REGIONAL PUBLIC ORGANIZATION FOR SUPPORT OF VICTIMS OF TERRORIST ATTACKS

L. Burban, S. Gubareva, T. Karpova, N. Karpov, V. Kurbatov, D. Milovidov, P. Finogenov

Events, facts, conclusions

The book was published with assistance from “Terrorism Victims Support Fund” Non-Commercial Organization.

3.2.2. Use of a "special means" without estimation of its effect on human life and without necessary medical aid facilities

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

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

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

APPENDIX 1. List of terrorist acts that took place in Russia between 14.07.95 and 26.10.02

APPENDIX 3. Chronology of events of hostage taking in Moscow, October 23-26, 2002

APPENDIX 4. The Dead will be for the Living. A live report from the assault on TC.

APPENDIX 5. “Echo of Moscow” radio. Telephone conversation with hostages immediately before the assault on TC in Dubrovka at 5.30 p.m., 26.10.2002.

APPENDIX 6. Description of events inside and outside the auditorium where the hostages were held made by the participants of the events

6.8. Recollections of participants of the events on the basis of mass media reports

APPENDIX 9. Nine members of the special purpose team were hospitalized as a result of “Nord-Ost” assault and the use of gas

APPENDIX 11. Austrian Embassy about the cause of death of a citizen of their country.

APPENDIX 12. Statement made by the RF Healthcare Minister Yu.L. Shevchenko to mass media

APPENDIX 14. Background report based on examination of records of testimonial evidence given by hostages (Volume 1, File sheets 95-96)

APPENDIX 15. Summary based on examination of clinical charts (Volume 120 File sheet 189)

16.1. Testimonial evidence given by S. V. Yastrzhembsky (Volume 1, File sheets 196-200)

16.2. Testimonial evidence given by G. A. Yavlinsky (Volume 1, File sheets 211-213)

16.3. Testimonial evidence given by journalist A. S. Politkovskaya (Volume 1, File sheets 204-207)

APPENDIX 17. Explanations given by medical personnel who participated in the evacuation of the victims on October 26, 2002 (from materials of the criminal case)

APPENDIX 19. Criticism of Moscow Prosecutor’s Office Resolutions on refusal to initiate criminal proceedings dated December 31, 2002 and October 16, 2003

APPENDIX 20. SPS application to General Prosecutor’s Office of the Russian Federation

APPENDIX 21. Resolution on refusal to initiate criminal proceedings dated 31.12.2002

APPENDIX 22. Resolution on refusal to initiate criminal proceedings dated 16.10.2003

APPENDIX 27. Excerpt from an interview with Doctor of Medicine Yelena Malysheva host of “Health” TV program on “Echo of Moscow” radio 11.10.2005

28.9. Verbatim reports of SPS Public Commission meetings on the problems of medical care given to the hostages

28.12. Three suits were rejected. 58 victims on a waiting list – for humiliation

lost her daughter Alexandra Letyago (13 years) and her husband Sandy Alan Booker (49 years) in the “Nord-Ost” terrorist attack

lost his brother Alexander Karpov (31years) in the “Nord-Ost” terrorist attack

lost his daughter Kristina Kurbatova (13 years ) in the “Nord-Ost” terrorist attack

lost his daughter Nina Milovidova (14 years) in the “Nord-Ost” terrorist attack

lost his brother Igor Finogenov (32 years) in the “Nord-Ost” terrorist attack

“The Committee admits the seriousness of the situation with hostages and cannot help being concerned about the results of rescue operation in Dubrovka Theater. The Committee notes that various attempts to investigate the situation are sill being made, but it must express its concern about the absence of independent and unbiased estimation of the facts related to the kind of medical care given to hostages after their release, and to the killing of persons who had captured the hostages. The Committee appealed to the member-state [Russia] to ensure independent and thorough investigation into the circumstances of the rescue operation in Dubrovka and have its results published, and, if required, to initiate criminal proceedings and pay compensation to the victims and their family members” (extract from the Statement of the UN Human Rights Committee approved at its 79th session, October 2003).

This report is related to one of the most tragic events in the history of present-day Russia – the hostage taking at Theatrical Center in Dubrovka (TC) in the city of Moscow.

The authors’ purport is not to exculpate the terrorists - their guilt is obvious and undisputable. Nevertheless, this tragedy has once again revealed the attitude on the part of the Russian authorities towards human rights both in the course of the rescue operation, and in the way how investigation into the terrorist act was held, as well as in the course of court proceedings on cases initiated by the injured and affected persons in defense of their rights and interests.

The purpose of this report is to sum up the data resulting from the examination of criminal case documents related to this terrorist attack which were made available to the authors, and testimonies given by the victims, witnesses of this event, human rights activists and journalists.

The goal of the authors was to show the results they got after summarizing factual material, to analyze the validity of various versions of grounds for the special operation, to give legal opinion on the performance of the authorities in the course of the operation, and to let the readers know the most significant, from the authors’ point of view, opinions and estimates related to those events.

Inefficiency of Russian national security agencies was revealed in the horrible, bloody and inhuman practice. The constantly increasing number of terrorist attacks, explosions, acts of sabotage evidently show that their work is not satisfactory (Appendix 1).

August 25, 2001 - it was announced that he offered armed resistance while being arrested, and was killed in the course of that special operation (Appendix 7);

October 12, 2002, Deputy Commander-in-Chief for Chechnya Boris Podoprigora declared another time that Barayev had been killed by pinpoint shots of Russian artillery and air force (Appendix 8), nevertheless 11 days later, on October 23, 2002, it was Barayev with a group of armed terrorists, who seized the “Nord-Ost”.

It was not just a single week’s time and not just a single man’s efforts that were needed to prepare such a large-scale attack. It was a challenging problem for the terrorists to think out the whole operation, to select those who were to take part in it and to keep everything in total secret. And they brilliantly succeeded in that.

“The tragedy with captured hostages, that keeps the entire Russia in an emotional stress, is more than a tragedy… It is a major failure of national security bodies. And at the same time there is hardly any other country in the western community, where security services and police may enjoy such wide range of powers as in Russia (“Die Welt” newspaper, Germany).

Thus, a theater watchman who had been taken hostage recognized among the terrorists one of the workers who had been repairing a gay-club that was located in the basement of the Theater Center. The investigation supposed that the quarters of the gay-club had been used as a preparation base for the attack, because its premises were “strongly protected against inspections of law-enforcement authorities”, for “there were many influential representatives of … power structures among the members and customers of the club. Taking into consideration the foregoing, the gay-club was a most ideal base for preparing and undertaking the terrorist attack” (Appendix 2).

The authors know nothing of the results of investigation into the above version.

A detailed chronology of what happened in Moscow on October 23-26, 2002 is given in Appendix 3.

The authors give below a brief description of the events on the basis of mass media information, recollections of hostages and witnesses of the events.

At about 21:00, a group of armed people took hostages in the Theater Center (TC) in Dubrovka in Moscow, where “Nord-Ost” musical was on. As it was found out by investigative bodies, the total number of captured persons was 912, with about 100 children of school age among them.

According to the comment made by Alexey Gromov, Press-secretary of Russian President, Russian leader Vladimir Putin was immediately informed about the attack.

The OMON[1] and SOBR[2] brigades were summoned to the place. The head of Moscow GUVD[3], general Vladimir Pronin, headed to the scene. Soon the media reported the news (after an interview with Mr. Yastrzhembsky) that the terrorists demanded payment of huge amounts of money in ransom.

Some of the hostages in the Theater Centre succeeded in contacting the police and mass media agencies by cell phones. They told that the terrorists were mining the building. The main demand made by the terrorists was to withdraw armed forces from Chechnya.

One young lady freely came inside the TC building (as it was established later her name was Olga Romanova). The terrorists thought her to be a FSB[4] agent and shot her.

They released some 15 children, while a small group of actors of “Nord-Ost” musical managed to escape from the building.

October 24, 2002, Thursday

Headquarters (HQ) for emergency operations were formed on the site to control actions of special forces. Psychological Rehabilitation Center was set up so as to render assistance to the relatives of the hostages. A number of patients were evacuated from the War Veteran Hospital No.1 which is situated close by. Snipers took positions on the roofs of houses around the TC.

The FSB representatives declared that money ransom was out of the question. Russian Government offered terrorists to leave for any third country.

FSB Colonel Konstantin Vasilyev attempted to get into the patio of the TC. He was shot by the terrorists as he was approaching the building.

Terrorists demanded the arrival for negotiations of Red Cross and “Medecins Sans Frontieres” representatives. Well known public and political figures such as Aslanbek Aslakhanov (deputy of the RF State Duma for the Republic of Chechnya), Iosif Kobzon (deputy of the RF State Duma, Chairman of the Russian Party for Peace), Irina Khakamada (deputy of the RF State Duma), Boris Nemtsov (deputy of the RF State Duma, leader of the “Union of Right Forces” faction), Grigory Yavlinsky (deputy of the RF State Duma, leader of “Yabloko” faction) took part in negotiations with the terrorists.

Ex-President of the USSR Mikhail Gorbachev also announced of his willingness to act as an intermediary in the course of negotiations with the terrorists.

They asked to refrain from assaulting the building because the hall was packed with explosives and the terrorists threatened to blow everybody up should the assault start.

According to the FSB, 39 hostages were set free during the past day. The terrorists declared that they were ready to release 50 hostages, if Akhmat Kadyrov, head of Chechnya administration, arrived. Irina Khakamada expressed hope that foreign citizens would be probably soon set free.

The UN Security Council demanded “immediate and unconditional release” of all hostages seized by the terrorists in Moscow. In the unanimously adopted resolution, the UN SC called on all the states to cooperate with Russia in order “to find out and call to account the performers, organizers and sponsors of this terrorist attack”.

October 25, Friday

Doctors with Dr. Leonid Roshal among them entered the captured building; the latter handed over medicines for the hostages.

NTV channel journalists recorded an interview with Movsar Barayev. Barayev announced that he could release all the children by morning time.

Some people, who had been hiding in the back rooms managed to get out of the TC building. According to the information from the headquarters, mass media presented those people as the ones who had been released by the terrorists.

An arrangement about the release of foreigners was reached. Terrorists agreed to let go 75 foreign citizens in the presence of diplomatic representatives of their states. But Russian authorities insisted that terrorists should not let out the hostages by separating them into foreign and Russian citizens. A group of foreign state diplomats kept staying in a “waiting mode”.

The terrorists released 8 children on no conditions. There was still hope that another group of children would be released a few hours later.

The authorities denied the statement that they had tried to get in touch with Maskhadov. The emergency HQ that had been specially set up to deal with the hostage situation in Moscow, held a meeting at which a decision was made to turn to well-known and influential Chechens so that they would use whatever ways they have in Chechnya to settle the situation with hostages.

FSB Director Nikolay Patrushev upon his meeting with the President of Russia Vladimir Putin, made a statement that the lives of terrorists would be guaranteed on condition of hostage release.

Participants of rally held at Vasilyevsky Spusk[5] in Moscow in support of the hostages who had been captured by the terrorists, adopted an appeal to the President of the State:

It is the children, relatives and friends of hostages that are being held in the hall of the Theater Center who are addressing you! We appeal to your reason and mercy! We know… that the building is mined and any use of force is sure to trigger off the blast in the theater. We are sure that there are no negotiations without concessions that may not be met, if it comes to the lives of 700 people! We beg you not to allow deaths of the people. Go on with negotiations! Compromise! Should our relatives perish, we won’t be able to trust any more in the might of our State and in the reality of its executive power!

In the course of the day the following people took part in negotiations with the terrorists -journalists Anna Politkovskaya, Sergey Govorukhin and Mark Franchetti; public and political figures Evgeny Primakov (deputy of the RF SD, president of the Chamber of Commerce and Industry in Russia), Ruslan Aushev (Chairman of War Veterans’ Committee with the CIS Heads of State Council and Ex-President of the Ingush Republic) and Aslanbek Aslakhanov (RF SD deputy for the Republic of Chechnya).

At 21:55 four more hostages (citizens of Azerbaijan) were released from the building at 7, Melnikov Street. Thus, the total number of hostages that were set free on Friday was 19. According to the reached arrangement, US and Kazakhstan citizens were to be set free in the morning of October 26.

Gennady Vlakh, who had allegedly got information from the headquarters that his son was held hostage ran across the square and into the captured building. He was shot by the terrorists. 10 minutes later another man went in the same direction, but he came back.

Between 23:00 and 24:00, one of the hostages with a bottle in hands ran over the backs of the seats towards a female terrorist, who was sitting next to an explosive assembly. Hostage takers shot at him, but stray bullets wounded two other hostages – Tamara Starkova and Pavel Zakharov.

Akhmed Zakayev, a special representative of Maskhadov, stated in his negotiations with Russia that Aslan Maskhadov appealed to the reason of the extremists who had taken hostages in Moscow and asked them to refrain from rash steps”.

At approximately 2:00 a.m., two intensive care ambulances drove up to the theater. 2 hostages were carried out of the building. One of them was a woman with a wound in abdomen, the other was a man with a wounded head.

5:00 a.m. – suddenly the searchlights atop the roof of the Institute of Human Being that had been illuminating the main entrance to the TC went out.

5:30 a.m. Hostages (N. Skoptsova and A. Andrianova) called “Echo of Moscow” radio studio and told on-air that the police began an operation by pumping gas into the hall (Appendix 5).

A detailed description of the events is given in Appendix 6 “Description of events inside and outside the hall by the participants”.

Below, the authors offer a brief description of events based on the data from mass media, recollections of hostages and witnesses of the events.

As it follows from recollections of former hostages (Appendixes 6.1, 6.2, 6.3 and 28.3), the reaction of spectators to the news that the theater was under terrorist attack was not uniform – some people remained calm, some reacted hysterically, others fainted. No doubt – fear overwhelmed the spectators in the hall. The situation in the hall was nervous and it frequently changed depending on the mood of the hostage takers.

Leaders of security agencies failed to organize appropriate coverage of the events. Terrorists, while being in the TC, were keenly following the information that was available through the mass media. Any kind of misinformation brought hostages into the state of hopelessness and despair, and caused the terrorists to become more aggressive, they immediately began to utter threats about shooting and blowing the building. However no major disasters took place.

Relatives and friends of the hostages, who were arriving to the TC building in crowds, were accommodated in the sports hall of a nearby college (7, Melnikov St.). The premises of the same college were used for the needs of urgent medical care station and canteen, where people could get hot meals. One whole story of the building was put into disposal of the relatives where they could get a night rest and of Prosecutor’s HQ for investigators to work in. Detailed description of what going on there was given by the relatives of hostages (Appendixes 6.5, 6.6 and 6.7).

According to the evidence given by witnesses, the atmosphere around the captured building was that of bewilderment and confusion. (Appendixes 6.4, 28.4). As it is evident from the press materials (according to Evgeny Krutikov, newspaper “Izvestia” journalist), by 7 o’clock in the morning of 24.10.20024 four headquarters had been set up. “Each of the newly arrived generals sought to set up his own HQ and to start the negotiations anew… Later the initial confusion of special agencies grew into their feverish activity…” (Appendix 28.2).

The participants in the events tell about disagreements in the work of different HQ.

Roman Shleinov (a member of “Novaya Gazeta” editorial board) tells: “Politkovskaya arrived. A FSB representative, who had recently confirmed that she was expected to come to the headquarters, tried softly to convince her that, actually, none of the terrorists had asked her to come, meaning that it would be good for her to retreat… It took an hour and a half of persuasions and coordinations… Different agencies, different rooms, different approaches and competition between FSB[6], MVD[7], MO[8] which was noticeable even to a layman… After negotiations with the bandits, Politkovskaya said that they permitted to send water and juice into the hall … The water was supplied rather quickly, but too little to satisfy the needs… We agreed on persons to hand over the water, took the containers and were about to step out into the open space in front of the TC when a man dressed in black outfit with a gun showed up out of the shade of a close-by house and abruptly stopped our motion towards the building:

Uncertain we turned our heads back to the plain-clothes officer who accompanied us.

- No, I have not got a confirmation from my superiors, - insisted the man with the gun.

So we stood there for about ten minutes while they were coordinating and agreeing and one of the special agencies was slowly becoming aware of what the other one was doing…

… When we came back to the HQ, it turned out that juice and water had not yet been supplied. We waited till nightfall. At last a car arrived, we put the juices on an ordinary gurney wet with rain … and set out towards the TC… When we came back behind the cordon and headed for the HQ, the guard once more failed to recognize us… Again we stood there waiting.” (Appendix 28.5).

Disagreements between the agencies failed to be regulated up to the moment of rescue operation. According to Dmitry, an ambulance doctor, “as soon as we got the command on the radio, our column started out for Melnikov street. But… my ambulance car was stopped by a cordon militiaman. It turned out that they had not yet got the command to let the ambulances through. We waited for the command to be given for about ten minutes” (Appendix 6.8).

The medics who rendered medical care to the hostages also noted lack of interaction between the Ambulance Service, rescuers and the special task forces (Appendix 17).

The attention of most part of mass media was fixed on the events in Dubrovka. A detailed description of hostage rescue assault is given by eyewitnesses – journalists of “Agentura” newspaper Irina Borogan and Andrey Soldatov, who watched the development of events in Dubrovka from within the line-of-sight range. (Appendix 4).

Below the authors give a brief description of succession of the events on the basis of mass media coverage.

6.05 a.m. – Representatives of emergency operations HQ broadcasted on the radio information about the beginning of assault operation that had been triggered off by the allegedly started shooting of hostages.

6.35 a.m. – A group of police force servicemen broke into the theater through the central entrance, the square in front of the building began to be filled up with vehicles, including ambulances. Two women went out of the main entrance.

6.50 a.m. – The shooting continued. First hostages were carried out of the main entrance.

7.00 a.m. – Empty buses moved along Melnikov Street. People continued to carry the bodies of hostages out of the building. They laid them down in a row at the main entrance to TC. In a few minutes the entire space is filled with bodies. There is no space left. They throw the dead bodies one onto another.

Around 8.00 a.m. – Deputy Minister of the Ministry of Internal Affairs [Vladimir] Vasilyev announced that the cause for the beginning of the storming was an attempt made by a group of hostages to escape. Special Forces had nothing to do but to start the rescue operation.

11.00 a.m. – People continue to carry the bodies of hostages out of the TC hall.

When the first explosions were heard close to the TC, it became clear to all those present that it was the beginning of the assault.

According to T. Karpova, mother of a hostage, about one hour later after those explosions, Valentina Matvienko, Oleg Bocharov and other HQ representatives entered the college hall, where the relatives of hostages were staying.

“They were all extremely agitated and cheerful. They approached the microphone. Those in the hall froze with expectation. And then came the words of sweet lies: “It was a brilliant storming! All the terrorists are dead! There are no victims among hostages!” The hall burst into applause, shouted with joy. Everybody thanked the authorities and government officials for the saved lives of their kith and kin…” (Appendix 6.5)

At about 7:20, a HQ member reported through TV of successful termination of the special operation: the hostages were released - and not a single word about the victims.

As it is known from materials of the criminal case, the bodies of dead hostages were stowed into two busses, which were parked at the TC. Nevertheless the official reports said noting about casualties among hostages. The first official report about instances of death among hostages came at about 09:00 a.m., however, Vladimir Vasilyev, Deputy Chief of Staff, informed that there were no children among the dead, while, as it turned out later, the death of 5 children had been stated by that time by medical experts.

All that time the authorities said nothing about the use of special chemical agent in the course of the storming.

At 1:00 p.m. Deputy Chief of the Staff [Vladimir] Vasilyev reported at a press-conference of the death of 67 people, but again the fact of child deaths was concealed. According to him, he had authority only to make a statement that special chemical agents had been used and that some of the bandits had been captured alive.

1:45 p.m. – The operational HQ ceased its work, and the relatives of the hostages were given phone numbers for making inquiries, where they allegedly could obtain information on the hospitals to which their relatives had been taken to. But the “phone operators” had no such information on former hostages. Federal media published a wrong list of hospitals which had allegedly admitted the former hostages.

The relatives of former hostages were not allowed inside the hospitals. There were many people whose identity had not been established, and the relatives wanted to hand over the photos of their loved ones to help with the identification but they only were met with flat refusal.

Despite the assurances that the authorities had made, many of the hospitals gave no lists at all which caused even more distress to those who had found their relatives neither among the living nor among the dead. (Appendixes 28.11 and 28.8).

Former hostages kept dying on the 26th, on the 27th and on the 28th of October. At last, only a week later, there came the real information on the dead – over 120 people.

According to the statement made by Prosecutor’s Office on November 1, 2002 bodies of all the hostages who were counted as missing persons were identified in morgues. One part of them was found in Lefortovsky morgue – initially, their bodies were believed to belong to the terrorists. However it was as late as June 2003 when the family of Mr. G. Vlakh was informed that his body had been cremated together with the bodies of the terrorists. The family got neither explanations nor apologies for what had happened (Appendix 28.13).

In November 2002 it also became known that no terrorists had been captured alive, as it had been previously reported.

The official version of the harmlessness of the so called “special means” used during the storming was widely published in mass media. Health care officials assured people from TV screens even before the results of expert investigations were obtained that the reason for death of hostages was a “complex of unfavorable factors” and their chronic diseases.

The autopsy report issued about a 20 year old girl Natalya Malenko, who had spent a whole week in a coma and died on the 2nd of November, had a standard phrase that she had “suffered from accompanying chronic diseases” (Appendix 10). However in practice an expert investigation “found no indications of chronic diseases”. (04.11.2002 RIA “Novosti”). The case of N. Malenko is not a single case. Likewise, no chronic diseases were found with Nina Milovidova (14 years) and Natalia Zhirova (39 years) according to forensic-medical reports.

A TV news reel about how “Nord-Ost” musical makers met with the RF President is characteristic of the situation. Along with producer of the musical Mr. G. Vasilyev, who had been caught in the gas attack, an actor from the children’s group Gleb Bauer, who had not been among the hostages, was presented to the TV audience (06.11.2002, “Vremya” and “Novosti” programs on ORT channel; “Vesti” program on RTR channel”; “Novosti” program on TVTs channel).

Cases of injuries caused by the “special means” among special forces servicemen who took part in the rescue operation, were also concealed. On 06.11.2002, Sergey Goncharov, President of the “Alfa” Unit Veterans Association and Moscow City Duma deputy stated that 9 officers of “Alfa” Unit who had been poisoned by the gas during the release operation, were staying in hospitals (Appendix 9).

As is known today, at least 130 hostages were killed, ten of which were children; about 700 hostages were poisoned by gas - a part of them became II and III category invalids, 12 people lost hearing totally or partially; 69 children were made orphans by having lost parents as a result of the undertaken operation.

The Russian Federation, as a member-state of the Chemical Weapons Convention (hereinafter referred to as Convention), undertook “never and under no circumstances to carry out any activities prohibited to member-states of this Convention,… to develop, … to accumulate, … to stockpile … and … to use chemical weapons” – toxic chemicals which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals, save “the purposes not prohibited under this convention on condition that the types and quantities are appropriate to such purposes (Clause II, Paragraph 9).”

The Convention obliges the states to fulfill the conditions of toxic chemicals use that allow to exclude or considerably reduce the degree of injury and gravity of consequences.

However during the special operation in Dubrovka this provision of the Convention (Clause 2, paragraph 9) was disregarded, i.e. neither the type, nor the quantity of the chemical agent helped to attain the set purpose – to neutralize the terrorists so as to rescue the hostages.

The hostage takers had not been immobilized and rendered active resistance to the assaults by special forces (Resolution on refusal to initiate a criminal case dated 16.10.2003, page 69), therefore, the use of Fentanyl (chemical agent) derivatives and the quantity of the “special means” used in the theater did not correspond to the purposes they had been used for (protection of law and order), which constitutes a breach of the Convention (Clause II, Paragraph 9).

The use of the “special means” in the situation that excludes monitoring and control of individual doses received by individual hostages, as well as a failure to provide urgent medical aid to the injured increased the lethal effect of the agent, substantially increased the probability of lethal outcome, i.e. it was violation of the right to life which constitutes the priority right in international human rights conventions.

International laws permit the use of potentially fatal agents without control over the degree of injury only in extreme situations that are defined as “absolute necessity”. In this case, all commitments of a state related to the right to life and minimization of innocent casualties resulting from an operation are to be observed and fulfilled.

The investigation that Moscow City Prosecutor’s Office has been carrying out for three and a half years up to now failed to provide positive information on: the agent used (gas); possible antidote to that agent; the number of hostages released by the operation; the number of terrorists who had seized the theater; the names of officials who had made the decision about the assault.

“The Commentary to the Criminal Code edited by Vyacheslav Mikhailovich Lebedev, Supreme Court Chairman, says that the harm caused must be commeasurable to the harm being prevented, therefore the loss of life of one individual in order to rescue the life of another individual constitutes the excess of extreme emergency limits ... And the practice of measuring by quantities - we’ll kill two hundred so as to preserve the lives of two thousand - is ruled out for the lawyers. Each human life is beyond any price. Any human life. It is impossible to apply quantity standards here» (M. Barshchevsky, lawyer, representative of the Russian Federation Government at Constitutional, Supreme and Supreme Arbitration Courts, radio “Echo of Moscow”, March, 02 2006).

The state of emergency is the basic argument to justify the need for taking a resolution about assault with the use of “special means”. According to Clause 39 of the Criminal Code of the Russian Federation “harm caused by actions of the State constitutes no crime when produced by emergency measures aimed at elimination of danger, if:

3) all possible and necessary measures to minimize the harm and not to exceed the limits of emergency have been taken by the State.

However from investigation materials it follows, that none of such circumstances were present in Dubrovka case:

1) law enforcement bodies flatly rejected all other (bloodless) ways to resolve the situation by choosing the violent scenario – the assault;

2) the actions of special forces who used the gas, not only failed to eliminate the danger of explosion and death of hostages, but also provoked active resistance on the part of the terrorists, thus giving them a chance to carry out their threat of explosion. The reasons why they did not use the opportunity are still not found out;

3) minimization of the number of victims was not among the priorities of the assault: the formerly reached arrangements about setting free foreigners who were among the hostages were disregarded, and it is evident from the documents of the criminal case (evidence given by medical workers who provided first aid to the victims) that saving the lives of poisoned hostages was not the primary goal of the HQ that were conducting the operation to destroy terrorists.

Several versions related to the shooting of hostages were offered by the authorities to justify the necessity of the assault.

The first version made public to the mass-media at 05:40 a.m. by Mr. Pavel Kudryavtsev, an Operations HQ representative, was false information that “in the past 2 hours … 2 hostages were killed by the terrorists”, and for that reason the HQ had to make a decision to launch the assault. Nevertheless, the investigation proved that there were no hostage killings either on the 24^th, or the 25^th, or on the 26^thday of October. Olga Romanova and Gennady Vlakh were not hostages, they freely entered the TC and were shot because they made the terrorists even more aggressive.

The second version was voiced to the mass-media at 06:30 a.m. by Mr. Ignatchenko, an Operations HQ representative. He misinformed the public by saying that in the course of an attempt to escape from the building two hostages had been killed and some had been wounded. The special troops advanced in order to support them. The attempt of a breakthrough was attributed to Pavel Zakharov and Tamara Starkova who had been badly wounded by stray bullets a few hours earlier and by the time the storming began had been at the hospital for about 3 hours.

The versions that were sounded later offered as causes for the assault the refusal by terrorists to carry on further negotiations and their refusal to release the hostages. But it had been agreed to release US and Kazakhstan hostages at 8-00 a.m. of October 26. (Appendix 28.7), and negotiations with General Kazantsev had been appointed for 10-00 a.m. of the same day.

The investigation materials proclaim the decision to consider actions of special services as performed in the state of extreme emergency and to acknowledge the existence of the state of extreme emergency disregarding real facts and independent opinions on the situation that could have been obtained and used in an adversary trial in order to establish the validity and legality of the use of the gas.

The injured party – former hostages and relatives of the deceased – makes claims against the authorities for failure to meet positive obligations of the State related to the right to life:

· the authorities failed to prevent hostage taking; Movsar Barayev who had been officially declared dead twice, became the leader of the group of bandits who seized the theater;

· the authorities undertook the assault with the use of chemical agent disregarding its harmful properties and negative effect;

· the authorities failed to provide qualified medical care to the released hostages;

· the authorities refrained from launching an appropriate investigation into all the circumstances of the tragedy to be made.

To justify the use of force to resolve the situation, the authorities later asserted that the terrorists had put forward technically impossible terms. However, it is evident from the investigation materials that the problems arose for the sole reason that no authorized persons or professional negotiators had been invited to the process.

The criminal case materials contain reports on examination of a witness who had taken part in negotiations with terrorists (Appendix 16).

Extract from testimonial evidence given by Aide to the President of Russia S. Yastrzhembsky

“… Any negotiating could take place only by consent of V. Pronichev, no negotiators could undertake any actions without his consent, as far as I know. At the initial stage of the events no one on the part of Russian authorities made purposeful attempts to look for negotiators... “

“ … the first thing that the terrorists demanded was the withdrawal of Russian troops from the Republic of Chechnya. When they were told that the withdrawal of troops was unreal within the short period, that it was a very long process, the terrorists put forward the demand to withdraw Russian troops from anywhere in the Republic of Chechnya without specifying which area it was… “ (Volume 1 Sheets 196-200 of the case file).

Extract from testimonial evidence given by RF State Duma, leader of the “Yabloko” faction G. Yavlinsky (Appendix 16.2):

“ … In the course of negotiations we stopped on the three of the demands: termination of the use of heavy weapons, namely artillery and air forces in Chechnya starting with the next day, termination of “mopping-up” operations; a telephone conversation between Putin and Maskhadov … “ (Volume 1 Sheets 211-213of the case file).

Extract from testimonial evidence given by journalist A. Politkovskaya (Appendix 16.3):

“ … the President of Russia should publicly declare that he is striving to stop the war in Chechnya and to confirm this by withdrawing Russian troops from any of the areas of the Republic of Chechnya … “ (Volume 1 Sheet 204-207of the case file).

It is evident from these extracts that the terms of the terrorists could be met in order to resolve the situation without resort to violent methods, i.e. is by negotiations. However, the authorities made public only one version of their demands – to end the war in Chechnya, which was impossible. The authorities made no attempt to mislead the terrorists in order to draw out the negotiations in order to reduce the number of hostages.

On the contrary, on 24th of October, federal mass-media reported that a new division was sent to the Republic of Chechnya allegedly to replace the personnel of the previous one, which had been there for a long period of time.

“ 1. In the course of a counterterrorist operation it is allowed to negotiate with terrorists with the purpose of saving human lives, material assets and to find opportunities to stop terrorist activities without resorting to force”.

The government chose to use force in order to resolve the emergency situation, and failed to provide a person authorized engage in negotiations.

Later, trying to find excuses for their actions the authorities distorted facts about international counter-terrorist experience, by referring, for example, to the fact that “ …there is no negotiating with terrorists in Israel …”

Actually, “ … if hostages are taken in Israel, Israeli officials must enter into negotiations... the first duty a nearby commander is to mothball the situation, to undertake no actions and to use his best efforts to prevent any development of the situation until the arrival of negotiators … Negotiations are a must, all the demands are listened to very earnestly. Their demands are to be taken very seriously and treated with great attention. As soon as they see their demands to be taken lightly, they start killing hostages. Every time they (terrorists) hope that this time it will work. And every time Israel enters into negotiations. Whatever terrorists demand, they should be told – yes, we have to consider your conditions. If you want political changes, it can not be done in a minute, we have to make your demand known to the parliament of the country, Special Forces are not authorized to decide on such issues. That is they have to play for time and to do their best to show terrorists that they are taking seriously the negotiations” (Alexander Minkin, “Moskovsky Komsomolets” newspaper journalist, “Echo of Moscow” radio February 23, 2005)

Jacob Kedmi an ex-head of one of the Israeli special services said the same in his interview: “Any negotiations are justified, if it is the question of life and death for innocent people »

“From my negotiations with terrorists in the Theatrical Center and from the later developments I came to believe that it had not been in the plans of the terrorists to blow up the Theatrical Center, and that the authorities were not interested in the rescue of all hostages. The main events took place upon my return from negotiations with the terrorists. The Head of President’s Administration A. Voloshin ordered me in menacing tone of voice not to meddle with this story” (Irina Khakamada State Duma Vice-Speaker, 14.01.04, Grani.ru: http://grani.ru/Politics/Russia/President/m.56704.html).

Russian authorities who focused on the destruction of the terrorists, instead of rescuing the hostages, which had been declared as their purpose, neglected the international experience of counterterrorist operations. It is suffice to recall the experience of hostage release operation at the Embassy of Japan in Peru. The long lasting composure of special service commanders and the professional actions of negotiators made it possible to release the majority of the hostages. The reduction of the number of potential victims facilitated subsequent actions of the special forces during the assault and decreased the loss of human life to a minimum: one hostage died from a heart attack.

Russian Federation authorities failed to take advantage of all the opportunities that could have reduced the overall number of hostages and thus could have enabled the special forces and rescue workers to operate more efficiently even in the case of an emergency storming.

3.2.2. Use of a "special means" without estimation of its effect on human life and without necessary medical aid facilities

As has been said above, special services used a special agent “to neutralize terrorists” in the situation that made it impossible to provide immediate medical aid and control individual dosage each hostage received.

The investigation made attempts to play down the importance and subsequently conceal the true reason of the death of hostages who had been exposed to the effect of the agent used in the assault. Sometimes that agent is referred to as a certain “gaseous substance”, in other cases it is referred to as an “unidentified chemical substance” (conclusions of forensic examination commission, Volumes 30-33 of the criminal case).

An FSB Directorate replied to the inquiry made by the “For Human Rights” All-Russian public movement about the composition, concentration and duration of the effect of the applied agent by stating that it was a “special formulation on the basis of fentanyl derivatives” (ref. № 1/1471 of 03.11.2003).

At a press conference held on 30.10.2002, RF Healthcare Minister Yu. L. Shevchenko announced that “similar preparations … are widely used in medical practice and as such cannot cause lethal outcome” (Appendix 12).

According to the classification given in M.D. Mashkovsky’s “Medicinal Preparations” directory: “fentanyl is listed among narcotic analgesics (Appendix13). Its application without dosage control and facilities for artificial ventilation of lungs may lead to lethal outcome”.

In reality the use of the special means failed to bring the expected effect and instantly immobilize all the people in the auditorium, including the terrorists. According to the investigation data, the terrorists kept firing 13 submachine guns and 8 pistols for about 20 minutes (Resolution on refusal to initiate a criminal case dated 16.10.2003, page 69; Background report based on the examination of testimonial evidence records given by hostages, Volume 1, File sheets 95-96), while the use of the special means in the situation that did not allow control of individual dosage for each hostage and immediate medical care to the injured entailed death of at least 125 persons.

According to the conclusion made by a competent RF Healthcare Ministry organization “All-Russian Center of Catastrophe Medicine "Zashchita", upon request from the Moscow Public Prosecutor’s Office (dated 29.01.2003, volume 1, sheets of the case 166-169):

Naloxone is also a narcotic substance. Its action as a breath spasm preventing agent in an opiate overdose situation depends on specifics of a human organism, to the extent that there may be no positive effect at all. Naloxone is strictly contra-indicated to children. Its repeated application (over 10 mg) by mistake may lead to a lethal outcome caused by cardiac muscle spasm.

In 2003, BBC made a documentary titled “Terror in Moscow” with the participation and comments of leading scientists in anesthesia and non-lethal weapons. They reconstructed the events and included comments made by special services experts, testimonies of participants of the events both from among hostages and form heads of organizations that had taken part in the assault, as well as estimation of fentanyl effect on the people, lethality of its derivatives and its comparison with traditional lethal agents.

The research made by American scientists into fentanyl derivatives shows that their lethality level surpasses the efficiency of traditional lethal methods: the lethality degree of the gas used in the First World War was 7 %, while in Dubrovka it exceeded 15 %.

The persons responsible for the decision to use the special means could hardly be ignorant of its effect. According to an official report of the Austrian Embassy’s press-secretary Wolfgang Banyai, a former hostage, the death of an Austrian hostage Emilia Predova-Uzunov “resulted from the use of gas in the course of the hostages release operation” (Appendix 11).

Vladimir PUTIN at a September 20, 2003 meeting with American journalists, said the following about the operation to rescue the "Nord-Ost" hostages: “Those people died not because of the effects of the gas, for the gas is not harmful, it is harmless and could not have caused any harm to people. People died for a number of reasons, such as dehydration, chronic diseases, for the very fact that they had been made to stay in that building. And we can say that none of the hostages was injured in the course of the operation”.

“I always try adhere to certain rules: In the first place, never to tell lies, to tell the truth whether it hurts or not. Our people deserves the right to hear the truth”.

In order to make an objective and independent investigation into the events at the last stage of the operation to release the hostages, the “Union of Right Forces” formed a Public Commission that used experienced forensic medicine, emergency medicine and counterterrorist experts in its work and interviewed numerous eyewitnesses and participants in the events. (Appendix 28.9).

According to the conclusions made by the Commission, the excessive number of victims was caused by the negligence of officials responsible for providing medical aid to the injured.

Therefore, the “Union of Right Forces” faction leader Mr. B. Nemtsov filed an application to the RF Prosecutor General requesting him to make a careful examination and initiate a criminal case based on material elements of offence (November 04, 2002) (Appendix 20).

In reply to this application, the Moscow Public Prosecutor’s Office adopted a Resolution on refusal to initiate criminal proceedings against officials responsible for organization of medical aid to the hostages on the basis of “lack of data on their non-performance or undue performance” (December 31, 2002) (Appendix 21).

However, criminal case materials which became available to the authors, contain numerous pieces of evidence given by eyewitnesses and participants in the events that contradict the conclusion made by the Public Prosecutor’s office and testify to the following:

1. Saving of child hostage lives was not a priority task. Children in grave condition were neither taken to the closest hospital GVV №1, nor to a specialized toxicological hospital. It cost the lives of 10 children, with 5 of them getting no medical aid at all (Forensic Examination Conclusions Volumes 1, 120 of the criminal case).

2. Evacuation of hostages from the theatre and their transportation to hospitals were poorly organized and took a long time. According to eyewitnesses (Appendix 4), the hostages had been carried out of the theater even after 11.00 a.m., and as it follows from the report on the results of the of study of case histories of persons admitted to Moscow medical institutions on October 26, 2002” (Appendix 15) the evacuation of hostages continued even after 10.00 a.m., that is 4,5 hours after gas exposure.

3. The absence of an evacuation plan for injured persons is confirmed both by evidence given by medical workers who participated in the transportation of hostages from the TC to hospitals, and by explanations provided by Head Physicians of the hospitals that are available in the materials of the criminal case.

Delivery of victims was non-uniform both in terms of time and in terms of numbers distributed over the hospitals. For example, within 30 minutes 213 victims were brought to GКB Hospital No.13, “ … Our patients were taken to hospital No.13, which already had admitted a large number of victims, which was a reason for the delay” (from explanations given by Ms. G.I. Kruglova, Volume 120, File sheet 108) (Appendix 17).

“ … 47-48 ambulances and 5 buses drove up to the hospital simultaneously” (from explanations given by the Head Physician of GКB No.13 Ms. L.S. Aronova) (Resolution on refusal to initiate a criminal case dated 31.12.2002) (Appendix 21).

“ … There were only 300-350 beds in the hospital, but we could have admitted up to 600 patients» (from explanations given by Head Physician of GVV No.1 D.G. Kirtadze (Resolution on refusal to initiate a criminal case dated 31.12.2002) (Appendix 21), however the hospital admitted only 130 patients.

“By request from Center of Emergency Medical Care … they were informed that the hospital could admit 146-150 victims» (from explanation given by Head Physician of GKB No.13 L.S. Aronova, Appendix 21), and only 50 of them could be of resuscitation type (according to the explanation given by Moscow Head resuscitator anesthesiologist Mr. E.A. Evdokimov). Nevertheless 356 injured were taken to GKB No.13. “All the injured delivered to GKB No.13 were in heavy condition, many of then were in a coma” (Appendix 21).

According to the explanation given by the Head Physician of GKB No.7 Ms. V.A. Afanasyeva, about 200 beds in the hospital “were made ready” (Appendix 21), however, only 77 patients were delivered. Medical workers who took part in the transportation, noted the absence of unhindered transportation routs (Appendix 17): “We were neither notified of the kind of danger the victims had been exposed to nor of the hospitals to which they were to be taken. Eventually we went to GKB No.№23 because I knew where it was located” (O.L. Safronova).

“ I gave the order to the driver to head to Volgogradsky highway, and to try to find on the way some car belonging to the Center of Emergency Medical Care or some distribution center in order to find out where the victims were to be taken to. But we found no such things” (V.V. Gorbunov).

“We did not know where to drive to so we just followed an ambulance car in front of us and arrived to GKB 53 » (Sushnikova L.N.).

“… they opened the back door of the car and literally threw in … two people in grave condition. The reply to our question where they were to be taken to was “wherever you want” (G.I. Kruglova).

“ … According to what I know, traffic jams hampered movement of ambulance brigades from metro station "Proletarskaya" to the TC” (L.G. Kostomarova).

4. Absence of facilities that allow giving pre-medical emergency assistance on the scene of action, which could have enabled to save the lives of the rescued hostage victims is persistently being explained by the threat of explosion. But this argument contradicts the following fact. GVV No.1, which had housed not only the HQ that had been directing the assault, but also the patients that had not been evacuated, was only 20 meters from the supposed epicenter of explosion, that is from the TC building. Besides that, that hospital was specified among the first-order hospitals to admit “the very bad cases”, as follows from the order made by the Office of Public Prosecutor. These facts permit to consider such explanation as invalid and strained.

5. In their explanations (Volume 120 of the criminal case) the medical workers stress the negative aspect of bringing victims in buses without required medical workers, medicine and medical instrument (Appendix 17):

“ … an unfamiliar medic came up to me … gave me 6 ampoules of Naloxone, syringes and showed me the bus with the victims. There were 17 injured persons in the bus” (M.Yu. Zakharenkov).

“ … I was put into a bus with the injured … There were 40 injured persons in the bus … And a representative of the Center of Emergency Medical Care gave me 10 ampoules of "Naloxone" (V.V. Fyodorov).

“The absence of facilities for temporary accommodation of the injured that could allow their resuscitation on site by several medical teams, the neglected problem of unhindered and continuous movement of ambulance cars and the buses, the mass transportation of the injured in buses without the required number of doctors, medical assistants and rescuers to accompany them… as well as the absence of any information about the name of the used chemical agent used in a course of the special operation … played a negative role”. (Yu.K. Volkov)

“I think the absence of free lanes for evacuation vehicles movement played a negative role in the way how the hostages were transported” (E.A. Krugovykh)

“Moskovsky Komsomolets” newspaper observer Dmitry Kafanov, who accompanied a bus with hostages, testifies to the same fact (Appendix 28.6).

Meanwhile, as it follows from the certificates in the criminal case file (Volume 120 file sheets 131-139), special teams were appointed for participation in saving the lives of hostages but never put into action. Those were 10 teams from first-aid station №13, 15 teams from first-aid station No.26, 10 teams at first-aid station No.50, 18 teams from first-aid station No.24 and 8 teams from first-aid station No.9. Besides that, none of the teams from first-aid stations Nos. 53 and 16 were used, and from among the teams that were appointed from first-aid station No.10 only 1 team participated in evacuation of the injured. These facts prove that more than 60 teams of qualified medical workers were ready to help in providing medical care to the hostages, but turned out not to have been called for. Mr. D.N. Osipov testifies to the same. (Appendix 17): “ …At about 8:30 our team drove up to the TC, we gave medical care to no one, because we had no instructions until 9:00 a.m. At 9:00 a. on an instruction from a Center of Emergency Medical Care officer we drove back to the first-aid station.”

From 117 commission examinations of perished hostages that were made available, the authors learned that in 68 cases there was no medical care at all, 5 child cases among them. (Appendix 18).

“ … we were taken to a hospital, but there they refused to admit us, saying that they knew nothing. Then they took us back to the TC where they put us in a bus and taken, as it turned out later to hospital No.13” (Alla Pavlova, Appendix 6.8);

“ … Upon our arrival at GKB No.1, the guards refused to let us into the premises” (O.V. Belyakova, Appendix 17).

“ Nobody informed me that former hostages would be delivered to our institution”

(head of Science Department of Acute Poisonings with the Sklifosovsky scientific research institute E.A. Luzhnikov (Appendix 21).

7. The fact that there was no need to involve military physicians in the special operation is explained by involvement of ambulance teams that are qualified to “give medical care to the victims with maximum efficiency”. However, this statement is contrary to the fact, that only 10 % of ambulance teams were specialized and the qualification of the others (including 155 composed of medical assistants) taking into consideration the specific character of large scale medical care is certainly inferior to that of military medical experts. The participants of the events witness about cases, when poisoned hostages who were still alive were taken for the dead:

“ … One man was saved literally at the last moment: we saw a body lying on the steps of the staircase of the building with its head covered with an army-type jacket, some of the rescuers must have pulled him out of the building, then seeing that the man was dead, left him on the porch. But we felt the pulse – there were weak beats! And we have saved the hapless guy !..” (Vadim Mikhailov, Appendix 6.8).

“... The attendants seized the dead body by the hands and legs and carried it to a special room… I saw with my own eyes how a young woman who had been thought to be dead waggled her head. We could not help crying - But she is alive! The hospital attendant made a sign of cross on his chest. The woman was immediately put on a wheel stretcher and taken to the reception room. And we should not rule out that this was not a single case with those who had been thought to be dead”. (Yury Snegiryov, Appendix 6.8).

“ … When our child [14 year old Kristina Kurbatova] was delivered to the hospital, nobody examined her condition. The doctor on duty alluded to the fact that he had been informed of delivery of a “corpse” and refrained from examination. At the same time he declared that “… corpse examination was not within the range of his duties …” (V.V. Kurbatov, Appendix 6.7).

Head physician of GKB No.7 Afanasyev said that involvement of army medics was essential: “they could be very useful in giving first air to the victims because of their experience and skills in providing first aid (pre-hospital), and could do professional pre-hospital sorting out of patients according to their injuries at the initial stage”.

The aforementioned facts confirm the conclusions made by SPS Public Commission about the poor performance of officials and services who were in charge of arranging first aid and evacuation of the victims the TC:

- inadmissibly long wait for medical assistance and transportation of hostages to medical institutions;

- lack of duly equipped temporary accommodations for resuscitation of the victims on site by efforts of several teams;

- timely, unimpeded and uninterrupted movement was not provided for ambulances, buses and intensive care ambulances;

- the mass transportation of the victims was carried out in the buses without the required number of accompanying doctors, medical assistants and rescuers having sufficient resuscitation skills;

- absence of due interaction between security forces, rescuers and the personnel of the ambulances;

- no army medicine experts who have the knowledge of specific methods and skills were involved;

- the question of uniform distribution of the victims over Moscow medical institutions was neglected.

“ … The work of the special services was professional … From this point of view the operation deserves high estimation. But the further events, especially the way medical care was arranged, - as you see, was a failure. What’s the use of arguing?” (Chairman of the State Duma Security Committee V. Vasilyev, "МК" newspaper dated 23.10.2003)

As to the resolutions issued by the Office of Public Prosecutor on refusal to initiate criminal proceedings dated 31.12.02. (Appendix 21) for lack of data on non-performance or undue performance by the officials responsible for organization of medical assistance, they are mere declarations.

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;

- 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;

- 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,

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:

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 9^th or 10^th 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.

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):

— 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),

- 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 (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?

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.

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…

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.

Yesterday [25.10.2002] Iosif Kobzon brought to the State Duma a statement drawn up by 225 relatives of the hostages with appeal to meet the demands of terrorists. But the deputies refused to hear the statement. Especially negative response was given by LDPR fraction headed by [Vladimir] Zhirinovsky. According to V.V. Zhirinovsky, events taking place in Melnkova Street were nothing but “a criminal shootout in one of the districts of Moscow”.

Deputies are not eager to establish a committee for investigation of the terrorist attack

Public committee established by the “Union of the Right Forces” (SPS) to carry out an investigation into the terrorist attack in Moscow held its first meeting. And, as Boris Nemtsov said, it had already obtained a unique data.

It was as early as yesterday at the State Duma session [30.10.2002] that Boris Nemtsov suggested to promptly consider the issue of establishing the parliamentary committee. In the opinion of the SPS leader, its aim would be to give answers to three vital questions: how it could happen that armed gangsters managed to come to the center of Moscow; how soon and how well the medical assistance was rendered to the freed hostages, and why the authorities held back this information.

The colleagues at the State Duma did not support the initiative of SPS fraction: only 44 deputies voted positively.

Clinical trials and new evidences of the hostages seized in the theater demonstrated that the Chechen gunmen did not start to kill their hostages systematically, as the Russian authorities had asserted before beginning the assault… The decision to keep the most hostages in hospitals without any communication with the outer world provoked new contradictions… Tendency to secrecy and neglect of consequences … for the people during combating within the last fifteen years in the process of establishing a more open society.

Doctors were almost not ready to treat the hostages from the consequences of gas effects. The use of gas questions the compliance of Russia with its obligations to observe the Convention which it has signed and ratified. The treaty known as the “Chemical Weapons Convention” permits the use of such chemical compounds as tear gas for the purpose of “law enforcement”. At the same time, it prohibits using many of the widespread chemical compounds in any circumstances and requires that the effect of chemical compound should “disappear within a very short period of time after it had been used”.

Under these circumstances, the only alternative could be to meet the demands of extremists by withdrawing the armed forces from Chechnya. But Putin didn’t take it into consideration from the very beginning.

While special services and politicians celebrate a “splendid victory”, the authorities are holding back the inner history of assault and the number of victims. The crisis headquarters admitted the fact of using the gas only after it had been reported by “Echo of Moscow” radio and the German doctors.

As all the circumstances of what has happened are being cleared up, while the international community praises the Russian president Vladimir Putin for his actions taken to settle the crisis, considerable losses of innocent lives and the way they died show that the crisis was resolved at an enormously great expense… Release of hostages in Moscow on Saturday was followed by a mixed reaction - a feeling of relief that a great catastrophe was prevented, and a confusion that the true outcomes of hostages rescue operation and its consequences were yet unknown. Perhaps, it was a recently developed nerve agent likely to cause permanent mental disability or death, according to medical experts.

The attempt of President Vladimir Putin to rescue hostages, at first looking like a military triumph, is now turning into a political catastrophe. The authorities reluctantly admitted that, probably, the Russian special services had killed up to 150 people in the operation. Their deaths were caused by a mysterious dangerous gas which helped disable the most terrorists. At first the authorities refused to tell the medical experts what kind of gas was used by the elite army, and this prevented the doctors from saving the lives.

The former Minister of Agriculture Alfonso Pecoraro Scanio, the leader of the "greens", declared that “terrorism cannot be overcome by the methods leading to the death of hostages”.

“Even when the loss of hostages is only 10%, it’s not the best outcome for an antiterrorist operation”. In the opinion of the leading newspaper’s observer Nick Paton Walsh, “the release of hostages in Moscow turned out to be an antiterrorist catastrophe”.

The tragic events of the hostage taking in Moscow may not become history without a true and fair opinion from the public. The future of our country and all of us depends on whether we call things their real names, or let ourselves and the government figure out a convenient image of the situation.

The events in Moscow expressly showed that people are willing to accept the myth-making of the authorities. The society and the government have established a sort of social contract, which enables both parties to view the situation in such way as to minimize their personal responsibility for what’s going on.

If the people agree to share all the myths suggested to them now and accept the assault as necessary and successful, it will enable the special services to act at their own discretion in the future. And, when a similar terrorist attack takes place, the hostages may be considered already dead, as no-one will take their lives into account.

All that had happened was nothing but killing our own citizens, and whatever they may say now, it was not necessary. The burden of quilt for what’s done is on everyone who participated in it. Surely, Dubrovka will take place again.

Dubrovka has shown that our law enforcement bodies are not able to prevent such things.

The Duma refused to launch a parliamentary investigation, but we set up a public committee and carried out our own investigation immediately after what had happened. The results were submitted to the General Prosecutor’s Office and to the President of Russia. However, we got no answer in a year’s time. As far as I know, nobody was punished for what had happened.

Extract from the statement of the Russian human rights defending NPO observers at the 79^th Session of the UN Committee for Human Rights Protection held on 24.10.2003:

“Exactly one year ago the state refused to defend a human right to live stated in Clause 6 of the International Covenant on Civil and Political Rights, and now it continues to uphold the justice of its case, probably hoping that the UN experts will miss the truth hidden behind the motto of “combating terrorism”. Such approach to “constructive dialogue” is at least irresponsible and demonstrates no respect to the Committee experts and to the memory of Nord-Ost victims.

I think in our country nobody draws any conclusions. In the first place, it is necessary to tell the honest truth about the tragedy. One year is up, but it’s not known yet who is to blame for the dead.

In the minds of the Russians, the terrorist attack in Dubrovka has remained the most monstrous deed of the special services, though the authorities are still keeping silence about it. But the people don’t change their opinion. They don’t blame the president directly, but their attitude towards him becomes colder.

The breakdown of the state is the result of the politics, absolutely stupid politics. Because in order to stop the terrorist attacks, first of all, when the hostages are taken, they must be rescued. It must be learned how to rescue. They must be rescued at least once. We have failed to do it, both in “Nord-Ost”, and in Beslan. Because, I say it again, there were no headquarters, and no directive. No negotiating position, no negotiators, no anything. To stop terrorism, it is necessary at least to rescue people taken hostages. Second, the president keeps on saying: no dialogues, no negotiations. Until we have such position, we will be killed and blown-up. Because we have to investigate, to use every method, every scenario, and every possibility to reduce the terrorist threat. Third, all over the world special authorities are established especially for the purpose of combating terrorism. And not all the people at once do it. All at once cannot catch terrorists. Our special services are totally unqualified, though our President comes out of the special services, and all around do, but they cannot do their job.

… It was killing of a certain part of the citizens by the forces of FSB using chemical weapon. Consciously knowing that chemical agent could cause death. In regard to “Nord-Ost”: this is, of course, a shame of our time, it’s a tragedy, and people – ex-hostages and family members of the dead – are left all alone with their grief.

Absurd things took place just after the storming operation. The Kremlin was celebrating the victory because “Russia was not brought to her knees”. Terrorists celebrated the victory because the gunmen took a great number of victims to heaven with them. The defeated were the relatives of hostages yet unaware who to blame for their death, and yet having no worth compensation, and other people deprived from the possibility to influence the situation in one way or another. But nobody paid attention. The winners were so many that a new hostage taking was actually inevitable. The terrorists wished to repeat the success of “Nord-Ost”, and after the victory the Kremlin didn’t try to arrange planning the work of emergency operations centers in case of seizures. The professionalism of spetsnaz (i.e. Special Forces) made it possible to forget mistakes in coordinating actions between different agencies. In Beslan, spetsnaz again showed its professionalism. Moreover, they acted like heroes. But the number of victims was even greater.

The numerous appeals submitted to the Public Prosecutor’s Office and judicial authorities, have convinced the victims that the Russian legal remedies remain largely inefficient. The case will probably never become a judicial matter in the proper sense of the word, at least for the simple reason that the special services took measures to destroy all the gunmen during the assault on the theater. And the death of those culpable gives grounds to terminate the investigation of the case. Another outcome is that it’s impossible to determine how and by agreement with what agencies the gunmen armed with various kinds of weapons and explosive materials managed to make their way to the center of Moscow and take hostages, unimpeded.

Numerous applications submitted by the victims to the President of the Russian Federation Mr. Putin containing demands to launch an impartial investigation into the circumstances of the tragedy and its consequences, yielded no result.

The urgency of this problem to the world community can hardly be downplayed. The precedent created at Dubrovka may be repeated once again. However, the case fatality rate and the grave aftereffects on the health of the hostages who survived the fentanyl derivatives gas attack, destroyed the myths and illusions about non-lethal agents that can be used without violating the human right to life. Connivance with the Moscow incident induces the states to use incapacitants for conflict resolution in the future.

A neglect for the lives of people is becoming a rather dangerous tendency in Russia. Having violated the right to life stated in Article 20 of the Constitution of the Russian Federation, and Article 2 of the European Convention on Human Rights, the state is unwilling to admit liability for the actions of its representatives, is violating Article 6 of the Convention as well: «…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law».

No impartial legal treatment of the special services’ actions, no due organization and implementation of rescue operations, and non-disclosure of evidences vital for the investigation into what happened at Nord-Ost - all this probably resulted in an even more horrible tragedy in Beslan, where over 300 people were killed, half of them being children.

We, the victims of the terrorist attack at Nord-Ost, appeal to the world community to establish an international committee for an independent investigation into the unprecedented tragedies at Nord-Ost and in Beslan for the sake of the memory of those killed and for the benefit of the generations to come.

[1] Special Purpose Militia Units

[2] Special Unit for Emergency Situations

[3] Main Department of the Interior

[4] Special Service

[5] A place close to Red Square

[6] Federal Security Service

[7] Ministry of Interior

[8] Ministry of Defense

[9] Name of a special security unit

[10] Name of a special unit