To resolutions by the Attorney General's office to not bring charges on December 31^st, 2002, and their ruling to curtail the criminal case on October 16^th, 2003

Moskalenko K. A.

Attorney KA OF «MGKA» AK #10
Mikhailova O. O.

1. Criticism of the Attorney General's resolution to not bring charges on December 31^st, 2002.

1.2. The resolution contains a series of unresolved contradictions, and testifies to the incompleteness of the investigation which they performed. According to the resolution's conclusions, “114 of the victims were pronounced dead on the scene (p. 9–10 of resolution from 31.12.2002), 8 victims were delivered to GVV Hospital #1 in a state of clinical death, biological death in these cases began from 10 to 40 minutes earlier, and 6 victims passed away at medical establishments at various times after arrival."
According to the decision (p. 10), the total number of those killed is allegedly 129 people.
However, according to the same document, data gleaned from the statements of the heads of the respective medical establishments shows that the number of hostages who were pronounced dead in the hospitals (besides the 114 pronounced dead at the scene), comprises: 

- GKB hospital #13: 36 people (p. 7 of the resolution),
— GKB hospital #7: 15 people (p. 8 of thhe resolution),
— GVV hospital #1: 8 people (p. 10 of thhe resolution).

1.3. In the investigators' resolution an attempt is made to mask and, therefore, hide the real cause of the hostages' deaths, who were suffering from the effects of a substance used in the assault. In a number of cases this substance is referred to as a certain «gaseous substance» (p. 11), in another case it is called a gas «based on derivatives of Fentanyl, which causes sleep» (p. 10 of decision).

In reality, as can be seen from subsequent events, what occurred was the application of a highly toxic substance whose identity is purposely kept hidden. Testifying to this fact are the conclusions of the Health Ministry's report (located in volume 1, page 162): «the conditions for rendering medical aid were also burdened by the high concentration of a chemical substance, which led to instantaneous, fatal outcomes.»

That the substance used is purposely not established should count as proof of the explicit incompleteness of the investigation and idleness of investigators in discovering the most important circumstances regarding the case.

1.4. Another important circumstance of the case was never established by investigation — the presence or absence of an antidote that could be used against this substance.

The Attorney General's resolution (p. 5) states: «according to an explanation by the chief anesthesiologist of Moscow, E. A. Evdokimov, Nalaxone is the specific antidote against opiates, and was widely used from the very beginning to render aid to the hostages.» Elsewhere in the resolution (p. 10), there is information about the fact that «Nalaxone was injected into a majority of the hostages by officers from the special forces.»

These assertions are refuted by data of the Ministry of Public Health: «aggravating the conditions for organizing aid to the victims were: 2) the absence of a specific antidote to the substance which was used» (conclusions of the Ministry of Public Health, volume 1, page 161).

CONCLUSIONS:

The aforementioned circumstances, case contradictions and intentional concealment of the facts, in conjunction with the tragic consequences, lead the victims to the following conclusions:

A) That the dangerous, highly-toxic substance used during the assault led to the poisoning of the victims and their subsequent loss;

B) That proper medical aid not was given, and could not be given, due to the absence of a specific antidote, and that the authorities failed to organize in advance the necessary measures to provide for timely medical assistance and transport of the victims.

2. Criticism of the Attorney General's resolution to curtail a criminal case on October 16th, 2003.

2.1. The resolution presented by the Moscow Attorney General's office, to curtail a criminal case against officers of the special forces in October 2003, we also consider illegal, unsubstantiated and subject to annulment on the following basis:

The description of circumstances is based on an absence of data, is lacking any confirmatory proof, lacks references to case materials, and nowhere does it indicate the source of its information on which it bases its conclusions. I.e., it is only a fictional description of a certain story.

The resolution presented by the Moscow Attorney General is 70 pages in length. 

Approximately only one page of this resolution, however, describes the actions of the special forces officers during the period of October 23–26, 2002.

2.2. According to the resolution, the primary demand of the terrorists was the withdrawal of armed forces from the territory of Chechnya (pp. 1 & 51). In this case the terrorists insisted on the participation in the negotiations of political figures and representatives of the media (p. 62).

There is no evidence in the documents whatsoever that measures were taken to convince the terrorists that their requirements would allegedly be carried out. In contrast, the government maintained a hard line and publicly and openly declared that it would be impossible to fulfill these demands, effectively placing the lives of hostages at risk.

2.3. On page 63 of the resolution to curtail a criminal case against officers of the special forces on October 16th, 2003, one of the reasons cited for conducting the assault is the behavior of the «terrorists, who refused to release children and foreigners, as they had previously agreed to.»

Negotiations did have some progress, however. The plaintiff has reliable information that at 8:00 AM on the morning of October 26th the foreigners among the hostages were to be released. This information was also in the hands of: Altynbek Sarsenbayev (the ambassador of Kazakhstan), as well as members of the American embassy into Moscow.

In an interview on the program The Condition of KZ, Ambassador Altynbek Sarsenbayev said: «… we agreed that the release of the Kazakhstan citizens would be at 8 o'clock in the morning, but we did not know that there would be an assault that night.»

Obviously, the above assertion by the investigators, that the terrorists were not going to free any foreigners, directly contradicts the statement presented by the ambassador of the Republic of Kazakhstan, and the eyewitness account of the applicant.

2.4. From the text of the resolution, it is not evident who made the decision to conduct the attack on the theatrical complex. The resolution contains only a reference to the fact that «competent authorities of the Russian Federation made the decision to conduct an operation using forces from special subdivisions of the Russian FSB, in order to release hostages and the neutralize the terrorists by their destruction.» Who exactly is hidden behind the term «competent authorities» is not absolutely clear from the text of resolution.

One gets the impression that the absence from the resolution's text of any information relating to the officials who made the critical decision to carry out an assault attests to the fact that either the investigators could not find out this information, or, being aware of the failure of the operation, they decided cover up the identity of these persons. It is not known from the resolution and the materials presented if the indicated persons were questioned, since no testimony by them was presented. Thus, it is not possible to ascertain whether this evidence is authentic or not.

The legal basis for classifying information is not in order to help officials avoid responsibility for the disastrous consequences of their decision solution. In view of the absence of reasons for this classification of information in the resolution, there is no legitimacy for this concealment.

Let us assume that the reality of the situation, as the investigators assert, was that the special operation was necessary and that it was carried out expressly «for the purposes of rescuing the hostages, and special forces officers carried out this operation while acting under the necessity of this extreme emergency, and in order avert a grave danger to the interests, health, and lives of this enormous number of people, and the interests of society and the nation, working under conditions such that this imminent danger could not be removed by any other means,» then the investigators have no basis for hiding the identities of those who made the decision to conduct this operation.

2.5. There is no indication in the resolution, which means that it was not determined by the investigators, as to when the operation to release the hostages began. In the text of the resolution they indicate only «early on the morning of 26/10/2002.» Such a lack of precision concerning the actions of the special services officers who carried out this special operation is completely unheard of and again can testifies to the incompleteness of the investigation.

2.6. The resolution presents extremely unsatisfactory motivation and substantiation for the urgency of the situation. On page 64, they state that 125 persons died «from an operation conducted by officers of the special forces acting under the necessity of extreme emergency, and in order avert a grave danger to the interests, health, and lives of this enormous number of people who were being held, locked up, in an area mined with powerful explosive devices.» First of all, it acknowledges the fact that 125 people perished «from an operation conducted by officers of the special forces.»

The justification of their actions by the necessity of an extreme emergency is unconvincing. First, an explosion could not be avoided by assault. This fact is confirmed by the text of resolution itself, which on page 69 indicates that due to the terrorists there «was the real danger of the explosive devices, which they could set off in an instant, and were so inclined, this in turn could lead to the complete destruction of all hostages.» Furthermore, the resolution notes that the terrorists «actively returned fire during the operation with 13 assault rifles and 8 pistols.» I.e., the investigators recognize that the terrorists could have set off an explosion during the course of the operation, and that the special forces officers could not have avoided an explosion with the aid of the gas.

In this regard I find it necessary to refer to a resolution by the United Nations Human Rights Commission: 

«Recognizing the serious nature of a situation that includes the seizure of hostages, the Commission cannot but be concerned about the results of the rescue operation at the Dubrovka theater. The Commission notes that various attempts to investigate the situation are still being conducted, but expresses its concern with the absence of an independent and unprejudiced estimate of matters relative to the rendering of medical aid to the hostages after their release, and the killing of those who took the hostages. The Commission inquired of the participating government [Russia] to provide an independent, thorough investigation of the circumstances of rescue operation at Dubrovka, the results of which must be published, and, if necessary, must result in criminal charges and compensation to victims and members of their families.»

2.7. The resolution indicates that: "the deaths of practically all (125 hostages who perished) was due to acute respiratory and cardiac insufficiency, caused by a combination of unfavorable factors dangerous to life and health…and by respiratory disorders caused by the action of the unidentified chemical substance (or substances) used by the law-enforcement agencies during the course of the special operation to release the hostages on October 26, 2002. Thus, the investigation never established exactly what substance was used during the special operation, and this testifies to the incompleteness of the investigation carry out by the Moscow attorney general. Their resolution makes no judgment of the success of the actions of the special forces officers, who used this «unidentified chemical substance,» and neither does it give a proper estimation of the expediency of applying a similar substance.

<:p>These by themselves are not incompatible with the life and could not result in deaths, and in reality not a single death occurred during the course of those 57 hours before the application of the gas.
It was actually the use of this «unidentified» chemical substance that led to the deaths of a large number of hostages.
Consequently, the deaths of hostages have a direct cause-effect relationship with precisely this toxic substance, and could not have occurred without it.

2.9. From the resolution, the «competent authorities» did not make a decision to require the destruction of every single one of the terrorists, without exception, but to bring about their neutralization, which does not assume annihilation. In the resolution there is no judgment of the value of completely destroying every potential witness, which would limit any possibility of the investigating the real circumstances of what went on. Furthermore, all potential civil defendants were destroyed as well, but the state does not take upon itself total responsibility for this injury.