Finogenov and Others v. Russia

On 23 October 2002 a group of terrorists armed with machine-guns and explosives took hostages in the ‘Dubrovka’ theatre in Moscow. For three days, more than 900 people were held at gunpoint and the theatre building was booby-trapped with suicide bombers positioned amongst the hostages. During the three days, the terrorists made certain demands and the authorities promised to keep the terrorists alive if they released the hostages.

In initial planning of a rescue operation, the authorities created a crisis cell and several teams of rescue workers and ambulance medics were stationed in the vicinity of the theatre building. Several hospitals were reinforced with additional surgeons. The hospitals were examined to make sure that they were ready to accept patients with missile and explosion wounds and admission capacity of most of the hospitals was increased. However, there were no provisions in the plan for centralised coordination of on-the-field interaction between the various services participating in the rescue operation.

On 26 October 2002, the Russian security forces pumped a narcotic gas into the theatre’s auditorium through the ventilation system. A few minutes later, once the terrorists lost consciousness, security forces stormed the building and the suicide bombers were killed. Most of the unconscious hostages remained exposed to the gas and without medical assistance for more than an hour. As a result of the operation the majority of the hostages were released but a large number were affected by the gas, some fatally, and many that survived continued to suffer from serious health problems. Rescue workers, all of whom had been preparing to work on the site of an explosion, were not informed that gas had been used and did not receive any specific instructions on how to deal with poisoned individuals. Many victims were transported to hospitals in city buses with no medical staff or equipment. Since there was no clear plan for the distribution of victims amongst the various hospitals, the drivers did not know where to take the victims.

The Moscow City Prosecutor’s Office opened a criminal investigation into the events of the hostage situation and formed an investigation team which included representatives of agencies responsible for the planning and conduct of the rescue operation. Most of the members of the crisis cell, the officers involved in the planning, bus drivers and other witnesses were not questioned.

This case originated in two applications by hostages or relatives of the hostages against the Russian Federation lodged with the European Court of Human Rights (ECtHR) under Article 34 of the European Convention on Human Rights (ECHR). By decision of 18 March 2010, the ECtHR joined the proceedings in the applications.

The applicants alleged that (a) during the hostage crisis the authorities applied excessive force, which resulted in either the death of the applicants’ hostage relatives or serious damage to the health and psychological trauma of the hostage applicants; (b) the authorities failed to plan and conduct the rescue operation in such a way as to minimize the risks for the hostages; (c) the criminal investigation into the authorities’ actions had been ineffective; and (d) the applicants had no effective remedies to complain about such ineffectiveness. The respondent State claimed that the actions of the authorities during the hostage crisis had been in full compliance with the domestic norms and international obligations of the Russian Federation.

[Adapted from INTERIGHTS summary, with permission]

The Court held that:

(1) it was not necessary to decide whether the gas constituted a ‘lethal force’ or a ‘nonlethal weapon’, as the fact that a dangerous substance causing the death of many persons was deployed brings the case within the ambit of Article 2 ECHR;

(2) certain unmarried applicants who lost partners with whom they had de facto marital relations had victim status to complain about the death of their partners on an equal footing with those who have lost spouses;

(3) there was no violation of Article 2 ECHR on account of the decision by the State to end negotiations and resolve the hostage crisis by force and the use of gas because there existed a real, serious and immediate risk of mass human losses, the State had every reason to believe that a forced intervention was the ‘lesser evil’ in the circumstances, and the use of the gas was capable of facilitating the liberation of the hostages and reducing the likelihood of explosion and was thus not a disproportionate measure;

(4) the State violated Article 2 ECHR because of the inadequate planning and conduct of the rescue operation, in particular because of the inadequate information exchange between various services, belated beginning of the evacuation, limited on-the-field coordination of various services, lack of appropriate medical treatment and equipment on the spot, and inadequate logistics;

(5) the State violated Article 2 ECHR because the authorities failed to conduct an effective investigation into the rescue operation since the investigation was manifestly incomplete (relevant persons were not interviewed, documents were inexplicably destroyed and investigators omitted to establish certain basic facts) and the investigative team was not independent;

(6) there was no need to decide separately the other complaints by the applicants under Articles 6 and 13 ECHR; (7) the State is to pay the applicants damages, costs, expenses, tax and interest.

[Adapted from INTERIGHTS summary, with permission]