On January 11, the European Court of Human Rights ruled on a complaint filed by 39 residents of Beslan. This is the second complaint on the circumstances of the Beslan tragedy, considered by the ECtHR. The court held that the Russian authorities were responsible for the deaths of the hostages and awarded the applicants a total of EUR 360,000. However, the current solution is surprisingly different. In it, the ECtHR, in fact, cancels the statute of limitations for the legal liability of the Russian authorities for Beslan. This position of the court opens the way to Strasbourg for hundreds of victims who, for various reasons, did not dare to join the very first complaint in the Beslan case. » class=»SingleImage_image__3qIDn» alt=»» />
Photo: EPA
First Complaint
The complaint “Tagaeva and Others v. Russia” was filed in 2007 in accordance with the universal rules of the Strasbourg Court, that is, within six months after the appeal and entry into force of the verdict in the case of Nurpashi Kulaev, according to investigators, the only surviving Beslan terrorist.
During this trial, the victims raised not so much questions about Kulaev's guilt, but about the responsibility of the Russian special services for not preventing the attack, as well as for the death of 94% of the hostages (298 out of 314 hostages died on September 3, 2004 during the assault). However, the court in the Kulaev case refused to clarify the reasons for the first explosions in the gym of the Beslan school, from which the storming of the school began, and the court also refused to assess the facts of the use of flamethrowers, grenade launchers and tanks by the FSB special forces «to free the hostages.» The judge referred the victims to the main, «parent» criminal case on Beslan: when it is investigated and taken to court, then we will talk about the responsibility of state agents for the death of people.
16 years have passed since then, and the main criminal case on the Beslan terrorist attack has not yet been investigated.
The terms of the investigation are extended and extended for formal reasons (the need to identify the terrorists who seized the school). But the real reason seems to be only one — under the pretext of «secrecy of the investigation» to hide the materials of the investigation from the victims and the Russian society.
The 409 applicants who put their signatures under the complaint to the European Court of Human Rights in 2007 already knew perfectly well that the state was not interested in an objective investigation of the Beslan tragedy.
Consideration of this complaint took the Strasbourg court 10 years, but the result was stunning. For the first time in Russia's sad history of terrorist attacks, the ECtHR acknowledged that the Russian authorities violated both positive and negative obligations under Article 2 of the European Convention (the right to life) in respect of the applicants. That is, the court held the Russian authorities responsible for insufficient efforts to prevent the terrorist act, for the unjustified use of weapons of indiscriminate destruction during the storming of the school on September 3, 2004, and also for the ineffective investigation into the circumstances of the death of the hostages.
The ECHR awarded the applicants almost 3 million euros, but compensation has never been a priority for Beslan residents. To this day, they are seeking one thing — an objective investigation and recognition by the state of its measure of responsibility for the tragedy. “In order to learn from the past, to raise awareness of the applicable legal and institutional standards <during counterterrorism operations> and
prevent similar violations in the future. This is what the ECtHR decision on the Beslan case says. And it also clearly states that the Investigative Committee of Russia is obliged to take into account the opinion of the Strasbourg Court and make the investigation into the circumstances of the death of the hostages effective and transparent for the victims.
The Russian government tried to appeal this decision, but the appeal was rejected. Then the authorities paid 3 million euros to the Beslan residents and … extended the investigation period in the “mother's” case, and with them the “secrecy of the investigation” for several more years.
But in the case of Beslan, the typical strategy of the Russian authorities — to pay compensation and turn a blind eye to the requirements of the ECHR — failed. Because the Beslan victims decided: there is no statute of limitations for a crime without punishment.
Complaint two
In September 2010, that is, six years after the terrorist attack, several victims who had not previously appealed against the verdict of the court against Kulaev and had not applied either to the Russian courts or to Strasbourg in 2007 filed a petition with the Investigative Committee of Russia with the following requirements (I quote decision of the ECtHR): “Despite the <according to Kulaev> evidence that the key person in charge of the use of heavy weapons during the assault was General Tikhonov, <victims> years after this trial was concluded in 2006, they were never informed of the investigation into his criminal liability <for the deaths of the hostages>.
The victims demanded an investigation into the criminal liability of <General Tikhonov and others> officials or inform them of the results of any such investigation, if one has already taken place. They also expressed dissatisfaction with the fact that they were not informed about the progress of the investigation into the causes of death and injury of their family members, as well as the fact that the victims did not have access to important documents relating to the work of the operational headquarters <1-3 September 2004> and the circumstances of the assault…”
The investigator in the Beslan case predictably kicked the victims, including the former hostages, who were minors at the time of the attack.
Over the years of the eternal Beslan investigation, these children grew up and, as it turned out, did not forget anything and nothing to the state sorry.
The investigator told them: «No information about current events and the results of the investigation can be provided until the investigation is completed.» But I forgot to say exactly when this investigation will finally be completed.
The refusal of the investigation was appealed to the courts, and only two years later the victims managed to achieve at least some kind of court decision. The judge of the Leninsky Court of the Pravoberezhny District predictably dismissed the complaint of the Beslan residents, stating, in particular, that the applicants did not have the right to access the minutes of the meetings of the members of the operational headquarters and did not even have the right to know whether such minutes were kept. But it was during such meetings that the fate of the hostages was decided.
Photo: Oleg Nikishin/Getty Images< /p>
In addition, the victims do not have the right to get acquainted with the interrogations of these members of the headquarters and with other materials of the case, although 8 years have passed since the terrorist attack.
On 30 May 2012 the Supreme Court of North Ossetia upheld the decision of the district court on the applicants' complaint. Further appeals by the applicants were generally not accepted by the Russian courts for proceedings as “devoid of subject matter for consideration”. That is, the Russian courts (including the Supreme Court of the Russian Federation) literally do not see the still uninvestigated death of the Beslan hostages as a “subject for consideration”.
And then on September 14, 2012, 39 victims followed the path of 409 Beslan pioneers and filed a second complaint about Beslan with the Strasbourg court.
In December 2017, 8 months after the decision of the ECtHR on the first complaint — “Tagayeva and Others v. Russia”, the Beslan victims, including the applicants on the second Strasbourg complaint, again applied to the Investigative Committee of Russia with a request to conduct an investigation in order to clarify the main circumstances cases, namely, the use of indiscriminate weapons by state agents during the storming of the school. They demanded that the investigation evaluate these actions in accordance with the decision of the ECtHR on Beslan. The Investigative Committee and the Russian courts again denied the victims. The victims, in turn, attached these refusals as evidence to the second (and far from the last) complaint to the ECtHR in the Beslan case.
Russia versus Beslan
The complaint “Avsanova and Others v. Russia” was filed with the Strasbourg Court 8 years after the terrorist attack in Beslan. The Russian Government was categorically opposed to declaring this complaint admissible, referring primarily to the fact that the applicants missed all deadlines for applying to Strasbourg. Thus, the government made it clear that 39 victims were fatally (six years) late with their complaint, because back in 2006 they should have understood that they would not find any legal protection in Russia. Representatives of the Russian state even referred to the famous hunger strike of the mothers of the “Voice of Beslan”*. According to the logic of the Russian authorities, since the 39 applicants did not starve, did not protest and did not fight the state for their rights from the very beginning, it means that they “remained completely inactive”. And their petition, filed in 2010 with the Investigative Committee, is a legal stunt carried out “solely for the renewal of the six-month period” (that is, in order to comply with the necessary formalities for filing a complaint with the Strasbourg Court). Thus, the main goal of these applicants, according to the Russian authorities, is not justice at all, but a banal desire to receive monetary compensation.
The Russian authorities provided other arguments on the merits of the complaint, in which the residents of Beslan accused the state of, I quote from the decision of the ECtHR, “failure to protect its citizens from a known and foreseeable threat to life (terrorist act), in violation of the state’s obligation to investigate the circumstances of the death of its citizens, in inability to plan <force operation> and control the use of lethal force in order to minimize the risk to the life of <hostages>, as well as the excessive use of lethal force…”
For example, according to representatives of Russia, the former hostage Amaga Dzutseva, who suffered serious bodily harm as a result of the storming of the Beslan school, did not have the right to apply to the Strasbourg Court, since her mother-in-law, Zoya Dzutseva, had already applied to the ECtHR (as the applicant of the first complaint according to Beslan) upon the death of his granddaughter (daughter of Amagi Dzutseva).
The logic of the Russian government: the Dzutsev family has already received compensation under one decision of the ECtHR, enough of that!
Applicant Valeriya Gafurova allegedly had no right to complain to the ECtHR, as at the time of filing her complaint (in 2012) she was a minor. That is, the children who suffered in the terrorist attack, according to the logic of the Russian government, cannot seek an answer to the main Beslan question: why did the state not protect and save them?
The Russian government doubted that the applicants, who suffered “only” moderate and minor bodily harm in the course of the terrorist attack, in principle, have at least some legal rights.
The Investigative Committee of Russia, for example, did not consider such “simulators” to be victims at all. So why are their complaints considered by the Strasbourg Court?
Finally, if the complaint of the residents of Beslan was found admissible and their arguments substantiated, the Russian government asked the Strasbourg Court to REFUSE monetary compensation to the applicants, because, I quote, “recognition of a violation of the Convention (that is, the fact of a violation by the state of obligations under protection of the lives of its citizens. — E. M.) would in itself be sufficient just satisfaction … «
«In the face of a dormant investigation»
The ECtHR rejected all the arguments of the Russian government and clearly articulated its position. The court considered that all those whom the Beslan tragedy «affected directly and personally» have the right to justice. In addition, the Court stated: until the Russian state puts an end to the investigation into the circumstances of the death of the hostages, the victims will have the right to apply to Strasbourg in this case in connection with the ineffective investigation. “The court notes that the criminal investigation into <Beslan> the case is still ongoing and the essence of the applicants' complaints is inextricably linked to this investigation. The Government argued that the applicants should have realized the futility of the official investigation no later than 2006, but this <statement> contrary to the continued and persistent efforts of the victims to achieve an effective investigation beyond that date. Therefore, it cannot be argued that, by the time they filed their complaint, the complainants were inactive in the face of an inactive investigation…”
Photo: EPA
The Court also considered that the result of the efforts that one part of the victims made to achieve justice in the domestic courts applies to all victims of the terrorist attack, and these people do not have to follow the same path at all, since if it turned out to be ineffective for one part of the applicants, it won't work for others. “In such circumstances, applicants who have not availed themselves of the same remedy which has proved ineffective against other victims in the same position may reasonably be exempted from doing so…”
Based on the stated position, the three judges of the European Court of Human Rights, who considered the complaint “Avsanova and Others v. Russia”, unanimously ruled in favor of the applicants. And, unlike the Russian government, they explained in detail why they did it.
The court agreed with the applicants that the Russian authorities still, that is, 18 years later, have not investigated the circumstances of the death during the storming of the school of the majority of the hostages, including 186 children. Moreover, from the very beginning, the efforts of the Russian investigating authorities were directed, in fact, to conceal the real circumstances and reasons for the death of the hostages. So, the court considers, “the causes of death of most of the victims were established only on the basis of an external examination of the bodies. No additional research, for example, to detect, extract and match external objects such as fragments and bullets, was carried out. A third of the victims died from causes that could not be established with certainty, due to extensive burns, the share of which among other causes of death of the hostages was a strikingly high percentage … The study of the causes of death of each hostage was to be one of the most important tasks of the investigation …
Furthermore, the location of the bodies of the hostages at the school was not recorded with any certainty. This contributed to the ambiguity of the circumstances under which their deaths occurred. The investigation failed to properly protect, collect and register physical evidence at a time when it was still possible to ensure the inviolability of the <crime scene>. This caused irreparable damage to the ability of the investigation to conduct a thorough, objective and impartial analysis of all the circumstances of the <assault and loss of life>. The investigation did not take action on the inventory of weapons and ammunition used by representatives of the state <during the storming of the school>. The lack of a full record of the arms and ammunition used by State agents effectively prevented the investigation from making a meaningful assessment of the adequacy and proportionality of the use of force. Also, the investigation did not fully evaluate reliable evidence indicating the use of indiscriminate weapons by state agents in the first hours of the assault (meaning evidence of the shelling of the Beslan school gym with flamethrowers and grenade launchers. — E.M.). Given these considerations, the conclusion of the investigation that none of the hostages were injured or killed as a result of the use of deadly force by agents of the state is untenable, and any conclusions drawn about <absence> criminal liability of representatives of the state <for the death of people>, are biased and inadequate …
The Court also considers that the lack of a single coordinating structure tasked with the centralized elimination of <terrorist> threats … contributed to the failure to take reasonable measures that could prevent or minimize the risk of «taking and subsequent death of hostages» … The leadership and composition of the «operational headquarters» responsible for resolving the crisis were officially determined approximately thirty hours after it began. Such a long delay in the creation of a key structure that was supposed to prepare and coordinate responses to the hostage-taking was not explained in any way. Even after <headquarters> was created, its configuration was not respected. The lack of formal leadership of the operation led to serious shortcomings in the decision-making process and coordination with other agencies involved in the operation. The plan for the rescue operation was prepared and brought to the attention of the relevant services only two and a half days after the start of the crisis (that is, after the start of the assault on the school. — EM). <Initially, with the understanding of the potentially large number of victims of the storming of the school> sufficient funds were not allocated for forensic examinations, storage of bodies and autopsy equipment. It was not clear when and how the most important decisions were made and communicated to <members of the headquarters and all departments involved in the counter-terrorism operation>, and also who these decisions <really> accepted…