Russian citizens, can get them to enforce a judgment. Itis useful to know that the Committee of Ministers of the Council of Europe an organization that brings together the foreign ministers of 47member states does not keep track of the Russian authorities pursuant to the Court's decision as long as the authorities put on a good show. Unless, of course, the prevailing party is not too lazy to submit a memorandum to the Committee of Ministers with an evaluation on the Russian authorities (not) carrying out a judgment by theCourt.

This is also my answer to those who recently ask me, dozens of times: is there is a procedure for implemented the Court's decision, and how effective is it? Tothese people, and to those concerned about the recent decision by the Supreme Court of the Russian Federation to ignore the ECHR decision in the Alexei Pichugin case, Isay: there is, and it is very effective. ButI also say that this procedure is only fully operational when we, the civil society in Russia, demand that our authorities serve the people as they should, not be parasites the body of our long-suffering country, humiliating and oppressing the people, hiding and walling themselves off with guards, arbitrary bureaucrats, and unfair and non-independent courts.


But back to the Memorandum: what motivates the applicants: is it the urgency of the matter and the inadmissibility of further delaying actions in the process of implementing the Court's ruling on their case?

One should bear in mind that further delay in carrying out of the decision on the part of the government of the Russian Federation is unacceptable, because after more than 10years since the tragedy of October 26th, 2002, the applicants have less hope for any possibility of an effective and fruitful investigation.

The applicants in their new Memorandum point out to the Committee of Ministers the continuing relevance of the case. Thefact that the European Court for certain reasons did not rule on the absolute inadmissibility of using the gas. Thiswas in spite of the fact that Russia had not only failed to provide material requested by the Court on the substance, and, in fact, had destroyed all documents on the operational headquarters, including, of course, all data on the substance. Consequently, the Court's decision was made on a gas that is still unknown at this time, though they agreed that this unknown poisonous gas had a lethal effect on the hostages. Itmight seem that this part of the Court's decision was intended to discourage the applicants.

The Court, however, did find a violation of the right to life, and put the burden of responsibility for the deaths of more than 120hostages (and it is still not known exactly how many!) on the Russian authorities. Veryreasonably, they left open i.e.: demanded answers to the most important questions. Howis one to explain the missing links in this chain of unclear circumstances? Hereis how: the Court found that the authorities failed to conduct an effective investigation and thus bear responsibility for violating the right to life! Implementing the Court's ruling in this part of the judgment conducting at least for now a proper investigation could lead to the determination of the nature and action of the gas, as well as other significant issues such as the circumstances of the terrorist attack. Subsequent resolutions by the Court might be the applicants are convinced will be more specific and stringent rules on the admissibility or inadmissibility of using gas and other actions. Thatis why the authorities are so afraid of conducting an investigation as described by the EuropeanCourt.

The applicants are convinced that the Russian authorities can and should strictly enforce the Court's decision in the case, otherwise a precedent may be set for the use of any gas against peaceful civilians even those banned the Geneva Convention. According to its decision, the Court proceeded from the assumption that the gas was only used on the terrorists, not on the hostages. Inthe auditorium, however, were only 30terrorists and more than 900hostages. Theterrorists were able to move about the auditorium, and most of the men were in the foyer where the gas was not used. Thehostages could not move about and get access to fresh air, so those near the vents were doomed regardless of their health status. Thismay explain the high percentage of deaths (40% of those under 40years of age). Asa result, the number of hostages killed was several times higher than the number of terrorists killed. Itis impossible to consider such a hostage rescue operation a success, but the Court could not base its conclusions on assumptions since at the time and it had no specific data on any illegal actions on the part of the Russian authorities. TheCourt in its decision therefore gave serious attention to the poor quality of the investigation into the main case a lack of independence, inefficiency and, most importantly, a COMPLETE LACK OF AN INVESTIGATION into the case against the responsible officials, which, in the opinion of the Court, was not even initiated!

Due to this lack of investigation, the critical circumstances of the assault, including the identity of the gas and its lethal effects as recognized by the Court were never fully determined with credible information. Thisinformation remains hidden from the victims and the public as awhole.

They must promptly piece out this violation. TheRussian authorities must be called to task, and a criminal case opened, immediately, as directly follows from the ruling of the EuropeanCourt.

Thus the applicants demand that the Russian authorities cease ignoring the Court's decision, stop this simulation of implementing it, and insist the authorities carry out the Court's decision in its entirety. Given the importance of the issue concerning appropriate actions by the authorities during terrorist attacks, including the importance of the steadfast observance of rules banning the use of chemical weapons against peaceful civilians, the applicants once again urge the Committee of Ministers to take up this case in terms of the failure on the part of the Russian authorities to implement the given decision of theCourt.

In ‘Echo of Moscow’


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