3.3. Lack of impartial attitude to the events and of efficient investigation into the facts of the case

Lack of impartial attitude to the events on the part of the authorities is proved by the following:

- unfounded refusal to satisfy petitions of the victims to supplement the investigation;

- unsettled contradictions in positions of government representatives who were in charge of the rescue operation;

- the persons responsible for the tragedy were not brought to account legally;

- refusal to admit applicants to be an injured party  in the accomplices case;

- inability to finish the investigation of the case and publish its results for more than 3,5 years.

The victims repeatedly tried to submit petitions to Moscow Public Prosecutor’s Office, and to the State Office of Public Prosecutor for additional investigative actions to be done so as to establish actual circumstances of the death of their relatives, for initiation of a criminal case and for examination of the facts of special means use and failure to provide due medical care, and petitions for commission re-examination. However such petitions brought no results, because no questions posed in them were answered. Besides that, answers to petitions addressed to the Russian Federation Public Prosecutor’s Office came from the Moscow Public Prosecutor’s Office, whose actions had been the subject of complaints.

Incompleteness of investigation, failure to take measures to establish actual facts of the case, refusal to satisfy reasonable petitions impede the victims to have access to justice and infringe on their constitutional rights:

Article 24 of the Constitution of the Russian Federation guarantees the right to information, with no reasons to be limited in this case,

Article 20 of the Constitution of the Russian Federation, guarantees the right to life.

3.3.1. Incompleteness of investigation and discrepancies in the statements made by Public Prosecutor’s Office

The examination of the Conclusions made by forensic medical examinations commission, revealed their incompleteness and contradicting statements to the victims. The victims in their endeavor to establish the actual circumstances of the death of their relatives repeatedly addressed the Public Prosecutor’s Office with petitions for additional investigative actions. However, the Public Prosecutor’s Office refused to do any additional actions on the grounds that commission re-examination with the aim to find out the circumstances related to the death of victims “is considered by the investigation to be inexpedient”.

The reply to requests to initiate a criminal case and investigate the facts of special means use was answered by Resolution dated 16.10.2003 about refusal to initiate criminal proceedings against special purpose units “because their actions were considered to be made in the state of extreme emergency”.

The all-Russian public movement “For Human Rights” sent requests to the Prosecutor General of the Russian Federation (dated 21.01.2003) to protect the rights of the victims who had tried to appeal to that organization. It was stressed in that request that it was essential to initiate criminal cases and perform proper investigations into the following facts:

- inadequate organization of medical assistance to hostages and their evacuation from the Theater Center in Dubrovka on 26.10.2002;

- death of hostages from poisoning by an unknown chemical agent (agents);

- illegal use of a narcotic agent (agents) by law enforcement agencies in the course of hostage release operation 26.10.2002;

- illegal liquidation (by killing) on 26.10.2002 of persons who had seized hostages and were unconscious at the moment of killing, which eventually resulted in the absence of accused in the case related to the terrorist attack and made it impossible to bring the case before court;

- negligence of the officials responsible for investigation of the case of hostage taking.

It follows from the reply received from Moscow Public Prosecutor’s Office dated 19.04.2004 that on 31.12.2002 “it was refused to initiate a criminal case against medical workers for absence in their actions of corpus delicti”.

The abovementioned resolutions by Public Prosecutor’s Office on refusal to initiate a criminal case contain lots of discrepancies, and testify to the incompleteness of investigations carried out.

Detailed analysis of these discrepancies is made in Appendix 19 “Criticism of resolutions taken by Moscow Public Prosecutor’s Office on refusal to initiate criminal cases dated December 31, 2002 and October 16, 2003”. The authors will allow themselves consider some of them in detail here.

- The true and final number of casualties among hostages who lost their lives as result of the assault has not been determined for sure: officially the number of casualties is 129, however upon summing up the numbers made public in the resolution the resulting number is 174.

- The failure to determine both the used agent and the presence or absence of an antidote to it as well as discrepancies concerning the role of the antidote for saving lives of hostages after exposure should be regarded as incompleteness of investigation and negative performance on the part of Public Prosecutor’s Office in establishing material facts of the case.

The resolutions give untenable arguments in an attempt to substantiate the forceful decision taken by authorities by the state of extreme emergency “in order to avert the danger that really threatened the interests, health and life of a great number of people held within the enclosed space mined with powerful explosives”. According to clause 39 of the Criminal Code of the Russian Federation, “actions in a situation of extreme emergency undertaken for elimination of danger” may be taken under a compulsory condition – “when the danger can not be eliminated by other means”. However, the authorities not only refrained from trying ways of bloodless solution of the extreme situation, but also obstructed that process. On the other hand, the actions taken should have at least removed the threatening danger: explosion and destruction of hostages. As it is stated in the materials of resolutions, the applied agent not only failed to neutralize the terrorists, but also intensified their resistance, and, hence did not prevent the explosion but actually provoked it.

Therefore the actions of the special units were not grounded and can not be considered as performed in extreme emergency, and the harm done — “125 persons were dead in the course of special forces action» — is to be interpreted as crime.

- The main argument to justify the beginning of the assault, i.e. the statement made by the investigation about shooting of hostages by terrorists on October 26, 2002 is false. The absence of the names of hostages who were killed by the terrorists before the assault and the testimonies by the surviving hostages who deny the fact of shooting disprove this statement and do not allow to consider as authentic and objective the data given in the materials of the resolution on the whole.

- One of the reasons mentioned in resolution that caused the decision to assault the building is refusal “by terrorists release all the children and foreigners, as it had been planned before”. However the flat refusal by authorities to negotiate, the tough stand taken by declaring publicly of impossibility to fulfill the demands of the terrorists about stage-by-stage withdrawal of the army from the Republic of Chechnya, and the beginning of the assault reduced to nothing the arrangements reached by foreign ambassadors on foreign citizens release, thus frustrating their release. It cost lives to seven of them.

All the aforementioned circumstances, discrepancies found in the case, deliberate concealing of material facts of the case together with the tragic consequences cause the victims to come to  the following conclusions:

а) a dangerous, highly toxic agent was used in the course of the assault, it caused poisoning of the victims and their subsequent death;

b) no appropriate medical assistance was rendered and could not be rendered due to the absence of the required antidote and lack of beforehand measures to arrange appropriate medical care and evacuation of the victims.

3.3.2. Falsification of the forensic medical examination of the reasons of death of hostages

Upon examination of medical documents made available by Moscow Public Prosecutor’s Office,

the offended party proved them to be incomplete, biased and contradicting.

1. There are copies of three resolutions on forensic medical examination institution in the materials – dated October 26–28, 2002, November 12, 2002 and of December 25, 2002. But only two expert opinions are available – those related to the first and the third resolution dated 25.12.2002 correspondingly.

2. Item 3 of the Resolution on forensic medical examination institution dated November 12, 2002 runs: “To present the following materials at disposal of the experts:

- a corpse (NAME of a lost hostage) … “ (Appendixes 2, 3).

But such an order COULD NOT HAVE BEEN FOLLOWED for the reason, that by the moment of institution of the examination many hostages had already been buried and there were no exhumations made. This proves the fact of falsification.

3. In the post-mortem examination report on corpse No.2575 identified as Alexander Sergeyevich Karpov, the starting time of examination was stated as 12.20 a.m. (Appendix 24). The time registered in the ambulance card related to call 06909 dated 26.10.02 for transportation of the corpse of Karpov A.S from 10, Melnikov Street to morgue No.10 was 12.30 a.m. (Appendix 25). Judging by these data the examination of the corpse of Karpov A. S. in the morgue began earlier than it had been delivered there. This fact also testifies to the falsification.

4. The same Resolution of November 12, 2002 suggested a preconceived question about the negative influence on the physical state of the hostages of such factors as stress, physical exhaustion, starvation, dehydration and lack of movement, and the examination commission actually gave the answer to it in exactly the same copied words.

Moreover, conclusions on the influence of  “a complex of factors extremely dangerous to health (prolonged psycho-emotional stress; … hypovolemia accompanied by prolonged dehydration and starvation, broken habitual biorhythms – sleep – wakefulness; presence of chronic diseases)” had been made in the Resolution dated 31.12.2002 (Appendix 21) before the conclusions of forensic medical examination became available. This testifies to the fact that the expert opinion made on 08.01–15.04.2003 was preconceived.

5. All the facts of the case, testimonies of witnesses, medical staff of the institutions, where the victims had been taken to indicate that the death had occurred either at the place of the tragic events or that they had been delivered to hospitals in the state of clinical or biological death; both ambulance service personnel and hospital doctors speak about poisoning of the victims.

6. The reports made by Commission Examination fail to provide in the description of the facts of the case and in the description of original evidence such documents as evidence given by medical workers who did primary inspection at the scene of action, the data on pre-hospital medical aid provided to the victims, evidence given by medical workers who participated in reanimating procedures, if any, as well as the time when reanimating procedures stopped. For example, the examination reports dated 12.03.2003 on all the victims, whose death was stated in GKB No.21, have the words of Dr. S. B. Sukhov, (doctor of that hospital) adapted to each specific case.

7. Medical certifications of the cause of death of hostages irrespective of their age and residence were completely identical. It also supports the falsification and preconception version because it is impossible to give absolutely identical opinions on the cause of death of, for example, a 13 year old child, a 31 year old man and a 49 year old man (Appendixes 26).

8. No resolution on forensic medical examination institution or any other official documents mention the nature the used gas agent, therefore such a respected and serious commission has no right whatsoever to speak of the absence of direct causality between the effect of the given agent and death of the victims, if it had not specified in its report the character of such agent (its physical and chemical properties, details of its effect on human body, etc.)

9. The conclusion made that accompanying illnesses, even such insignificant as bronchitis, arachnofibrosis, pancreosclerosis, contributed to lethality is wrong because prognosis for life with such diseases are favorable.

10. It is widely known that a human being can survive without food for about 30 days while dehydration of the body reaches its critical point on the 9th or 10th day. The terrorist actions lasted 57 hours (that is less than 2,5 days), which means that even with complete absence of food  and water the critical state could not have been reached by human body.

It is also known, that at the moment of the assault, there was a certain amount of food and drinks in the refreshment room: juices, drinks, milk, chocolate, ice-cream, cookies, etc. Besides that on 25.10.2002 Anna Politkovskaya arranged the delivery of juices and drinks to the captured theater in such amounts that the hostages did not have enough time to drink it before the assault began. It is proved by the video recording made by the FSB where packages with juices at the wall can be clearly discerned. The same is also confirmed in the evidence given by hostage V. V. Kruglikova attached to the report made by commission examination, and by the reports on scene of action examination. Therefore, the statement made by the Public Prosecutor’s Office about the absence of food and water are groundless, and the reports of experts about dehydration of the dead are false.

Conclusions about long deprivation of sleep are groundless. Certainly, sleeping in an arm-chair is not so convenient as sleeping in one’s own bed, but nobody purposefully deprived the hostages of sleep.

11. Conclusions about negative influence of stress are wrong. According to recent scientific studies, stress actually promotes formation of great amount of protective substances in human body. They were even used as prototypes to produce medicines that help people to live through stress situations. This was told on 11.11.2005, namely, by Doctor of Medicine Yelena Malysheva, a host of “Health” program on “Echo of Moscow” radio (Appendix 27).

12. The conclusion of experts excluding direct cause and effect relationship between the effect of the used agent on the health of dead hostages and their death is false. In cases when members of one family had been sitting next to each other in the theater hall the diagnosis made to surviving hospitalized hostages was “unidentified agent poisoning”, while poisoning of the dead victims was denied.

Thus, each factor taken separately cannot be the cause of death, and as for their aggregate effect it has been proved by numerous cases of natural disasters, when their victims remained alive.

Besides, not a single hostage died from the aggregate effect of these factors within the 57 hours prior to the gas attack. And only with the coming of the new factor – "the special means” used in the assault — mass casualties among of hostages began to appear.

All abovementioned facts, contradicting statements, deliberate concealing of the facts lead to a conclusion on preconception, falsification of the conclusion of forensic examinations, which failed to find out  true causes of and facts about death of the hostages.

3.3.3. Court hearings of applications filed by the victims

Article 17 of the Law on Combating Terrorism of the Russian Federation provides for the state (or the constituent entity of the Federation) to indemnify persons for damages caused by a terrorist attack that took place in the territory of the state. By virtue of this law, the victims got a possibility, prior to termination of Nord-Ost investigation, to file a lawsuit to protect their rights: due to the terrorist attack 69 children were left parentless, and many old aged parents lost their single wage earner.

Together with the claims for indemnification, at court hearings people hoped to reveal the TRUTH about what had happened in Nord-Ost, and produce the witnessed evidences that could be of any help in prosecuting those found guilty for the death of hostages.

By the end of 2002 a few dozens of claims had been filed by the relatives of the dead hostages and from the hostages damaged by the gas attack. Most claims (61 in number) were filed to Tverskoy District Court through the law office of I. L. Trunov. The claims of the victims being the citizens of Russia under the above Law were filed to the constituent entity of the Federation – the Moscow Government, and the claims of the victims being the citizens of foreign countries were filed directly to the Government of the Russian Federation.

The mass media, concealing the contents of the Law adopted as early as in 1998, used the method of attack on the victims and their attorneys blaming them for being driven by the desire to make money. And, a lump compensation paid our by resolution of the Moscow Government was re-named into a ‘compensation for damages’.

As far as the claims contained such questions as: why the unimpeded terrorists could take hostages in the theater in the center of Moscow; why no due medical assistance was rendered to the relieved hostages and so on, Judge Mrs. Gorbacheva used best efforts to prevent these questions from hearing and entering into the record. Not a single (!) claim of the lawyers was accepted. The Judge many times roughly interrupted the victims (Appendix 28.12):

“— Karpov, sit down! I told you!

— I want to spea…

— Sit down! You’ve missed the stage of documents examination…

— But I wasn’t summoned!

— You’ve missed it! Sit down! Or I’ll have to remove you!

— I want to file…

— I won’t accept anything from you!..

— Karpov, don’t raise your hand any more!

— I want my rights to be finally made clear to me, please!

— Nobody is going to clarify anything to you!..” (23.01.2003, Tverskoy City District Court of Moscow)

The representatives of the Moscow Government suggested to re-address the claims of the victims directly to the harm-doers, i.e. to the killed terrorists, and Chairman of the Moscow City Duma Mr. Platonov concluded that there was no terrorist attack, because the building was not exploded.

As the current investigation was neither impartial nor overwhelming, the victims wishing to protect their rights had to apply to court. The basis of the complaint was the omission of the Public Prosecutor’s Office and its orders to dismiss criminal complaints dated 31 December 2002 (Appendix 21) and 16 October 2003 (Appendix 22).

During the proceedings of the Zamoskvoretsky District Court of Moscow the applicants and their representatives many times indicated unreliable, conflicting and incomplete data containing in the orders of the Public Prosecutor’s Office. Although none of these contradictions was controverted by the representative of the Public Prosecutor’s Office, the court found these orders legitimate on the grounds that ‘the disputed decisions were made by a duly authorized person, and they comply with the requirements of the criminal and procedural law, and they are motivated and reliable’.

In light of the arguments that, due to the omission of the investigation, some very important circumstances were not indicated, such as:

-  What agent was used by the special services, its nature and type (physical and chemical properties, specific effects on human body and so on),

- If there was an antidote to the used agent,

- At what time the assault began,

- Number of killed hostages,

- Actual circumstances and reasons for the death of hostages,

- Number of terrorists overtaking the theater, these statements of the applicants and their representatives were not controverted by either the representatives of the Public Prosecutor’s Office of the city or by the court.

The mass media were invited to report the process, and some of editions cited word by word the sayings of Investigator V. I. Kalchuk abusive for the applicants and their lawyer (“Novaya Gazeta”, 18.04.2005) (Appendix 28.14):

«… MOSKALENKO: And, did the investigation make any requests to identify the agent?

KALCHUK: You gonna teach me? What else d’you want? I won’t tell you more!

MOSKALENKO: But you are standing before the court.

KALCHUK (shouting): I won’t answer. If the expertise says: there was no agent — it means there was no agent.

MOSKALENKO: Explain for the record, that, probably, it’s an investigation secret?

KALCHUK (restraining himself for the record): Yes, it’s an investigation secret. And the investigation is extended till July 19.

MOSKALENKO: Is it possible that by July 19 the grounds will have appeared for you to change your order dismissing criminal complaints in respect to the special services employers who used the gas?

KALCHUK: No. They won’t appear.

MOSKALENKO: But in your order, I remind you of it again, the matters of place and time of Sasha Letyago’s death were not considered at all.

KALCHUK: What? I didn’t get the question? I’m too stupid to get it.

MOSKALENKO: Well, I’ll help you. How did it happen that Sasha Letyago died? When was she found after the assault? Your order doesn’t show it.

KALCHUK: I won’t answer you any more. I’ll stand up and I’ll keep silence.

MOSKALENKO: The seventh question in Mrs. Gubareva’s application to you was: why were the doctors called up to Sandy Booker at 8.30 a.m., i.e. only two hours and thirty minutes later…

KALCHUK (interrupting): You will not answer.

MOSKALENKO: But you examined the circumstances of the death of the victims?

KALCHUK: I don’t want to talk to you about it any more.

MOSKALENKO: But you are in court. You refuse to answer to the court …

KALCHUK (frankly brutal): Right,  I refuse to answer …”

A part of criminal case No. 229133 made up a separate case of Zaurbek Talkhigov accused of assisting terrorists. The investigation into the case was finished in spring 2003, and tried by the court in summer 2003.

For an unexplained reason the applicants were found not harmed under the case above; they were not invited to the court hearings, and obtained information about the case by chance from the mass media reports.

The applicants made efforts to judicially invalidate the actions of the Public Prosecutor’s Office of Moscow in respect of finding the victims of criminal case No. 229133 not harmed under the separate criminal case of Z. Talkhigov. But Zamoskvoretsky District Court of Moscow, and then Judicial Division for Criminal Cases of the Moscow City Court dismissed the complaints of applicants subject to the reason that the preliminary investigation into the case of Z. Talkhigov had been finished and brought before the court.