EHRM, 20-12-2011, nr. 18299/03, nr. 27311/03

Mr Asl., a Duma Deputy and an ethnic Chechen, testified that he had spoken with the terrorists in the theatre building. According to Mr Asl.'s testimony, the leader of the terrorists told him that he was prepared to die; he was very nervous and was not open to dialogue.

Mr Yastr., another State official, testified that Mr B., the leader of the terrorists, had proposed to the authorities that several hostages be released in exchange for a partial withdrawal of Russian troops from Chechnya. He had also requested that the relatives of the victims organise a public march on Red Square in support of the withdrawal of the Russian troops. He had further requested that the federal authorities appoint a representative for talks with the separatists, someone who would be entitled to take political decisions. Among such persons he had named Mr Kz., the former commander of the federal troops in Chechnya.

Mr Yav., a Duma Deputy, testified that the terrorists had initially demanded the immediate withdrawal of Russian Federation troops from Chechnya, but they had then put forward other demands with regard to the federal forces, namely that the latter stop using artillery and air raids and cease ‘clean-up operations’, and that direct telephone negotiations be organised between President Putin and Mr Maskhadov, the president of the separatist government. The terrorists had told Mr Yav. that they were prepared to die, and that they knew that they would not leave the city alive. Mr Yav. understood that if the requirements of the terrorists were not met, they would have been prepared to start executing the hostages.

Ms Plt., a journalist, testified that ‘Abu-Bakr’ (another leader of the terrorists) put forward the following demands: the withdrawal of federal troops from any district of the Chechen Republic, and a public statement by President Putin that he would stop the hostilities. The terrorists had agreed to accept food and water; some time afterwards food and water had been supplied.

The investigators questioned 737 former hostages about the situation in the main auditorium of the theatre where they had been held. The materials of the case file contain a memo prepared by the investigator recapitulating their testimonies. In addition, the parties submitted several full-text written testimonies by the former hostages. These documents, to the extent that they are relevant, can be summarised as follows.

Most of the hostages testified that there had been 40–60 terrorists in the theatre building. Initially the terrorists allowed those hostages who had mobile phones to call their relatives and ask them to hold a ‘peace rally’ against the war in Chechnya and require the Government not to storm the building. Later the terrorists confiscated the mobile phones, threatening execution for non-compliance.

On 25 October 2002 one of the hostages, a young man, tried to escape from the auditorium and started to run; the terrorists fired at him, then took him outside and executed him.1. While shooting at the escapee, the terrorists seriously wounded another person. At a certain point one of the leaders of the terrorists ordered the shooting of another person whom he considered to be an agent of the security forces, and who had penetrated the building from the outside.

It is clear from the witnesses' statements that most of them took the terrorists' threats seriously. Some of them, however, noted that they feared storming by the security forces more than the terrorists themselves.

When the gas penetrated the auditorium Mr B. (the leader of the terrorists) ordered that the windows be smashed for better ventilation. Those terrorists who were in the auditorium started to shoot around; they appeared to be aiming at the windows. The women terrorists sitting among the public did not try to blow up the explosives; they covered their faces with handkerchiefs and lay on the floor with the hostages. Within 10 minutes most of the people in the auditorium were unconscious.

On 19 November 2002 the investigator commissioned an expert report on various technical aspects of the terrorist attack. In particular, the investigator sought to establish the destructive capacity of the explosives planted by the terrorists in the building. The examination was entrusted to FSB experts. The experts established that the terrorists had had about 76 kilos of various explosives (in TNT equivalent); that the latter's simultaneous detonation would have killed or seriously injured most of the hostages in the auditorium through blasts or shrapnel, but that it had been unlikely that the detonation would have led to the collapse of the entire building. The position of the stationary explosives and the placement of the ‘suicide bombers’ within the auditorium guaranteed maximum efficiency in the case of detonation and showed the terrorists' technical expertise.

On 20 November 2002 Mr Sl., the Head of the Public Health Department of the City of Moscow, submitted a report concerning the organisation of the evacuation of and medical assistance to the hostages. The report stated that five ambulances and two MCUMT teams had been dispatched to the scene immediately; in addition, city hospitals took measures to free places in preparation for the eventual arrival of hostages. At about 5.55 a.m. on 26 October 2002 458 medical emergency teams were sent to the site of the events. The hostages were evacuated by the rescue workers and the special squad officers in the ‘face-up’ position. Coordination of the evacuation was ensured by the workers of the Zashchita (Protection) Centre of the Ministry of Health of the Russian Federation. The first 20 ambulance brigades arrived at the scene at 6.09–6.14 a.m.

In view of the victims' symptoms, they were given injections of Nalaxone, an ‘antagonist of narcotic analgesics’. These injections were administered within the theatre building by the special squad officers. However, the efficiency of Nalaxone was low when applied to those who had been in a state of hypoxia for a long time. The rescue workers had been instructed to turn the victims face down if they showed signs of vomiting. There was sufficient Nalaxone available to the doctors, since it was part of the standard first-aid kit of an emergency team. Mr Sl. further testified that the majority of the hostages received an injection of Nalaxone inside the building. The injections had been administered by the officers of the special squad; the officers informed the medics which hostages had not received an injection; that group then received an injection from the medical emergency teams. Victims in a coma were transported in the ambulances; the others were transported in city buses, but always accompanied by medics.

Most of the victims had been dispatched to War Veterans Hospital (no. 1) and City Hospital no. 13. The evacuation of 770 hostages had taken 1 hour and 15 minutes. Only 6 people died in hospital. 114 people were already dead on arrival at the hospitals. The report concluded that the efforts of the various services participating in the evacuation and medical assistance to the victims had been well-coordinated, and that the evacuation operation had been efficient and adequate.

On 27 November 2002 Ms Usm., one of the investigators, analysed the medical records of the surviving hostages and drew up a report containing information on the timing of the hostages' arrival at various Moscow hospitals. That report did not include statistics on the deceased hostages.

According to the report, on 26 October 2002 War Veterans Hospital no. 1 admitted 53 patients in the period between 6.30 and 7 a.m., 20 patients between 7 and 7.30 a.m., 10 patients between 7.30 and 8 a.m., and 6 patients after 8 a.m.

City Hospital no. 13 admitted three patients between 7.15 and 8 a.m. (two of them arrived ‘on their own’, one was brought in an ambulance); 213 patients arrived between 8 and 8.30 a.m. (153 arrived ‘on their own’, apparently in buses; 60 — in ambulances); between 8.30 and 9 a.m. the hospital admitted 21 patients (ten arrived in ambulances); between 9 and 9.30 a.m. the hospital admitted 27 patients (nine arrived in ambulances); between 9.30 and 10 a.m. the hospital admitted 20 patients (one arrived in an ambulance); and after 10 a.m. the hospital admitted 45 patients (one arrived in an ambulance).

City Hospital no. 7 admitted eight patients between 7 and 8 a.m. (all brought in ambulances); 16 patients between 8 and 8.30 a.m. (six were brought in ambulances); 13 patients arrived between 8.30 and 9 a.m. (five were brought in ambulances), eight arrived between 9 and 9.30 a.m. (two were brought in ambulances); 15 arrived between 9.30 and 10 a.m. (one was brought in an ambulance); and 17 arrived after 10 a.m.

City Hospital no. 1 admitted nine patients between 7 and 8 a.m. (all were brought in ambulances), and 19 between 8.30 and 9 a.m. (12 in ambulances).

Witness Ev., the Chief Anaesthesiologist1. of Moscow City, testified that as from 23 October 2002 he had been responsible for preparing War Veterans Hospital no. 1 to receive hostages. He had checked the staffing situation: the hospital had received support staff from other medical institutions, including surgeons and emergency physicians from the Sklifosovskiy Hospital. He had also verified the necessary equipment. Eight emergency operating tables had been prepared. On 24 and 25 October 2002 he had checked the readiness of City Hospitals nos. 7, 13 and 53. The two hospitals (nos. 7 and 13) had been prepared to admit up to 70 patients in a critical state. However, there was no decision as to the exact number of hostages to be dispatched to each hospital. He had learned about the storming of the building at 6 a.m. from the mass media. At 7.20 a.m. he arrived at the Sklifosovskiy Hospital, where he started to prepare additional emergency teams to be sent to the site of the events. At 10 a.m. he arrived at the War Veterans Hospital. By that time the victims had already been divided into several groups and the doctors had identified the most serious cases. He examined the victims personally; in most cases they were suffering from cardiac and respiratory insufficiency, aggravated by dehydration, ‘aeleontropic’ (sic) disorder, a high level of ferments and ‘myoglobin’, and shock. He had learned from the mass media that the security forces had used gas. The victims had received, in the first place, artificial lung ventilation, cardiac support, etc. Two or three hours later he had left for Hospital no. 13, which had admitted a large number of the victims. As to the possible treatment, he testified that it had been difficult to prepare any antidote in advance, given the situation of the hostages at the time of the storming of the building. Nalaxone was a specific antidote for opiate drugs and was widely used from the beginning of the operation. The fact that the victims were suffering from opiate poisoning had been evident from their symptoms. However, the use of Nalaxone had not been effective, as it had not produced any tangible positive results.

Witness Ks., director of the MCUMT, stated that the information about the storming of the building was received by her on 26 October 2002 at 5.30 a.m. That information was immediately transmitted to several city hospitals. At 5.37 a.m. she received an order to mobilise 100 ambulances from the nearest medical emergency units. At 5.50 a.m. the MCUMT received information about the storming. The third MCUMT brigade (no. 6813) was ordered to move to the area near the theatre. That brigade was supposed to indicate the route for the ambulances. Ks. herself stayed in the hospital. At 7.02 a.m. the third brigade received an order to approach the theatre building and to start the evacuation. The mass evacuation of hostages started at 7–7.05 a.m. in ambulances and city buses. The evacuation ended at 8.15 a.m. As a result of their training the emergency teams were well prepared for such situations, and they had all the necessary drugs, including Nalaxone. On the whole, the evacuation and medical assistance to the victims were well organised. Since there was a risk of explosion, it was impossible to treat the hostages near the building. The lack of information about the formula of the gas was irrelevant in the circumstances, and there had been no need to use military medics.

Witness N., another official from the MCUMT, testified that he had been on duty from 25 October 2002. He had not received any special briefing; however, he had information about the plan for evacuation of the hostages. On 26 October 2002 at 2 or 3 a.m. he had participated in the evacuation of two wounded people from the theatre building to the nearest hospital. At 5.45 a.m., after the beginning of the operation, he ordered that 20 ambulances be positioned a few blocks away from the theatre. At 6 a.m. he was informed that the building had been cleared of the terrorists and that the ambulances could start the evacuation. They had arrived on site at 7.05 a.m. Circulation near the building had been hindered by the heavy trucks which had been blocking the road. Witness N. had been responsible for placing the hostages in the city buses and dispatching them to the hospitals under the convoy of escort vehicles. The first examination had shown that the victims had suffered from gas poisoning; immediate assistance had consisted in removing the hostages from the building, opening their breathing passages, injecting Cardiomin and restoring normal heart and lung functions.

Witness Krt., the chief doctor of War Veterans Hospital no. 1 (which was the closest to the theatre) testified, inter alia, that on the eve of the storming they had received a machine for artificial lung ventilation. However, they anticipated that the hostages would have ‘traumatic injuries’. The hospital had had about 300–350 beds available, with a potential of 600 beds. The ground floor of the hospital had been allocated for emergency treatment, operating tables had been arranged and the doctors had prepared ‘materials for bleeding patients’. When the first victims started arriving at the hospital, it was unclear what had happened to them as most were unconscious. However, it was irrelevant whether or not there was information about the kind of the gas to which they had been exposed.

Witness Skh, the chief emergency physician of City Hospital no. 1, testified that the first patients had been delivered to his hospital at 7.15 a.m. by ambulance. At about 8 a.m. a city bus had arrived with 32 victims. All of them had signs of acute respiratory insufficiency: they were unconscious, their external respiration was deficient and they had yellowish skin (cyanosis). The victims had been escorted by two uniformed men with machineguns, and a man in plain clothes with a video camera. The victims had been sitting or lying on the floor of the bus; bodies were piled on top of each other. Mr Skh. had taken five persons out of the bus himself; then other people had arrived and the people were taken into the hospital. Six out of the thirty-two were already dead. Mr Skh. described them.

Witness Ar., the chief doctor of Hospital no. 13, testified that on 26 October 2002 he had arrived at work at about 7.20 a.m. The first ambulance with the victims was already there. The main arrival of victims had been at 7.45 a.m., when 47 ambulances, each carrying two-three people, and five buses with victims arrived at the hospital. It was later established that the hospital had admitted 356 former hostages, including 35 who had been in a state of clinical or biological death when they arrived at the hospital. Twenty out of those 35 people had been at a stage where it was too late to carry out any reanimation procedures. In his opinion, it was immaterial whether the medics were informed about the gas used during the operation. He confirmed that there had been some stock of Nalaxone in the hospitals but it had been insufficient, so on 26 October 2002 they had received further supplies — about 100 doses.

Witness Kz., chief emergency doctor of Hospital no. 13, testified that they had been prepared for the arrival of hostages; however, they had not been informed of any eventual diagnosis they might face. The victims who had arrived at his hospital had received artificial lung ventilation, oxygen masks, etc. The doctors had no information about the gas used by the security forces, but realised that the victims had been exposed to a narcotic gas and so decided to use Nalaxone as an antidote.

Witness Kn., the head of the emergency treatment unit of Hospital no. 13, testified that two of the hostages admitted to her hospital had been in a state of clinical death. At the same time, she noted that ‘there were no corpses’ (in the buses transporting the victims).

Witness Af., the chief doctor at Hospital no. 7, stated that they had had enough staff to treat the hostages. They had not received any additional drugs as the hospital pharmacy had had sufficient amounts of medicine. The first ambulances had arrived at the hospital at about 7.15 a.m., and continued to arrive for about 45 minutes. Af. himself had not seen any signs of medical intervention on the victims' bodies. People had been in a very weak state. 14 hostages had died, but it was hard to say whether the deaths had occurred during transportation or after their admission to hospital. 30 minutes after the first ambulance arrived, a doctor on duty at the City Health Department had called him and said that ‘Nalaxone was on its way to the hospital’.

Witness Rm., the chief emergency physician at Hospital no. 7, testified that 50–70 minutes after the arrival of the first victims someone from the hospital's administration office had told the medics that they should use Nalaxone. There had been about 40 dozes of the medicine in stock. 14 people died in the hospital within 30 minutes. 40 minutes later the hospital had received more Nalaxone. Nobody had died afterwards, except for one woman who had died 3 days later of a heart attack.

Witness Ks., the chief paramedic at Hospital no. 7, testified that on 26 October 2002 they had admitted 98 victims. All of the victims had been treated; the medical staff administered injections in their arms.

Witness Ksh., head of the toxicology unit at the Sklifosovskiy Hospital, testified that the victims had been transported to the hospital in ambulances. She had learned that the hostages were suffering from gas poisoning. The victims received ordinary treatment: they had not been subjected to any special procedures and the doctors had mainly tried to stop the hypoxia. Witness Ksh. also confirmed that the knowledge of the exact formula of the gas would not have helped the doctors. A statement in similar terms had been given by Mr Vd., an emergency toxicologist at the Sklifosovskiy Hospital.

Witness Bgr, deputy Chief Doctor at Main Military Hospital no. 1, testified that she had seen no signs of medical intervention on the victims. Ms Mkhl., head of the emergency treatment unit of the War Veterans Hospital no. 1 testified that there had been no stock of Nalaxone in their hospital.

Witness Chz. was the head of the rescue service of the Moscow City Administration. He stated that he had participated in the planning of the rescue operation. However, he had not been informed of the possible use of gas; he instructed his staff to intervene in the event of an explosion. He stated that the evacuation of the hostages had been well-organised.

Witness Chs., another rescue service official, confirmed that the rescue workers had been expecting an explosion and had been equipped accordingly (bulldozers, cranes, etc.). At 6 a.m. he received an order to start evacuation of the hostages. He had participated personally in the evacuation. They had carried victims face down in order to avoid suffocation by the tongue. On the way to the exit the medics gave injections to the victims, and the victims were then loaded into the buses. Mr Chs. also said that he had not known that gas had been used and had not smelled any gas in the building.

Witness Pt., a rescue worker, testified that he too had been unaware of the use of gas. He had also seen the medics giving injections to the hostages; he later learned that this was an antidote.

Witness Zhb., a rescue worker, also confirmed that he had not smelled gas when he entered the building. He also testified that the work of the special squad officers, rescue workers and the medics had been well-coordinated and that there had been no problem with the normal circulation of the buses.

The investigators questioned several other rescue workers. They testified that the victims had received injections on the spot, that the doctors' actions had been properly coordinated and that there had been enough vehicles to bring the victims to the hospitals. Some stated that the victims had been transported face down. They all testified that they had not been informed about the use of the gas.

Witness Vlk., a doctor from the MCUMT, noted that he had not received any information about the situation at the scene, that the ambulances had been used as escort vehicles for the city buses, and that on-the-spot coordination had been organised by the MCUMT people. There had been no appropriate place on the ground to sort the victims, and the circulation of the ambulances had been slow. The rescue workers and doctors had had to take into account the risk of an explosion and the overall complexity of the situation. Absence of information about the gas, and the lack of doctors and paramedics in the city buses transporting victims to the hospitals, had played a negative role, the witnesses said.

Witness Kr., a doctor from the MCUMT, testified that he had participated in the evacuation of the hostages. He had arrived at the scene at 7.02 a.m.; clinical examination of the victims had shown that they were suffering from poisoning by opiate drugs. When his team arrived at the theatre building, they saw that the special squad officers, firemen and rescue workers had already started evacuating people from the building. The victims had been placed in buses; each bus had an ambulance as an escort vehicle. Mr Kr. had dispatched two or three city buses to the hospitals. Those hostages who had been able to sit had been placed in the upright position (about 20 people in each bus); others had been put on the floor (about 10 or 12 people in each bus). The latter group had included several dead people. At a certain point Mr Sl., the Head of the Moscow City Public Health Department, informed him by walkie-talkie that they should use Nalaxone. Mr Kr. noted further that the evacuation of the hostages had been somehow hindered by the ‘absence of traffic routes for the vehicles’. At the same time he concluded that the overall organisation of the evacuation of the hostages had been satisfactory.

Witness Vl., a doctor from the MCUMT, testified that he had arrived at the theatre with his team at 7.13 a.m. According to Mr Vl., he had not had a predetermined procedure for action, but had organised the evacuation and coordination with other services ‘on the spot’. Not all of the buses which had transported the victims had a sufficient number of medical staff inside to accompany the victims. Some of the buses had only one paramedic. From his testimony it was unclear whether the buses had escort vehicles. Mr Vl. also noted difficulties in the circulation of the ambulances and buses near the theatre. The efficiency of the medical assistance had been undermined by the lack of information about the gas used and by the risk of explosion.

Witness A. entered the theatre building shortly after all the terrorists had been killed. He testified that he had seen special squad officers evacuating unconscious hostages from the auditorium to the ground outside the building. There the hostages had been placed on the ground near the entrance, where the doctors inspected their eyes with hand-torches and provided first aid, namely the administration of injections in the buttocks.

Witness Mkh., a doctor in the emergency treatment unit in Hospital no. 13, testified that when he approached the hospital at 7.45 a.m. he had seen the buses at the entrance. He also confirmed that he had not seen any corpses among the victims admitted to the hospital. He described the medical procedures he had used to unblock the victims' airways.

Witness Zb., a doctor in Hospital no. 13, testified that she had arrived at work on 26 October 2002 at 8.05–8.10 a.m. By that time the buses with the hostages had already arrived. She had examined a number of patients; six were dead. The necessary records had been drawn up in the evening of that day, so the time of death had been indicated approximately, based on the time of the patient's arrival at the hospital.

Several other doctors from Hospital no. 13 testified about the admission process for the victims and the treatment they had received (cardiac massage, lung ventilation, injections of Nalaxone and Cardiomin). Most of the doctors from the various city hospitals testified that there had been enough medical personnel to treat the hostages and that premises had been freed up to admit hostages. The investigators showed the medics the photos of the victims for identification, and put questions about the record-keeping process on the day of the events.

Witness Psd., emergency physician at City Clinical Hospital no. 11. had testified that he had seen no traces of injections or incubatory tubes on the victims. He also testified that he had had no previous experience with gas poisoning. He further testified that the emergency treatment team in the hospital consisted of two doctors and five paramedics.

Witness Bgr., a doctor from the War Veterans Hospital, stated that the first hostages had started to arrive at their hospital at about 6.30 a.m., mostly in ambulances. She learned from Ms Mkh., the chief emergency physician, that they were to use Nalaxone, but they had not had any Nalaxone in stock. However, they received supplies from an official of the Emergency Situations Ministry who arrived at the hospital with a plastic bag full of Nalaxone. Ms Bgr. testified that their hospital had had four machines for artificial lung ventilation. She said that if they had known about the use of the gas they would have tried to obtain additional equipment of that sort, and that the knowledge of the nature of the gas would have helped the doctors, although the treatment would probably have been the same.

The investigators also questioned the doctors who had worked in the nearest ambulance cells (ambulance stations) or at the scene of the events on 26 October 2002. Witness Pch., senior doctor in an ambulance cell, testified that she had not been at the scene of the events, but, in her opinion, the absence of information about the gas applied in the course of the operation had not adversely affected the efficiency of the medics working there: they had acted on the basis of ‘the clinical presentation (poisoning by an unknown gas and other acute conditions)’. It had been enough to perform ‘cardio- and lung-resuscitation operations’ and apply antidotes, which had been available to the doctors. She testified that there had been no problems with the circulation of the ambulances and buses. The presence of military medics had been unnecessary. A statement in similar terms was given by Ms Kr., another doctor from the ambulance cell.

Witness Fd., a doctor in another ambulance, testified that he had accompanied 40 victims in one of the city buses on their way to Hospital no. 13. Somebody from the MCUMT had given him 10 ampoules of Nalaxone and told him that he should give injections.

Witness Scht., a doctor in an ambulance, testified that necessary medical assistance had been rendered to the victims in a timely manner. He did not know who had been responsible for the oversight of the work of various ambulance teams on the spot. He also testified that the doctors had been unaware of the content of the gas, so they had been unable to apply any specific methods of treatment to the victims. Among the negative factors which had affected the efficiency of the rescue operation, Mr Scht. noted the transportation of the victims in the city buses, lack of information about the possible diagnosis and the gas used by the security forces, or at least about the pharmaceutical group it belonged to, and a failure to sort the victims on the basis of their medical condition.

Witness Fds., an ambulance doctor, testified that he had been in an ambulance located at the parking area near the building. At 8 a.m. he arrived to the scene and took two people to Hospital no. 7 in his vehicle. They had not been informed about the use of the gas, and had not applied any special methods of treatment or any medicine. They had administered oxygen to the victims. Mr Fds. testified that there had been no problem with the circulation of the vehicles, but that there had been not enough medics to accompany the city buses which transported the hostages. The exact name of the gas had been irrelevant, but it would have been helpful if the doctors had known the content of the gas.

Witness Chr., an ambulance doctor, testified that when he had seen the first victims he realised that they were suffering from an overdose of opiates and applied Nalaxone, but had not applied any other special medicine. He stated that he had not known who was overseeing the actions of the medics at the scene. He also said, that, in his opinion, the lack of information about the gas used and possible antidotes played a negative role.

Witness Krg., a ambulance doctor, testified that at about 7.20 a.m. they had arrived at the theatre building, where their vehicle had waited for some time in the queue of other ambulances. When it was their turn to take a patient on board, somebody had opened the rear door and had placed two unconscious bodies inside the ambulance. Ms Krg. asked where she should deliver those people, but had received the reply: ‘Anywhere!’ She also asked who was responsible for the rescue operation, but the rescue workers had not known. Both victims had been in a state of grave narcotic intoxication; she had given them oxygen inhalations and lung ventilation.

Witness Sfr., an ambulance paramedic, testified that she had not been told where to transport the victims loaded in her ambulance by the rescue workers. She had to take the decision independently. She then decided to take them to Hospital no. 23, since she knew how to get there. She also testified that she had not been warned about her possible participation in the rescue operation and had not been given any specific instructions about the methods of treatment to be applied to the hostages.

Witness Krl., who worked as a car dispatcher in the ambulance cell, testified that on 26 October 2002 he had been responsible for equipping and dispatching ambulances. At 8.15 a.m. he had received an instruction to increase the stock of Nalaxone in the ambulances.

Witness Msv., an ambulance doctor, said that there had been nobody at the entrance of the building to coordinate and direct the doctors' work; there had been no place to treat the victims near the building, and the hostages had been transported in the buses without being accompanied by medical staff. He said that the ambulances had been able to circulate freely. Mr Msv. noted that the lack of information about the type of the gas used by the FSB had played a negative role.

Witness Nds., an ambulance paramedic, noted that the victims had not been sorted, and dead people had been placed in the buses alongside those still alive. Most of the buses had not been accompanied by doctors. Corpses had been loaded into the ambulances. That testimony was confirmed by Mr Knkh., another ambulance doctor. The latter also testified that he had not seen any coordinator on the scene organising the work of the rescue teams and doctors. He also noted that it would have been better if the medics had had some information about the gas. In his words, he had not been warned about his possible participation in the rescue operation before he had received the order to go to the theatre. He had received no specific instructions about procedures to follow or about any particular medical treatment to be applied to the hostages.

Witness Osp., a paramedic working in an ambulance, testified that the first hostages had been taken out of the building by soldiers, then the rescue workers started to put victims in the city buses and ambulances, without any preliminary sorting. He had not seen anybody coordinating the evacuation of and medical assistance to the hostages, although he had seen people from the Emergency Situations Ministry and the MCUMT. He noted that the name of the gas applied during the operation had been immaterial. He also testified that he had not been warned about his possible participation in the rescue operation in advance, and had received no specific instructions.

Witness Blk., a paramedic working in an ambulance, testified that she had been asked by a rescue worker to travel in a city bus with the 22 hostages placed there. She had not been given any medical equipment or drugs. On the way to the hospital the bus had stopped at each red light. She had only been able to give indirect cardiac massage or ‘mouth-to-mouth’ artificial respiration. A journalist from MK (a newspaper) had entered the bus with her; she had learned from him that gas had been used. Before the entrance to the hospital the bus was stopped by the security guards of the hospital. One hostage was dead on arrival at the hospital.

The applicants referred to the testimony of several other medics who had participated in the rescue operation, namely Mr Zkhr., Mr Lrn., Ms Suschn., who all testified that they had not received any prior warning about their possible involvement in the rescue operation or instructions about specific procedures or treatment to be applied. Mr Zkhr. testified, in particular, that he had received only six doses of Nalaxone, whereas the bus he had been in charge of had contained 17 victims, including four who were seemingly dead. Mr Msln., a paramedic of an ambulance team, testified that he would have been better prepared if he had had more syringes with Nalaxone. Ms Vlv., a paramedic on an ambulance team, testified that when she had received a victim for further transportation to the hospital she had not been told whether or not that person had already received any medical treatment. Her colleague, Ms Klv., also testified that she had not been told whether the victims had received any medical assistance. Ambulance paramedics and drivers Mr Kzm., Ms Bgtr., Ms Vlv., Mr Ptkh., and Ms Krgl. testified that either they had not had a walkie-talkie in their cars or that the system had not been operational. Paramedic Mr Kp. testified that he had not been told where to go. Paramedics Mr Prkh. and Ms Suschn. testified that their vehicles had followed other ambulances (in order to find the way to the hospital).

The investigators questioned an officer working in the public relations office of the FSB, Mr Al. He told the investigator that he had not participated in the planning of the operation. However, at about 6.30–6.40 a.m. on the morning of 26 October 2002 he had entered the theatre building on the order of his superiors. He had not smelled any gas in the auditorium because he had the flu. He had seen that the hostages were unconscious; their skin had been bluish. Special squad officers had been taking the hostages out of the auditorium and taking them to the ground floor of the building. On the ground floor medics had taken care of the victims: they had checked their eyes and given injections in the buttocks. The doctors had been wearing blue uniforms. Mr Al. toured the building, since he had had to take photos of the terrorists' corpses. Shortly afterwards, when he returned to the main auditorium, the evacuation of the hostages had already ended. Mr Al. concluded that it had been done very quickly. Mr Al. had made a video recording of the auditorium, but only when the hostages had been removed.

In January-February 2003 the Bureau of Forensic Examinations of the City of Moscow Health Department, at the request of the MCPO, examined the materials of the case file, namely the medical files of the deceased victims and the witness statements which described the process of evacuating the hostages. Those reports indicate that the exact time of death was not always recorded by the medical staff of the ambulances or hospitals, but was established later as a result of the post-mortem examination. In most cases the post-mortem examination showed that death occurred on 26 October 2002 between 6 a.m. and 8 or 9 a.m. Where the medical file contained an entry with the exact time of the death (not all of the reports contained information about the time of death), the results were as follows: four people died before 7.29 a.m., seven people died between 7.30 and 7.59 a.m., twenty-four people died between 8 and 8.29 a.m., thirteen people died between 8.30 and 8.59 a.m., and twelve people died after 9 a.m.

The above forensic medical examination reports also contained information about the resuscitation procedures applied to the hostages. However, in 58 cases the reports mentioned that ‘there was no information about the provision of medical aid [to the victim]’ (according to the applicants, this figure varied from 68 to 73). In over 15 cases the doctors discovered traces of intravenous injections in the victims' arms, whereas in other cases the doctors testified that the diseased victims had received assisted lung ventilation, cardiac massage and similar resuscitation procedures. In many cases the reports stated that the patient had been admitted to hospital in a critical state, with almost no breath or pulse. The medical files of 17 people contained an entry that ‘no chronic diseases were detected’.

In their general conclusions the doctors of the Bureau of Forensic Examinations of the City of Moscow Health Department established that most of the deceased hostages had suffered from various chronic diseases and pathologies which, together with physical and mental exhaustion and other negative factors related to the three days of captivity, had exacerbated the effects of the gas. The doctors concluded that the gas had had an ‘indirect effect’ at best, and that the victims had died as a result of a coincidence of factors.

The first video recording (disc no. 1) shows the central entrance to the theatre building. The recording is made from an upper-floor window of one of the buildings across the street, from a distance of about two hundred metres.

According to the timing information on the video, the recording starts at 9.35 p.m. There is no date, but apparently it is the evening of 25 October 2002. It shows a group of people coming out of the building. The applicants explained that those people were five Azeri hostages released by the terrorists.

At 11.23 p.m. a lone figure enters the building. Again, the applicants explained that this was Mr Vl. entering the building.

At 11.49 p.m. a man in red approaches the building but then returns to the point where the security forces are stationed.

At 2.05 a.m. (the early morning of 26 October 2002) two ambulances approach the building. The medics enter the building and then return carrying a body on a stretcher (2.15 a.m.), then another (2.17 a.m.). At 2.18 a.m. the ambulances leave the car park. According to the applicants, the doctors evacuated Ms St., who had been wounded by an accidental shot during the incident with Mr G., and Mr Z. The ambulances arrived two hours after the terrorists requested them.

At 5.33 a.m. the sound of shooting can be heard from the building. Two minutes afterwards there is an explosion in the foyer of the theatre.

At about 6.22 a.m. heavily armed officers from the special squad, wearing bullet-proof vests, helmets and masks, appear in the foyer of the theatre.

At 6.30 a.m. there are several explosions in the foyer.

At 6.46 a.m. the first three hostages come out of the building; a special squad officer helps one of them to walk. They are conveyed to an off-road vehicle parked on the car-park. No ambulance can be seen at this point.

At 6.51 a.m. a hostage comes out by himself.

At 6.52 a.m. another group of uniformed men enter the building; they are not wearing helmets. At the same time, special squad officers drag out an unconscious body by the hands and place it on the stairs just outside the main doors (6.51.32). An officer carries a woman in red on his shoulder.

At 6.53 a.m. an officer approaches the man who was earlier left on the stairs of the building and drags him away. It appears that this person's hands are handcuffed or tied behind his back. A woman in uniform with fair hair approaches them. She holds an object in her hand which looks like a handgun or something similar. She points it at the person prostrated on the floor (6.53.27 – 41), then other uniformed men bend over the body and push it closer to the wall.

More hostages come out of the building, and others are carried out by the officers. The first ambulance appears at the scene at 6.57 a.m. Then three rescue-service vehicles appear. People in yellow uniforms come out of the vehicles and enter the building through the main entrance. Within a few seconds new rescue-service vehicles arrive; more rescue workers enter the building, and some of them carry out unconscious bodies. It appears that some of those bodies have already been lying on the floor of the foyer, some of them face up (6.52.37). The recording ends here.

The next recording (no. 2) is made from the same position and starts a few seconds after the end of the first recording. It shows the beginning of the mass evacuation of hostages (7 a.m.). Rescue workers and special squad officers carry unconscious people out of the building. Most of the bodies are carried by their hands and legs, some of them are carried face down, others face up. A person near the entrance seems to be coordinating the actions of the rescue workers and showing them where to take the hostages.

At 7.05 a.m. the camera zooms out over the parking area. From this point the image becomes quite blurred. There are no ambulances on the parking area; then one vehicle arrives. At 7.06 a.m. more ambulances start to arrive from the left, led by the rescue-service vehicles.

By 7.11 a.m. over a dozen bodies have been placed on the stairs outside the entrance. Several rescue workers are examining them and manipulating the bodies, but it is impossible to see what they are doing. It appears that some of workers are giving heart massage. In the meantime the evacuation continues.

By 7.20 a.m. city buses appear on the parking area. The number of people in front of the building and in the foyer reaches its peak at about 7.30 a.m.

At 7.33 a.m. a person in a rescue worker's uniform appears to give an injection to one of the victims lying on the floor.

In the following minutes several ambulances and buses leave the scene, while others arrive. The ambulances move slowly, but they do not seem to be completely blocked, or at least not for any length of time.

By 7.55 a.m. there are hundreds of people on the staircase of the building: special squad officers, rescue workers, police officers, medics, etc.

At 8.03 a.m. a line of city buses waiting for their turn can be seen on the car park. The evacuation of the victims continues, although at a slower rate.

The next episode starts at 8.58 a.m. It appears that by this time the mass evacuation of hostages is over. Nevertheless, several ambulances arrive at the parking area at 9.30 a.m. At 9.35 a.m. the military armoured cars start to leave the scene.

The applicants also produced a copy of the film made by the Moscow City Rescue Service, on three discs. It showed pictures of the evacuation of the hostages, interviews with doctors, public officials and former hostages. On minute 37 of the recording (disc no. 2 of the film) it shows a city bus with unconscious people sitting upright in the seats. It also shows the cordon line, and the passage of the ambulances and city buses through it.

The three discs contain extracts from the recording made by the rescue service. It appears that the recording was made from a different angle than the recording described above, and was of a better quality. However, only parts of the recording are available. The most relevant parts are on disc no. 3, starting from the 46^th minute of the recording. It appears that this minute corresponds to 6.50 a.m. on the ‘amateur’ video recording described above. It can be seen that more than a dozen unconscious bodies are lying on the ground in front of the theatre entrance in the face-up position (48th minute of the recording and onwards). From the 51^st minute the recording shows the inside of the main auditorium. It shows rescue workers and officers of the special squad who are evacuating unconscious people. They are not wearing gas masks. The litter on the floor between the rows of chairs includes empty packs of juice.

The tape also contains a number of interviews with former hostages, doctors, and officials. One of the former hostages in the hospital told the interviewers that the terrorists had planned to liberate all foreign citizens at 8 a.m.

In 2007 one of the applicants commissioned an expert examination of the lethality of the gas used by the Russian security forces. The examination was carried out by Dr Mark Wheelis, PhD, a microbiologist, and a professor at the University of California in Davis, the United States. In his report dated 12 March 2007 Dr Wheelis concluded as follows:

The same applicant also asked for an evaluation of the autopsy report on his son. The examination of the report was carried out by Dr Martin Furmanski, who is a toxicologist practicing in the United States and a specialist on chemical weapons. On 22 February 2007 Dr Furmanski submitted a report. He agreed that the applicant's son had died as a result of ‘acute respiratory and cardiac insufficiency … caused by the action of the unidentified chemical substance’ (quote from the autopsy report). At the same time Dr Furmanski considered that there had been no reduced oxygen in the theatre, at least to a biologically significant degree.

Further, in his view, many of the ‘multi-factor’ findings that the official report cited could not have contributed to the victim's death, because they are agonal changes seen only after the body had suffered terminal circulatory collapse as a result of a failure to breathe because of the effects of the special substance. In his opinion, pre-existing conditions would not have contributed significantly to the lethal effects of the special substance. Of the findings that existed prior to the introduction of the special substance, none would have significantly affected the victim's chance of survival. Even the most severe of those findings (the erosive gastritis and loss of only 200 cc of blood), would not have been sufficient to compromise his blood pressure or circulation, particularly as he was confined and did not need to exert himself.

Dr Furmanski claimed further that some of the alleged pre-existing conditions could not be verified from the available record, and even if present would have been trivial. He compared the forensic histological study of 15 November 2002 and a repeat study report, and concluded that their findings were contradictory. He noted that the ‘repeat histological study’ contained similar findings to the other two autopsy cases which were provided for his examination, namely the finding of chronic encephalitis and chronic meningitis. He said that these were very uncommon diseases, and it was a rare coincidence that three persons attending the same theatre on the same date suffered from them. Dr Furmanski further challenged the conclusions of the report concerning the fatty changes discovered in the victim's liver: he concluded that the victim's liver had not been compromised by fatty change, and, even assuming so, the function of the liver was unimportant to the effect of Phentanyl and its related compounds on the human body.

Dr Furmanski further stated that the effects of the Phentanyl family of drugs are well known. At moderate doses those drugs suppress pain, and at high doses they cause a sleep-like state, and at higher doses they cause a coma. All opiates also suppress the urge to breathe in a dose-dependent way. When unconscious the breathing may slow below the point that is needed to maintain sufficient oxygen in the blood to sustain normal body functioning. Even if breathing continues at a reduced rate, the relaxation caused by opiates can cause the neck and tongue to become limp and result in an occlusion of the airway. This positional asphyxia is a particular risk if the recipient is sitting upright. In addition, when opiates (and particularly Phentanyl-type drugs) are given rapidly, it causes muscular rigidity, and this can stop breathing entirely. The spasm of rigidity can result in violent pitching of the trunk. Such a forward pitching might well have caused a blow to the forehead from the theatre seat ahead.

Dr Furmanski noted that the clinical picture of no ‘medical’ deaths for three days, and then scores within minutes of the release of the special substance strongly implicated the special substance in the subsequent deaths and disabilities. The report concluded that ‘the findings of [the victim's] autopsy are fully consistent with a death caused solely by an overdose of an opiate such as Phentanyl or a related derivative, received from an aerosol delivery during the special operation’.

The applicants produced copies of press interviews with former hostages, rescue workers, bus drivers, etc. Thus, Ms Pvl., a former hostage, stated in an interview with Vremya Novostey that she had managed to get out of the main auditorium of the theatre by herself. She, together with other hostages who had been in relatively good shape, had first been taken to hospital, but the hospital in question refused to admit them. They had returned to the theatre, where they had been put in a bus and taken to another hospital (City Hospital no. 13). The driver of the bus had not known where to go and had had to ask for directions all the time. They had taken ninety minutes to arrive at the hospital.

Another participant in the events, Dmitri (who gave only his first name), stated in an interview with Sobesednik that he was an ambulance doctor. At about 5.30 a.m. he had received an order to go to the theatre. However, his vehicle had been stopped at the cordon by police because they had not yet received an order to let the ambulances through. This had delayed them for ten minutes. The traffic near the theatre had also been slow because of the heavy machines parked there. Some of the hostages had already been taken out of the building. An open box with syringes and Nalaxone was lying nearby. Somebody shouted: ‘Everyone, give injections!’ Those hostages who had received injections were not identified by a mark: as a result, some of them had received two or three shots of Nalaxone, which was a fatal dose. There had been no time to carry out artificial respiration because of the risk of explosion. His car had transported eight unconscious people to the War Veterans Hospital, but it had been difficult to get close to the entrance because of the vehicles parked on the street. 500 beds were ready in the hospital, but the medical staff had not been prepared to cope with such a flow of patients. As a result, that hospital had admitted only 120 patients. In the meantime, the special squad officers had been piling up bodies in the city buses. The bus drivers, mostly from outside Moscow, had not known where to go. When the first ambulance arrived at the Sklifosovskiy Hospital, there had been nobody to meet the ambulance team and dispatch the patients to the appropriate departments. V. Mkh., the head of the Digger-Spas group, testified that one person had been mistakenly taken for dead.

Mr Sng., in an interview with Komsomolskaya Pravda, submitted that he had seen that the bodies in the two buses which arrived at the Sklifosovskiy Hospital were piled up on the floor. In another interview published in the same newspaper, witnesses Mr Shb. and Mr Krb. described the conditions of transportation of the victims. Both were drivers of the buses used to transport the hostages to the hospitals. They stated that, in spite of all the efforts to clear up the area, traffic near the building had been slow, especially because of the ambassadors' cars parked on the streets. Once the bodies were loaded in the bus, policemen had told the drivers to follow the ambulance. When the buses arrived at the Sklifosovskiy Hospital, the hospital did not have enough staff to take the bodies out of the buses immediately. They had first taken care of the people brought in the ambulances, then of those in the buses.

One of the former hostages, Ms Gubareva, described the conditions in the main auditorium of the theatre. In particular, she submitted that the female suicide bombers had never left the auditorium. One of them, who had been sitting nearby, always had a detonation device in her hands. She told Ms Gubareva that the biggest explosive device would be sufficient to ‘blow up three auditoriums like this one’. Another former hostage, Ms Akimova, confirmed that the suicide bombers had not let the detonators out of their hands. Witness Mr Zhirov stated that his1. relatives had been held in the theatre. He1. testified about the role of Mr Talkhigov, who had established contact with the leader of the terrorists. Ms Karpova, who had also had relatives among the hostages, said that the first official account of the operation had been very optimistic; there had been no information about any victims. Both she and Mr Kurbatov, whose daughter died in the theatre, testified how difficult it had been to receive any information about the former hostages. Similar testimony was given by Mr Milovidov.

The applicants produced a report prepared by the All-Russia Centre of Disaster Medicine at the Ministry of Public Health (Zashchita). The Centre's experts noted that the use of phentanyl had been justified in the circumstances. They described the medical effects of phentanyl and its possible side-effects. The experts also noted that phentanyl could be dangerous for people suffering from asthma, hyper-reaction, arterial and brain hypertension, hypoxia, and respiratory distress. The report noted that the majority of the deceased hostages suffered from different pathologies which led to their death. The report further stated that the various services (rescue workers, medics) involved in the rescue operation had acted in a coordinated manner. Almost all the victims had received injections of Nalaxone; all the victims in a critical state had been transported in ambulances and had received artificial respiration and ‘syndrome therapy’. The report noted, inter alia, that the effectiveness of the medical aid had been lowered by the following negative factors:

The report also noted the high concentration of the gas, which had led to instantaneous death [in some cases].

On an unspecified date Mr Nmt., a Member of Parliament, requested the MCPO to conduct an inquiry into the process of evacuation of and medical assistance to the hostages. He alleged that the authorities had acted negligently, and that it would have been possible to avoid human losses by more adequate first aid to the gas victims on the spot and in the hospitals. Mr Nmt. submitted materials in his possession to the investigation team, namely a report by an expert team set up by the SPS political party, and several video recordings made at the scene of the events immediately after the building had been cleared of the terrorists (copies of the report and video recordings were submitted to the Court by the applicants).

On 2 December 2002 the MCPO refused to entertain the investigation. noted that the documents produced by Mr Nmt. were not properly signed or certified, and that they were tainted with various procedural informalities. As to the video recordings, they had been made from such a distance that it was impossible to reach any decisive conclusions. Nevertheless, based on those videotapes the investigator concluded that ‘the victims had been transported in different postures, particularly ‘on their backs’, and they had been placed before the entrance of the building pending further medical assistance. [The videotape showed] that the victims received injections or assisted respiration. There was no evidence that there had been any hindrance to the circulation of the transport by which the former hostages had been evacuated’.

further related the testimony of several witnesses (see below, the outline of the witness testimony collected by the investigative team). The investigator established that neither Ms Ks, the director of the MCUMT, nor Mr Sl., the Head of the Health Department, had been aware of the time and methods of the rescue operation; they had not been informed about the intended use of the gas due to secrecy considerations. However, in the circumstances, and given the information available to them, they had acted in the best possible way. Most of the people (114 persons) had died in the theatre building; only a few had died in hospital. The investigator concluded that the above officials, as well as other State officials responsible for medical assistance to the hostages, were not guilty of negligence.

On 29 March 2003 Mr Finogenov, one of the applicants, complained to the General Prosecutor's Office (the GPO) about the conduct of the investigation proceedings. He sought a more thorough examination of the cause of his brother's death.1.

On an unspecified date Mr Finogenov asked the MCPO to disclose the post-mortem medical examination report on the body of his brother2., in order to conduct an alternative medical examination of the causes of his3. death. By a letter of 8 April 2003 the MCPO refused to give permission for disclosure.

On 10 June 2003 Mr Finogenov asked the MCPO to enlarge the scope of the investigation and examine the lawfulness and expediency of the use of gas by the security forces. On 15 June 2003 he repeated his request for disclosure of the post-mortem examination report1.. On 23 June 2003 the MCPO refused to investigate the conduct of the operation by the security forces and to give permission for disclosure of the medical report2..

On 26 July 2003 Mr Finogenov again complained to the GPO about the inadequacy of the investigation. He maintained, in particular, that the investigator had refused to examine the course of the rescue operation, specifically the use of a potentially lethal gas, and the failure to provide assistance to the hostages after their release. He also complained that he had no access to the materials of the case and that he was unable to participate effectively in the proceedings. The applicant's complaint had been referred by the GPO to the MCPO without an examination on the merits. The applicant challenged before the courts the refusal of the GPO to entertain his complaint, but the court ruled that Mr Finogenov's petition was not a proper criminal-law complaint which would require an inquiry. That judgment was upheld on appeal by the Moscow City Court on 19 January 2004.

On 13 October 2003 Mr Finogenov asked the prosecution authorities to allow him to participate in Mr Talkhigov's case as an injured party, but this was refused on 23 October 2003. The investigator noted that the case against Mr Talkhigov (no. 229136) had been severed from the ‘main’ criminal case (no. 229133) in which the applicant had victim status. The investigator further noted that Mr Talkhigov had not caused any harm to the applicant; furthermore, the Moscow City Court was considering whether it was possible to allow the relatives of the deceased hostages to participate in Mr Talkhigov's trial.

On 14 October 2003 Mr Finogenov asked the MCPO to obtain information from the FSB, which had coordinated the rescue operation, about the nature and content of the gas used by the authorities. On 28 October 2003 he received a reply in which he was advised that ‘the information on the concentration and content of the gas … is not relevant for establishing the cause of death of the hostages’.

On 6 November 2003 Mr Finogenov lodged a criminal-law complaint with the Zamoskvoretskiy District Court of Moscow concerning the inadequacy of the investigation carried out by the MCPO and the refusal to investigate the conduct of the rescue operation. He also sought to obtain from the MCPO copies of the decisions not to initiate an investigation into the conduct of the rescue operation. However, on 22 and 25 March 2004 the Zamoskvoretskiy District Court decided not to request those documents from the MCPO. On 25 March 2004 the Zamoskvoretskiy District Court dismissed Mr Finogenov's complaint. The applicant appealed. On 17 June 2004 the Moscow City Court quashed the decision of 25 March 2004 and remitted the case to the Zamoskvoretskiy District Court for a fresh examination.

Mr Finogenov repeated his request for the disclosure of the materials of criminal investigation no. 229133, and the decisions refusing to open an investigation into the conduct of the rescue operation. In November 2004 the MCPO produced parts of the case file and some of the decisions referred to by the applicant. On 30 March 2005 Mr Finogenov supplemented his claims in view of the materials received from the prosecution.

On 30 May 2005 the Zamoskvoretskiy District Court dismissed Mr Finogenov's application. The court established that the investigative actions had been carried out in conformity with the law and that all of the relevant evidence had been collected. The investigator had ‘fully and objectively’ assessed the actions of the security forces and the medical staff during the crisis.

On 13 July 2005 the Moscow City Court upheld the judgment of 30 May 2005. The City Court confirmed that the MCPO's decisions, contested by the applicant, ‘were in conformity with the law of criminal procedure, contained reasons, were taken by an authorised official and were based on evidence collected during the investigation’.

On 8 May 2003 Ms Gubareva asked the GPO to provide her with copies of medical documents relevant to the death of her relatives. However, the request was refused on the ground that, according to the law, an injured party could obtain access to the materials of a case only after the investigation had been closed.

On 23 October 2003 the applicant complained to the GPO about the inadequacy of the investigation carried out by the MCPO. This complaint was forwarded to the MCPO which, by letter of 21 November 2003, informed the applicant that on 17 October 2003 it had been decided not to prosecute the officials who had planned and participated in the rescue operation.

On 12 October 2004 the applicant lodged a criminal-law complaint with the Zamoskvoretskiy District Court of Moscow, seeking to obtain a more thorough investigation into the conduct of the rescue operation. In particular, she claimed that the investigation had failed to address the following allegations:

On 5 May 2005 the Zamoskvoretskiy District Court of Moscow dismissed the applicant's complaint. The findings of the Zamoskvoretskiy District Court are similar to those of the Zamoskvoretskiy District Court in Mr Finogenov's case (see paragraph 131 above). On 6 July 2005 the Moscow City Court upheld the judgment of 5 May 2005.

In 2007 Ms1. Gubareva introduced several motions with the investigator in charge of the case. She requested access to certain materials of the case, including written testimonies of some witnesses. Some time later2. she was given access.

On 29 May 2003 Mr Kurbatov asked the MCPO to carry out an additional investigation measure aimed at establishing certain facts relevant to the death of his daughter. On 5 June 2003 he was informed that all necessary investigative actions had been carried out and that he would be given access to the materials of the investigation once it had been completed.

On 26 June 2003 the applicant repeated his request for information. On 1 July 2003 the investigator in charge of the case informed him that his daughter had died in the theatre building; however, no further information or supporting documents were provided.

On 5 February 2004 the applicant asked the prosecution authorities to examine the circumstances of his daughter's death more thoroughly. He claimed that his daughter's death had been caused by the unknown gas employed by the security forces. On 8 April 2004 he received a reply from the MCPO advising him that the expert examination, carried out earlier, had not established a causal link between the effects of the gas and the death of the hostages.

On 26 May 2004 the above two applicants lodged a criminal-law complaint with the Zamoskvoretskiy District Court of Moscow, seeking to obtain a more thorough investigation into the conduct of the rescue operation. On 20 September 2004 the Zamoskvoretskiy District Court of Moscow dismissed the applicants' complaint. The applicants appealed, but on 29 November 2004 the Moscow City Court upheld the District Court's judgment.

On an unspecified date the two applicants lodged a criminal-law complaint with the Zamoskvoretskiy District Court. They complained about the prosecuting authorities' refusal to pursue the examination of the facts of the case in respect of the planning and conduct of the rescue operation. On 8 December 2005 the Zamoskvoretskiy District Court dismissed the applicants' complaint. The court held that the investigation had been thorough, that the investigation team had gathered all possible evidence in accordance with the law, that they had been subjected to unbiased and comprehensive examination and that the investigative team's conclusions were well-founded and lawful. The court further held that it had no power to examine the effectiveness of the investigation and the alleged failure of the prosecuting authorities to inquiry into certain factual aspects of the events, namely to establish the liability of the medical staff and the special squad officers who had been involved in the rescue operation. On 24 April 2006 that decision was upheld by the Moscow City Court.

On an unspecified date in 2002 some of the applicants who were Russian nationals contacted the Moscow City Administration in order to obtain compensation for non-pecuniary damage (moralniy vred) caused by the terrorist attack. They referred to section 17 of the Suppression of Terrorism Act of 25 July 1998, which provided that the damage caused by a terrorist attack should be compensated by the authorities of the federal constituency where the attack took place. However, the authorities refused to indemnify the applicants.

In November 2002 a group of the applicants who were Russian nationals brought civil proceedings against the City Administration before the Tverskoy District Court of Moscow. The applicants claimed that the 1998 Act imposed on the city authorities an obligation to compensate damage caused by a terrorist attack. They also maintained that the rescue operation had been inexpedient, that the actions of the authorities had been inept, that the hostages had not been properly evacuated from the building and had not received the necessary medical aid on the spot and in the hospitals. As a result, the applicants had been injured or lost relatives.

In the course of the preliminary hearings the applicants challenged the judge on the ground that the courts in Moscow were funded from the budget of the City Administration, the defendant in their civil case. This practice, they claimed, contradicted federal law and created dependence of the courts vis-à-vis the Moscow City authorities. They asked that the case be transferred to the Moscow City Court.

The applicants also requested the judge to summon a number of witnesses, namely the politicians who had participated in the negotiations with the terrorists, and the State officials who had planned and directed the rescue operation. They also requested the judge to obtain certain documentary evidence from the authorities and commission a forensic report in order to elucidate the cause of the death of the deceased hostages. The applicants also requested the court to admit certain evidence, in particular the report on an independent investigation of the events by the SPS political party. Finally, the applicants sought the recording of the hearing on audio- and video-tapes.

Judge Grb. examined those motions and dismissed almost all of them. Thus, she refused to withdraw from the case; she also refused to call the witnesses suggested by the applicants and to obtain the evidence sought by them; from the record of the hearing it appears that the judge considered it irrelevant. Finally, she prohibited any video- and audio-recording of the trial.

The hearings on the merits were held on 22 and 23 January 2003. In the course of the hearing many applicants testified about the circumstances of the rescue operation. The defendants made oral pleadings. The applicants, as plaintiffs, requested the adjournment of the case in order to prepare their arguments in reply to those of the defendants, but the court granted an adjournment of only a few hours. The next day the applicants repeated the request for adjournment, but it was refused.

On 23 January 2003 the Tverskoy District Court dismissed the applicants' claims in full. On 28 April 2003 the Moscow City Court upheld that judgment. The courts found that, as a general rule, damage should be compensated by the tortfeaser (Article 151 of the Civil Code). Under Article 1064 of the Civil Code civil liability for tort could be imposed on a third person (not the tortfeaser) if this was directly stipulated by the law. However, the court found that the 1998 Act did not specifically provide for compensation of non-pecuniary damage by the State for an act of terrorism in the absence of fault on the part of the State authorities.

The court also refused to award damages for the allegedly inadequate planning and conduct of the rescue operation. It found that the Moscow authorities had defined a list of measures to be implemented in order to prevent terrorist attacks and help their victims, issued the necessary regulations to that end and created entities dealing with such situations. The court referred to the case-law of the European Court of Human Rights, namely the judgment in McCann and Others v. the United Kingdom (27 September 1995, Series A no. 324). It noted that the use of lethal force might be justified under Article 2 of the Convention where it was based on an honest belief which could have been regarded as valid at the time. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others.

The court finally noted that the criminal investigation into the events of 23–26 October 2002 was still pending, that the causal link between those events and the death of the applicants' relatives had not yet been established, and the liability of those in charge of the rescue operation had not yet been established by any court decision.

As a result, all of the applicants' complaints were dismissed. The court of appeal upheld the findings of the district court as to the merits of the case and did not establish any breach of the procedure by the lower court, without, however, giving any detailed analysis of the procedural complaints of the plaintiffs.

In the following months the Tverskoy District Court issued a number of similar judgments in respect of other applicants. Those judgments were upheld by the Moscow City Court on appeal. As appears from the motion lodged by the applicants' lawyer on 10 December 2003, the applicants challenged the Moscow City Court, claiming that it was also partial because of the funding it received from the defendant. However, the Moscow City Court dismissed that argument.

Those applicants who were foreign nationals, namely Ms Burban, Ms Burban-Mishuris, Ms Gubareva, and several other victims of the events of 23–26 October 2002, brought a civil action before the Basmanniy District Court against the federal government, claiming damages on the same grounds. The applicants sought to obtain the attendance of certain witnesses and examination of additional evidence, as in the proceedings before the Tverskoy District Court, but this was refused. On 6 August 2003 the court dismissed their claims. The court's reasoning was broadly similar to the reasoning given by the Tverskoy District Court in its judgment of 23 January 2003. On 10 October 2003 that decision was upheld by the Moscow City Court.

The applicants claimed that the requirements of the terrorists had not been unrealistic and that, contrary to what the authorities had always suggested, those requirements could have been met. The applicants further indicated that no high-level political figures had been involved in the negotiations with the terrorists. The ‘negotiators’ who had participated in the talks with the terrorists were just well-known politicians and journalists who had volunteered to transmit the terrorists' message to the authorities. However, the Russian leadership always declared that talks with the terrorists were not permissible under any circumstances. The applicants referred to several public statements by the then President Putin and the then Minister of Defence Ivanov to that end. The main concern of the authorities during the whole crisis was to avoid ‘erosion of the prestige of Russia on the international arena’, as it was put in one of the investigator's decisions. The terrorists' ‘readiness to die’ was merely a declaration which should not have been taken seriously. Or, if it was taken seriously, it should have deterred the authorities from the storming, and not prompted it.

The alleged ‘executions of hostages’, which the authorities used as a pretext for the storming, concerned those persons who had tried to penetrate the building from the outside and who had thus been perceived by the terrorists as spies. Mr G. had been killed for having resisted the terrorists, so his death had not been an ‘execution’ either. Mr Z. was shot by accident1. in the evening of 25 October 2002 and carried away in an ambulance at 2 a.m. the following morning, i.e. long before the storming. No other incidents took place before the storming. ‘Executions’ had thus been merely an excuse for the start of the operation. On the contrary, the terrorists had been prepared to continue releasing the hostages: thus, the first (and the biggest) group of children had been released on 23 October 2002, unconditionally and before any talks with the authorities. Two other groups of children had been released on 24 and 25 October 2002. Fourteen foreign nationals had been released before the storming. The hostages had had at their disposal water and juice, which was confirmed by several witnesses and by the video-recording in the main hall of the theatre.

As to the assessment of the risks of explosion made by the crisis cell during the siege, the Government's reference to it was unsupported, since, as the Government claimed, all documents from the crisis cell had been destroyed. As to the ex-post-facto expert examination of the explosives, the Government misinterpreted the conclusions of the experts. The theoretical risk of the ceiling's collapse existed only if all of the explosives had been concentrated in the same place in the centre of the hall and had detonated simultaneously. In reality the explosives had been dispersed in the hall, and the risk of their simultaneous detonation by way of a chain reaction was assessed by the experts between 3.7 and 14 %, depending on the direction of the blasts. Some of the explosives were not connected to the activation devices or batteries had been removed from those devices. At the same time the Government failed to mention another explosive device with a system of time-lagged activation.

The Government failed to indicate who had taken the decision to use the gas. The Government failed to provide the Court with a list of members of the crisis cell. It is unclear whether those members were informed about the use of the gas. As follows from the statement by the Head of the Moscow Public Health Department, Mr Sl., he had been informed about the use of the gas a few minutes before the storming. The Government's assertion that the gas was not a ‘lethal force’ is not supported by the materials of the case and contradicted their own submissions: thus, while claiming that the gas was not lethal they, at the same time, maintained that it had been impossible to foresee its possible effects. Furthermore, the Government's own description of the effects of the gas and its relation to the death of the hostages disproved their assertion that the gas was harmless. The applicants describe the effects of the phentanyl (the main components of the unknown gas), its counter-indications, etc. In particular, the sources to which the applicants referred warned against applying phentanyl to weakened patients, to very young and very old people, and especially against applying it without the possibility of providing artificial lung ventilation. The Government failed to indicate whether the gas had ever been tested before 26 October 2002.

According to the applicants, the former chief of the KGB military counter-intelligence department, vice-admiral Zh., warned in an interview during the siege that use of the gas might cause human losses, especially amongst asthmatics and children. The Government had at its disposal experts who could have explained to them the consequences of the use of the gas.

The applicants then referred to the hostage-taking crisis in Peru in 1997, when the Peruvian authorities requested an opinion from the American authorities on the use of a phentanyl-based narcotic gas during the storming. The American authorities answered in the negative, because the use of such a gas would require a simultaneous deployment of 1000 doctors in order to provide quick medical assistance to 400 hostages. Since it was impossible to organise such massive medical assistance, the Peruvian authorities decided not to use the gas.

The gas was visible both to the terrorists and to the hostages. However, the terrorists did not activate the explosive devices. They had actively resisted the storming squad officers, firing back from 13 machineguns and 8 handguns. That showed that, had they wished, they could have killed the hostages, but that was apparently not their intention.

Shortly after the storming Mr Ign., the press officer of the crisis cell, informed journalists that ‘several terrorists’ had been arrested. However, that information was not subsequently confirmed. It follows that either the remaining terrorists had been executed after arrest or some of them had fled.

The applicants maintained that the doctors were unaware of the use of the gas, of its effects and of the treatment to be applied in such a situation. Some of the rescue workers and doctors had learned about the gas only from the mass media, when the evacuation was already over. The applicants stressed that Nalaxone was in itself a dangerous drug with numerous serious side-effects. In cases of prolonged exposure to a narcotic gas such as the one used in the present case, Nalaxone could have had been applied only in combination with other medical procedures, in particular artificial lung ventilation, intubation and elimination of the lung oedema. Otherwise it was capable of exacerbating the effects of the narcotic gas.

The Government's assertion that the victims had been sorted into four groups depending on the gravity of their condition was not supported by any evidence, since the documents of the crisis cell had allegedly been destroyed. The drivers of the city buses and the drivers of the ambulances had not received any specific instructions on where to take the victims. In the applicants' opinion, the evacuation routes of the victims had not been prepared, many victims did not receive any assistance on the spot at all. About 60 ambulance teams had not taken part in the operation, although their participation had been originally planned.

Some ambulance teams had not been equipped with walkie-talkies and had thus been unable to receive information. Neither had they had sufficient medicine: thus, the standard pharmacy kit of an ambulance, to which the Government referred, included one dose of Nalaxone. There had not been a sufficient stock of Nalaxone in the hospitals. As a result, Nalaxone had been transported from a hospital in the town of Zhukovskiy in the Moscow Region. There had not been enough doctors to accompany the city buses in which the victims were transported.

Lack of instructions and appropriate material seriously undermined the efficiency of the medical assistance. The applicants argued that those of their number who had been personally amongst the hostages had not received adequate medical treatment. The fact that many people had died because the medics were not informed about the nature of the gas and appropriate methods of treatment had been also confirmed by interviews granted by President Putin to the press. In those interviews Putin acknowledged that many people had been put on their backs and were thus suffocated by their swollen tongues or their own vomit.

According to the applicants, some of the rescue workers and the special squad officers were also poisoned by the gas. In the applicants' opinion, this showed that the gas remained toxic for quite a while. Most of the hostages had been exposed to the gas for more than two hours — from 5.30 a.m., when the storming began, until at least 7.25 a.m., when the mass evacuation started. The evacuation of the hostages had still been going on 4 ½ hours after the start of the storming. In the applicants' opinion, the data on the time of the death of the hostages contained in the medical documents was unreliable, since the time had either been recorded approximately, or not recorded at all. The applicants pointed to various inconsistencies between the medical documents and the evidence given by the doctors.

The applicants indicated that the criminal investigation had focused on the hostage taking. The authorities' actions have never been formally investigated within the criminal case. The investigations had in fact been restricted by President Putin's declaration to the mass media that ‘we [will] not punish anybody …’. The investigators did not try to establish the circumstances of death of each hostage, the time of death and other circumstances, although it could easily have done so. The conclusions of post-mortem expert examinations in respect of the time and place of the death were unspecific and contradicted other materials in the case.

The investigation was not independent. Thus, 28 FSB officers had been included in the investigative team, although the very same agency had been responsible for the planning and conduct of the rescue operation. At the same time, as followed from the materials submitted by the Government, FSB officers (except for one, who had been injured by the gas) had not been questioned during the investigation.

The investigators had failed to question witnesses who had not participated in the rescue operation, such as journalists, passers-by, ‘diggers’ etc. The investigators failed to inquire into the alleged theft of the ill hostages’ belongings and money by law-enforcement officials after the liberation.

All complaints and motions lodged by the relatives of the deceased hostages were replied to with significant delays. The relatives of the victims were unable to participate effectively in the proceedings. Thus, they were unable (as the case of Mr Finogenov showed) to obtain permission for disclosure of the post-mortem medical reports in order to conduct an alternative medical examination of the causes of the victims' deaths. Further, the applicants had not been given victim status in the proceedings against an accomplice to the terrorists, Mr Talkhigov, whose case had been severed from the main case and heard behind closed doors.

The conclusions of the Bureau of Forensic Examinations of the City of Moscow Health Department to the effect that the gas had not caused the death of the victims could not be trusted, since the Bureau's doctors had never been informed of the characteristics of the gas, let alone its exact formula. The non-disclosure of the formula of the gas was not justified and prevented the public from scrutinising the actions of the authorities during the hostage crisis. The fact that during the three days of the siege none of the hostages died from the ‘chronic diseases’ from which they allegedly suffered showed that the principal cause of death was the gas. Some of the reports of the Bureau of Forensic Examinations were identical: cf. post-mortem reports of Mr Booker and Ms Letyago, whereas it is highly unlikely that the bodies of a 13-year old child and a 49-year-old man would present exactly the same clinical picture. Moreover, the Bureau's report contradicted the clinical picture confirmed by all of the doctors who provided medical assistance to the victims, who all concluded that the victims had been poisoned by the unknown toxic gas and applied the corresponding methods of treatment.

All known terrorists were killed during the storming; as a result, they could not be questioned about the circumstances of the siege and the storming. It was now impossible to obtain an answer to the question of why the terrorists had not activated the explosives when the storming started.

Before addressing the substance of the applicants' complaints, the Court has to resolve an essential factual controversy between the parties, which might eventually predetermine the Court's approach to the case. The applicants characterised the gas used by the security forces as a poisonous substance and a ‘lethal force’ within the meaning of the Convention case-law. The authorities on numerous occasions declared that the gas was harmless in that there had been no ‘direct causal link’ between the death of the hostages and the gas. A similar allegation was made by the Government in their observations on the admissibility and merits of the complaint (see § 180 of the admissibility decision of 18 March 2010 and paragraph 194 of the present judgment). If the gas was indeed harmless and the death of the hostages was due to natural causes, there is no case to answer for this Court under Article 2 of the Convention.

The Court reiterates in this respect its jurisprudence confirming the standard of proof ‘beyond reasonable doubt’ in its assessment of evidence (see Avsar v. Turkey, no. 25657/94, § 282, ECHR 2001). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, Series A no. 25, p. 65, § 161). The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, Series A no. 336, § 32, and Avsar cited above, § 283) even if certain domestic proceedings and investigations have already taken place.

The Court is confronted with divergent accounts of the events of 23–26 October 2002. More specifically, the Court does not have the exact formula of the gas. Even at the domestic level that formula was not revealed by the security forces to the courts and to the investigative authorities. The Court admits that there may be legitimate reasons for keeping the formula of the gas secret. That being said, the Court has enough material to make conclusive findings about the properties of the gas, at least for the purposes of the examination of the applicants' complaints.

The official explanation of the mass death of the hostages on 26 October 2002 was that all the persons who had died were weakened by the siege or seriously ill. The official experts in their report concluded that there was no ‘direct causal link’ between the death of those 125 people and the use of the gas, and that the gas was just one of many factors which led to such a tragic outcome (see paragraph 99 above). The Court will not call into question the interim conclusions of the domestic experts on the medical condition of each particular victim. However, the Court considers that the general conclusion of the expert report, if applied to all the deceased hostages (except those shot by the terrorists), is difficult to accept. It is unthinkable that 125 people of different ages and physical conditions died almost simultaneously and in the same place because of various pre-existing health problems. Equally, the mass death of hostages cannot be attributed to the conditions in which they had been held for three days, during which none of them had died, despite prolonged food and water deprivation, immobility, psychological stress, etc. Further, the Government themselves admitted that it had been impossible to foresee the effects of the gas, and had considered that some losses had been unavoidable (see paragraph 194 above). This implies that the gas was not ‘harmless’, because ‘harmless’ means that it does not have important adverse effects.

The Court accepts that the gas was probably not intended to kill the terrorists or hostages. It was therefore closer to ‘non-lethal incapacitating weapons’ than to firearms (see in this respect the distinction made by the Basic Principles on the Use of Force and Firearms, cited in paragraph 162 above). This is an important characteristic of the gas; the Court will return to it in its further analysis. For the time being, the Court does not need to decide whether the gas was a ‘lethal force’ or a ‘non-lethal weapon’. As transpires from the Government's submissions, and as the events of the case clearly show, the gas was, at best, potentially dangerous for an ordinary person, and potentially fatal for a weakened person. It is possible that some people were affected more than others on account of their physical condition. Moreover, it is even possible that one or two deaths amongst the applicants' relatives were natural accidents and were not related to the gas at all. Nevertheless, it is safe to conclude that the gas remained a primary cause of the death of a large number of the victims.

In sum, the present case is about the use of a dangerous substance (no matter how it is described) by the authorities within a rescue operation which resulted in the death of many of those whom the authorities were trying to liberate and in mortal danger for many others (in respect of that latter group of applicants see, mutatis mutandis, Makaratzis v. Greece [GC], no. 50385/99, §§ 49–55, ECHR 2004-XI). The situation is thus covered by Article 2 of the Convention. The Court has now to examine whether the use of force was compatible with the requirements of this provision.

Before commencing its analysis the Court must proceed to clarifying the victim status of several applicants. First, as transpires from the documents in the case of Chernetsova and Others, one of the applicants, Oleg Valeryevich Matyukhin, was not personally amongst the hostages and did not lose any close relative following the events of 23–26 October 2002.

It appears that his name was added to the list of applicants because his wife, Yekaterina Vladimirovna Matyukhina, who was amongst the hostages, had been affected by the gas but survived. In such circumstances the Court considers that only Ms Matyukhina herself can be considered a ‘victim’ of the alleged violation of Article 2 of the Convention within the meaning of Article 34 thereof. The name of Mr Matyukhin should therefore be removed from the list of applicants in the present case.

Second, it appears that several applicants who lost their partners on 26 October 2002 were not officially married to them. In particular, this is the case of Yelena Akimova (lost I. Finogenov), Svetlana Generalova (lost V. Bondarenko) and Svetlana Gubareva (lost S.A. Booker). As follows from the applicants' submissions, the above applicants had de facto marital relations with their deceased partners. This fact is not contested by the respondent Government. In the specific context of the present case the Court considers it possible to recognise that those persons have victim status to complain about the death of their partners under Article 2 of the Convention on the equal footing with those applicants whose marriage with the late hostages had been officially registered (see A.V. v. Bulgaria (dec.), no. 41488/98, 18 May 1999).

Article 2 of the Convention, which safeguards the right to life and sets out the circumstances in which deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. Together with Article 3 of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed (see Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000-VII).

As the text of Article 2 itself shows, the use of lethal force by law-enforcement officers may be justified in certain circumstances. Nonetheless, Article 2 does not grant them carte blanche. Unregulated and arbitrary action by State agents is incompatible with effective respect for human rights. This means that, as well as being authorised under national law, policing operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force (see, mutatis mutandis, Hilda Hafsteinsdóttir v. Iceland, no. 40905/98, § 56, 8 June 2004; see also Human Rights Committee, General Comment no. 6, Article 6, 16^th Session (1982), § 3)), and even against avoidable accident.

When lethal force is used within a ‘policing operation’ by the authorities it is difficult to separate the State's negative obligations under the Convention from its positive obligations. In such cases the Court will normally examine whether the police operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force and human losses, and whether all feasible precautions in the choice of means and methods of a security operation were taken (see Ergi v. Turkey, 28 July 1998, Reports 1998-IV, § 79; see also McCann and Others v. the United Kingdom, 27 September 1995, Series A no. 324, §§ 146–50, § 194; Andronicou and Constantinou v. Cyprus, 9 October 1997, Reports 1997-VI, § 171, §§ 181, 186, 192 and 193, and Hugh Jordan v. the United Kingdom, no. 24746/95, §§ 102–04, ECHR 2001-III).

The authorities' positive obligations under Article 2 of the Convention are not unqualified: not every presumed threat to life obliges the authorities to take specific measures to avoid the risk. A duty to take specific measures arises only if the authorities knew or ought to have known at the time of the existence of a real and immediate risk to life and if the authorities retained a certain degree of control over the situation (see, mutatis mutandis, Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII; see also the admissibility decision of 18 March 2010 in the present case). The Court would only require a respondent State to take such measures which are ‘feasible’ in the circumstances (see Ergi, cited above). The positive obligation in question must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources (see Makaratzis, cited above, § 69, with further references; see also Osman, cited above, and Maiorano and Others v. Italy, no. 28634/06, § 105, 15 December 2009).

As a rule, any use of lethal force must be no more than ‘absolutely necessary’ for the achievement of one or more of the purposes set out in paragraph 2 (a), (b) and (c) of Article 2 of the Convention. This term indicates that a stricter and more compelling test of necessity must be employed by the Court, if compared with that normally applicable when determining whether State action is ‘necessary in a democratic society’ under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims (see McCann and Others, cited above, §§ 148–49; see also Gül v. Turkey, no. 22676/93, §§ 77 and 78, 14 December 2000).

That being said, the Court may occasionally depart from that rigorous standard of ‘absolute necessity’. As the cases of Osman, Makaratzis, and Maiorano and Others (all cited above) show, its application may be simply impossible where certain aspects of the situation lie far beyond the Court's expertise and where the authorities had to act under tremendous time pressure and where their control of the situation was minimal.

The Court is acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence, and recognises the complexity of this problem (see Ramirez Sanchez v. France [GC], no. 59450/00, § 115, ECHR 2006-…). In the more specific Russian context, terrorism by various separatist movements in the North Caucasus has been a major threat to national security and public safety in Russia for more than fifteen years, and fighting terrorism is a legitimate concern of the Russian authorities.

Although hostage taking was, sadly, a widespread phenomenon in recent years, the magnitude of the crisis of 23–26 October 2002 exceeded everything known before and made that situation truly exceptional. The lives of several hundred hostages were at stake, the terrorists were heavily armed, well-trained and devoted to their cause and, with regard to the military aspect of the storming, no specific preliminary measures could have been taken. The hostage-taking came as a surprise for the authorities (see, in contrast, the case of Isayeva v. Russia, no. 57950/00, §§ 180 et seq., 24 February 2005), so the military preparations for the storming had to be made very quickly and in full secrecy. It should be noted that the authorities were not in control of the situation inside the building. In such a situation the Court accepts that difficult and agonising decisions had to be made by the domestic authorities. It is prepared to grant them a margin of appreciation, at least in so far as the military and technical aspects of the situation are concerned, even if now, with hindsight, some of the decisions taken by the authorities may appear open to doubt.

In contrast, the subsequent phases of the operation may require a closer scrutiny by the Court; this is especially true in respect of such phases where no serious time constraints existed and the authorities were in control of the situation.

Such a method of analysis is not new: it has been applied, for instance, in the case of Isayeva, cited above, § 180 et seq. In that case the Court held that ‘given the context of the conflict in Chechnya at the relevant time, the [anti-insurgency] measures could presumably include the deployment of army units equipped with combat weapons, including military aviation and artillery’. That finding did not prevent the Court from concluding that the Convention had been breached on account of the indiscriminate use of heavy weapons by the military, their failure to prevent the Chechen insurgents from entering the village, their failure to secure the safety of the ‘humanitarian corridor’, etc. However, by accepting that the use of the army in such conflicts was justified the Court drew a clear line between the strategic political choices (use of military force in Chechnya), which were not within the Court's realm, and other aspects of the situation, which the Court was able to examine.

The Court does not suggest that the present case is similar to Isayeva; quite the contrary, there are major differences between these two cases. Thus, in the present case the hostage-taking came as a surprise for the authorities, the hostages themselves were in a more vulnerable position than the civilians in Isayeva, and the choice of means (gas) by the authorities was less dangerous than in Isayeva (bombs). What the Court intends to do is to adopt the same methodological approach as in Isayeva and apply different degrees of scrutiny to different aspects of the situation under examination.

The above conclusion does not preclude the Court from examining whether the ensuing rescue operation was planned and implemented in compliance with the authorities' positive obligations under Article 2 of the Convention, namely whether the authorities took all necessary precautions to minimise the effects of the gas on the hostages, to evacuate them quickly and to provide them with necessary medical assistance (see McCann and Others, cited above, §§ 146–50 and § 194; Andronicou and Constantinou, cited above, §§ 171, 181, 186, 192 and 193; and Hugh Jordan v. the United Kingdom, no. 24746/95, §§ 102–04, ECHR 2001-III). Many facts related to this aspect of the case are in dispute between the parties. The Court reiterates in this respect that its fact-finding capacity is limited. As a result, and in line with the principle of subsidiarity, the Court prefers to rely, where possible, on the findings of competent domestic authorities. That being said, the Court does not completely renounce its supervising power. Where the circumstances of a particular case so require, especially where the death of a victim is arguably attributable to the use of lethal force by State agents, the Court may entertain a fresh assessment of evidence (see Golubeva v. Russia, no. 1062/03, § 95, 17 December 2009; see also, mutatis mutandis, Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006; and Imakayeva v. Russia, no. 7615/02, § 113, ECHR 2006-XIII (extracts)). The Court further reiterates that ‘in the situation where persons are found injured or dead … in an area within the exclusive control of the authorities of the State and there is prima facie evidence that the State may be involved, the burden of proof may also shift to the Government since the events in issue may lie wholly, or in large part, within the exclusive knowledge of the authorities. If they then fail to disclose crucial documents to enable the Court to establish the facts or otherwise provide a satisfactory and convincing explanation, strong inferences may be drawn’ (see Varnava and Others v. Turkey [GC], nos. 16064/90 etc., § 184, ECHR 2009-…). As follows from this quote, the Court can make adverse inferences if the Government fails to disclose crucial evidence in the proceedings before the Court, as they were required to do under former Article 38 § 1 (a) of the Convention (now Article 38 of the Convention, which provides that States should furnish all necessary facilities to make possible a proper and effective examination of applications — see Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999-IV, and Timurtaş v. Turkey, no. 23531/94, §§ 66 and 70, ECHR 2000-VI).

Further, even where the State discloses all of the evidence in their possession, that evidence may still be insufficient to provide a ‘satisfactory and convincing' explanation of the victim's death. More generally, the Court's reliance on evidence obtained as a result of the domestic investigation and on the facts established within the domestic proceedings will largely depend on the quality of the domestic investigative process, its thoroughness, consistency, etc. (see Golubeva, cited above, § 96, and Maslova and Nalbandov v. Russia, no. 839/02, §§ 101 et seq. ECHR 2008-… (extracts); see also Betayev and Betayeva v. Russia, no. 37315/03, § 74, 29 May 2008; Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, §§ 179 et seq., 24 February 2005).

That being said, the Court stresses that it is not always in a position to draw adverse inferences from the authorities' failure to conduct an effective investigation — see, for example, the cases of Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-… (extracts), and the case of Zubayrayev v. Russia, no. 67797/01, § 83, 10 January 2008.

Turning to the present case the Court notes, first, that the investigation, insofar as it concerned the authorities' alleged negligence, was discontinued and did not end with a full-scale trial (unlike, for example, in the recent case of Giuliani and Gaggio v. Italy [GC], no. 23458/02, 24 March 2011). In such circumstances the Court must examine the conclusions of the investigation into the efficiency of the rescue operation with great caution, without, however, discarding them completely.

Second, the Court has taken note of the reports by the Public Health Department, the Centre for Disaster Medicine and witness testimony by several senior-level officials in the public health system and rescue service. Those reports and witness statements describe the rescue operation as generally successful, quick, and well-coordinated (see, for example, paragraphs 46, 55, 67 and 119 above). Those bodies and officials were, indisputably, ‘competent authorities’ whose analysis of the situation is worth attention. At the same time, those structures and officials were directly involved in the planning and coordination of the rescue operation and might not be, therefore, truly neutral in their assessment. Their evidence should be carefully compared to other evidence in the case file, namely the testimony of the rescue workers and medics in the field, expert evidence, documents, etc.

Third, the Court has taken note of the Government's response to the Court's questions, addressed to them following its decision on admissibility. The Court requested the respondent Government to answer several very specific questions, concerning, in particular, the planning and conduct of the rescue operation, the chronology of events, the instructions given to the medics and rescue workers, any special equipment they had at their disposal, particular investigative actions taken in the aftermath of the events, etc. However, most of the questions put by the Court remained unanswered. The Government's observations on the merits repeated, to a large extent, their observations on admissibility, were very general and did not touch upon the specific factual issues.

The applicants' final complaint under Article 2 of the Convention was that the State had failed to fulfil its positive obligation to investigate the conduct of the authorities during the hostage crisis.