(Applications nos. 18299/03 and 27311/03)

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6. Rescue and evacuation operation

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(c) Conclusions

263. It is not possible for the Court to establish an individual story for each deceased hostage: where he or she was sitting when the operation began, how seriously he or she was affected by the gas and “concomitant factors” (stress, dehydration, chronic diseases etc.), what kind of treatment was received on the spot, at what time he or she arrived at a hospital, what kind of treatment he or she received in that hospital, etc.

264. Further, what is true in respect of the majority of the hostages may not be true in each individual case, taken alone. Thus, the alleged lack of medical aid would be irrelevant in a situation where a person had already died by the time the medics arrived. Equally, the Court cannot exclude that some of the victims were amongst those who were first to receive medical assistance but nevertheless died, because they were very weak or ill and died as a result of “a stroke of misfortune, a rare and unforeseeable occurrence” (see Giuliani and Gaggio, cited above, § 192).

265. In other words, many important factual details in this case are missing. That being said, the Court stresses that its role is not to establish the individual liability of those involved in the planning and coordination of the rescue operation (see Giuliani and Gaggio, cited above, § 182). The Court is called upon to decide whether the State as a whole complied with its international obligations under the Convention, namely its obligation to “take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, minimising, incidental loss of civilian life” (see Ergi, cited above).

266. The Court acknowledges that in such situations some measure of disorder is unavoidable. It also recognises the need to keep certain aspects of security operations secret. However, in the circumstances the rescue operation of 26 October 2002 was 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. The Court concludes that the State breached its positive obligations under Article 2 of the Convention.

7. Effectiveness of the investigation

267. The applicants’ final complaint under Article 2 of the Convention was that the State had failed to fulfil its positive obligation to investigate the conduct of the authorities during the hostage crisis.
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i. Whether the official investigation was “effective”

273. The present case clearly falls into the category of cases where the authorities must investigate the circumstances of the victims’ deaths. Thus, there existed a nexus between the use of lethal force by the security forces and the victims’ death. The gas remained the primary cause of casualties amongst the hostages, and it was legitimate to suspect that some of the victims died as a consequence of an ineffective rescue operation. Although the responsibility for the hostage taking as such cannot be attributed to the authorities, the rescue operation lay in an area within the exclusive control of the authorities (here the Court draws a parallel with the security operations by the Russian military in Chechnya or Turkish security forces in South-East Turkey — see Akkum v. Turkey, no. 21894/93, § 211, ECHR 2005-II (extracts); Goygova v. Russia, no. 74240/01, §§ 88–96, 4 October 2007, and Magomed Musayev and Others v. Russia, no. 8979/02, §§ 85–86, 23 October 2008). Finally, the events in issue “lay wholly, or in large part, within the exclusive knowledge of the authorities” in the sense that it was virtually impossible for the applicants to obtain any evidence independently from the authorities. In such circumstances the authorities were under an obligation to carry out an effective official investigation in order to provide a “satisfactory and convincing” explanation of the victims’ deaths and the degree of the authorities’ responsibility for it.

274. The Court stresses that it is not concerned with the investigation into the terrorist act itself. In this part the investigation appeared to be quite ample and successful. Thus, the terrorists and their supporters were identified, the circumstances of the hostage taking were established, the explosives and firearms used by the terrorists were examined, and at least one person (the terrorists’ accomplice outside the building) was brought to trial and convicted. The question is whether the investigation was equally successful in examining the authorities’ own actions during the hostage crisis.

275. The Court notes that the investigation was opened and continued under Articles 205 (“Terrorist acts”) and 206 (“Hostage-taking”) of the Criminal Code. Negligence by the authorities cannot be characterised under either of those two provisions. Therefore, the scope of the investigation was, from the very beginning and throughout it, defined very narrowly. This is also confirmed by the action plans prepared by the investigator (see paragraphs 33 and 34 above), which were mostly concentrated on the terrorist attack itself and not on the behaviour of the authorities during the hostage crisis.

276. Although the investigation is not yet formally completed, the prosecution repeatedly decided that, as regards the authorities’ alleged negligence, there was no case to answer. The first decision in that sense was taken in response to a request by Mr Nmt., an MP, slightly over one month after the events (see paragraph 121 above). Given the magnitude of the case, it was hardly possible to conduct any meaningful investigation into the authorities’ alleged negligence within such a short period of time. The question of the authorities’ negligence was subsequently brought to the investigator’s attention several times (see in particular his decision of 16 October 2003, paragraph 98 above), but the haste with which the first decision was taken is suggestive.

277. The Court acknowledges that the investigator did not remain idle and did address certain questions related to the planning and conduct of the rescue operation. The evidence obtained thereby will be analysed below. That being said, in some other respects the investigation was manifestly incomplete. First and foremost, the formula of the gas has never been revealed by the FSB to the domestic investigative authorities, despite the latter’s request to that end (see paragraph 101 above), although the investigative team included FSB officers and most of the experts in the case were also from the FSB, and thus, at least in theory, could have been trusted.

278. For instance, the investigative team made no attempt to question all the members of the crisis cell (with the exception of one or two secondary figures, such as Mr Yastr., or Mr Sl., the Head of the Health Department) and officers of the FSB involved in the planning of the operation, in particular those who were responsible for the decision to use the gas, calculation of its dose, and installation of the devices. Members of the special squad (those who were directly involved in the storming), officers and their head officers were not questioned either (except for one person who had himself suffered from the gas). Drivers of the city buses, journalists and other “chance” witnesses (such as “diggers” who had allegedly helped the FSB to plant the gas recipients) were not questioned either.

279. The Court is surprised by the fact that, as the Government explained, all of the crisis cell’s working papers were destroyed (see paragraph 169 above). In the Court’s opinion those papers could have been an essential source of information about the planning and conduct of the rescue operation (especially in a situation where most of the members of the crisis cell were not questioned). The Government did not explain when those papers were destroyed, why, on whose authority and on what legal basis. As a result, nobody knows when the decision to use the gas was taken, how much time the authorities had to evaluate the possible side-effects of the gas, and why other services participating in the rescue operation were informed about the use of the gas with such a delay (for more details on this matter see below). Even assuming that some of them might have contained sensitive information, indiscriminate destruction of all documents, including those containing information about general preparations, distribution of roles amongst members of the crisis cell, logistics, methods of coordination of various services involved in the operation, etc., was not justified.

280. Amongst others, the investigators did not try to establish certain facts which, in the Court’s opinion, were relevant and even crucial for addressing the question of the authorities’ alleged negligence. For instance, the investigative team did not establish how many doctors were on duty on the day of the storming in each hospital that participated in the rescue operation. They did not identify what preliminary instructions had been given to the ambulances and city buses as to where to transport the victims. They did not identify all of the officials who had coordinated the efforts of the doctors, rescue workers and military personnel on the spot, and what sort of instructions had they had received. They did not establish why the mass evacuation had started only about two hours after the start of the storming, or how much time it had taken to kill the terrorists and neutralise the bombs.

281. Lastly, the investigative team was not independent: although it was headed by an official from the Moscow City Prosecutor Office’s, and supervised by the General Prosecutor’s Office, it included representatives of the law-enforcement agencies which had been directly responsible for the planning and conduct of the rescue operation, namely the FSB (see paragraph 31 above). Experts in explosive devices were from the FSB (see paragraph 45 above). The key forensic examinations of the victims’ bodies and their medical histories were entrusted to a laboratory that was directly subordinate to the Moscow City Public Health Department (see paragraphs 95 et seq. above). The head of that Department (Mr Sl.) was personally responsible for the organisation of medical aid to the victims and was therefore not disinterested. In sum, the members of the investigative team and the experts whose conclusions were heavily relied on by the lead investigator had conflicts of interests, so manifest that in themselves those conflicts could have undermined the effectiveness of the investigation and the reliability of its conclusions.

282. Other elements of the investigative process are probably also worthy of attention (such as the limited access to the materials of the case by the victims’ relatives, and their inability to formulate questions to the officially appointed experts and examine witnesses). However, the Court does not need to examine these aspects of the proceedings separately. It 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”. The Court concludes that there was a breach of the State’s positive obligation under Article 2 of the Convention on this account.

The European Court of Human Rights