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Karinna Moskalenko: 'Once again on Nord-Ost and the meaning of judgments of the European Court of Human Rights'

28 October 2013

Karinna Moskalenko

This year for reasons of health not all of us have been able to gather at the Dubrovka theatre, a place associated with such tragedy, where we lost our brothers and sisters, children and parents during the operation, intended ... neither to rescue the hostages, nor to destroy the terrorists. History will certainly answer in full all the questions that remain. But for already 11 years now the former hostages and relatives of the victims have fought for the truth. Fought for the truth about what happened, the truth about the deaths of their loved ones.

Last year on this day dozens of those who had been held hostage and their families gathered to mark the sad anniversary of the event. It was ten years since the Nord-Ost tragedy ... On that day, October 26, 2012, our representatives - old and new - signed an appeal to the highest authorities who are obliged to ensure the proper functioning of the investigative authorities of our country, so that pursuant to the judgment of the European Court of Human Rights in the Nord-Ost case ("Finogenov and Others v. Russia"), the government should finally hold a full and independent investigation. So that all the circumstances that the authorities have taken care to hide from the people can be established.

But precisely because the authorities are still seeking to hide the truth about Nord-Ost from us with impunity, of course they refused at all levels to conduct an investigation into the crime. However, on 8 February 2013 we, on behalf of the victims in the Nord-Ost case, filed a memorandum with the Committee of Ministers, the main executive body of the Council of Europe which oversees the strict implementation of all decisions of the European Court of Human Rights, in which we reported that the judgments of the European Court of Human Rights in the case had not been implemented. This memorandum has been posted on the website of the Committee of Ministers (reference number of the memorandum: DH-DD (2013) 173).

On May 15, 2013 the Russian authorities unexpectedly reported that the judgments had been implemented, since they had paid the victims more than a million roubles – paid, it should be noted, from our own pockets, and without having established who was responsible! - and considered that with this their job had been done (reference number: DH-DD (2013) 553).

But we argue that after the judgment of the European Court became final on June 4, 2012, the Russian Federation, through its competent authorities, did not execute, and convincingly demonstrated the absence of any intention to execute, the judgment of the European Court concerning the recognition of one of the most shameful violations of our authorities as violating the right to life of several dozen innocent people taken hostage at the Dubrova theatre.

It should be recalled that the European Court found a number of violations. The authorities had violated the right to life of the hostages:

– in terms of the necessary preparation, organization and conduct of the storming of the theater center, where the hostages were being kept, and also the lack of appropriate coordination of various services, lack of adequate medical provision and equipment during the rescue operation. (paragraph 266);

- and also the failure to conduct an effective, thorough and independent investigation of the circumstances of this case, which did not conclude with a trial in open court (paragraph 240).

Let’s say with our inherent optimism that it is not over yet!

The time has come - and today this day has come – to tell the Committee of Ministers that the Russian government is not willing to enforce the Court’s judgment, that it demonstrates a complete disregard for its obligations arising from the Convention and the binding nature of the Court's decisions, factors which also lead to continuing violations with regard to a failure to restore the victims’ rights.

What are we proposing in today's Memorandum in terms of implementation by the government of individual and general measures?

We are asking the Committee of Ministers to provide all possible assistance to the implementation of the Court’s judgment. At this point it should be recognized that de facto the authorities are refusing to execute the Court’s judgment, and in this case to act in accordance with the special procedure laid down in Rule 11 of the Rules of the Code of the Committee of Ministers of the Council of Europe, according to which the case should be re-submitted to the Court.

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

Among the general measures, we point out in today’s Memorandum that the authorities have not even offered any sum of compensation proportionate to the moral compensation which the Court ruled should be given to the applicants. At the same time, the initial memorandum already pointed out that other victims have also joined the complaint to the Prosecutor General of the Russian Federation.

Implementation of ECtHR judgments "in the Russian way"

The government, reporting to the Committee of Ministers, states that the Russian courts have considered the case afresh and that lawful and well-founded decisions of the courts have been taken and entered into force.

Indeed, some of the victims again went to the district courts, which we fully passed through many years ago. Unfortunately, this played into the hands of the authorities, who reported to the Committee of Ministers that a great many judgments had been handed down by the Russian courts. That is, once again, the authorities, in the immortal phrase first used by Arkady Raikin, "pressed the ‘dimwit’ button."

Obviously, only the Presidium of the Supreme Court could, and should have, quashed, at the request of the chair of the Supreme Court of the Russian Federation all these rulings of the courts which have entered into force with respect to new circumstances of the case. The Russian authorities know well enough, because the judgments of the European Court are executed only at the highest government level. Why? For the simple practical reason that at the time of applying to the European Court of Human Rights, and especially at the time of the Court's finding of a violation of the rights guaranteed by the Convention, all measures of domestic judicial remedy must have been exhausted, and lower-level prosecutors or courts of first instance have no right to change a single letter in the earlier decisions.

This is a well-known fact, but, unfortunately, groups of applicants again appealed to all the levels of the courts where they had already been shown the door. Moreover, this created the impression of busy activity on the part of the authorities in implementing the judgments of the European Court in the Nord-Ost case. This had not only a negative effect, in the sense that it helped the government imitate activity towards implementing the judgments of the European Court of Human Rights. At the same time it created for no good reason a depression due to the fact that the violations found by the Court were not being compensated in any way and had not bound the authorities to take any measures. But that is not the case, my good friends! Do not try to confuse us.

The Court’s ruling obliges the authorities to take a number of steps. But the authorities have done none of them. Did you cancel unreasonable decisions not to prosecute? Did you initiate a criminal case? Did you conduct an investigation? Did you carry out repeated medical examinations (not examinations by butchers, proving the harmlessness of the gas, but by doctors)? Did you identify and preserve documents from the operational headquarters? Did you question all those who were working at the headquarters? Did you identify the gas that was used, or, let's be blunt, which was tested on the people there? Did you establish who it was that took the decision to use the "harmless" gas? Did you find those responsible and guilty? Did you conduct an open trial? No?

Work hard, please. Report on what you have done! But not only to the Committee of Ministers of the Council of Europe. First of all: to your own people! The victims to whom you owe so much. And that duty, above all moral duty, will ruthlessly look you in your eyes on more than one occasion, giving rise to fear and shame.

So far, instead of all of the above, you have decided to "press the ‘dimwit’ button," or you think we are stupid. But you forget that according to the decision of the European Court of Justice, the authorities have been found responsible for a violation of the right to life not only in the sense that they failed to take the necessary steps to save lives, but also because they did not investigate the matter. And we are interested in everything, including the question as to who failed to investigate the case, and why?

In general, think about it: the government of a great state was been found guilty of violating the right to life of dozens of people and nonetheless expresses satisfaction with the decision (!) - it's ... it’s - I just don’t know whether these people are clinically ill or are hard-bitten bastards .. .

So when I now hear that the government, having lost another case at the ECtHR, declare their great satisfaction in connection with this decision of the Court which went against them (and recently this optimistic note was sounded over the Khodorkovsky case – they haven’t figured out any other way of (not) implementing this judgment, which, by the way, entered into force yesterday), this indicates that they have already found a "way out". Or that they do not yet know how we, Russian citizens, can force them to carry out this judgment. It is good to know that the Committee of Ministers - the organization that brings together the foreign ministers of all 47 member states - does not consider the authorities to have acted in compliance with the Court's decision as long as they engage in mere imitation of what they should really be doing. Unless, that is, the party which won the case before the Court is too lazy to submit a memorandum to the Committee of Ministers with an assessment of the authorities’ (non)implementation of the judgment of the Court.

This is also my answer to those who have recently asked dozens of times what is the procedure for the execution of a judgment by the Court, and how effective it is. And to those who are concerned about the recent decision of the Supreme Court of the Russian Federation, which ignored the decision of the ECtHR in the case of Aleksei Pichugin. I say the procedure is very effective. But also fully operational only when we, civil society in Russia, demand that our government serves its people as it should, and does not parasitize on the body of our long-suffering country, humiliating and oppressing their own people! Hiding from the people behind guards, behind the arbitrary actions of officials and behind unjust courts that lack independence.


But back to the Memorandum. How do applicants justify the seriousness of the matter and the inadmissibility of further delaying the process of execution of the judgment of the Court in their case?

It should be borne in mind that further delay in the execution of the decision by the Russian government is impermissible because more than 10 years after the tragedy of 26 October 2002 the applicants have less hope for the possibility of an effective and efficient investigation.

The applicants in their new Memorandum point out to the Committee of Ministers the continuing relevance of the case. The fact is that the European Court of Human Rights for certain reasons did not rule that the use of gas was absolutely inadmissible. This was despite the fact that Russia not only failed to provide the Court with submissions on this matter, but, in fact, destroyed all the documents of operations headquarters and, of course, all data about this substance. Consequently, the Court's decision was taken with regard to gas whose nature is as yet unknown. Meanwhile, the Court agreed that it was precisely this unknown poison gas that had a lethal effect on the hostages. It could have seemed that this part of the Court's decision would have discouraged the applicants ....

But the Court found a violation of the right to life and put the burden of responsibility for the deaths of more than 120 hostages (it is still unknown how many!) on the government, and in addition completely reasonably left open - that is, requiring an answer! - the most important questions. How can the lost links in the chain of unexplained circumstances be reestablished? Here is how. The Court found that the authorities had failed to conduct an effective investigation and thus are responsible for violating the right to life! Execution of the Court's judgment in this part by at the least conducting a proper investigation now, could lead to determining the nature and effects of the gas, and other significant issues, including the circumstances of the organization of the terrorist attack, and then the further conclusions of the Court could be - and the applicants are convinced would become - more specific and stringent in regard to the admissibility or inadmissibility of the use of the gas and other actions by the authorities. But that is the very reason why the authorities are afraid and are stubbornly resisting carrying out the kind of investigation for which the European Court has called.

The applicants are convinced that the government can and should strictly carry out the decision of the Court in this case. If not, this could finally establish a precedent for the use of any gas, even those banned under the Geneva Convention, against civilians. According to the judgment, the Court proceeded from the assumption that the gas was used only against terrorists, not hostages. However, in the hall there were only 30 terrorists and more than 900 hostages. Moreover, the terrorists were able to move around the theatre, and most of the men were in the foyer, where the gas did not reach. The hostages, on the other hand, were unable to move about and to have access to fresh air, so those who were near the vents were doomed regardless of the state of their health. This may explain the high percentage of deaths (40%) of people under 40 years. As a result, the number of deaths among the hostages was several times higher than the number of terrorists killed. It is impossible to consider such an operation to "rescue the hostages" successful, but the Court could not base its conclusions on assumptions, and at the same time did not have more specific data about the unlawful actions of the authorities. Therefore the Court in its ruling gave serious attention to the poor quality of the investigation into the main case: the lack of independence, effectiveness, and, most importantly, the complete FAILURE TO INVESTIGATE the actions of responsible officials, which, in the opinion of the Court, was not begun!

As a consequence of this failure to investigate, full, and accurate information about important circumstances of the assault have not been established, including the name of the gas and – which the Court recognized - its lethal effect. This information remains hidden both from the victims and from society as a whole.

This violation must be promptly put right. The authorities must be called upon to immediately investigate and prosecute those responsible in accordance with the judgment of the European Court of Human Rights.

In this way, the applicants are demanding that the authorities stop ignoring the judgment of the European Court of Human Rights, ceased simulating implementation of the judgment, and insist on the execution of the Court's judgment in full. Taking into account the importance of the issue of appropriate actions of the authorities during terrorist attacks, including the importance of strict observance of the prohibition of the use of chemical weapons against civilians, the applicants once again urge the Committee of Ministers to take up this case in terms of the Russian authorities’ failure to implement the judgment of the Court.

Source: Karinna Moskalenko’s blog