CEDH · CASELAW;CLIN;ENG — 20 décembre 2011

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Russia - 18299/03 and 27311/03 Judgment 20.12.2011 [Section I] Article 2 Positive obligations Article 2-1 Life Effective investigation Inadequate preparation of hostage-rescue operation and lack of effective investigation: violations   Article 2-2 Use of force Death of hostages as a result of use of potentially lethal gas to neutralise hostage takers: no violation   Facts – In the evening of 23 October 2002 a group of armed terrorists belonging to the Chechen separatist movement took some 900   people hostage in the Moscow “Dubrovka” theatre. The applicants were either hostages or relatives of those hostages who died in the course of the subsequent rescue operation. The hostages were held at gunpoint and the theatre building was booby-trapped. The terrorists demanded the immediate withdrawal of Russian troops from the Chechen Republic. Negotiations were conducted and several hostages were shot dead. Meanwhile, the authorities created a “crisis cell” under the command of the Federal Security Service, which was in charge of planning a rescue operation. In the morning of 26   October 2002 Russian security forces pumped an unknown narcotic gas into the main auditorium through the building’s ventilation system. A few minutes later, when almost all the terrorists had lost consciousness under the influence of the gas, the special squad stormed the building and killed most of them. The hostages were then evacuated from the building and transported to hospitals in ambulances or city buses. However, some 125   hostages died either on the spot, during transportation or in hospital. A criminal investigation was opened into the events, but it was subsequently decided not to pursue the investigation into the planning and conduct of the rescue operation. The applicants’ subsequent criminal-law complaints and civil actions for compensation in respect of non-pecuniary damage were dismissed. Law – Article 2 (a)     Applicability – The official explanation for the mass deaths of the hostages was that all the deceased had been weakened by the siege or were seriously ill. The official expert report concluded that there had been no “direct causal link” between the deaths and the use of the gas, which had been just one of many factors. The Court found such a conclusion difficult to accept. It deemed unthinkable that 125   people of different ages and physical conditions should have died almost simultaneously as a result of various pre-existing health problems. Their deaths could equally not be attributed to the conditions in which they had been held for three days, during which none of them had died notwithstanding prolonged food and water deprivation coupled with stress. The Government admitted that it had been impossible to foresee the effects of the gas and that some losses had been unavoidable, implying that the gas had not been harmless. Although it had probably not been intended to kill the terrorists or the hostages, the gas was dangerous, and potentially fatal for anyone in a weakened condition, and it was safe to assume that it had been the primary cause of death of a large number of the victims. The situation thus fell within the scope of Article   2 of the Convention. (b)     Substantive aspect (i)     Use of force : The applicants claimed that the hostage crisis could have been resolved peacefully and that nobody would have been killed if the authorities had pursued the negotiations. However, the Court noted that the situation at the time had seemed very alarming: heavily armed specialists, dedicated to their cause, had taken hostages and were making unrealistic demands. The first days of negotiations had not brought any visible success and the hostages’ situation had been worsening. There existed a real, serious and immediate risk of mass human losses and the authorities had every reason to believe that a forced intervention was unavoidable. Their decision to end the negotiations and storm the building had, therefore, not run counter to Article   2. (ii)     Use of gas : Although the domestic law allowed the use of weapons and special-purpose hardware and other means against terrorists, it did not indicate the type of weapons or tools that could be used or the circumstances in which their use was permitted. However, the general vagueness of the law did not necessarily result in a breach of Article   2, in particular not in a totally unpredictable and exceptional situation such as the instant one that required a tailor-made response. Although the gas used was dangerous, and potentially lethal, it had not been intended to kill and it could not be said that it was used “indiscriminately” since it had left the hostages a high chance of survival which depended on the efficiency of the subsequent rescue efforts. All the evidence demonstrated that the gas had the desired effect on the terrorists rendering most of them unconscious, so facilitating the liberation of the hostages and reducing the likelihood of an explosion. Conclusion : no violation (unanimously). (iii)     Planning and implementation of the rescue operation : The Court also had to consider whether the rescue operation was planned and implemented in accordance with the State’s positive obligations under Article   2, in particular, whether the authorities had taken all necessary precautions to minimise the effects of the gas on the hostages, evacuate them quickly and provide them with the necessary medical assistance. The rescue operation was not spontaneous since the authorities had had about two days to reflect and make specific preparations. Some preparations had indeed been made: hundreds of doctors, rescue workers and other personnel were deployed, hospital-admission capacity was increased and ambulances were put on alert about the possible need for a mass evacuation. However, the original rescue plan had been flawed in many respects: there appeared to have been no centralised coordination of the various services involved; there were no instructions on how information about the victims and their condition should be exchanged (one result of this was that some victims received multiple doses of the antidote); it was unclear what order of priorities had been set for the medics; no medical assistance was provided during the mass transportation of victims on city buses; and there was no clear plan for the distribution of victims to the various hospitals, with significant numbers arriving at the same hospital at the same time. There had been problems with the implementation of the rescue operation too: since the original plan had been prepared on the assumption that the hostages would be wounded by an explosion or gunshots, there were no toxicologists present and the rescue workers and doctors were not given any specific instructions on how to deal with hostages who had been exposed to an unknown gas; it seemed likely that they were not informed about the use of the gas until the evacuation was almost over, which would explain why most of the evacuated victims were placed on the floor face-up thus increasing the risk of suffocation and of fatalities among the hostages. Indeed, it was difficult to understand why the information about the gas could not have been given to the doctors and rescue workers earlier, either shortly before or at least immediately after its use, and why the evacuation had started so late, with most of the unconscious hostages remaining exposed to the gas without medical assistance for over an hour. Many witnesses had also testified to the shortage of antidote and it was unclear when the antidote was administered or how those who received it were distinguished from those who did not. All these factors indicated that the rescue operation had not been sufficiently prepared and that the State had therefore failed to fulfil its positive obligations under Article   2. Conclusion : violation (unanimously). (c)     Procedural aspect – The investigation into the rescue operation was manifestly incomplete. First of all, it was very narrowly defined, excluding any possibility of negligence on the part of the authorities. Even though the investigators addressed certain issues relating to the planning and conduct of the rescue operation, many facts crucial to the question of possible negligence were never established. First and foremost, the formula of the gas was never revealed to the investigators, nor was it ever established when the decision to use the gas was taken or how much time was available to evaluate its possible side-effects. This was also impossible to establish from the crisis cell’s working documents since, according to the Government, they were all destroyed. Given that these papers could have been an essential source of information about the planning and the conduct of the rescue operation, the Court found such indiscriminate destruction of documents unjustified. Moreover, the investigators had failed to question all the members of the crisis cell, in particular those responsible for the decision to use the gas and for calculating the dosage, or other witnesses, such as bus drivers, journalists or those who had allegedly helped install the gas recipients. It was never established how many doctors were on duty on the day of the operation, or what preliminary instructions were given to ambulances and city buses as to where to transport the victims. In addition, it was never established why the mass evacuation had started only two hours after the beginning of the operation or how much time it had taken to kill the terrorists and neutralise their bombs. Lastly, the investigation team was not independent, since it included representatives of the law-enforcement agencies which had been directly responsible for the planning and conduct of the rescue operation. In sum, the investigation into the authorities’ alleged negligence in the case was neither thorough nor independent, and was therefore not “effective”. Conclusion : violation (unanimously). Article 41: Awards ranging between EUR 8,800 and EUR 66,000 to each of the applicants in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes