EHRM, 13-04-2017, nr. 26562/07, nr. 14755/08, nr. 49339/08, nr. 49380/08, nr. 51313/08, nr. 21294/11, nr. 37096/11

The year 2004 saw a surge of terrorist acts in Russia involving numerous civilian victims. Mr Shamil Basayev, the underground leader of the Chechen separatist movement, either claimed responsibility or was held responsible for these acts.

On 6 February 2004 a suicide bomber killed over forty people and wounded over 250 on an underground train in Moscow.

In February and March 2004 several explosions in the Moscow Region damaged gas pipelines, a heating station and electricity pylons.

On 9 May the President of Chechnya, Mr Akhmat Kadyrov, and several senior officials were killed by a bomb in a stadium in Grozny.

On 21 and 22 June a large group of armed rebel fighters attacked Nazran, Ingushetia's largest town. They primarily targeted police stations and other security offices; over ninety people were killed and an ammunition warehouse was looted.

On 24 August two civilian aeroplanes which had departed from Moscow Domodedovo Airport simultaneously exploded in mid-air; ninety people lost their lives.

On 31 August a suicide bomber blew himself up at the entrance to an underground station in Moscow, killing ten and wounding about fifty others.

On 18 August 2004 the North Ossetian Ministry of the Interior issued the following telex (no. 1751) to all local departments of the interior:

On 27 August 2004 the North Ossetian Ministry of the Interior issued Decree no. 500 ‘About the protection of public order and security during the Day of Knowledge in the educational facilities of North Ossetia’, which was sent to all district police stations. The plan provided for heightened security awareness and an increase in the number of mobile posts and police officers near public gatherings, and contained a series of measures aimed at the prevention of terrorist acts and hostage-taking during public gatherings on the Day of Knowledge in the settlements situated along the administrative border with Ingushetia. The plan further stipulated that each head of the district departments of the Interior should inform the administrations of educational facilities accordingly, put in place working plans for every such gathering and personally inform police staff of their functions, carry out hourly updates of the situation at public gatherings, give immediate feedback to the North Ossetian Ministry of the Interior and provide contingency staff in each police department.

On 25, 27 and 28 August 2004 the North Ossetian Ministry of the Interior issued three other telexes to the local departments concerning security measures to be taken during the Day of Knowledge, heightened terrorist threats in the region and the prevention of possible attacks. The personnel of the Ministry of the Interior were put on high alert (ycилеhhый pежиm hеcеhия cлyжбы).

As revealed by subsequent investigations, towards the end of August 2004 a sizeable group of terrorists (no fewer than thirty people) were camping and training between the villages of Psedakh and Sagopshi in the Malgobek District of Ingushetia. In the early hours of 1 September 2004 the group crossed the administrative border between Ingushetia and North Ossetia, driving a GAZ-66 utility truck.

At 7.30 a.m. on 1 September 2004 Major S.G. from the North Ossetian Ministry of the Interior stopped the vehicle for an inspection at the administrative border with Khurikau. The terrorists disarmed him, placed him in the back seat of his own white VAZ-2107 and drove to Beslan. Major S.G. escaped and later testified about these events.

The hostages were forced to sit in very cramped conditions on the floor of the gymnasium. During the first few hours of captivity some families remained separated, but they were allowed to reunite later during the day.

The hostages were ordered to keep quiet and not to speak in languages other than Russian. Mr Ruslan Betrozov, whose two sons were in the gymnasium, repeated the captors' orders in Ossetian. One of the terrorists walked up to him and executed him in full view of everyone in the gymnasium by shooting him from close range; his body was not removed until several hours later. Mr Betrozov's sons Alan (born in 1988) and Aslan (born in 1990) witnessed the execution; both boys died on 3 September 2004 during the storming. Another father of three, Mr Vadim Bolloyev, was shot in the shoulder during the first few hours of the crisis for apparently refusing to obey the terrorists' orders. By the end of 1 September he had died in the gymnasium. His younger son Sarmat (born in 1998) survived the attack, but his two daughters Zarina (born in 1993) and Madina (born in 1995) died during the storming.

During the course of the day on 1 September 2004 the attackers allowed groups of children, under their escort and accompanied by adults, to access the toilets outside the sports hall to drink tap water. They also ordered senior students to bring water into the hall in buckets and distribute it among the hostages in small quantities. The terrorists also took a large television into the gymnasium and on several occasions turned on the radio so that some of the hostages could hear about the events on the news.

On 1 September the terrorists allowed the elderly and sick hostages and some mothers with nursing babies to stay in a smaller adjacent weights room, where they could stretch out on the floor. They were later taken into the sports hall.

From 2 September the terrorists refused to allow the hostages water and ordered them to use buckets to relieve themselves and to drink their own urine. They announced to the hostages that the tap water had been poisoned and that they would be undergoing a ‘dry hunger strike’ in support of their captors' demands. Some chewed the leaves of interior plants in order to relieve their thirst. Survivors later complained of exasperating thirst and heat on 2 and especially 3 September 2004.

From the outset the terrorists separated most men and forced them to perform various tasks in order to fortify the building, or put in place IEDs. They were told that their disobedience would lead to the execution of women and children in the hall.

On the morning of 1 September two men were ordered to lift up floorboards from the library floor. Floorboards were also lifted from the corners of the gymnasium. Others were ordered to move furniture and blackboards to the windows of various classrooms and corridors.

On the afternoon of 1 September several men were lined up in the corridor of the ground floor. An explosion occurred there at 4.05 p.m., as a result of which several male hostages were killed or injured. One (or two) women suicide bombers and one terrorist of Arab descent were killed by this blast. Several explanations for that explosion were put forward; the criminal investigation accepted that the terrorist in charge of the operation, ‘Polkovnik’ (Colonel), had executed the male hostages whom the terrorists had no longer needed and at the same time had activated the suicide bomber's explosive belt because the latter had objected to the treatment of the children. Some of the surviving hostages testified that there had been an attack from the outside, as a result of which the explosive belt had detonated killing the woman bomber, the Arab terrorist and several hostages.

Men who survived the explosion in the corridor were finished off with automatic rifles. Karen Mdinaradze survived the explosion and the ensuing execution. When the terrorists discovered that he was still alive, he was allowed to return to the gymnasium, where he fainted. He later testified about these events. At about 4.30 p.m. on 1 September the terrorists forced two men to throw bodies out of a window on the first floor. One of them, Aslan Kudzayev, jumped out the window and was wounded but survived. His wife, one of the applicants, was released on 2 September with their infant daughter; their other daughter remained in the gymnasium and received injuries during the storming.

According to the investigation, sixteen men were killed by the terrorists on 1 September. Another sixteen people were wounded on 1 September as a result of shots fired by the terrorists.

At about 3 p.m. on 2 September the terrorists fired several rounds from automatic weapons from the windows of the school, although it appears that no one was hurt and there was no return fire.

At around 11 a.m. on 1 September the terrorists passed a note to the authorities via one of the hostages. Mrs Larisa Mamitova, an ambulance doctor, walked to the school gates, handed the note to a man who approached her and walked back; in the meantime her young son was being held at gunpoint inside the building. The note contained a mobile telephone number and the names of the people with whom the terrorists wanted to negotiate: the North Ossetian President Mr Dzasokhov, the Ingushetian President Mr Zyazikov and a paediatrician, Dr Roshal. The note also stated that the school building had been mined and would be blown up in the event of an attempt to storm it, and that the terrorists would shoot fifty hostages for any one of them killed. However, it appears that the mobile telephone number had either been wrongly noted or was switched off, as no telephone contact could be established at that time.

At 1 p.m. on 1 September the Russian State television programme ‘Vesti’ announced that the attackers had transmitted a videotape to the authorities, containing their demands and images filmed inside the school. One hour later it was announced that the videotape was empty. Later, the very existence of this videotape remained disputed.

Around 4 p.m. on 1 September Mrs Mamitova took out a second note, containing a corrected mobile telephone number and the name of another possible negotiator, Mr Aslakhanov, an aide to the Russian President. She also told the person who collected the note that there were over 1,000 hostages inside the building.

The authorities contacted the terrorists through a professional negotiator, the FSB officer Mr Z. His attempts to discuss proposals aimed at alleviating the hostages' conditions and the possibility of exiting or surrendering or removing bodies from the school courtyard remained futile.

Dr Roshal arrived in Beslan on the afternoon of 1 September 2004. When he called the hostage takers, on 1 and 2 September, they were hostile and told him that they would only enter into negotiations if all four people requested by them came to the school. They told him that if he attempted to enter alone, he would be killed. They also refused to accept food, water or medicine, and forbade him from entering the building to examine the sick and wounded.

On 2 September the former President of Ingushetia, Mr Ruslan Aushev, arrived in Beslan on the invitation of the operative headquarters (‘the OH’). It appears that at about 3 p.m. he, for the first time, telephoned Mr Akhmed Zakayev, the head of the self-proclaimed Chechen separatist government who was living in London. He told Mr Zakayev about the siege and said that the number of hostages exceeded 1,000.

Following telephone contact with the terrorists, at 3.30 p.m. on 2 September Mr Aushev was allowed to enter the school. He was the only person whom the terrorists agreed to let inside during the siege. Mr Aushev was led to the gymnasium and had a meeting with the leader of the terrorists, Mr Khuchbarov (‘Polkovnik’).

Following negotiations, Mr Aushev was permitted to leave with twenty-six (other sources indicate twenty-four) people — nursing mothers and their babies. All the women had older children in the school and were forced to leave them behind.

Mr Aushev took out a message from Mr Shamil Basayev addressed to the Russian President, Mr Vladimir Putin. It demanded that troops be pulled out of Chechnya and official recognition of Chechnya as an independent State. In return, it promised that terrorist activities in Russia would end ‘for the next ten or fifteen years’. It made no mention of the school siege. It appears that the terrorists also gave Mr Aushev a videotape depicting part of his visit, the gymnasium with the hostages, explosive devices and one terrorist holding his foot on a ‘dead man's switch’. It also contained a statement by Mr Khuchbarov that the negotiations should involve Mr Aslan Maskhadov, the President of the self-proclaimed independent Chechen State, who had been in hiding at the time.

On 2 September and on the morning of 3 September the attackers tried to contact the North Ossetian authorities of North Ossetia with the assistance of the school director, Mrs Tsaliyeva. Two hostages — children of the North Ossetian Parliament, Mr Mamsurov — were allowed to call their father on his mobile telephone and tell him that they were suffering without water and food. It appears that family members of other possible contacts among officials and public figures (district prosecutor, a well-known sportsman) were singled out by the terrorists but no contact was established.

In parallel to the negotiations carried out through Mr Z., on 2 September direct contact with the terrorists was established through Mr Gutseriyev, an influential businessman of Ingush origin. He supplied Mr Aushev with the requisite telephone numbers, participated in conversations with Mr Akhmed Zakayev and eventually tried to liaise with Mr Maskhadov.

As can be seen from various information sources, at around 5 p.m. on 2 September Mr Aushev, Mr Dzasokhov and Mr Zakayev had a telephone conversation during which Mr Zakayev promised to involve Mr Maskhadov in the negotiations (see paragraphs 129, 321, 331, 339 below). Some sources indicate that these talks apparently resulted in Mr Maskhadov agreeing to go to Beslan.

At about 10.30 a.m. on 1 September 2004 the crisis OH started to function on the premises of the Beslan town administration. The exact composition, leadership and powers of this structure remain disputed. According to most sources, it was initially headed by Mr Dzasokhov, the North Ossetian President, and as of 2 September by General V. Andreyev, the head of the North Ossetian FSB. It was later established that the OH included the deputy head of the counter-terrorism commission of North Ossetia Mr Tsyban, the Minister of the North Ossetian Ministry of Emergency Situations (Emercom) Mr Dzgoyev, the North Ossetian Minister of Education Mrs Levitskaya, deputy head of the information programmes department of the State television company, Rossiya, Mr Vasilyev and the commander-in-chief of the 58th Army of the Ministry of Defence General Sobolev (see paragraphs 130, 158, 183, 312–333 below).

The detachments of the 58th Army started to arrive in Beslan during the afternoon of 1 September. On 2 September 2004 eight armoured personnel vehicles (APCs) and several tanks of the 58th Army arrived. They were placed under the command of the FSB special purpose units and positioned around the school out of the terrorists' sight.

In the early morning of 3 September the FSB special purpose units went to Vladikavkaz for joint training with the Ministry of the Interior and the Ministry of Defence to prepare for a possible storming.

Thousands of people in Beslan were directly affected by the crisis.

Despite the attempts of the authorities to clear the area, local residents and ethnic Ossetians from outside Beslan, some of whom were armed, remained around the school building throughout the siege.

On the afternoon of 1 September the hostages' relatives were invited to the town's Cultural Centre. Until the end of the siege the Cultural Centre remained a hub for communicating with relatives and providing medical and psychological assistance to them.

At 7 p.m. on 1 September the North Ossetian President Mr Dzasokhov, the deputy speaker of the North Ossetian Parliament Mr Kesayev and the North Ossetian Deputy Minister of the Interior Mr Sikoyev met with relatives in the Cultural Centre. During the meeting Mr Sikoyev informed them that the terrorists had not put forward any demands and had refused to accept food, water or medicine for the hostages.

At about 9.30 p.m. on 1 September Dr Roshal participated in the meeting at the Cultural Centre. He assured those present that the conditions in the school were ‘acceptable’ and that the hostages could survive for several days without food or water. He also stated that the terrorists had not put forward any demands to the authorities.

On 2 September a psychological aid unit was set up at the Cultural Centre.

Late in the evening of 2 September Mr Dzasokhov held another meeting with the relatives at the Cultural Centre.

At 11.15 a.m. on 3 September he announced to the relatives that there would be no storming and that ‘new personalities’ had appeared in the negotiation process.

Some of the applicants were among the relatives who had gathered outside the school building or stayed at the Cultural Centre, and submitted written statements describing the events.

From the outset the information about the hostage-taking was strictly controlled by the authorities. Mr Vasilyev, a member of the OH and a senior employee of Rossiya, was put in charge of contacting the journalists.

On the afternoon of 1 September the media announced, referring to official sources, that about 250 people had been taken hostage. Later that day the media reported a ‘corrected’ number of hostages: 354 people. According to some hostages, this news outraged the terrorists and prompted them to execute or throw the bodies of the executed men out of the window. It also transpires from the hostages' statements that after the announcements the terrorists refused to allow them to drink or go to the toilet, saying that ‘there should be no more than 350 of you left anyway’ (see paragraph 285 below).

On the evening of 2 September Dr Roshal held a press conference. He announced that he had talked on the telephone to a terrorist nicknamed ‘Gorets’ (highlander), who had put forward no demands.

At 1 p.m. on 3 September State television showed some of the terrorists' relatives of Ingush origin asking them to release the hostages. One woman, the wife of a presumed hostage taker, said that she and her children were being held somewhere ‘against their will’ and asked her husband to do everything ‘to avoid harming the children’.

The hostages in the gymnasium were extremely exhausted and suffered from thirst and hunger. They had gone two days without sleep in cramped conditions and the physical state of many had worsened: people started to lose consciousness and some children were hallucinating, having seizures and vomiting.

In the early morning the terrorists lifted the IEDs in the gymnasium from the floor, hanging them along the walls.

At 11.10 a.m. the terrorists agreed to a request by Mr Aushev and Mr Gutseriyev to allow Emercom to collect the bodies from the school courtyard.

At about noon Mr Dzasokhov informed the OH that he had reached some sort of agreement with Mr Zakayev (see paragraph 331 below). According to some sources, that agreement could have extended to the possibility of Mr Maskhadov arriving in Beslan.

At 12.55 p.m. an Emercom truck and four officers entered the school courtyard. The men had Mr Gutseriyev's mobile telephone to communicate with the terrorists. One of the terrorists came out and supervised their work. The explosions inside the gymnasium at 1.03 p.m. came unexpectedly to the group. The ensuing exchange of gunfire resulted in two officers being killed.

At 1.03 p.m. a powerful explosion occurred in the upper east part of the gymnasium. Part of the roof was destroyed, the insulation caught fire and fragments of the burning ceiling and roof fell into the gymnasium, killing and injuring those seated underneath. Many of the surviving hostages described the first explosion as a ‘fireball’ or ‘column of fire’, followed by silvery white powder falling from the ceiling. It appears that the explosion caused a fire in the roof space of the gymnasium (see paragraph 288 below). Twenty seconds later another explosion ripped through the lower part of the wall under the first window on the north-east side. The nature and origins of these explosions are disputed (see documents referred to below).

The two explosions killed both terrorists who had been holding the detonators, though most of the IEDs remained intact (see paragraph 307 below). Dozens of people were killed, others were wounded or received burns of varying degrees, and almost everyone was shell-shocked. Many applicants submitted witness statements about these events.

Those who could move and were able to reach the opening in the wall on the north side started to climb through it and run outside. The terrorists fired at them from the upper floor, prompting an exchange of gunfire between the terrorists and the security forces.

At this point General Andreyev issued an order to storm the building and proceed with the rescue operation and neutralisation of the terrorists.

Several terrorists were killed or wounded during the first two explosions but the majority of them survived, including ‘Polkovnik’. They rounded up the survivors in the gymnasium (about 300 people) and forced them to walk to other parts of the main building, mostly in the south wing: the canteen, the kitchen, a meeting room and craft classrooms. Some hostages remained in the rooms adjacent to the gymnasium, namely the weights room and changing rooms.

The dead, injured and shell-shocked remained in the gymnasium, where fire continued to spread in the roof space.

At about 1.30 p.m. a third powerful explosion occurred in the south part of the gymnasium, which appears to have been caused by one of the large IEDs catching fire. Soon afterwards flames spread around the gymnasium, taking to the floor and walls. Some hostages continued to escape through the openings in the walls.

Between 1.30 and 2.50 p.m. servicemen of the security services and local residents broke the west wall of the gymnasium and entered the hall. They helped to evacuate survivors. Their movements were covered by an APC which went close to the school. No terrorists were found there, but the gymnasium was under fire, probably from terrorist snipers on the first floor.

At about 1.40 p.m. part of the burning roof collapsed.

Hundreds of wounded hostages and servicemen were taken to the Beslan Hospital in private cars and ambulances. A field hospital had been set up by Emercom in the hospital courtyard in order to sort out the wounded and cope with the influx of casualties. Many of the injured were taken to hospitals in Vladikavkaz. The hostages' relatives were not allowed to enter the hospital. Over 750 civilians and over fifty servicemen received medical help on 3 September 2004 (see paragraphs 242 below et seq.).

Over 300 hostages who had survived the explosions and fire in the gymnasium were taken by the terrorists to the canteen and kitchen situated on the ground floor in the south wing. Other hostages were taken to the main meeting room situated above the canteen on the first floor. There they found stocks of water and food and could relieve their thirst for the first time in two and a half days.

The women and children in the canteen and meeting room were forced by the terrorists at gunpoint to stand in the windows as human shields and wave their clothes; some were killed or wounded by gunfire and explosions.

As shown by many of the witness statements, but not corroborated by the results of the criminal investigation, after 2 p.m. a tank with hull number 320 entered the schoolyard and fired several rounds at the canteen. It appears that another tank with hull number 325 or 328 also fired at the school from a distance of about 20 to 30 metres. Some of the rounds were fired with solid shots, while others were probably done with ammunition (see paragraphs 293, 294, 298, 303, 411 below).

Two APCs entered the schoolyard and took part in the fighting with their large-calibre machine guns.

The army and the FSB assault troops were positioned on the roofs of 37, 39 and 41 Shkolny Lane, five-storey apartment blocks located on the east side of the school. These servicemen fired at the school with portable grenade launchers and flame-throwers, although the exact timing of the attacks is disputed (see paragraphs 142, 293, 300, 408, 410 below). Two MI-24 helicopters circled above the school. According to some sources, although not corroborated by the official investigation, at least one rocket was launched from a helicopter on the school roof (see paragraph 410 below).

At 3.10 p.m. the OH ordered fire brigades with water cannons to intervene, by which time the gymnasium was ablaze and other parts of the building were on fire (see paragraphs 150, 199, 304 below). At the same time the head of the OH ordered the servicemen of the FSB special forces units Alfa and Vympel to enter the building.

At about 3.30 p.m. the entire roof of the gymnasium collapsed. After 4.30 p.m. the fire was contained; the servicemen of the special forces and firefighters entered the gymnasium, but found no survivors.

It appears that the servicemen of the special forces entered the canteen at about 4 p.m. through the openings in the walls and through the windows whose metal bars had fallen off as a result of the explosions or having been pulled out with an APC. Amid fierce fighting they evacuated the surviving hostages.

Numerous bodies of terrorists and hostages were found in the canteen, meeting room and rooms and corridors of the south wing.

At about 5 p.m. a strict security perimeter was established around the school. All civilians, Emercom staff, firefighters and servicemen of the army were ordered to leave, leaving only the FSB special forces inside. At about 5.25 p.m. the servicemen of the FSB special units held a minute's silence in the corridor of the south wing in order to honour the memory of their comrades: ten members of the elite Vympel and Alfa units, including three group commanders, had lost their lives and about thirty were wounded — the biggest losses ever sustained by the units in a single operation.

After 6 p.m. several shots were fired at the south wing of the building from anti-tank missiles and flame-throwers.

At about 9 p.m. two tanks fired at the school. Several powerful explosions followed, which completely destroyed the walls and roof of the craft classrooms in the south wing.

The gunfire and explosions at the school continued until past midnight.

One terrorist, Nurpashi Kulayev, was captured alive. The rest, it appears, were killed during the storming. Consistent rumours circulated that some terrorists had escaped or had been captured secretly.

The investigation found out that the group which had committed the terrorist act had been organised by Mr Aslan Maskhadov, Mr Shamil Basayev, ‘a mercenary of Arab descent’ called Taufik-al-Jedani (Abu-Dzeyt), and their entourage. The aim of the group had been ‘to disturb the public peace and scare the population to put pressure on the State authorities in order to achieve the withdrawal of troops from Chechnya’. In July and August 2004 the men had put together a plan to take hostage a large number of pupils and parents of school no. 1 in Beslan and murder civilians, police officers and military servicemen.

In the second half of August 2004 the men had put together an organised criminal group (gang) comprising over thirty people. Its members had included residents of Chechnya, Ingushetia, other regions of Russia and foreign mercenaries. The organisers of the terrorist act had entrusted the command of the operation to an active member of the gang, Mr Khuchbarov from Ingushetia, who had used the nickname ‘Rasul’ and the radio call-name ‘Polkovnik’ (colonel). Twenty-four terrorists were identified by name, while at least six remained unidentified.

On 31 August 2004 the gang had gathered in the vicinity of Psedakh in the Malgobek District of Ingushetia. They had had the following arms and ammunition (partly originating from the attacks in Ingushetia on 21 and 22 June 2004): no fewer than twenty Kalashnikov assault rifles, four Kalashnikov machine guns (RPK-74 and PKM), one tank machine gun (PKT), two portable anti-tank missile launchers (RPG-7V), four hand pistols and corresponding ammunition, including cartridges of different calibres and grenades of various modifications. In addition, the group had had two identical IEDs comprised of plastic explosives and hexogen and filled with metal pellets and electro detonators (with an impact radius of no less than 200 metres), six IEDs made of OZM-72 anti-personnel circular fragmentation mines and so-called ‘suicide bomber belts’ — IEDs containing plastic explosives and projectiles made of cut metal wires and metal sheets. The gang had also used mobile telephones and portable radio transmitters. The members had been supplied with camouflage clothes, balaclavas and gas masks. They used a GAZ-66 truck.

On 31 August 2004 Mr Khuchbarov had informed the members of the gang about the forthcoming attack and distributed roles amongst them. In the early morning of 1 September 2004 they had travelled towards Beslan. As they had passed through the village of Khurikau they had captured a local policeman, S.G., seizing his handgun and vehicle.

Between 7 a.m. and 6.25 p.m. on 4 September 2004 a group of investigators and experts, in the presence of twelve attesting witnesses, compiled a report of the school building and courtyard. The examination of the site was conducted while the clearing of the debris and rescue operation were taking place. It ran to forty-three pages and was accompanied by video and photographic material (over 150 pages).

The report mostly concentrated on descriptions of the items found in the school, including personal belongings and documents of the hostages, the terrorists' equipment and ammunition, damage to the structure of the building and the terrorists' bodies. Very little information was given about the location and state of the hostages' bodies. Most notably, page 24 of the report contained the following passage: ‘[in the gymnasium] from the floor up to 40 to 50 centimetres high there are hundreds of burnt bodies of women, children and men, occupying about half of the gymnasium floor space’. Only three individual descriptions of hostages' bodies were made. On page 13, the body of a twelve to fourteen year old boy was found next to the corpse of a terrorist in a classroom located on the ground floor and on page 25, the bodies of an elderly man and woman were found in a storage room adjacent to the gymnasium. The report noted that the bodies had been carried out by Emercom staff into the courtyard. Among relevant items noted as ‘found among the rubble in the gymnasium’ and taken by the sappers and Emercom staff into the courtyard were parts of explosive charges from grenade launchers, launching tubes of grenade launchers, a security cap from an RPO-A Shmel flame-thrower, parts of hand grenades, anti-personnel mines, automatic firearms, pistols, cartridges and ammunition and parts of IEDs. Other similar items were listed simply as ‘collected at the site’, without specifying in which part of the school they had been found.

The description of the canteen on page 15 failed to mention the state of its two windows facing the railway line or to give any details about the nature and extent of damage to its walls other than ‘signs of damage from firearms … [resulting in] whitewash falling off’. Page 21 described the damage to the main meeting hall, including a partially destroyed external brick wall and two openings measuring 15 by 20 centimetres in the wall facing the railway line. The adjacent corridor bore signs of numerous impact traces and was scattered with parts of a destroyed wall and furniture.

The description of the south wing on page 23 was limited to the following: ‘the wing is almost destroyed and the Emercom servicemen are clearing the debris, as a result of which no examination of this wing is being carried out’.

Subsequent expert reports cited additional examinations of the site. Several reports cited examinations which had taken place on 2 February 2005, 14 September 2005 and 21 February 2007. The reports of these examinations contained much more detailed descriptions of the structure, findings and traces of impact. They were accompanied by a collection of samples, such as scrapes and swabs, in order for chemical examinations to be carried out. The documents indicated that most of the samples had been unable to yield any relevant results.

Following requests by the investigation in October and November 2004, on 23 December 2005 ‘comprehensive forensic expert examination no. 1’ (кomплекchая cyдебhая экcпеpTи3а hereinafter ‘expert report no. 1’) was produced. The request was to evaluate the conduct of the OH and various military and security agencies on 1 to 3 September 2004. The experts visited the sites in Beslan and examined numerous items of evidence, including the testimony of servicemen and other witnesses, photographs, graphs and tapes of telephone and radio conversations. The report ran to over seventy pages. It concluded that the actions of the officials had been lawful and reasonable in the circumstances. In particular, it found that the members of the OH and servicemen of the Ministry of the Interior, the Internal Troops, the FSB and Emercom ‘had not committed any offences which could bear a causal relationship with the negative consequences resulting from the terrorist act of 1 to 3 September 2004’.

This document was extensively cited and relied upon in the subsequent proceedings, although it was later declared invalid (see paragraph 156 below).

The report focused on several questions.

The investigation established the following time-frame concerning the action taken by the OH (as set out in expert report no. 1 and other documents):

Two deputy heads of the FSB, Mr Pronichev and Mr Anisimov, were in Beslan during the crisis.

A number of high-ranking FSB servicemen were questioned in the course of the investigation, including General Andreyev (on 29 September 2004), General Koryakov (on 30 September 2004) and Generals Anisimov and Pronichev (October 2005). The documents of the criminal investigation submitted by the Government do not contain the record of questioning of General Tikhonov, the commander of the FSB Special Services Centre, who was in charge of the storming operation. His name is not listed among the witnesses/members of the OH in volume 124 of file no. 20/849. The list of documents examined by the experts who had produced expert report no. 1 does not mention his testimony either.

In July 2007 the applicants wrote to the head of the FSB and referred to the meeting they had had with the Deputy Prosecutor General in charge of the case, who had told them that the relevant video and audio material could not be found. In December 2006 State television aired a film entitled ‘The Final Assignment’ containing video and audio material made by the special forces in Beslan on 1 to 3 September 2004. They sought to ensure that the footage would be given to the Prosecutor General's Office. They also asked that the members of the special forces be questioned during the investigation. In September 2007 the FSB informed the applicants that any such action would be done in response to the relevant requests by the prosecutor's service and in line with the legislation.

The investigation file contains a number of documents concerning the use of arms and ammunition by various State bodies; some are cited in other documents (see below). Dozens of various individual experts' reports were ordered by the investigation on firearms (hand pistols, guns and automatic weapons), ammunition and IEDs supposedly used by the terrorists, as well as weapons and ammunition used by the security forces. Some of the cartridges were marked by experts as suitable for identification of the weapons (for example, expert report no. 263 of 4 October 2004 marked fifty spent cartridges from a Kalashnikov automatic rifle as suitable for weapon identification). These reports were submitted to the Court by the Government, and the most relevant ones are summarised below. The victims challenged certain procedural steps related to the commissioning of some of the reports, complaining that they had not been allowed to take copies of them but had been able to view them in the prosecutor's office for a limited amount of time.

According to a document dated 9 September 2004 (act no. 3), one military unit of the 58th Army of the Ministry of Defence deployed in Beslan used about 6,500 cartridges for automatic weapons and machine guns (5.45 and 7.62 mm calibre), 340 tracer bullets (5.45 mm T), 450 armour-piercing incendiary cartridges for large-calibre machine guns (14.5 mm BZT and B-32) and ten hand grenades (RGD-5).

Dozens of witness statements were collected by the investigation between September 2004 and August 2007 from the military and police servicemen, officers of Emercom, firefighters and members of the OH. These statements, consistently and in detail, denied the use of grenade launchers, flame-throwers and a tank cannon prior to 6 p.m. on 3 September 2004.

On 3 December 2004 the Vladikavkaz deputy military prosecutor issued an order not to prosecute unnamed military servicemen of the 58th Army of the Ministry of Defence and Internal Troops of the Ministry of the Interior. The document stated that the investigation had established that the personnel of the army and Ministry of the Interior had used automatic weapons, RPG-25 grenade launchers, RPO-A Shmel flame-throwers and T-72 tanks. The document then proceeded to describe the events of the siege and storming, in line with witness statements of General Sobolev of the 58th Army. In particular, the document stated that on 1 September 2004, during the first meeting of the OH, it had been decided that Mr Dzasokhov's involvement in the negotiations was ‘devoid of purpose’ (hецелеcooбpа3ho) since there was a threat of his being taken hostage as well. It further stated that although the decision to clear the area around the school of civilians and armed ‘volunteers’ had been taken at about 12 noon on 1 September, it had not been implemented until 3 September. Furthermore, on 2 September the terrorists had demanded that Mr Dzasokhov, Mr Zyazikov, Mr Aslakhanov and Dr Roshal arrive for negotiations, but the OH had decided that such talks were also ‘devoid of purpose’. After the first explosions at 1.10 p.m. the terrorists had opened fire at the hostages running out of the gymnasium, following which the servicemen of the second security perimeter had returned fire. At 2 p.m. a group of sappers under the command of Colonel Nabiyev had started to demine the gymnasium; at the same time he had called for firemen to extinguish the fire. The first fire vehicle had arrived at 2.45 p.m. and contained 2,000 litres of water; the second vehicle had arrived at 3.45 p.m. and proceeded to extinguish the fire. By 9 p.m. the storming of the building had been over, while the search for and elimination of terrorists had continued until 12.30 a.m. on 4 September 2004.

The document then summarised the witness statement of Lieutenant-Colonel Tsyban, who explained that the OH had officially been created on 2 September 2004 at about 12 noon under the command of General Andreyev. The OH had decided that Mr Dzasokhov's involvement in the negotiations could not be authorised in view of the threat of his being taken hostage.

The document then related the witness statements of about a dozen servicemen from the 58th Army — sappers, tank and APC commanders. They stated that the tanks had fired seven shots in the evening of 3 September 2004 and that none of them had fired at the school during the daytime.

The document referred to several hundred names of military servicemen who had been deployed within the security perimeter. Their statements were summarised in the following manner:

The document concluded that the servicemen of the Ministry of the Interior and Ministry of Defence had used ‘personal, authorised, small-arms weapons, engineering hardware and chemical weapons, destined to cause harm to manpower, but this ammunition was used in line with the [applicable] legislative acts and owing to the inability to prevent the terrorists' actions by any other means; the use of the above weapons resulted in the terrorists' elimination or detention’. The document further stated that the investigation had obtained no evidence that the use of the above-listed weapons had resulted in harm to any of the hostages. Accordingly, there was no evidence of an offence having been committed.

The decision of 3 December 2004 was quashed on 12 September 2005 due to certain technical deficiencies. It is unclear what happened next in this respect.

253. On the basis of the medical documents and forensic reports, the causes of death were established for 215 people; the exact cause of death of 116 people could not be established owing to extensive post mortem burns. As to the injured, seventy-nine people received gunshot wounds, ninety-one shrapnel wounds, 302 people suffered from the consequences of the explosions, ten people received concussion, eighty-three people suffered from fractured bones and contusions, thirty-six people received thermal injuries and 109 people suffered psychological and neurological problems.

The investigation concluded that the deaths and injuries of the victims were not connected with any actions or omissions on the part of State agents, including the use of firearms.

The applicants in their numerous complaints stressed that the forensic expert reports had been carried out without the extraction of bullets, shrapnel and other objects from the bodies. They also stressed that the forensic reports for many people had failed to establish the cause of death all together, owing to extensive burns.

256. In the course of the domestic proceedings the victims lodged several hundred applications with the prosecutor's office requesting various procedural steps to be taken. They appealed against the results of most of these decisions in the district courts. Copies of most of the applications and complaints, as well as the authorities' reactions, were submitted to the Court or described by the applicants in their submissions.

In July 2006 the victims asked the investigator in charge of the case to find out who had decided against presenting the four men sought by the terrorists for negotiations; to hold confrontations between civilian and police witnesses on the one hand and army servicemen on the other, to find out about the use of tanks and flame-throwers in the afternoon on 3 September 2004. On 24 July 2006 the investigator rejected the application, stating that the decision to use the appropriate weapons had been taken by the OH and that witness confrontations were not considered useful by the investigation.

In January 2007 the applicants asked the investigator to find out who had decided that the four men requested by the terrorists should not participate in the talks and who had authorised the use of tanks and flame-throwers during the storming. On 30 January 2007 the investigator in charge granted the application and informed the applicants that they would be kept up to date with the investigation results.

In August 2007 the applicants asked the investigation to find out the number of hostages that had been communicated by the OH to the FSB, the Ministry of the Interior and the Russian President on each day of the crisis and to question the relevant officials. On 14 August 2007 this application was granted.

In November 2007, referring to the results of the forensic reports and witness statements obtained during the trial of Nurpashi Kulayev (see paragraphs 269 et seq.), the victims argued that the bodies of 116 people had been severely burned, rendering it impossible in most cases for the cause of death to be established. However several forensic reports indicated extensive burns as the cause of death. The victims sought to find out who had ordered the delay in the firefighters' intervention in the gymnasium and whether they had been properly equipped upon arrival. On 16 November 2007 the investigator dismissed the application to bring charges against several officials, referring to the pending investigation.

At the victims' request, on 23 November 2007 the investigator appended to the file the records of the trials of the officers of the Pravoberezhny and Malgobek ROVDs.

In December 2007 the investigator granted the victims' applications, based on information obtained during the trial of Mr Kulayev, to have a number of senior officials questioned about the steps taken in August 2004 with the aim of preventing the terrorist act, in order to clarify the extent of the local police's involvement in securing Mr Dzasokhov's passage on the morning of 1 September and to find out how the OH had come up with the figure of 354 hostages that was aired during the crisis. The investigator also granted the victims' application to have the commander of the FSB Special Services Centre (ЦCH ФCБ Poccии) General Tikhonov questioned, in order to find out the details of the use of indiscriminate weapons on the school.

On 10 May 2007 the Promyshlenny District Court of Vladikavkaz reviewed, at the applicants' request, about 120 applications lodged by them with the investigator between December 2005 and March 2007, the results of which they found unsatisfactory. The complaints mostly concerned the following points: the applicants' attempts to obtain additional evidence about the exact cause of their relatives' deaths and injuries, information about the reasons for the first three explosions in the gymnasium, the details of the involvement of various military and security units in the storming, information about the types and results of examinations of the weapons found in the school, evidence related to the actions of the OH, information about the actions of firefighters immediately after the first explosions, the extent of the officials' responsibility for the outcome of the crisis and the victims' demands to acquaint themselves with various documents in the file. The applicants' complaint was dismissed in full, the District Court finding that the investigators had acted lawfully and within the limits of their professional discretion. The court also noted that the proceedings were still pending. The applicants appealed, but on 13 June 2007 the North Ossetia Supreme Court upheld the decision.

On 23 October 2007 the Promyshlenny District Court of Vladikavkaz rejected a complaint by the victims about the investigators' decisions in response to seven applications they had lodged to ascertain the reasons for the first explosions and the origins of the firearms which had caused the hostages' deaths and injuries, to find out more about the communications with the terrorists, to identify the person who ordered the deployment of tanks, APCs, flame-throwers and grenade launchers, and to establish the reason for the carbonisation of 116 bodies. The court also rejected the victims' complaint of inefficiency and delays on the part of the prosecutor's office. On 8 February 2008 the North Ossetia Supreme Court upheld this decision.

On 10 January 2008 the Promyshlenny District Court rejected another complaint in relation to five complaints lodged by the victims with the investigator. They concerned the victims' access to the expert report on the explosions, ballistics reports and documents relating to the existence of a real threat of a terrorist act prior to 1 September. The court, referring to Article 161 § 3 of the Code of Criminal Procedure, concluded that the limitations on the victims' access to the documents had been justified. The remaining actions of the investigation were also found to be lawful. This decision was upheld on appeal on 27 February 2008.

According to the decision of the Promyshlenny District Court of 13 March 2008, sixty-two victims and their representatives complained to the Prosecutor General's Office and then to the court about the investigators' decisions to reject twelve complaints lodged between December 2007 and January 2008. They included the following demands: to find out the exact reasons for the victims' deaths where the conclusions of the post-mortem reports had been incomplete; to ascertain whether the carbonisation of the bodies had been caused prior to or after death; to seek an explanation for six victims as to why the conclusions about the reasons for their relatives' deaths had been based on external inspection without autopsy reports; to establish the causal relationships between the use of flame-throwers, grenade launchers, tanks and APCs during the storming and the hostages' deaths; to obtain additional questioning of the servicemen of the Malgobek ROVD and of a military unit stationed in the Malgobek District about the prevention of the terrorist act; to clarify the reasons for the appointment of General Andreyev as the head of the OH on 2 September 2004; and to obtain full access to the material of the case file and copies of the complex expert report (including mathematical computations of the explosions, ballistics and explosion examinations). The victims also alleged that they had received no timely responses to their applications and requests, that the investigation had been protracted and lacked objectivity and, in particular, that they had not had access to the most important case documents. The Promyshlenny District Court dismissed all the appeals, finding that the victims' demands had been satisfied by the investigation wherever possible, or had not been based on the pertinent legislation. On 23 April 2008 the North Ossetia Supreme Court upheld that decision on appeal.

On 10 December 2008 the Promyshlenny District Court dismissed another complaint lodged by a group of victims against the decisions taken in response to their complaints to the investigators. Eleven complaints, lodged between February and September 2008, concerned the victims' access to the ballistics reports and the records of negotiations with the terrorists, obtaining copies of certain documents in the case file and the decisions ordering expert reports. The victims also alleged that the investigation had been unnecessarily protracted, with important steps being delayed, which in turn could lead to a loss of evidence and make the judicial examination of the matters less effective. They asked for the actions of the investigators to be declared unlawful in so far as they had not conducted an effective investigation, had refused to allow victims access to the case file and had failed to establish the extent of the officials' responsibility. The court found that some documents requested by the victims were confidential, while access to others was regulated by Article 161 § 3 of the Code of Criminal Procedure. On 11 February 2009 the North Ossetia Supreme Court upheld the District Court's decision.

The victims' subsequent attempts to seek a supervisory review of these decisions proved futile. In September 2015 a group of applicants sought the latest information about the developments in the investigation from the head of the investigation team. They reiterated that they had received no information about the state of proceedings since 2013, particularly in respect of the actions concerning the military and the OH.

On 19 January 2005 the criminal investigation in respect of the only surviving terrorist, Mr Kulayev, was separated from criminal case no. 20/849 and assigned number 20/870.

On 17 May 2005 the North Ossetia Supreme Court opened the trial of Mr Kulayev. He was charged with aggravated murder, terrorism, hostage-taking, membership of a criminal gang, illegal firearms handling and attempts on the life of law-enforcement personnel (Articles 105, 205, 206, 209, 222 and 317 of the Criminal Code). Between May 2005 and February 2006 the trial court held sixty-one hearings.

In court Mr Kulayev stated that he had joined the group on 31 August 2004. His brother, Mr Khanpash Kulayev, had been a clandestine fighter since the early 1990s, but had lost an arm and had lately been living in Psedakh, their home village. On 31 August 2004 a group of armed men had arrived in a VAZ-2110 and accused his brother of working for the FSB. Both brothers and two of their friends had gone with the armed men to a camp situated about 300 metres away from the road. Late in the night on 31 August 2004 the man in charge of the camp, ‘Polkovnik’, had told all those present to get into a GAZ-66 truck. There had been thirty-two people, including two women wearing masks. Explosives and arms in backpacks had been placed under the benches and the men had taken seats on the floor of the truck. Responding to the victims' questions, Mr Kulayev stated that he had not seen any wooden boxes for cartridges (which had later been found in the school canteen).

They had spent the night in the valley and in the early hours of the morning had continued their journey. The body of the truck had been covered with canvas and they could not see out. At one point the vehicle had stopped and Mr Kulayev had heard someone asking for the driver's documents. They had then been told that a policeman had been captured and they had travelled further. The policeman had later been released because he had been a relative of one of the fighters. The ride had lasted around two and a half hours. During the capturing of the school one fighter had been fatally injured and ‘Polkovnik’ had ordered the killing of twenty male hostages. In the school Mr Kulayev had been assigned to the canteen. On 1 September there had been a dispute among the fighters and ‘Polkovnik’ had detonated the explosive device on a woman suicide bomber. This explosion had fatally wounded the other woman and another fighter of Arab origin. According to Mr Kulayev, many members of the group, including himself and his brother, had been unaware of the nature of their mission, but ‘Polkovnik’ had referred to Basayev's orders and executed anyone attempting to object. The terrorists had talked between themselves in Ingush and ‘Polkovnik’ had called someone to receive instructions in Russian.

Referring to the conversations among the terrorists, Mr Kulayev said that ‘Polkovnik’ had told Mr Aushev that if the four men indicated by them came to the school, they would release 150 hostages for each of them. He also understood that some hostages and fighters would have been able to move in buses to Chechnya, if the Russian troops had pulled out of the mountainous districts.

Speaking about the first explosions in the gymnasium, Mr Kulayev testified that ‘Polkovnik’ had said that a sniper had ‘killed the man [holding the switch]’and had then cried to someone over the telephone ‘What have you done!’ before breaking it; after that he had encouraged the terrorists to fight until the bitter end. Mr Kulayev had jumped out of the canteen window and shouted to the soldiers that they should not shoot there because there were women and children. He denied that he had used his machine gun and had walked into the gymnasium while the hostages were detained there.

Two people convicted earlier for terrorist activities testified that they had known Mr Khanpash Kulayev, the accused's brother, as an active member of the terrorist underground and that in 2003 both brothers and several other members of the armed group, together with their families, had lived in a rented house in Ingushetia (Ganiyev R., volume 4 page 1562 of the trial records, Muzhakhoyeva Z., v. 4 p. 1611).

Some local residents stated in court that they had seen unknown men and suspicious boxes at the school prior to 1 September 2004 (Tomayev V. v. 1 pp. 360-63; Gutnova L. v. 1 p. 458; Levina Z. v. 1 p. 474; Kokova R. v. 3 p. 1243; Rubayev K. v. 3 p. 1305). During August 2004 the school building had been partially renovated, but the teachers and director denied that anyone except the school staff and their families had been involved (Guriyeva N., v. 2 p. 542; Ganiyeva Ye. v. 3 p. 1157; Digurova Z. v. 3 p. 1238). Some teachers testified that they had inspected the school in the early morning of 1 September and there had been no one there (Tsagolov A. v. 1 p. 265; Avdonina Ye. v. 2, p. 871; Komayeva-Gadzhinova R. v. 2, p. 874; Shcherbinina O. v. 2 p. 931).

The police officer who had been captured by the terrorists on the administrative border on the morning of 1 September 2004 testified that he had stopped the GA-66 vehicle between 7 a.m. and 8 a.m. The armed men had taken his service pistol, VAZ vehicle and police cap and had driven to Beslan. He had escaped as soon as the shooting started. He denied having known any of the terrorists and confirmed that the terrorists had spoken Ingush between themselves and to him (G.S., v. 4 p. 1546).

As to the prevention of the terrorist act, a senior police officer of the Pravoberezhny ROVD testified in court in November 2005 that at about 8 a.m. on 1 September the school had been inspected, possibly with a service dog. He admitted that, unlike in previous years, no patrol police had been deployed to the school (Khachirov Ch. v. 3 p. 1215). Mr M. Aydarov, the former head of the Pravoberezhny ROVD, had been aware that the school had been inspected with service dogs on the morning of 1 September, but no appropriate records had been provided (v. 3 p. 1410).

The trial court noted that criminal proceedings in respect of the organisers of the terrorist act were the subject of a separate criminal investigation (no. 20/849, see above). The court cited statements and documents from investigation file no. 20/849. It identified nineteen terrorists (including Mr Kulayev) and referred to thirteen unidentified individuals (including ‘Abu-Radiy’ and ‘Abu-Farukh’).

It transpires that between October and December 2004 numerous hostages and the victims' relatives were questioned and accorded victim status. By the opening of the trial several hundred people had been granted victim status in the proceedings. Over 230 victims were questioned during the trial; statements by others given to the investigation were read out.

The victims questioned in court mostly denied having seen Mr Kulayev in the gymnasium, although several hostages had seen him in the gymnasium, in the corridor on 1 to 3 September and in the canteen during the final stage of the assault. Most of the hostages had not seen Mr Kulayev's brother Khanpash, who had lost his right arm. Several of them also referred to one particular terrorist: a shaven man with a large scar on his neck, who had been particularly cruel to the hostages and whom they had not identified after the siege was over (witness Mitdziyeva I. v. 2 p. 520). Most hostages had seen two women suicide bombers, although some hostages referred to seeing another woman of Slavic appearance on the first floor of the school on 2 September and possibly a fourth one also on 2 September (Mitdziyeva I. v. 2 p. 518; Misikov K. v. 2 p. 571; Scherbinina O. v. 2 p. 935). One woman told the court that on 2 September terrorist ‘Abdulla’ had asked her if she was Ingush and suggested that they would let her family members go free if she agreed to act as a suicide bomber, since ‘their two girls had been killed by an ammunition round’ fired from the outside (Kudziyeva L. v. 2 p. 525). The hostages estimated the number of terrorists at between thirty and seventy.

With respect to the taking of the school, many hostages testified that as soon as the fighters had surrounded the gathering in the courtyard and started to shoot in the air, another group of fighters had fired from the top of the building. Some witnesses stated that when the shooting had started some children had tried to escape through Shkolny Lane, but there had been fighters there who had forced them to return. Many had seen fighters running to the school from the railway line (Kusayeva R. v. 1 p.147; Misikov Yu. v. 1 p. 471; Daurova M. v. 2 p.574). Others said that when they had entered the school there had already been armed fighters guarding the stairs to the first floor. One boy aged nine at the time testified that on 2 September he and about ten elder boys had been forced to take boxes with grenades and mines from an opening under the stage in the meeting hall (Khudalov S. v. 2 p. 866), but no one else from this group could be identified. One witness testified that when the fighters had broken the floors in the gymnasium on 1 September they had taken out a long tube which she supposed had been a grenade launcher (Tsakhilova A. v. 2 p. 896).

Police officer Fatima D. gave detailed submissions about the hostage-taking and subsequent events. According to her, a second police officer had failed to arrive at the school. At about 8.50 a.m. one mother told her that a strange truck had been parked nearby. When she went out to check, she heard a suspicious noise. She ran to the staffroom on the first floor to alert the police but as soon as she took the telephone, she was surrounded by several fighters wearing camouflage uniforms. They told her that ‘everything would be serious this time’ and led her to the gymnasium. She estimated that there were about seventy fighters (v. 1 p. 365).

On 1 September the teachers, on the terrorists' orders, drew up lists of the children aged below seven, although they were never used (Levina Z. v. 1 p. 475; Shcherbinina O. v. 2 p. 937). Numerous hostages told the court that the terrorists had been extremely annoyed by the information about the number of people being held in the school and that their attitude had become harsher after the figure of 354 people had been announced. They testified that the terrorists had refused to allow them to drink or go to the toilet since ‘nobody needed them anyway and there would only be 350 of them left’ (Kokayeva I. v. 1 p. 413; Kaloyeva F. v. 1 p. 448; Pukhayeva Z. v. 1 p. 461; Daurova Z. v. 1 p. 481). The hostages complained of mocking, insults and ill-treatment and explained how the terrorists had hit the elderly and children, subjected them to false executions, held parents and grandparents at gunpoint in the children's view, and had fired into the air in order to keep them quiet.

The hostages saw the terrorists' attitude deteriorating further on 2 September after Mr Aushev had left the school. Several of them said that on 2 and 3 September the terrorists had attempted in vain to liaise with the authorities through those who had had relatives among officials or public figures.

The school director Mrs Tsaliyeva was a hostage, together with members of her family. She stated that she had inspected the school on the morning of 1 September, denying allegations that anyone except staff and their relatives had been involved in the renovation. She had been called by the fighters to negotiate and testified that they had been annoyed by the absence of contact with the authorities. On 3 September she had attempted to involve the children of Mr Taymuraz Mamsurov and a prosecutor's mother in the negotiations, but to no avail (Tsaliyeva L., v. 1 p. 432).

Many hostages testified about the explosions in the gymnasium. They said that prior to the explosions the fighters had been behaving in a relaxed manner and preparing lunch. Others mentioned some agitation probably caused by electricity failure in the gymnasium. Some hostages testified that they had seen an IED fixed to a basketball hoop explode (Dzarasov K. v. 1 p. 213; Archinov B. v. 1 p.274). Others insisted that when they had been leaving the gymnasium they could still see large IEDs intact on the basketball hoops (Sidakova Z. v. 1 p. 315) or that only the third explosion had come from that IED (Bekuzariva I. v. 2 p. 962). Some described the first blast as a ‘fireball’ (Dzestelova A. v. 2 p. 538). Many testified about the fire and heat emanating from the explosions, enflaming their clothes and hair and causing burns (Agayeva Z. v. 2 p. 600; Dzheriyeva S. v. 2 p. 614; Kochiyeva F. v. 2 p. 631; Tsgoyev A. v. 2 p. 748; Bugulova F. v. 2 p. 764; Makiyev V., v. 2 p. 826; Khanikayev Sh. v. 2 p. 831; Kokova T., v. 2 p. 884). Many testified that the fire could have killed, injured and shell-shocked people who had been unable to leave the gymnasium on their own (Tomayeva L. v. 1 p. 357; Gagiyeva I. v. 1 p. 444; Kudziyeva L. v. 2 p. 526; Fidarova S., v. 2 p. 584; Skayeva T. v. 3 p. 1001; Mitdziyeva Z., v. 3 p. 1043; Alikova F. v. 4 p. 1577). Some hostages described how they had been saved by local civilians from the gymnasium and adjacent premises after the explosions (Gagiyeva I. v. 1 p. 444). Numerous witnesses also gave evidence that when the hostages had started to run from the gymnasium through the opening in the wall they had been shot at from the first floor of the school, and many had been wounded.

Those hostages who had been taken by the fighters to the canteen and the meeting room testified about the fierce fighting which had taken place there. They stated that the fighters had tried to force the hostages — women and children — to stand in the windows and wave their clothes, and some had been killed by shots fired from outside and by powerful explosions (Kusayeva R., v. 1 p. 152; Sidakova Z., v. 1 p. 313; Urmanov S. v. 1 p. 426; Daurova Z., v. 1 p. 483; Badoyeva N. v. 2 p. 823; Makiyev V. v. 2 p. 826; Svetlova T. v. 2 p. 956; Katuyeva V. v. 2 p. 971).

Many also stated that they had not been satisfied with the results of the criminal investigation and that they did not intend to seek damages from the accused, since they considered that the State officials had to bear responsibility for the deaths and injuries.

291. Mr M. Aydarov, former head of the Pravoberezhny ROVD, was questioned in court (v. 3 pp. 1394-14) while under investigation in criminal case no. 20/852 for criminal negligence (see paragraph 355 below). He explained that he had only been appointed in mid-August 2004. The administrative border with Ingushetia in the district was 57 kilometres long and had been mostly unguarded. Many small roads through the fields had been closed off and rendered impassable in view of the heightened terrorist threat; however, this had not suited the locals, who very often had removed the barriers. In August 2004 information had been received about a gathering of armed groups near Psedakh in Ingushetia and a number of steps had been taken on both sides of the administrative border, but at the time the measures had produced no known results.

He also explained that out of the fifty-three officers of the ROVD who had been present on 1 September, over forty had been women. It had been difficult to maintain the staff on alert for a long time. As soon as shooting could be heard from the school, at about 9.15 a.m. on 1 September, he had ordered his staff to maintain security around the building. Two servicemen of the ROVD had witnessed the hostage-taking and exchanged fire with the terrorists.

Mr T. Murtazov, deputy head of the Pravoberezhny ROVD, was also under investigation for criminal negligence at the time of questioning. He gave detailed submissions about the use of Shmel flame-throwers on the school from three snipers positioned on the roofs of a technical building on Lermontova Street, a five-storey housing block on the corner of Shkolny and Batagova Streets and the caretaker's house (v. 3 p. 1418). He did not know where the snipers had come from. Between 2 and 4 p.m. he had witnessed a tank shooting at the school and the use of grenade launchers by the military. The officer remarked that not a single bullet had been extracted from the bodies of the deceased hostages which could have led to the identification of the servicemen of the Ministry of the Interior (v. 3 p. 1424).

Mr Dryayev, another senior ROVD officer, testified that immediately after the first explosions on 3 September he had seen soldiers (of the army or Internal Troops) firing automatic weapons on the school in response to enemy fire. Soon after 3 p.m. he had seen a tank stationed on Kominterna Street firing about ten shots at the corner of the school from a distance of about 30 metres. These rounds, possibly non-explosive, had damaged the wall and the roof (v. 3 p. 1428).

Police officers of the Pravoberezhny ROVD testified that by the evening of 1 September they had carried out a house-to-house inspection in the district and compiled a list of 900 hostages' names, which they had submitted to the officer on duty (Khachirov Ch. v. 3 p. 1212; Friyev S. v. 3 p. 1217).

The policemen also explained that two men had been assaulted by the crowd on 2 September and detained at the ROVD on suspicion of aiding the terrorists. They turned out to be civilians from a nearby town; both men had been identified and testified in court about this incident.

The court questioned several civilians who had helped to evacuate hostages from the gymnasium. Mr Dudiyev testified that he had entered the gymnasium after the first explosions, together with the special forces units, to search for his wife and three children. He had taken out his wounded wife and the body of his daughter, while his brother had evacuated his injured son; his eldest child had also been killed (Dudiyev A. v. 1 p. 251). Other witnesses, both civilian and police, told the court that they had entered the burning gymnasium several times, taking out injured women and children before the roof had collapsed (Adayev E., v. 2 p. 659, Totoonti I., v. 4 p. 1595). One policeman witnessed the fire spreading very quickly on the roof of the school, saying that the firemen had failed to intervene (Badoyev R. v. 3 p. 1295).

Some witnesses saw tanks shooting at the school soon after the explosions (Khosonov Z. v. 3 p. 1110); one man was injured by an explosion while taking a child out of the gymnasium (Gasiyev T. v. 2 p. 676). One witness, E. Tetov, explained that he had served in the army as a tank crew member and was well acquainted with tanks and the ammunition used by them. Shortly after 1 p.m. on 3 September he had counted between nine and eleven non-explosive rounds fired from a tank gun. He was also of the opinion that the first explosions and the fire had been started from the outside, by either a flame-thrower or a tracer bullet (v. 2 pp. 729-30). One civilian witness stated that he had served in the army as a grenade launcher operator and had identified at least two shots fired from grenade launchers or flame-throwers between the second and third major explosions in the gymnasium (Totoonti I., v. 4 p. 1603).

Several police officers testified that the storming of the building had started unexpectedly and that this explained the casualties. Some of them had had no time to put on protective gear and rushed to the school as soon as they had heard the shooting. Some servicemen described the situation after the first explosions as ‘chaotic’, when various forces had been shooting at the school building using automatic weapons and other arms (Khosonov Z., v. 3 p. 1109). They referred to the terrorists' high level of training and preparedness, which had allowed them to mount resistance in the face of the elite Russian units (Akulov O., v. 1 p. 492).

An officer of the Pravoberezhny ROVD testified that at about 9 a.m. on 3 September, while he had been ensuring the security cordon around the school, he had seen two full carloads of portable grenade launchers (RPG) and flame-throwers (RPO-A Shmel) being delivered by servicemen of the Ministry of the Interior driving a white Gazel vehicle. He estimated that at least twenty flame-throwers had been unloaded and taken to the snipers' positions, located about 200 metres from the school. The snipers and the forces of the Ministry of the Interior had used these flame-throwers soon after the explosions at the school, responding to enemy fire from grenade launchers and machine guns (Khachirov Ch. v. 3 p. 1212). Another policeman counted up to ten shots from flame-throwers in the direction of the gymnasium roof at around 2 p.m. (R. Bidzheov, v. 3 p. 1222). Other policemen testified that between 3 and 5 p.m. they had seen a tank firing at the school (Friyev S. v. 3 p. 1218; Khadikov A. v. 3 p. 1224; Khayev A. v. 3 p. 1227; Karayev A. v. 3 p. 1231;) and that shots had been fired from grenade launchers (Karayev A. v. 3 p. 1231; Aydarov M. v. 3 p. 1400).

The hostage-taking and subsequent events were witnessed by numerous local residents; some of them were questioned in court. Several passengers of vehicles who had found themselves on the street in front of the school on the morning of 1 September had seen a GAZ-66 truck arriving in the schoolyard. Some said that they had seen three or four women jumping out of the vehicle. Mr K. Torchinov had been a teacher at school no. 1 and a former investigator of the prosecutor's office; he lived in the house opposite the school and had watched the ceremony from his window, from a distance of about 200 metres. He gave detailed explanations about the hostage-taking. In particular, he had counted the men who jumped out of the GAZ-66 vehicle and said that there had been twenty-seven. He had also seen two other fighters in the schoolyard and between seven and eight who had run from the railway lines; at the same time there had been shots fired from the roof and the first floor of the school; he thus estimated the number of fighters at no fewer than forty or forty-five. Mr Torchinov also stated that on 1 to 3 September there had been no soldiers or police lined up along the backyard of the school and that it had been possible to walk there to and from his house (v. 2 pp. 847-59).

Numerous local residents whose relatives were held in the school stated that they had been appalled by the announcement of the number of hostages. They said that the school had had about 900 students — lists could have been obtained from the local department of education — and that numerous parents and relatives had also been captured. Officials from the local department of education testified that on the morning of 1 September the number of students (830) had been transmitted to the administration with an indication that many relatives could be present at the ceremony (Dzukayeva B. v. 3 p. 1334; Burgalova Z. v. 3 p. 1349). Moreover, on 1 September volunteers and police had drawn up lists of over 1,000 hostages. In view of this, they could not explain how the officials had arrived at a figure of 350 (Khosonov Z. v. 3 p. 1107).

Many local residents testified that they had seen or heard a tank shooting at the school after the explosions (Duarov O. v. 3 p. 1083; Pliyev V. v. 3 p. 1085; Dzutsev Yu. v. 3 p. 1121; Gagiyev E. v. 3 p. 1300; Malikiyev A. v. 3 p. 1308; Savkuyev T. v. 3 p. 135; Ilyin B. v. 1 p. 1453). Mrs E. Kesayeva had remained outside the school, where four members of her family were being held hostage. She testified that a tank positioned on Kominterna Street had fired several rounds between 1 p.m. and 4 p.m. (v. 1 p. 325). One local resident saw a tank enter a courtyard on Pervomayskaya Street and heard it shooting at the school before 3 p.m. on 3 September. The witness was about 50 metres away from the tank (Khabayeva A. v. 3 p. 1289). All those witnesses described the tank cannon shots as being particularly strong and clearly identifiable despite the overwhelming noise of fierce fighting.

Several residents testified about the firemen's actions. They alleged, in particular, that the firemen had lost time before intervening in the gymnasium and that once the fire engines had arrived, they had been of little use since the water in the cisterns had been quickly exhausted. Moreover, the pressure in the water hoses had been weak and they could not reach the gymnasium from where the machines were stationed. Some witnesses deplored the lack of preparedness by the firemen who had failed to find out beforehand where to find water locally around the school rather than bringing it in cisterns (Tetov E. v. 2 p. 729; Katsanov M. v. 2 p. 802). Other witnesses told the court that they had seen a fire engine stuck in the courtyard and trying to find water for the cistern (Pliyev V. v. 3 p. 1086).

The hostage-taking and subsequent events were witnessed by numerous local residents; some of them were questioned in court. Several passengers of vehicles who had found themselves on the street in front of the school on the morning of 1 September had seen a GAZ-66 truck arriving in the schoolyard. Some said that they had seen three or four women jumping out of the vehicle. Mr K. Torchinov had been a teacher at school no. 1 and a former investigator of the prosecutor's office; he lived in the house opposite the school and had watched the ceremony from his window, from a distance of about 200 metres. He gave detailed explanations about the hostage-taking. In particular, he had counted the men who jumped out of the GAZ-66 vehicle and said that there had been twenty-seven. He had also seen two other fighters in the schoolyard and between seven and eight who had run from the railway lines; at the same time there had been shots fired from the roof and the first floor of the school; he thus estimated the number of fighters at no fewer than forty or forty-five. Mr Torchinov also stated that on 1 to 3 September there had been no soldiers or police lined up along the backyard of the school and that it had been possible to walk there to and from his house (v. 2 pp. 847-59).

Numerous local residents whose relatives were held in the school stated that they had been appalled by the announcement of the number of hostages. They said that the school had had about 900 students — lists could have been obtained from the local department of education — and that numerous parents and relatives had also been captured. Officials from the local department of education testified that on the morning of 1 September the number of students (830) had been transmitted to the administration with an indication that many relatives could be present at the ceremony (Dzukayeva B. v. 3 p. 1334; Burgalova Z. v. 3 p. 1349). Moreover, on 1 September volunteers and police had drawn up lists of over 1,000 hostages. In view of this, they could not explain how the officials had arrived at a figure of 350 (Khosonov Z. v. 3 p. 1107).

Many local residents testified that they had seen or heard a tank shooting at the school after the explosions (Duarov O. v. 3 p. 1083; Pliyev V. v. 3 p. 1085; Dzutsev Yu. v. 3 p. 1121; Gagiyev E. v. 3 p. 1300; Malikiyev A. v. 3 p. 1308; Savkuyev T. v. 3 p. 135; Ilyin B. v. 1 p. 1453). Mrs E. Kesayeva had remained outside the school, where four members of her family were being held hostage. She testified that a tank positioned on Kominterna Street had fired several rounds between 1 p.m. and 4 p.m. (v. 1 p. 325). One local resident saw a tank enter a courtyard on Pervomayskaya Street and heard it shooting at the school before 3 p.m. on 3 September. The witness was about 50 metres away from the tank (Khabayeva A. v. 3 p. 1289). All those witnesses described the tank cannon shots as being particularly strong and clearly identifiable despite the overwhelming noise of fierce fighting.

Several residents testified about the firemen's actions. They alleged, in particular, that the firemen had lost time before intervening in the gymnasium and that once the fire engines had arrived, they had been of little use since the water in the cisterns had been quickly exhausted. Moreover, the pressure in the water hoses had been weak and they could not reach the gymnasium from where the machines were stationed. Some witnesses deplored the lack of preparedness by the firemen who had failed to find out beforehand where to find water locally around the school rather than bringing it in cisterns (Tetov E. v. 2 p. 729; Katsanov M. v. 2 p. 802). Other witnesses told the court that they had seen a fire engine stuck in the courtyard and trying to find water for the cistern (Pliyev V. v. 3 p. 1086).

Colonel Bocharov, brigade commander of the Internal Troops deployed in Beslan on 1 to 4 September, testified in November 2005 that servicemen under his command had ensured the security cordon. Their task had been to prevent the terrorists from breaking through. Four APCs from his brigade had been transferred to the FSB forces on 2 September (v. 3 p. 1209).

Officers of the 58th Army testified that their task had been to ensure the ‘third ring’ of security around the school. One officer explained that General Sobolev, the commander of the 58th Army, had instructed him to follow the orders of the FSB officers. Each army vehicle deployed in Beslan had been reinforced by an officer of the FSB who had given orders and coordinated the crews' actions (Isakov A. v. 3 p. 1260; Zhogin V. v. 3. p. 1265). They denied having heard or seen grenade launchers, flame-throwers or tanks being used prior to late on the evening of 3 September. The tank unit commander stated that between 8.56 p.m. and 9.30 p.m. one tank had fired seven high-fragmentation shells at the school (although the seventh had failed to explode), following orders of the FSB officer in charge. No shots had been fired from the tank guns before or after that (Kindeyev V. v. 3 p. 1277).

One officer, a sapper, testified that he had entered the gymnasium at around 2.40 p.m. on 3 September and had deactivated an IED attached to a basketball hoop. Most IEDs had not exploded and had been deactivated the following day. The officer testified that he had entered the gymnasium with a group of seven servicemen and fifteen or twenty civilians who had evacuated the hostages for about one hour. Initially there had been no fire there, but the premises had been under attack from the north wing of the school. Soon afterwards he had noticed a fire starting in the roof, above the entrance to the gymnasium from the side of the weights room (Gagloyev A. v. 4 pp. 1715 and 1733).

Mr Z., a professional negotiator from the North Ossetian FSB, was called to Beslan at 9.30 a.m. on 1 September. He had a meeting with General Andreyev and then informed him of the talks and received instructions from him. He was placed in a separate room, with a psychologist, and maintained telephone contact with the terrorists every 30 to 35 minutes. His efforts to establish psychological contact with his interlocutor (who called himself ‘Shahid’) were unsuccessful and he failed to obtain any concessions aimed at alleviating the hostages' situation. The conversations were conducted in a rude manner; the gangsters insulted him and Dr Roshal. The terrorists repeatedly said that they would talk to the four men named by them and did not present any other demands. They did not specify the number of hostages they were holding, saying only that they had ‘enough’. They spoke of about twenty people shot dead on the first day and said that they had three days to wait for the authorities to bring the four men together. When asked if Mr Dzasokhov could come alone, the terrorists refused. The first telephone conversation took place at about 4 p.m. on 1 September, the last one after 1 p.m. on 3 September immediately following the first explosion. The witness remembered saying ‘What have you done?!’ and ‘Shahid’ responding ‘We have fulfilled our duty’. Responding to the victims' questions, Mr Z. admitted that the negotiations involving Mr Aushev and Mr Gutseriyev had been carried out without him and that he had only been informed of these developments after they had occurred (v. 4 pp. 1819-43).

The head of the FSB in Beslan at the relevant time stated in court in January 2006 that he had not been aware of the information and telexes sent by the Ministry of the Interior in August 2004 about the heightened terrorist threat during the Day of Knowledge. The FSB had not been involved in the protection of the administrative border, but their services had cooperated with the Ministry of the Interior in examining the area around the border (Gaydenko O. v. 4 pp. 1847-54). He did not have any information about the possible escape of terrorists after the storming.

The former head of the FSB department in Ingushetia, General Koryakov, confirmed that there had been sufficiently precise information about the activities of terrorist groups in Ingushetia in the summer of 2004 as a number of successful special operations had been carried out, but there had been no information about the armed group in the Malgobek District. He testified that he had arrived in Beslan on the morning of 1 September and had remained there for three days, working in close cooperation with General Andreyev. He was not certain if he had been a member of the OH, but he had been fully aware of its work. On the morning of 1 September General Koryakov had called the Ingushetian President Mr Zyazikov and informed him of the terrorist act; at that time no demand to involve Mr Zyazikov in the negotiations had been made. He could not reach Mr Zyazikov later since his mobile telephone had been switched off. By questioning the escaped hostages, they had tried to identify terrorists from Ingushetia and involve their relatives in the negotiations. They had therefore brought in the wife and children of a presumed terrorist, but her appeal had had no effect. The witness had not been aware of the note taken out by Mr Aushev (v. 4 pp. 1841-90).

Most of the army and Internal Troops servicemen failed to testify in court, and their witness statements collected during the investigation of criminal case no. 20/849 were read out (see paragraph 207 above).

The director of the Zashchita Centre Mr Goncharov (v. 3 pp. 1166-78) testified that on 2 September he had been told that about 300 people were being held hostage and that the medical assistance had been planned accordingly. Only after he had met with Mr Aushev on 2 September had he realised that the number of hostages had actually been much higher. That evening he had set up emergency paediatric teams, called in ambulances from the region, carried out training and prepared for the arrival of patients. They had mostly expected victims of injuries; the probability of gas poisoning had been considered low. He testified that although he had been a member of the OH as an official of the Ministry of Public Health, he had not taken part in any meetings or discussions. He had not received any information from the OH, as, in his view, the number of hostages had been the only relevant factor and that had been communicated to him personally by Mr Aushev. His own experience and available resources had been sufficient. Being highly experienced in providing emergency treatment to a large number of victims, his work had been relatively independent from the rest of the OH. Besides, his previous experience had shown that the ‘security structures’ would not share their plans with the medics, out of a need to keep such considerations secret.

Turning to the organisation of medical assistance, Mr Goncharov explained that by the morning of 3 September they had had about 500 people on standby in Beslan, including 183 doctors, over seventy ambulances, one field paediatrician hospital and several intensive care units. ‘Carriers’ with stretchers had been grouped about 700 metres from the school, with ambulances and medical vehicles placed in several spots around the building. The idea had been to take the injured to Beslan Hospital where the sorting would take place, urgent operations and life-saving measures would be carried out in the paediatric field hospital and, for adults, in Beslan Hospital and then those who could be transported to Vladikavkaz would be taken there (about 20 kilometres away).

Immediately after the explosions at 1 p.m. on 3 September he had received a call from the OH to bring in the medical rescue team. For four hours on 1 September the sorting centre at Beslan Hospital had treated 546 patients and carried out seventy-six urgent operations. Five people had been taken to the hospital in agony and had died within a few hours; fourteen other patients had died within twenty-four hours. In total, 199 adults had been evacuated to other hospitals after urgent medical assistance; fifty-five children had been in a life-threatening condition and had had to be treated on the spot, seven children had had emergency surgery. On the night of 3 September six children in a critical condition had been taken to Moscow in a specially-equipped aeroplane. There had been difficulties in maintaining the necessary security around the school, and later around the hospital, to avoid disruption of services by the relatives.

Mr Soplevenko, then North Ossetian Minister of Public Health, was questioned in court on 15 November 2005 (v. 3 pp. 1179-91). He also testified that on 1 to 3 September he had not received any particular instructions, but rather general indications by Mr Dzasokhov that ‘adequate medical aid’ should be provided. He had not been part of the OH or any other body during the crisis. He had learnt from the nursing mothers who had walked out with Mr Aushev on 2 September that more than 1,000 people were being held in the school. In cooperation with Mr Goncharov he had alerted the hospitals in Vladikavkaz that they would have to admit patients: beds had been freed at five hospitals, surgery and intensive care teams had been put on standby, and stocks of medical and dressing material had been set aside.

Dr Roshal, director of the Moscow Institute of Emergency Paediatric Surgery, was questioned in February 2006. He stated that he had been informed by journalists on 1 September about the hostage-taking and had immediately gone to Beslan. He had been taken to the town administration where the OH and other officials had been stationed. He had been taken to a room with Mr Z. where he had received brief instructions from him. On several occasions he had called the terrorists; each time they had reacted in a hostile manner and refused to discuss anything unless all four men requested by them came. His attempts to convince them to accept water, food, medicine or to allow him to examine and treat the wounded and sick had been flatly rejected; moreover, the terrorists had said that all the hostages had declared a ‘dry hunger strike’ in support of their demands. On 2 September at about 11 a.m. the terrorists had called him and let him talk to the school director, who had pleaded with him to intervene since their situation was dire. On 2 September Dr Roshal had personally telephoned Mr Zakayev in London and let Mr Dzasokhov talk to him (v. 4 pp. 1900-25).

In December 2005 the court, following an application by the victims, questioned a senior expert of the forensic laboratory in Rostov-on-Don, who on 13 September 2004 had been appointed the chief of the team in charge of identifying the remains by DNA testing. The expert explained that their laboratory was the best equipped in Russia and that the delay in genetic testing was between three days and five weeks, depending on the quality of the material under examination. All work in the Beslan cases had been completed within a month and a half. Mr Korniyenko stated that the results obtained through genetic pairing had been final and could not be challenged on grounds of possible misidentification. He admitted that many relatives had refused to believe that their loved ones had died and that on some occasions they had carried out second rounds of tests with other relatives' DNA, primarily out of respect. The expert cited difficulties in identifying the remains which had been burnt ‘to ashes’ and in identifying body fragments, a process which had lasted until summer 2005. The same expert group had worked with the terrorists' remains: twenty-three had been identified, while eight remained unidentified (v. 3 p. 1469).

Hundreds of forensic reports on the victims were examined by the court. They included examinations of bodies, results of the identification of remains through DNA testing, conclusions of experts regarding damage to the health of the surviving hostages and other documents. Over 110 forensic reports concluded that the cause of death could not be established in view of many of the remains being extensively charred and burned and the absence of other injuries. Other reports named extensive burns, gunshot wounds, traumatic amputation of the extremities and injuries to the head and body as the causes of death. Injuries from gunshots and explosions, burns and psychological trauma were recorded for the surviving hostages.

In the course of the proceedings the victims lodged several hundred applications. Some of them were lodged with the district courts in Vladikavkaz, where the investigation was being conducted, while others were lodged directly with the North Ossetia Supreme Court. Some of them were submitted to the Court, while others were mentioned in the statement of facts or in the trial records.

On 29 September 2005 the victims sought the withdrawal of the head of the investigation team, Deputy Prosecutor General Mr Shepel. They argued that the investigation had been incomplete and failed to take into account all the relevant information about the crime. They indicated that copies of many expert reports had been unavailable to them, that the prosecutor's office had ignored numerous facts and statements which had differed from the facts ‘selected’ to form the basis of Mr Kulayev's indictment, and that the role of various officials in the hostages' deaths had not been clarified. This complaint was dismissed.

In January 2006 the victims applied for the withdrawal of the prosecution and the judge presiding in the case, referring to the incomplete nature of the investigation and the repeated dismissal of their complaints by the judge. They also questioned the logic behind separating the investigation concerning the terrorist act and its consequences into several sets of criminal proceedings. These complaints were also dismissed (v. 4 p. 1801).

In November to December 2005 and in January 2006 the victims applied to the trial court for permission to have a number of additional witnesses called and questioned: members of the OH, senior civilian and FSB officers who had been present in Beslan during the operation, members of the North Ossetian Parliament's investigative commission on Beslan, people who had negotiated with the terrorists, including Mr Gutseriyev, Dr Roshal, Mr Z. and Mr Aslakhanov. The court agreed to question several Ossetian officials who were members of the OH, but refused to call other officials, negotiators and members of the North Ossetian Parliament. It also refused to include the results of the investigation of the North Ossetian parliamentary commission in the case file (v. 3 pp. 1311-312, v. 4 pp. 1570, 1589, 1651, 1778-783, 1796, 1929). In January 2006 the court granted the victims' application to question Mr Z., Dr Roshal and some senior FSB officials.

In February 2006 the victims again sought the withdrawal of the prosecutor in the trial. They argued, with reference to the European Convention on Human Rights, that the investigation had been ineffective and incomplete in ascertaining the most important elements of the crime. They sought to have independent experts appointed in order to clarify key questions concerning the preparation of the terrorist act, the composition and powers of the OH, the reasons for the first explosions, the use of flame-throwers, grenade launchers and tank guns, and the belated arrival of the firefighters. The request was dismissed (v. 4 p. 1936).

In July 2006 the victims sought to acquaint themselves with the entire set of documents in the criminal case and to be allowed to take copies. Similar requests were lodged in March and July 2007, but apparently to no avail.

In his final submissions of February 2006 the prosecutor asked the court to apply the death penalty to the accused. The victims argued that the investigation and the trial had failed to elucidate many key elements of the events and that the officials responsible should be prosecuted for their actions which had led to the tragedy.

On 16 May 2006 the North Ossetia Supreme Court found Mr Nurpashi Kulayev guilty of a number of crimes, including membership of a criminal gang, unlawful arms and explosives handling, aggravated hostage-taking, murder, and attempts on the life of law-enforcement personnel. The 319-page judgment summarised witness and victim statements and referred to forensic reports, death certificates, expert reports and other evidence. The court found that 317 hostages, one Beslan civilian and two Emercom workers had been killed; 728 hostages had received injuries of varying degrees (151 received serious injuries, 530 received moderately serious injuries and 102 received minor injuries). Ten servicemen of the FSB had been killed and fifty-five servicemen of the army and law-enforcement bodies wounded. The actions of the criminal group had caused significant damage to the school and private properties in Beslan. Mr Kulayev was sentenced to life imprisonment.

The victims appealed against the court's decision. In detailed complaints of 30 August and 8 September 2006 they claimed that the court had failed to undertake a thorough and effective investigation and that its conclusions had not been corroborated by the facts. They argued that the court had failed to investigate the authorities' failure to prevent the terrorist attack, apportion responsibility for the decisions taken by the OH, establish the exact places and circumstances of the first explosions in the gymnasium and assess the lawfulness of the use of indiscriminate weapons by the security forces. They also complained that the court had not allowed them full access to the case material. Their complaints were supplemented by reference to relevant statements and documents.

On 26 December 2006 the Supreme Court held a cassation review. Four victims, the defendant's lawyer and the prosecutor made oral submissions. The Supreme Court slightly amended the characterisation of one offence imputed to Mr Kulayev, while the remaining parts of the parties' complaints were dismissed. In particular, the Supreme Court found that the questions raised by the victims had no bearing on the characterisation of Mr Kulayev's actions and that the victims had been allowed full access to the case documents after the completion of the investigation.

On the same day the Supreme Court issued a separate ruling (чаcThoе oпpеделеhие) in respect of Deputy Prosecutor General Mr Shepel, who had acted as the State prosecutor in the trial. The court noted that his request to the trial court to apply the death penalty to Mr Kulayev had been contrary to the applicable legislation and as such incited the court to adopt a manifestly unlawful decision.

The applicants in application no. 26562/07 submitted that during the trial they had heard testimony and examined other evidence. It had allowed them to draw conclusions about the actions of the OH and other officials, most of which could not be elucidated within the course of the trial. Referring to the case material and other evidence, the applicants made the following inferences:

On 20 September 2004 the Deputy Prosecutor General Mr Kolesnikov ordered the opening of a separate criminal investigation for negligence on the part of the head of the Pravoberezhny ROVD, Mr Aydarov, his deputy on issues of public safety, Mr Murtazov, and the ROVD's chief of staff, Mr Dryayev. This criminal case was assigned the number 20/852.

The police officers were charged with negligence entailing serious consequences and the death of two or more people under Article 293 §§ 2 and 3 of the Criminal Code. They were accused of failing to properly organise an anti-terrorist defence and to prevent terrorist attacks in August 2004, despite the heightened terrorist threat and the relevant telexes and orders of the North Ossetian Ministry of the Interior.

Over 180 people were granted victim status in the proceedings. Although no procedural documents were submitted, it appears from the cassation appeal by the victims that only those whose relatives had died were granted victim status in the proceedings, while other hostages were refused this status.

On 20 March 2006 the Pravoberezhny District Court of North Ossetia started hearing the case. The applicants submitted four volumes of trial records, comprising about 1,500 pages and covering sixty-nine court hearings.

On 29 May 2007 the court terminated the criminal proceedings against the three officials, applying to them the provisions of the Amnesty Act of 22 September 2006. They agreed to the application of that Act, which absolved them from criminal responsibility for the acts committed during the period covered by it (see paragraph 464 below). The prosecutor's office supported the application of the amnesty, while the victims objected. Outraged by the verdict, the victims present in the courtroom ransacked the premises.

On 5 to 8 June 2007 seventy-five victims appealed against this decision. They challenged the applicability of the Amnesty Act to the circumstances of the case, arguing in particular that the counter-terrorism operation in Beslan had started after the crime in question had been committed. They also complained that the court had refused to consider civil claims at the same time, that many other hostages and relatives of the injured had been refused victim status in the proceedings, that one volume of the criminal investigation file (no. 43) had been declared confidential by the trial court and thus the victims had been denied access to it, that a number of key witnesses had not been called, and that the trial court had refused to take into account additional evidence such as the report of the North Ossetian Parliament about the investigation into the terrorist act.

On 2 August 2007 the Supreme Court of North Ossetia at last instance upheld the judgment of 29 May 2007. It found the victims' allegations about procedural deficiencies to be irrelevant to the conclusion and confirmed the applicability of the Amnesty Act.

The victims applied for a supervisory review of the above decisions, but to no avail.

On 7 October 2004 a separate criminal investigation was opened in respect of the head of the Malgobek ROVD, Mr Yevloyev, and his deputy, Mr Kotiyev, for negligence entailing serious consequences (Article 293 §§ 2 and 3 of the Criminal Code). It appears that no fewer than a hundred former hostages or their relatives were granted victim status in these proceedings.

The applicants submitted various documents related to this trial, including about 200 pages of trial court records, corrections by the victims of these records, copies of their complaints and other documents. As shown by these documents, the officials of the Malgobek ROVD had been charged with failing to spot the terrorists who had gathered and trained in the district and had travelled on 1 September 2004 to North Ossetia. The investigation obtained a number of documents which contained sufficiently clear and precise information about the possible terrorist threat and the actions to be taken to counter it. In particular, on 22 August 2004 the Ingushetia Ministry of the Interior had issued Order no. 611 concerning a terrorist threat to public security, putting all staff of the Ministry on heightened alert until further notice. This document instructed all heads of district departments of the interior to contact the local municipalities, hunters and forest workers, in order to keep track of the movements of any suspicious looking men, and to check all trucks and other vehicles capable of transporting illicit cargo, if necessary using service dogs. On 23 August 2004 Mr Yevloyev issued a corresponding order on measures to be taken in the Malgobek District.

On 25 August 2004 the Ingushetia Ministry of the Interior issued Order no. 617 about security measures in schools and educational facilities. By this order the police were called to take special measures aimed at protecting educational facilities against possible terrorist acts. On 28 August 2008 Mr Yevloyev issued a corresponding document for the Malgobek District.

On 31 August 2004 the Ingushetia Ministry of the Interior sent a directive to all district departments, citing operative information about a possible terrorist act in educational facilities on the opening of the academic year. Again, a number of urgent steps involving local government and school principals were recommended.

The trial was conducted by the Supreme Court of Ingushetia in closed sessions in Nalchik, Kabardino-Balkaria. The defendants opted for a trial by jury. On 5 October 2007 the jury found the defendants not guilty. On the same date the Supreme Court of Ingushetia fully acquitted the defendants and rejected the civil actions lodged by the victims within the same proceedings.

The victims appealed, and on 6 March 2008 the Supreme Court confirmed the validity of the judgment. The victims' subsequent applications for a supervisory review were futile.

The commission strongly criticised the local police and the Ingushetian and North Ossetian branches of the FSB. It expressed particular dismay at the fact that despite a ‘heightened security threat’ the terrorist group had been able to gather and train unnoticed in the vicinity of a village and a major local road, as well as to pass unhindered to the school in the centre of a town across the administrative border, which was supposed to have been under special protection. The commission argued that the police's attention had been diverted to the presidential elections in Chechnya which had taken place on 29 August 2004, following which no real attention had been paid to other security threats.

Turning to the work of the OH, the report was highly critical of its composition and functioning. It concluded that the ‘first, so-called ‘republican’ OH’ had been created on 1 September 2004 at 10.30 a.m., in line with the Suppression of Terrorism Act and the pre-existing plan dated 30 July 2004. It had comprised eleven people under Mr Dzasokhov's command and had included the heads of the North Ossetian FSB, Ministry of the Interior and other officials. In the presence of the OH members, Dr Roshal and a number of other public figures, Mr Dzasokhov had announced that he was prepared to go to the school; however, the deputy Minister of the Interior of Russia, Mr Pankov, had responded that in that case he would be authorised to arrest him. Mr Dzasokhov himself had confirmed that he had been informed by senior officials in Moscow that he should not take ‘any steps which could lead to further complications in the operation aimed at liberating the hostages’. This ‘republican’ OH had continued to consider possible strategies aimed at liberating the hostages throughout the crisis. It had also considered the possibility of inviting Mr Maskhadov to negotiate.

In the meantime, on the afternoon of 1 September 2004 the President of Russia, in accordance with a secret order issued by the Russian Government (no. 1146-rs), had determined the composition of the OH under the command of General V. Andreyev, the head of the North Ossetian FSB. The OH had included seven people: the deputy head of the counter-terrorism commission of North Ossetia Lieutenant-Colonel Tsyban, the commander of the 58th Army of the Ministry of Defence General-Lieutenant V. Sobolev, the North Ossetian Minister of Emercom Mr Dzgoyev, the North Ossetian Minister of Education Mrs Levitskaya, the director of the Zashchita Centre Mr Goncharov, and the deputy head of the information programmes department of Rossiya, Mr Vasilyev. The report criticised the composition of the OH, which had excluded not only Mr Dzasokhov — the North Ossetian President — but also a number of other senior officials from the republic. It also noted that two deputy heads of the FSB who had arrived in Beslan, Mr Anisimov and Mr Pronichev, had not been officially designated to take on any tasks in the OH. This had led to a situation of a multitude of ‘leaderships’.

The report described the situation as follows:

The report argued that the first two explosions could not have come from the IEDs. The first explosion, according to the hostages' testimony, had occurred in the north part of the gymnasium roof space, destroying part of the roof and creating a mushroom-shaped smoke cloud above the explosion. The report argued that this could not have been the result of an IED explosion for a number of reasons: the terrorists had not mined the roof or the roof space of the gymnasium, so not a single electric cable had led there; a mine in the gymnasium could not have destroyed the ceiling and roof 6 metres above; there would have been several simultaneous explosions because they had been connected in a single chain; the mushroom-shaped cloud could not have risen within seconds to about 13 to 15 metres above the roof from an IED explosion inside the gymnasium; the damage to the basketball hoop and the brick wall of the gymnasium bore evidence of the passage of a device fired from outside. The second explosion, which had created a half-metre-wide opening in the brick wall under the window, had not been the result of an IED either, since the floorboards immediately near the hole had not been damaged, unlike the floorboards under the basketball hoop where the IED had later detonated.

The report stated that the video-recording of the events had captured not only the smoke cloud from the first explosion, but also the sounds of both explosions, leading to the conclusion that the shots had been fired from a grenade launcher or a flame-thrower. The report considered that the nature of the destruction was consistent with this version. The choice of targets inside the gymnasium had been determined by the presence there of the pedal-holding fighters; since a sniper could not have reached them, a grenade had resolved this situation.

The report found that the third explosion had most probably resulted from an IED being affected by spreading fire, following which the fire had spread from the ceiling to the floor of the gymnasium.

The document concluded by saying that the exploration of the first explosions should have been carried out properly within the framework of the criminal investigation. The report deplored the hasty clearing of the site, which had been opened to the public on 5 September 2004. It referred to ‘hundreds of people who had found objects which should have been of interest to the investigation’. A number of items had apparently been collected from the town rubbish dump where the debris had been taken on 4 September in trucks.

In a separate conclusion, the report stated that the active involvement of civilian volunteers immediately after the explosions had saved many hostages' lives. The evacuation had been carried out by people who had taken on ‘the functions of the police, firemen and emergency workers’.

The report evaluated the number of army personnel and police officers (excluding the FSB) deployed within the security perimeter around the school at about 1,750 people. Three security cordons were judged to have been of little effect and had basically fallen apart once the operation had started. Hundreds of civilians and dozens of private cars had passed unhindered through the cordons, while filtration groups formed in advance from servicemen of the police special forces (OTдел mилиции ocoбoгo hа3hачеhия (OMOH)) and the Pravoberezhny ROVD had not stopped for an identity check any of the volunteers who had helped to evacuate the hostages. The report remarked that a number of men had arrived from elsewhere in Ossetia and spent two days around the school; they had often been unshaven, dirtied with blood and soot, and could not be distinguished from the terrorists.

The report then addressed the problem of the ambulance and fire services accessing the school, commenting that it had been made difficult by vehicles parked in the adjacent streets which had not been towed away. The first fire engine, which had arrived at the school at about 2 p.m., had not been carrying a full load of water in its cistern. Other fire brigades which had arrived even later had allowed civilian volunteers to operate the water hoses.

The report found it established that between 2 p.m. and 2.30 p.m. on 3 September a tank with hull number 328 stationed behind the railway line had fired several non-explosive rounds at the canteen and kitchen, while at around 4.30 p.m. a tank with hull number 325 stationed on Kominterna Street had fired at the canteen from a close distance, towards the area immediately above the entrance to the cellar. The commission's members could not agree that the use of the tank to fire at the canteen before 5 p.m. had been justified in view of the probable presence of the last group of hostages with the terrorists. The commission had entered the cellar and found it entirely intact and bearing no traces of the terrorists' alleged stay there. No complete information could be obtained about the use of tanks, helicopters, flame-throwers or other heavy weapons.

The document separately noted the multitude of lines of responsibility within the various agencies involved. According to the commission's information, the commander of the 58th Army had regularly reported to the Chief of Staff of the Ministry of Defence in Moscow and had obtained instructions from him in return. The Ministry of the Interior had commanded the largest contingent in Beslan and had initially followed the orders of its own headquarters based in the administration building; it later followed the instructions issued by the FSB.

Turning to the role of the FSB, the report stated the following:

The report devoted some attention to the number of fighters and their identities. It noted discrepancies in the names and number of identified and non-identified terrorists in the documents issued by the prosecutor's office in relation to the investigation in criminal case no. 20/849. Relying on the information provided by the Prosecutor General's Office, the report listed thirty-eight names or aliases; of them twenty-two people (including Mr N. Kulayev) were identified by their full name, date of birth, ethnic origin and place of residence, and fourteen people were identified provisionally. In the list of thirty-eight people, at least nine had previously been detained by the law-enforcement authorities, some of them had been released for unknown reasons. According to the report, Mr Iliyev had been detained in 2003 in Ingushetia on charges of illegal arms and ammunition handling, but the case had been closed two months later; Khanpash Kulayev had been sentenced to nine years in prison in 2001; Mr Shebikhanov had been charged with attacking a military convoy in August 2003 and released by jury in July 2004; Mr Tarshkhoyev had been convicted at least three times and given suspended sentences for illegal arms handling and theft, most recently in March 2001; Mr Khochubarov (‘Polkovnik’) had been on trial for illegal arms handling; and Mr Khodov had been wanted for a number of serious crimes including terrorist acts and had been detained in 2002 but released. Most of the other identified terrorists were known to the law-enforcement authorities, who had retained their fingerprints, on the basis of which their bodies were identified. Many were on wanted lists for various crimes.

Some of those initially announced by the Prosecutor General's Office as identified bodies in Beslan had later been killed in other places. Mr Gorchkhanov's death had first been announced in Beslan, but in October 2005 his name had again been announced by the Deputy Prosecutor General Mr Shepel as one of the organisers of the attack at Nalchik, Kabardino-Balkaria, who had been killed. Mr Kodzoyev had first been identified as one of the terrorists in Beslan and had apparently had a telephone conversation with his wife, whom the authorities had brought to the school on 2 September. His death had then been announced in an anti-terrorist operation in Ingushetia in April 2005. The report deplored the lack of clarity in such an important aspect of the investigation and asked the prosecutor's office to issue clear and exhaustive information in this regard.

The report contained a table compiled on the basis of information provided by the Prosecutor General's Office including various figures related to the total number of hostages and the number of people, killed, injured and liberated as a result of the anti-terrorist operation. The commission noted that the causes of death for 331 people had been as follows: twenty had died in hospital; fifty-one (including twenty-one men killed on 1 September) had died of gunshot wounds; 150 had died of shell wounds; ten had died of fire injuries and four had been killed by blunt force trauma injuries. In 116 cases the cause of death could not be established owing to extensive fire damage. Eighty-three bodies had been identified through DNA matching and six cases had called for exhumation and DNA testing, procedures which had lasted until April 2005. The report concluded that the real reasons for many victims' deaths and injuries had not been established: bullets and shell fragments had not been extracted from the bodies, and no ballistics reports had been made to analyse the bullets and cartridges found at the scene.

The commission's report was made public in December 2005. Mr Torshin stated that it posed more questions than it gave answers, and its findings and conclusions were not mentioned in the report prepared by the Federal Assembly (see below).

In 2007 the report was published as a separate book. By that time the authors had prepared additional statistical data. It included a complete list of the hostages, with indications as to their injuries and dates of death, and other important findings. Many of the figures arrived at by the authors of the report differed from those used by the prosecutor's office.

In particular, the authors stated that 1,116 people (not 1,127 as indicated by the Prosecutor General's Office) had been taken hostage; three people had escaped on 1 September; seventeen (not twenty-one) men had been shot dead on 1 September and twenty-four (not twenty-six) people had been led out by Mr Aushev on 2 September. By 1 p.m. on 1 September 1,072 hostages had remained alive in the school; 284 had been killed during the storming; ten had died in hospital within two months and three more had died by 2006. Ten special forces servicemen, two servicemen of Emercom and seven civilians had been killed: three civilians had been killed on 1 September by the assailants and four more had died during the storming while evacuating the hostages. Thirty-five civilians had been wounded, the majority of them while evacuating the hostages from the school.

The publication gave a list of the servicemen of the FSB, Ministry of the Interior and Emercom who had been killed (twelve) and injured (fifty-two) during the terrorist act.

Turning to the causes of death, the publication stated that the commission had examined over 300 orders for forensic expert reports issued by the prosecutor's office on 3 and 4 September 2004 and the forensic reports issued by the forensic bureau. The document highlighted that the investigation's orders had suggested that the experts should conduct external examinations of the bodies, and carry out a full autopsy only ‘where necessary’. Only a few cases had thus necessitated a full examination; one third of the expert reports had concluded that ‘the cause of death could not be established’. In total, the document stated that 159 bodies out of 333 had displayed burns, although for most cases the experts had noted that the carbonisation had most probably occurred post mortem. They also noted that a disproportionately high number of victims had died of gunshot wounds — forty-four civilians, including eleven women and nine children —while only seven servicemen out of eleven had died of gunshot wounds.

Lastly, the report noted that nine exhumations (and not six as indicated in the official documents) had been carried out for an additional verification of the remains. The report listed these cases.

On 20 and 22 September 2004 both chambers of the Federal Assembly (the Russian Parliament) — the State Duma and Federation Council — decided to create a joint commission in order to investigate the reasons for and circumstances of the terrorist act in Beslan. About twenty members of both chambers were appointed to the commission, which was chaired by Mr Aleksandr Torshin, deputy speaker of the Federation Council. The commission undertook a number of investigative measures, including visits to Beslan, Ingushetia, Chechnya and Rostov-on-Don.

The commission questioned forty-five senior officials, including the Prime Minister, several federal ministers, Mr Aslakhanov, an aide to the Russian President; Mr Patrushev, Mr Pronichev and Mr Anisimov, the head of the FSB and his two deputies; General Tikhonov, commander of the FSB Special Services Centre; several senior officials from the Prosecutor General's Office, including four deputies to the Prosecutor General; North Ossetian and Ingushetian officials, including Mr Dzasokhov and Mr Zyazikov; and people who had negotiated with the terrorists: Mr Aushev, Mr Gutseriyev and Dr Roshal. The commission received several hundred telephone calls to a special line and letters.

On 22 December 2006 the commission's report was presented to the Federal Assembly. It ran to 240 pages and included a chronology of the terrorist act, chapters on the actions of the State authorities, a historical and political analysis of terrorism in the North Caucasus and a number of legislative recommendations. Two commission members refused to sign it. One of them, Mr Savelyev, prepared an alternative report (see below).

The report's main conclusions were principally in line with the conclusions of the criminal investigations. In particular, it found that:

Looking at the previous attacks and the information available to the authorities immediately before it, the experts argued that ‘there was an extremely high level of threat of terrorist attack in the Southern Federal [Circuit] of Russia in late August to early September 2004, in particular in the border areas of the [North Ossetia] and Ingushetia. This threat could be classified as real, as it had been verified by various orders, telexes and other documents issued by the Federal [Ministry of the Interior]. It can be also classified as immediate, as the information disseminated by the authorities pointed to an attack taking place on a specific day, 1 September’. The experts also pointed out that, in addition to the date, the information had referred to a specific area — near the border between North Ossetia and Ingushetia — and the potential target, as the attack had been planned to coincide with the Day of Knowledge. As Beslan was the largest town in Ossetia within 20 kilometres of the border with the Malgobek District, where terrorists had apparently been gathering, they concluded that ‘Beslan, and other towns in the vicinity, were clearly under a real and immediate threat of an attack on a school on 1 September’. Such a large-scale attack against a civilian target would have the potential for significant loss of life. The experts concluded that the level of detail available even from the relatively ‘sanitised versions' in the telexes and other communications indicated that there might have been a ‘covert human intelligence source’ in the terrorist group, as well as technical coverage, such as the interception of communications. The event had therefore had ‘high degree of foreseeability’.

As to the scale of the threat presented by the ‘well-organised, ruthless and determined terrorists who had … actively targeted civilians’, the report reiterated the importance of the Day of Knowledge to Russian society and argued that an attack upon a school on that day was an act ‘bound to strike at the very heart of the nation’ — something the terrorists had obviously strived to achieve.

The experts thus concluded that in view of the high foreseeability and magnitude of the threat, the feasible operational measures ‘must have been seen to take precedence over all other threats’. They divided the possible responses into three broad categories: (i) target denial, (ii) intervention and (iii) security. An example of target denial would involve postponing the opening of the school year in a defined area. Although unprecedented, this would have denied the terrorists the high-profile target sought. As to intervention, in the absence of any additional information, any comment would be necessarily speculative. It could be that the authorities did not conduct any preventive strike on the basis that to do so would have compromised the sources; or for other reasons — for example in view of the serious risk to the lives of the members of the security forces. Nevertheless, it was clear that ‘the risk would be likely to be greater in the event that the group succeeded in carrying out their intentions’ and that the need to protect sources could not be used as a valid reason to put human life at serious risk. Lastly, as to security, the experts were of the opinion that the ‘essentially passive approach’ adopted had been ‘seriously inadequate’ in view of the circumstances. They noted that there had been no effective ownership or containment of the threat and that the staff of the local police had clearly been incapable of dealing with the security situation:

The experts concluded that while no security measures could serve as a guarantee against the attackers' success, the presence of security personnel on the roads and at potential targets would have acted as a deterrent and could have impeded the attackers. They considered that the fact that a group of over thirty armed terrorists had been able to travel along the local roads to Beslan, having encountered only one police roadblock manned by a single officer ‘show[ed] the extent of failure of the authorities to act upon the information available to them’.

By means of comparison, the experts outlined the steps that would have been taken in the United Kingdom in the event of a known comparable threat. They considered that a command centre would have been established, with a clear and accountable chain of command, depending on role requirements. The centre would have comprised senior police officers coordinating with the relevant units of the British Army, specialist counter-terrorism units and the security services, as well as other public sector bodies such as fire and rescue and ambulance services. A dedicated crisis response committee would have been set up within the Government of the UK, in order to co-ordinate the actions of various bodies to ensure adequate resources and a media strategy. The potential targets would have been ‘hardened’ by high-profile visible deployments of armed security personnel.

According to the report, once the terrorists had reached the school and taken large number of hostages, the authorities faced an extremely difficult scenario — one where significant loss of life, including that of children, was inevitable. The experts noted the group members' intention to die which had been apparent from the beginning, and to cause large-scale loss of life in the event of a storming. In such circumstances, the role of the authorities should be to seek to minimise the loss of life to the greatest extent possible.

The experts started by reiterating that the presence of only one unarmed police officer at the school at the time of the hostage-taking had delayed the response to the attack and permitted the terrorists to capture a large number of children and adults at the ceremony, as well as secure the building and deploy the IEDs with very little resistance. Without predicting the exact results of a heavier security presence at the ceremony, the experts argued for the possibility that ‘an adequately-assured police response would have repelled the terrorists for long enough to allow significant number’ of potential hostages to escape.

They then reflected on the formation, structure, record-keeping and auditing of the OH. The experts stressed that the pressure under which the members of the OH had worked could not be underestimated. In their words, ‘[a]ny amount of training and experience could not prepare someone fully for [a] crisis such as Beslan’ which represented ‘one of the most difficult situations that any administration could face’. Furthermore, there could be no detailed or prescribed international standard for the control and planning of an operation of this sort; it seemed inevitable that the responses would be prepared quickly and with minimal formalities, in order to reflect the dynamics and seriousness of the situation. Relying on the witness statements, official documents and other data cited in the Court's decision on admissibility, the report noted the following shortcomings of the OH functioning: failure to keep proper records of the OH's composition, meetings and the main decisions taken; a lack of any apparent formal structure for information-sharing and decision-making, resulting in uncoordinated decisions being taken; a clear lack of structure of command and control for both strategic and important tactical decisions, such as the types and use of special weapons; and an overall failure of command and control. They stressed, in addition to the above, that the absence of any plan to start a rescue operation as late as 1 p.m. on 3 September, in view of the hostages' intolerable conditions and the terrorists' unpredictability — meaning that intervention could be required any moment — had amounted to a failure to plan properly for a rescue operation.

According to the experts, the situation faced by the Russian authorities, once the terrorists had reached their target, was a terrible one. The possibility of a peaceful outcome of the hostage-taking appeared minimal. The authorities were therefore required to make extraordinarily difficult and agonising decisions in a highly fluid situation and ‘there is no training or manual which can provide solutions to these dilemmas’. Furthermore, they acknowledged significant gaps in the information relating to the preparation of the rescue operation and many aspects in the way it was carried out, for example those relating to the origins of the first explosions. Having said that, the experts were of the opinion that since the situation had developed for over two full days before the rescue operation had started, it could not be characterised as entirely spontaneous, since the authorities had had time and resources to plan and practice it.

In view of the above, they highlighted a number of points that were, in their opinion, important in the evaluation of the rescue operation. Some of these points were relevant to the level of control exercised by the authorities over these developments: for example whether the operation was at all times under the control of the senior officers, or whether, in view of the hostages' knowingly intolerable conditions, they had prepared their response to their possible attempt to leave the building at any moment. Other points focused more on the commanders' tactical decisions directly relevant to the rescue operation that had taken place.

If the first explosions had been triggered by the detonation of an IED placed by the terrorists, and they had started to shoot at the fleeing hostages, the authorities had no option but to launch a rescue operation, which was in fact done. It ended with massive loss of life, and the accounts differ as to the use of flame-throwers and tank cannon fire. The experts stressed that these were military weapons destined to neutralise buildings with enemy combatants within. In their view, if these weapons had indeed been used at a time when hostages had been still within the building, it would have been unjustifiable. It could be justifiable if they had been used in the belief that there had been no civilians in the building and no military alternative to their use; however, in the absence of a definitive assessment of the facts such judgment had to be reserved. They noted, nevertheless, that the fact that by 5 p.m., or soon afterwards, the school building had seemed to be sufficiently under control for the security forces to hold a memorial service for the fallen officers made it unlikely that the terrorists had still been in the building at that time.

The report then commented that the fact that both the Alpha and Vympel special forces units had been deployed at a training exercise at the time when the rescue operation had commenced, had left the authorities without or with insufficient specialist intervention contingencies. The high number of losses sustained by the FSB special forces was testament to the officers' bravery, since they had probably realised that they had been likely to lose their lives by entering the school. Nevertheless, the experts were of the opinion that the same failures to plan and conduct the rescue operation had had a bearing on their fate as well as on the fate of the hostages.

Turning to the firefighters, the experts pointed out that in view of the known potential for fires to start from explosions, the fire brigades should have been deployed earlier. In their view, ‘the fact that very few fire engines were deployed and that they were without adequate supplies of water is a failing of foresight and planning … The general requirement … that rescue operations must be planned and controlled in such a manner as to minimise the risk to life, required a much greater deployment of fire brigade resources including multiple pumps and specialist fire vehicles…’ Equally, the experts noted that although the medical evacuation and subsequent services had been well organised, as relatively few wounded had died in hospital, the medical staff had not been informed in any detail of the relevant information in order to plan an appropriate response. They commented that ‘it appears that the relative success of the medical evacuation is a result of the professionalism of the medical staff, and that they were not included in the OH or even kept informed of relevant information (such as the number of hostages) so that they could deploy adequate resources’.

The experts also examined three aspects of the operation challenged by the applicants: (i) dissemination of incorrect information regarding the number of hostages during the crisis, (ii) coordination between various authorities about the rescue plans and (iii) the negotiation strategy.

As to the number of hostages, the authors of the report were of the opinion that this aspect of communication could not have had any foreseeable negative impact on the terrorists' behaviour or any other foreseeable consequences. Speaking of the authorities' co-ordination, the authors pointed out that effective coordination was a key element of command and control of counter-terrorist operations. They noted the obvious lack of coordination with the medics and the failure to preserve the scene, despite the presence of several cordons manned by different security agencies. Nevertheless, once the explosions and outbreak of shooting had occurred, the authorities had had no other option but to order the rescue operation; at this stage the pre-planned contingencies should have been implemented.

Lastly, concerning the negotiations, the experts were of the opinion that the terrorists ‘were not interested in negotiation and came to Beslan to inflict as much terror and death on the most vulnerable element of the civilian population as possible’. Their demands had been unrealistic and inflexible and they did not seem to have had any negotiation strategy; in addition, they seemed to have been prepared to die from the very beginning. Such a mental state ‘was not of rational people and so unpredictable as to render negotiations particularly difficult, if not impossible’. The authorities had ascertained the terrorists' demands, made efforts to engage with them and put them in contact with the people they had demanded. The authorities' approach to negotiation could not be criticised.

One of the undisputed features of the investigation is the fact that the causes of death of the majority of victims were established on the basis of external examinations only; and that for about a third of the victims the cause of death was not established in view of extensive burns (see paragraphs 253, 341, 391, 396, 414 above). The victims complained about this omission, but their complaints were dismissed by the investigators and the supervising courts. No additional forensic examinations or autopsies were carried out once the identification of the victims had been completed (see paragraphs 255, 260, 263, 264, 266).

The Government confirmed, in their previous observations, that the cause of death had been established for 215 people; the exact cause of death of 116 people could not be established owing to extensive post mortem burns. The investigation concluded that the deaths and injuries of the victims were not connected with any actions or omissions on the part of State agents, including the use of firearms (see paragraph 254 above).

The Court has previously held that the authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 166, ECHR 2011, and Isayeva v. Russia, no. 57950/00, § 212, 24 February 2005, and the cases cited therein).

In the present case the cause of death of the majority of victims were established on the basis of external examinations of the bodies only. No additional examinations were carried out, for example, to locate, extract and match external objects such as metal fragments, shrapnel and bullets. The decision to limit the examination of the bodies to external only was taken by the investigation in the immediate aftermath of the rescue operation and, in the authorities' opinion, was justified by the constraints on storage of the bodies and the need to identify the victims (see paragraph 414 above).

It is clear that at that moment the authorities found themselves under high pressure. After the siege and its violent outcome, thousands of aggrieved relatives were desperate to receive news about their family members, including several hundred children. Naturally, identifying the victims and informing the relatives of their fate was seen at that time as the most pressing need. The Court is fully aware of the practical difficulties that authorities face when organising investigative steps in difficult circumstances involving active conflict situations. The Court has acknowledged the difficulties faced by the Russian Federation in maintaining law and order in the North Caucasus and the restrictions that may be placed on certain aspects of the investigation (see Aslakhanova and Others, cited above, § 231).

However, the Court does not lose sight of the fact that the circumstances preceding the storming strongly indicated a likelihood of mass casualties. It is therefore difficult to appreciate the apparent lack of preparation in terms of facilities for storing, examining and identifying the remains that were first laid out in the school courtyard and then taken to the Vladikavkaz town mortuary, which was insufficient in size to store them. This failure appears particularly serious in view of the hot weather that was prevalent in the region at the time of the events and which should have alerted the competent authorities to the need to ensure sufficient facilities, at least for some time, in order to ensure adequate conditions for the forensic work.

In any event, even accepting that the decision to limit the examination of the victims' bodies to external inspections only was justified in the circumstances of the events, it is difficult to extend the same logic to the later stages of the criminal investigation. On several occasions the relatives of those who had lost their lives at the school requested that the bodies of the victims be exhumed and that additional enquiries be performed in order to reach more specific conclusions about the causes of their deaths, but no such requests were granted.

A third of the victims died of causes that could not be established with certainty, in view of extensive burns. Such a high proportion of unestablished deaths seems striking. The external expert report ordered by the applicants suggested that the difference between ante mortem and post mortem burns could have been resolved through relatively common tests (see paragraph 456 above). The Court will not dwell on the exact methods of analysis that could lead to more resolute conclusions; nor does it want to speculate whether the cause of death could be established with certainty in every individual case, knowing that many of the remains had been carbonised to the extent that DNA matching tests were necessary. The Court has already acknowledged the difficulties faced by the Russian authorities in this case. Nevertheless, it reiterates that as this was a situation of violent loss of life, once the identifications had been carried out, individual and more conclusive scrutiny about its causes should have been one of the crucial tasks of the investigation. Where the exact causes of deaths were not established with precision, the investigation failed to provide an objective ground for the analysis of the use of lethal force by the State agents. Many applicants continue to suffer from frustration and anguish caused by a lingering uncertainty about the circumstances of the deaths of their relatives, and these feelings are at the heart of this part of the complaint. The failure is all the more striking in respect of those applicants who later sought an examination of their relatives' remains in order to dispel such uncertainty.

Furthermore, the Court notes that the location of the hostages' bodies in the school was not marked or recorded with any precision (see the relevant passages of site inspection cited above in paragraphs 120 and 122). The location of only three of the bodies was noted with some precision, but even these findings were not marked in order to match them later. The absence of such basic information as the place of the victim's death contributed to the ambiguity concerning the circumstances in which it had occurred.

To sum up, the Court finds that deficient forensic measures led to a situation where it was impossible to establish, with any degree of certainty, the causes of death of at least a third of all the victims, and the exact circumstances and location of the bodies of many more. An individualised description of their location and a more in-depth examination of the remains should have served as starting points for many of the important conclusions drawn in the course of the investigation. Failure to ensure this basis for subsequent analysis constitutes a major breach of the requirements of an effective investigation.

In their observations on the admissibility and merits, the Government stressed that the first investigative actions had taken place immediately after the security operations had ended. On 4 September 2004 a group of investigators, accompanied by experts, examined the site. Their work was recorded in a forty-three page document with more than 150 pages of photographs and video recordings (see paragraphs 119-122 above). This document was used as a basis for a number of subsequent expert examinations. The questioning of the eyewitnesses and officials involved in the operation started immediately in the aftermath of the events, to ensure that their recollections were as detailed as possible.

The Court reiterates that, as part of the requirements of an effective investigation, the authorities must take whatever reasonable steps they can to secure evidence concerning the incident, including, inter alia, forensic evidence (see case-law cited above). What steps are to be considered reasonable would depend on the circumstances of the case, but in the context of any violent crime examination of the crime scene and preservation of forensic evidence would constitute one of the basic requirements of an effective investigation.

In the present case the site of the incident was the entire school building. For over fifty hours a group of over thirty heavily armed terrorists held over 1,000 people captive; they installed IEDs in the building, turned it into improvised stronghold, stayed in various premises and used them for communication, the storage of arms and ammunition and for detaining the hostages. Following explosions, fire and an armed intervention, over 330 people lost their lives and hundreds more were wounded. It thus appears normal that once the security and rescue parts of the operation were over, a thorough and potentially lengthy operation was to be started in order to examine, record, collect and preserve any relevant material traces of the various events that had occurred. Preserving the integrity of the site as much as possible until the end of this immense forensic operation should have been seen as one of the first and key tasks of the investigation.

The investigation into the hostage-taking was opened on 1 September, and over sixty investigators were assigned to it the following day (see paragraphs 111–112). By 3 and 4 September a large group of professionals from the prosecutor's offices in the region were ready to intervene in order to secure, collect and record the relevant evidence. This forward planning permitted the site examination to be carried out, which lasted almost an entire day on 4 September. The value of this document is apparent by its use in the subsequent procedures, along with collected photographic and video material, as one of the basic documents for reconstructing the events and drawing important conclusions. For instance, the site examination figured among evidence relied upon by the experts who had prepared several reports on the explosives and the fire expert's report within criminal investigation no. 20/849, and it also figured in the parliamentary reports.

The Court stresses that the examination of the site carried out on 4 September represented the sole opportunity to draw a relatively comprehensive account of the scene before it was irreparably altered, leading to the loss of much important evidence, such as impact traces, parts of IEDs, arms and ammunition, personal belongings of the hostages and terrorists and other relevant items. After the intervention of heavy machinery and the access of third parties once the police and army cordons had been lifted by the end of 4 September, the integrity of the site could no longer be ensured.

It therefore appears that the time accorded to the drawing up of the report and carrying out other forensic work was insufficient. The exercise was done in parallel with the removal of the bodies and did not reflect their location or otherwise identify them in any meaningful manner. Some of the descriptions pertinent to the case were so brief that they appeared almost redundant. The description of many important pieces of evidence, such as parts of weapons and ammunition, did not indicate where in the building they had been found (see paragraphs 120-122 above). No samples (swabs or scrapes) were collected in order to find traces of explosives in the impact zones, which later proved to be an impediment to identifying the types of explosives used. The quality of the forensic work at the site is further undermined by the claims made by the victims' relatives that they had found many potentially important pieces of evidence and the hostages' personal belongings at the town rubbish dump; it was also asserted that the unique video tape filmed by the terrorists inside the building during Mr Aushev's visit on 2 September and depicting them and their leader had been found by local residents among the rubble removed from the site (see paragraphs 101–102, 428 above). The same problems were criticised in the North Ossetian parliamentary commission's report (see paragraph 382 above).

The Court concludes that the investigation failed to properly secure, collect and record evidence at the school building on 4 September. This resulted in a report being drawn up that was incomplete in many important respects. The simultaneous intervention of machinery to clear the site and unrestricted access by the end of the same day aggravated the problem, because the integrity of the site could no longer be ensured, undermining the further collection of evidence from the scene. The Court considers that this caused irreparable harm to the investigation's ability to carry out a thorough, objective and impartial analysis of all relevant elements (see paragraph 496 above), since the document, deficient in many respects, served as one of the key pieces of evidence for the conclusions reached thereafter. The failure to ensure that relevant material evidence was adequately secured, collected and recorded constituted a serious breach of the requirements of an effective investigation in the present case.

The applicants insisted that the investigation had failed to adequately investigate the use of lethal force, particularly indiscriminate weapons, by the State agents.

The Government denied this allegation. Unlike the above-cited Finogenov and Others case, the Government were of the opinion that the domestic investigation had thoroughly examined the question of whether there was a connection between the use of force by the State agents and the deaths and injuries among the hostages. The conclusion of the investigation was clear in that such a connection was absent: the deaths of the victims had been caused by the terrorist's actions. Again, in contrast to the Finogenov and Others case, the Government referred to the specific inquiries into the actions of the armed forces, security servicemen and other State personnel, which had ultimately resulted in the decision not to prosecute anyone. They stressed that the investigation had been independent and that there was no reason to suspect that the investigators, or any of the experts who had prepared the reports, had been subordinate to the bodies involved in the security operation in Beslan. They referred to the conclusions and the composition of the board of experts which had prepared expert report no. 1 of 23 December 2005 (see paragraph 124 et seq.). Overall, in their view, ‘the investigation [was] comprehensive and lacked any deficiencies which could have influenced the completeness, clarity and adequacy of the establishment of the facts. In other words, the investigation left little, if any, room for any speculation, depicting an alternative course of events’.

The Court has stated before that where an investigation concerns a criminal act by third parties, such as a terrorist act, and the authorities' response involved the use of lethal force, it should take adequate and necessary steps in order to examine the authorities' own actions from the standpoint of the guarantees of Article 2 of the Convention (see Finogenov and Others, cited above, §§ 274 and 280).

In the present case, a number of important steps were taken by the investigation in order to elucidate the questions of the State's involvement. Within the scope of criminal case no. 20/849 opened on 1 September 2004, a number of questions were asked about the actions of the State agents. Arising from this investigation, separate criminal proceedings resulted in charges being brought against police officers from the Malgobek District and the Pravoberezhny District for professional negligence related to the prevention of the terrorist acts. Although criminal investigation no. 20/849 remained unfinished, the decisions not to charge any other officials with crimes were taken within its framework. Acknowledging the amount of work carried out by the investigators in this regard as well, the Court will focus below on several aspects pertaining to the effectiveness of this part of the proceedings.

First of all, the investigation established with certainty that the State agents had used an extensive range of lethal weapons, including automatic firearms, explosives and thermobaric weapons. The documents showed that during the operation the army and internal troops personnel had used no fewer than 7,000 cartridges for automatic and machine guns, over 2,000 tracer bullets, ten disposable anti-tank rocket launchers, 18 anti-tank charges for reloadable grenade launchers, eight high-fragmentation warheads for a tank cannon and ninety smoke grenades (see the ‘joint act’ of 10 September 2004 and other relevant evidence quoted in paragraph 219). In addition, an unclear amount of powerful thermobaric flame-throwers (RPO-A Shmel) were used (see two separate expert reports that listed twelve RPO-A spent tubes with individual batch and serial numbers, paragraph 209; see also information about the use of five devices with different batch numbers in paragraph 210). Other documents referred, in addition, to 450 armour-piercing incendiary cartridges for large-calibre machine guns and ten hand grenades (see separate act on the use of weapons, paragraph 206 above). The explosions expert report dating from September 2007 added to this already impressive list an unspecified number of other modifications of anti-tank and grenade launchers, as well as propelled attack grenades with a thermobaric warhead (RShG-1) and light infantry flame-throwers with a thermobaric charge (LPO-97), the use of which was marked as ‘probable’, even though over forty spent charges had been found at the site (see paragraphs 211 and 226 above). The parties disagreed whether the investigation had been able to establish the circumstances of use of these weapons and ammunition, particularly weapons that could be characterised as indiscriminate, and to clarify the possible causal link between the use of lethal force and the casualties among the hostages.

The Court notes that no single and concerted effort was made by the investigation to make an inventory of the weapons and ammunition used by the State agents, particularly explosive and thermobaric weapons capable of inflicting damage upon anyone within their impact radius. Information about the quantity of the weapons used and the units that had used them is scattered throughout different proceedings and disjointed documents. The ‘joint act’ of 10 September 2004, although cited in several subsequent documents, such as the fire expert's report of 22 December 2005, does not take into account one of the most powerful weapons used — the Shmel flame-throwers. Nor does it appear to tally with another act, of 9 September, which named different types of charges and explosives used. The comprehensive forensic report on explosions completed in September 2007 failed to indicate the quantity of the charges used, and was not certain on the use of light infantry flame-throwers with a thermobaric charge, despite over forty spent capsules specific to that weapon being found. Neither the quantity nor provenance of the Shmel flame-throwers used was listed in any single document (see paragraphs 210, 211 and 219 above). The same is true for the use of other explosive and armour-piercing weapons, including various modifications of grenade launchers (reloadable and dispensable), numerous and inconsistent references to which are scattered throughout a multitude of documents. This failure is difficult to explain in view of the availability of extensive information concerning the batch and individual numbers recorded for many such weapons (see paragraphs 209, 214-216 above). The absence of a complete record of the weapons and ammunition used by the State agents effectively precluded the investigation from undertaking a meaningful evaluation of the adequacy and proportionality aspects of the use of force.

As to the circumstances of their use, much witness testimony about the use of a tank gun, grenade and rocket launchers and flame-throwers was obtained during separate criminal proceedings brought against the surviving terrorist, Mr Kulayev (see paragraphs 293, 294, 298, 300, 303 above). The Court remarks that, on the one hand, these witnesses provided accounts about the use of powerful indiscriminate weapons soon after the first explosions, while the military and security officials denied their use prior to 6 p.m. when, allegedly, no hostages remained in the building (see paragraphs 207, 220, 306 and 323 above). In order to resolve that controversy, the investigators should have first established with some precision the types and amount of weapons used, as well as the time, targets and people who had used them and then matched this information with the objective data about the casualties and impact traces. As the Court has already noted, the absence of an inventory of the weapons used virtually precluded any progress in this respect. For example, the fire expert report confirmed that indiscriminate Shmel flame-throwers had been used upon the building, but not upon the hostages, and their use could not have harmed them (see paragraph 220 above). The investigation accepted these unclear conclusions.

To sum up, in respect of the use of indiscriminate weapons capable of putting at risk the lives of anyone within their impact radius, namely grenade and rocket launchers, flame-throwers and the tank gun, the Court finds that there existed a credible body of evidence pointing at their use by the State agents in the first hours of the storming. In the Court's view, this evidence has not been fully assessed by the investigation. The lack of objective and impartial information about the use of such weapons constituted a major failure by the investigation to clarify this key aspect of the events and to create a ground for drawing conclusions about the authorities' actions in general and individual responsibility. Other failures included the absence of detailed information about the location of the hostages' bodies, failure to establish the causes of death of at least one third of the victims and gaps in collecting and securing other relevant forensic evidence, as described above. In view of these considerations, the Court cannot accept as tenable the investigation's conclusion that no one among the hostages was injured or killed by the lethal force used by the State agents (see, for example, paragraph 233 above).

As in any security operation resulting in casualties, strict accountability for the use of lethal force by State agents is imperative. The investigation carried out into the events must be capable of laying down grounds for a thorough, objective and impartial analysis of all relevant elements. It was therefore vital for the investigation to make every effort to reach clear and univocal findings about the use of weapons by the State agents. In the absence of this background data, any conclusions about criminal responsibility are without any objective basis and risk appearing arbitrary.

The material of criminal case no. 20/849 contains several decisions issued by the investigation in which it was decided that the State officials had not committed any criminal acts in the course of the hostage crisis in their fields of responsibility. The first decision was adopted by a military prosecutor in Vladikavkaz on 3 December 2004 (see paragraphs 229 et seq. above) and concerned the unnamed personnel of the Ministry of Defence and the Ministry of the Interior. This document preceded most of the crucial investigative steps, including expert report no.1 and the expert reports on fire, ballistics and explosions. It contained hardly any details about the weapons used and their potential or actual impact, and failed to match that with the recorded injuries and causes of death. Even though this document was later set aside, this line of inquiry did not seem to have progressed over the years when the investigation remained pending. Similar conclusions were reached on 20 April 2006 in respect of the head and members of the OH who had led the rescue operation (see paragraph 239 above). The Court finds unconvincing the assumption that the use of a massive amount of indiscriminate lethal force by the servicemen resulted in the terrorists' elimination, but at the same time caused no harm to any of the hostages in the same building, which was retained throughout the investigation without much critical analysis (see paragraph 254 above).

For the reasons outlined above, the Court finds that the investigation failed to adequately examine the use of lethal force by the State agents during the operation on 3 September 2004. Amongst other things, the investigators did not establish basic facts about the use of indiscriminate weapons that were crucial for the assessment of the causal link between their use and the casualties, and thus did not fully assess the evidence suggesting the use of indiscriminate weapons at the time when the terrorists and hostages had been intermingled (see paragraphs 524 above). Coupled with incomplete forensic evidence on the causes of death and injuries, deficiencies in the steps to secure and collect the relevant evidence from the site, any conclusions reached about the criminal responsibility of the State agents in this respect are without objective grounds and are thus inadequate.

The victims argued that they had been unable to obtain access to many crucial documents in investigation file no. 20/849, and that their complaints to the courts in this respect had been unjustifiably dismissed (see paragraphs 263 et seq.). They referred to their numerous and futile attempts to obtain copies of the decisions to appoint experts and the results of the most important expert conclusions, decisions not to prosecute certain officials, witness statements and other documents.

The Government were of the opinion that all those who had wanted to do so had acquainted themselves with the relevant documents. They also stressed that some of the victims had waived their right to access the documents in the case file, of which there were written statements.

The Court has previously held that the degree of public scrutiny required may well vary from case to case. In all cases, however, the victim's next-of-kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Ahmet Özkan and Others v. Turkey, no. 21689/93, §§ 311-14, 6 April 2004; Isayeva, cited above, §§ 211-14 and the cases cited therein).

The Court notes that one of the repeated demands of the victims in the criminal proceedings in file no. 20/849 was to ensure them access to some of the documents collected by the investigation. On several occasions the victims demanded full access to the expert reports on ballistics, arms and ammunition and expert report no. 16/1 prepared on 14 September 2007 addressing the entirety of the explosions that had occurred in the gymnasium on 3 September 2004. Such requests were rejected by the investigation and the supervising courts. In some cases, the courts referred to the confidentiality of the documents, while in others they referred to the need to preserve the interests of the investigation (see paragraphs 224, 263, 265, 266 above). Similar requests lodged by the victims within the framework of the criminal trial of Mr Kulayev were equally dismissed by the trial courts (see paragraphs 343 et seq. above).

The documents to which the applicants were trying to gain access concerned the causes of death and injuries of the hostages and information about the lethal force used by the State agents during the storming, as well the origins and nature of the explosions which had occurred in the gymnasium. These issues went to the very heart of the victims' concerns and their inability to obtain adequate answers in the domestic proceedings drove them to complain before the Court.

It must be borne in mind that in addition to ‘principal’ investigation file no. 20/849, there were other sources of information which put into question some of its findings. The Court has already remarked that a number of witness statements obtained during the trial of Mr Kulayev pointed to the use of indiscriminate weapons prior to 6 p.m. on 3 September 2004, contrary to the investigation's assertion. Some of the crucial conclusions of the investigation about the use of indiscriminate weapons, the origins of the first explosions and the deficiencies of the forensic findings were challenged in the reports produced by the North Ossetian parliamentary commission and a member of the Duma commission Mr Savelyev, himself a military expert. The authors of these reports not only examined the documents and evidence collected by the investigation, but had the benefit of first-hand knowledge including site examinations and witness testimony. They also devoted a considerable amount of time and their own expert knowledge to analysing all the sources available.

The most important conclusions that contradicted the findings reached within the framework of investigation no. 20/849 may be summarised as follows: the first explosion had not been caused by an IED, but had most probably originated from outside; the security services had used indiscriminate weapons during the first few hours of the rescue operation; the causes of the casualties and fatalities had not been established correctly for a large proportion of the victims (see paragraph 353 above for the applicants' position; see conclusions made by the North Ossetian parliamentary commission and Mr Savelyev in paragraphs 379–382, 386, 391, 396, 406, 408, 410, 411, 413 above). The investigators dealing with file no. 20/849 were aware of the potential importance of at least some of these findings. A complex and extensive report (no. 16/1) was ordered in October 2006 with the specific task of probing some of Mr Savelyev's assertions concerning the origins of the first explosions. It was delivered in January 2007 and contained an all-encompassing overview of the relevant evidence available by that time, completed with analytical and research material that served to disprove his propositions. The experts confirmed the investigation's initial conclusion about the origins of the first explosions lying in the IEDs placed by the terrorists. They also excluded the possibility that the projectiles launched from the locations suggested by Mr Savelyev could have led to the consequences he had implied (see paragraph 226 above). An additional report, produced in October 2007, also examined the available evidence and confirmed the above results (see paragraph 227). As the applicants claimed, these two reports were not available to them until the exchange of observations between the parties in the proceedings before the Court in 2012.

As noted above, by the time these reports were written, the decisions answering in the negative the question concerning individual criminal responsibility of the servicemen and OH officials had already been adopted (see paragraphs 229 et seq., and 239 above). The reports did not upset the previously reached conclusions about the terrorists' responsibility for all the deaths and injuries caused. The value of these two reports, therefore, laid precisely in dispelling public doubts about the circumstances of the deaths and injuries suffered by the hostages on 3 September. These reports should have secured the investigation's conclusions and served to persuade the victims of its effectiveness on this key question. The victims who had lost their family members or received injuries in the disputed circumstances had a legitimate right to be fully acquainted with these important documents and to be able to participate effectively in challenging their results. In such circumstances, it appears unjustifiable that these documents were not made available to the victims in the framework of the criminal investigation. The victims' inability to acquaint themselves with these findings and challenge their results seriously affected their legitimate rights in the criminal proceedings, on a question that was of key importance to them.

Furthermore, the Court has previously held in cases concerning Russia, that where decisions to terminate proceedings in situations involving civilian casualties are taken by the military prosecutor's office on the basis of expert reports prepared by army officers, this may raise serious doubts about the independence of the investigation from those implicated in the events at issue (see Abuyeva and Others v. Russia, no. 27065/05, § 212, 2 December 2010, with further references). While it is certainly for the competent domestic authorities to determine issues of the guilt and/or innocence of the individuals involved and the applicable provisions of national legislation, the Court has held that the circumstances of extremely serious cases involving numerous casualties sustained in the course of anti-terrorist operations should be assessed by the courts, which are the ultimate guardians of the laws laid down to protect people's lives. In the Abuyeva and Others case (cited above), it found the approach of the military prosecutor's office clearly inadequate to fulfil the role of maintaining public confidence in the authorities' adherence to the rule of law and preventing any appearance of collusion in, or tolerance of, unlawful acts (ibid., with further references).

In the present case, the investigation likewise relied on a number of reports, some of them prepared by experts working at the army or the FSB structures. Certain conclusions are difficult to reconcile, for example where the reports indicated the different places and yield of the first explosions (see paragraphs 139, 221, 223 and 226 above). This incoherence on one of the most important aspects of the events makes the investigation's unconditional reliance on them questionable. Where allegations are made against security and military servicemen, the element of public scrutiny plays a special role, and if the investigation bases its conclusions on confidential documents prepared by the staff of the same agencies that could be held liable, it risks undermining public confidence in the independence and effectiveness of the investigation and gives the appearance of collusion in, or tolerance of, unlawful acts.

In view of the above, the Court concludes that the public scrutiny aspect of the investigation was breached, by the victims' restricted access to the key expert reports, notably those concerning the origin of the first explosions.

The Court concludes that there has been a breach of Article 2 of the Convention since the investigation was not capable of leading to a determination of whether the force used in the case was or was not justified in the circumstances, and, therefore, not ‘effective’ (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 107, 4 May 2001). It also notes the failure to ensure a sufficient degree of public scrutiny by restricting the victims' access to some of the key expert reports. The Court further remarks that other elements of the investigation have been put into question by the applicants: the multitude of co-existing findings relating to the causes of the first explosions, the effectiveness of the investigations into the actions of the OH, rescue and medical services, the issues related to the appointment and independence of the experts and the restricted access to other documents in the case file. However, the Court does not need to examine these aspects of the proceedings separately, in view of the above conclusions.

The first group of applicants pointed out the following problems with the planning and control of the operation which had involved the use of lethal force. Firstly, they criticised the functioning of the OH, saying that there had been serious delays in its formal establishment, its command and decision-making. They referred to the counter-terrorist expert report which had formulated some very critical conclusions about a lack of structure and unclear key decision-making process (see paragraphs 436 et seq. above). They further highlighted the failure to secure the perimeter of the operation, confirm the number of hostages and communicate it early enough to the relevant services, make senior people available for negotiation, coordinate or plan a rescue operation and ensure some sort of recording of the orders, decisions, appointments and other relevant information for future evaluation. The OH had also failed in the planning of the rescue operation in its assessment of appropriate weapons to be chosen and used. They condemned the fact that, despite the likelihood of a high number of casualties and the difficulties presented by the weather, no one appeared to have considered a plan for a mortuary, refrigeration or other storage provisions for the fatalities, or for autopsy tables with sufficient specialists. With respect to the provision of fire services, the applicants believed that there appeared to have been no clear lines of command, communication or coordination between the OH, Emercom and the personnel directly responsible for fire services. As specific examples of the failures to plan accordingly, the applicants pointed out the following: that despite having had more than two days to prepare and the high probability of fire resulting from explosions, no fire engines were deployed on standby in the vicinity of the school; that the firefighters had not been provided with protective bulletproof vests, military helmets and other measures which were provided for by the relevant manuals applicable to situations of extinguishing fires in dangerous conditions, and particularly at sites containing explosive materials; that the positioning and availability of water sources had not been determined in advance; that owing to the same lack of coordination the Ministry of the Interior had not undertaken efforts to clear the route to the school, which had remained blocked by cars and people on 3 September, obstructing and delaying the emergency access of fire engines to the site; that there had been a shortage of water and delays in laying down water hoses because of a failure to attach connecting parts; and that the number of fire engines deployed had been seriously inadequate. In any event, the firefighters had been deployed too late to save anyone in the gymnasium.

The Government referred to their previous observations summarised in the decision on admissibility (see Tagayeva and Others (dec.), cited above, §§ 538-62). In those submissions, they were of the opinion that the actions of the authorities had been fully consistent with the requirements of Article 2 of the Convention. The special units of the FSB, who had been in charge of the operation potentially involving lethal force, were the most professional teams of that type in the country. Their experience in dealing with terrorists and hostage-taking crises was unparalleled. During the crisis and before the storming, the officers of the Alpha and Vympel units had conducted training exercises in order to work through all possible scenarios of the takeover of the school building, including practical training at a similar school nearby.

The questions put by the Court had been at the centre of the domestic investigation which had fully elucidated them. The appointment and the process of decision-making at the OH had been examined in detail and the conclusions of the investigation as to the absence of criminal liability of the OH's members had been well-founded. All members of the OH had been questioned and in the investigation particular attention had been drawn to the question of whether the actions of the OH members had been lawful.

More specifically, the Government explained that the first OH had been set up on 1 September 2004, as soon as the news of the hostage-taking had been communicated to the authorities. In accordance with the North Ossetia anti-terrorist plan of 30 July 2004, this OH had been headed by its President, Mr Dzasokhov. At 2.45 p.m. on 2 September 2004, in accordance with a decree issued by the Russian Government, a new OH had been appointed, under the command of the head of the North Ossetia FSB, General Andreyev. His deputies had been Mr Dzantiyev and General Tikhonov and its members had included Mr Dzasokhov, General Koryakov, Mr Sobolev, General Vnukov and Lieutenant-Colonel Tsyban; Mr Soplevenko, the North Ossetian Minister of Health; Mrs Levitskaya, the North Ossetian Minister of Education; Mr Dzgoyev, the North Ossetian Minister of Emercom; Mr Goncharov, the director of the Zashchita Centre; and Mr Vasilyev, deputy head of the information programmes department of Rossiya. In view of the speed at which the situation had been evolving, the OH had not held formal meetings or kept notes of its discussions and most of the decisions (see paragraphs 157 et seq.).

The Government argued that the ensuing investigations confirmed that the OH actions had been in line with the pertinent legislation, in particular the Suppression of Terrorism Act, as in force at the material time, and the model regulations on the operative headquarters of a counter-terrorist operation, adopted by the federal anti-terrorist commission on 11 June 2003. Among other things, the relevant legislation established the principle that all participants of the anti-terrorist operation were subordinate to the head of the OH, who ensured a single line of command. Interference of other officials, irrespective of their rank, was directly prohibited in the work of the OH.

In so far as the applicants' allegation concerned the precautions taken by the authorities to protect people's lives and the negotiation strategy, the Government placed special emphasis on section 14 of the Suppression of Terrorism Act, which provided that negotiations with the terrorists were allowed with the aim of saving human lives and health, protecting property and suppressing the terrorist act without recourse to force. Only those directly authorised by the OH to take part in the negotiations could do so. The provision contained an outright prohibition on considering, in the course of negotiations, the possibility of transferring any other people to the terrorists, handing them weapons or any other dangerous substances or items, as well as on demands of a political nature.

In line with these directions, on 1 September the OH had taken a range of urgent steps. These had included cordoning off the area around the school, evacuating people from the secured area, establishing control over the radio frequencies in the vicinity of the school, compiling a list of hostages and establishing means of communicating with the terrorists. The OH had also taken care of accommodating and assigning areas of responsibility to the members of the Ministry of Defence, Ministry of the Interior, Emercom and the health services. Four people had been put in charge of contact with the media: General Andreyev, Mr Dzugayev, Mr Dzantiyev and Mr Peskov from the Russian President's administration. Later that day the FSB special forces had arrived, and had immediately started preparing for the various scenarios of the rescue operation.

On 2 September the OH had continued its attempts to reach an agreement with the terrorists. Through the professional negotiators and public figures they had been offered money and the chance to leave. The terrorists had not been ready to negotiate and had interrupted the contact, rejecting any offers and denying anything which could have alleviated the hostages' situation. Nevertheless, the release of some of the hostages on 2 September had come as a result of the OH's negotiation strategy.

On 3 September another compromise had been agreed upon — the terrorists had acceded to the removal of the hostages' bodies from the schoolyard. After the first explosion at 1.10 p.m. the head of the OH had issued a written order to the FSB special units to start the rescue operation and eliminate the threat posed by the terrorists to the hostages. Later, experts had found the servicemen' actions and equipment to be adequate to the situation.

In answering whether the storming had been planned and controlled so as to ensure minimal risk to life and the use of firearms and other weapons, the Government submitted that the investigation had devoted special attention to the ‘alternative’ versions of the origins of the first explosions. These versions had suggested that the terrorists who had been holding the pedal detonators had been killed by a sniper, or by a projectile launched from a portable grenade launcher or flame-thrower. They had been thoroughly examined and rejected by the experts and the investigation. The Government referred, in particular, to expert reports no. 1 and no. 16/1 (see paragraphs 124 et seq., 224 et seq.).

Accordingly, the explosions in the gymnasium at 1.10 p.m. on 3 September 2004 had triggered the development of events which the OH had not wished to happen and whereby the decision to engage in combat had remained the only way to save the hostages' lives. The threat to the hostages' lives by that time had been clearly established and apparent from the terrorists' statements and actions. This decision, taken under the pressure of time and in difficult circumstances, had been perceived by the OH as the only means of eliminating the threat.

Once the operation had started, the servicemen of the special forces had entered the gymnasium to ensure the evacuation of the hostages, while opening fire at the terrorists. During the clash in the gymnasium, the terrorists had fired several shots at the officers from grenade launchers, killing two officers and several hostages, and setting fire to the gymnasium roof. Similar events had been happening in other parts of the building; by 6 p.m. the rescue operation had ended and all living hostages had been evacuated from the building.

Only after verifying the absence of any living hostages had the special forces moved out of the building and resorted to heavier weapons such as grenade launchers and flame-throwers. The participation of the 58th Army personnel and equipment had been limited to the use of tanks and armoured personnel carriers and their crews. Between 9.10 p.m. and 9.20 p.m. on 3 September one tank had fired several shots at the canteen wall. There had been no other tanks involved. Three APCs had been involved in the storming, two of which had been stationed near the school windows to cover the movements of the servicemen and the evacuation of the hostages. The third had used its stationary machine gun to suppress the terrorists' firing point on the second floor of the school prior to 3 p.m.; it had then been used to evacuate one of the wounded members of the special forces.

At 3.10 p.m. the OH had ordered the deployment of fire units.

By 12.30 a.m. on 4 September 2004 the school building had been secured and at 1 a.m. the sappers had started to deactivate the remaining explosive devices.

Turning to the preparation of and communication with the rescue, medical and fire teams, the Government provided a detailed summary of the information contained in criminal case no. 20/849 (see paragraphs 242 et seq.). It informed the Court that on 1 September 2004 the Russian Ministry of Health had set up a coordination cell, joining the forces of the local and federal ministries of health, Emercom, the Zashchita Centre and the forensic bureau. As of the evening of 1 September, special units of psychological aid had been in place for the relatives. A number of other urgent steps had been taken, such as putting medical personnel in a number of local hospitals on standby and preparing contingents of necessary equipment and materials, including blood for transfusion, to ensure the preparedness of the intensive care and surgery units.

On 2 September an emergency paediatric field hospital had been set up in Beslan. On 3 September an additional hospital had been set up, equipped to perform urgent surgical operations and other types of emergency care. By the time of the first explosions, over 200 doctors, 307 medical staff and seventy ambulances had been ready in Beslan. This had made ninety-four mobile medical teams, including fourteen reserve ones.

Between 1.15 and 6.30 p.m. on 3 September 2004, 556 injured people, of them 311 children, had been transferred to the local hospitals. By 7 p.m. all patients had been placed in hospitals in Beslan and Vladikavkaz. Forty-seven urgent operations had been performed. Over 1,000 people had been provided with psychological aid.

In total, between 3 September and 16 December 2004 some 800 patients had received medical aid. A total of 305 had died at the school, and twenty-six people had died in hospital.

As to the situation with the firefighters, the Government referred to the part of expert report no. 1 concerning the actions of the firefighters and other Emercom staff (see paragraphs 148 et seq.). They also mentioned the decisions not to open criminal investigation in respect of the Emercom staff (see paragraphs 235–240 above). The decision of 10 December 2004 not to charge the North Ossetian Minister of Emercom Mr Dzgoyev and the Deputy Minister Colonel Romanov with the crimes of professional negligence had concluded that ‘the leadership of the anti-terrorist operation had been carried out by the FSB OH, and no actions could have been taken without their permission’ (ibid.). The decision had then stated that the two-hour delay between the call for the firemen to intervene and the time when they had done so had been the result of an absence of protective gear, which could have put the firemen in a life-threatening situation. In addition, on 20 April 2006 the investigation had decided not to open criminal proceedings in respect of Colonel Romanov and Mr Kharkov, the head of the fire service of the Pravoberezhny District, since in expert report no. 1 and the technical fire expert's report there had been no grounds for concluding that their actions had contained the constituent elements of the offence of professional negligence (see paragraph 240 above). The Government specified that had the firefighters been deployed immediately, their lives and the safety of the equipment would have been put at serious risk. Such a development would have in any event rendered the rescue operation ineffective.

There had been 254 Emercom staff at the site and seventy rescue units.

The investigation concluded, on the basis of the expert reports, including autopsy reports, that none of the victims had been killed as a result of fire (see paragraphs 253 and 254 above). The burns of the surviving hostages had been received as a result of the explosions of IEDs. Referring to expert report no. 1 and the sources cited therein (such as pictures taken during the evacuation), the Government submitted that the fire in the gymnasium had started after the rescue operation had ended; the hostages evacuated from the gymnasium had recalled only smouldering in the ceiling but not a blazing fire.

The first group of applicants were of the opinion that the use of lethal force by the Russian forces on the 3 September 2004 was undisputed. By the end of the operation, over 330 people had lost their lives, and hundreds had been injured. The applicants submitted that the State had failed in its obligation under Article 2 of the Convention to minimise recourse to lethal force and the loss of life, that there was ample credible evidence to establish that lethal force had been used while hostages had still been in the school building and that it had caused civilian fatalities, and that the use of force had been indiscriminate and disproportionate. They disputed the Government's contention that non-discriminatory weapons such as a tank gun, grenade launchers and flame-throwers had only been used after 6 p.m. They pointed to the ample evidence to the contrary. They also questioned the conclusions about the cause of the first explosions in the gym. They drew attention to the sappers' and hostages' testimony that after 2.30 p.m. the large IED attached to the basketball hoop and most of the smaller IEDs had remained intact.

They also pointed to numerous testimonies suggesting the use of tank gun, flame-throwers and grenade launchers during the storming. They then expanded on the non-discriminatory nature of these weapons, referring to their technical characteristics. If they had been targeted at locations where there had been both terrorists and hostages, such as the canteen and south wing of the school, it would not have been possible for those firing them to be sure that there were no hostages in those particular parts of the building. In such circumstances, these weapons could not be considered appropriate for either rescuing the hostages or effecting arrests of the terrorists; they had therefore not been absolutely necessary, but rather manifestly disproportionate. This was particularly true in respect of the RPO—A flame—throwers.

To strengthen their position, this group of applicants relied on a number of international law instruments concerning State responsibility and the International Humanitarian Law (IHL). They argued that the Government's stated aim of rescuing the hostages could not justify the use of disproportionate lethal force. Even the principle of ‘distress’ (Article 24 of the International Law Commission's Articles On State Responsibility For Internationally Wrongful Act) in which the interest concerned is the immediate saving of people's lives, explicitly prohibited a wrongful act that would create a comparable or greater peril to the one sought to be averted. The applicants submitted that the disproportionate force used had created at least a comparable peril, and did not constitute a necessity (Article 25 of the same commentary). They also pointed out that even in situations of armed conflict, governed by the more permissive regime of IHL, directing force against civilians and carrying out indiscriminate attacks was prohibited (Article 51 of Geneva Conventions Protocol I ). They further pointed out that under the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III to the CCW), the use of flame-throwers was specifically prohibited in areas with a concentration of civilians.

The applicants next argued that the field manuals of the military and security forces involved in the siege had been inadequate for the Convention-compliant evaluation, supervision and regulation of the use of lethal force. They regretted that the training and combat manuals of the FSB were not public documents, and it was impossible to understand how the use of force was regulated for its servicemen. However, the Army Field Manual, as in force in 2004, had stressed that ‘all forces, means and possibilities available to achieve success in combat’ should be used without hesitation in order to achieve victory. They referred to Volume 3, which addressed the actions of platoons and tanks and, in particular, paragraphs 116 to 118, which described methods of combat in urban areas. The applicants argued that the tactics described there — to fire at the building (with tank cannons, grenade launchers and flame-throwers), to break holes in the walls and suppress enemy fire, so that other regiments could enter and take over the building — bore a striking resemblance to those witnessed in this case. The requirement to use all means and methods to destroy the enemy was brazenly explicit in that manual, but there was no mention of the principles of proportionality, necessity or distinction.

The Government referred to their previous observations summarised in the decision on admissibility (see Tagayeva and Others (dec.), cited above, §§ 565-70). They essentially disputed the parallel drawn with the case of Finogenov and Others (cited above). In their opinion, in the latter case the (potentially) lethal force had been applied to the hostages — the applicants and their relatives — ‘intentionally and consciously, either as a means of achieving a distant aim ([for example the] liquidation of a terrorist threat, in the course of which applicants or their relatives were affected by the measure applied) or as an aim in itself (where an applicant himself posed a threat to the others).’ The Government stressed that the use of lethal force in the circumstances as described in that case — use of an unknown gas following which over 120 hostages died — had been indeed indiscriminate since the hostages had been affected along with the terrorists. The case at hand, however, concerned a situation where lethal force had been applied ‘directly and precisely’ to the terrorists, aiming to eliminate the threat they had posed to the hostages and others. The Government argued that, given the circumstances, the examination of the applicants' grievances should be limited to the procedural aspect of Article 2 of the Convention.

The Government insisted that the investigation had failed to attribute a single death among the hostages to the actions of the security forces. All the deaths had been caused by the terrorists' actions (see paragraph 254 above). They further referred to the conclusions of expert report no. 1 and the investigator's decision of 3 December 2004 not to initiate criminal proceedings against the officials (see paragraphs 124 et seq., 229–233 above). These documents contained an exhaustive chronology of the events, in particular of the first explosions of 3 September 2004 and the ensuing storming. In addition to the above-mentioned documents, they relied on expert report no. 16/1 (see paragraphs 224 et seq.) to argue that the possibility that the first explosions could have been caused by a device fired from outside had been thoroughly examined and dismissed by highly qualified and independent experts. Equally, the allegation that the security services had used indiscriminate weapons, such as grenades, grenade launchers, flame-throwers and a tank cannon prior to 6 p.m. on 3 September 2004, that is to say when the evacuation of the surviving hostages had been completed, had been dismissed as one for which there had been no factual basis (see paragraphs 229–233 above).

The Government reiterated that the OH's decision to start the storming of the building and the rescue operation had been taken after the first explosions of the IEDs had killed dozens of people in the gymnasium and, moreover, when the terrorists had started to shoot at the fleeing hostages. The decision had therefore been adopted under tremendous pressure and in a situation where the authorities' control had been minimal, that is, in circumstances where the rigorous standard of ‘absolutely necessary’ could be departed from (the Government referred to Finogenov and Others, cited above, § 211). Even if the Court found that the situation at hand did not ‘lie far beyond the Court's expertise’ and that the standard of ‘absolute necessity’ should be applied, the Government reiterated that since there had been no known victims of lethal force used by State agents, the traditional test under Article 2 had been passed.

As to the storming itself, it had been performed by the special forces of the FSB — the Alpha and Vympel units — which had been composed of 329 servicemen. They had been assisted by the forces of the 58th Army. The servicemen had been equipped with ordinary weapons and special weapons, including grenade launchers and flame-throwers.

The Government referred to dozens of witness statements collected by the investigation between September 2004 and the summer of 2007 from military and police servicemen, officers of Emercom, firefighters and members of the OH. These statements, consistently and in detail, denied the use of grenade launchers, flame-throwers and a tank cannon prior to 6 p.m. on 3 September 2004 (see paragraph 207 above).

Firstly, the Court will examine the facts that are in dispute between the parties. The applicants alleged, principally, that indiscriminate weapons had been used by the State agents before 6 p.m. on 3 September 2004, at a time when they could have affected the hostages. They also suggested that the first explosions in the building could have been caused by the actions of the State agents. The Government, in their turn, found it established that the first explosions had been caused by IEDs, that indiscriminate weapons had been used only after all the living hostages had been evacuated from the building, and that no harm had been inflicted upon the hostages by the weapons of the security forces.

A number of principles have been developed by the Court as regards applications in which it is faced with the task of establishing the facts of events on which the parties disagree: the factual findings should be based on the standard of proof ‘beyond reasonable doubt’; 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 may also be taken into account. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Giuliani and Gaggio, cited above, § 181, with further references). The Court further reiterates in this connection that, in all cases where it is unable to establish the exact circumstances of a case for reasons objectively attributable to the State authorities, it is for the respondent Government to explain, in a satisfactory and convincing manner, the sequence of events and to exhibit solid evidence that can refute the applicant's allegations (see Mansuroğlu v. Turkey, no. 43443/98, § 80, 26 February 2008, with further references). The Court has also noted the difficulties for applicants to obtain the necessary evidence in support of allegations in cases where the respondent Government are in possession of the relevant documentation and fail to submit it. If the authorities 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 and 8 others, § 184, ECHR 2009, with further references). 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 and consistency (see Finogenov and Others, cited above, § 238, with further references).

The applicants pointed to the evidence that indiscriminate weapons had been fired at the school building during the first few hours of the storming. Among other things, this followed from a number of witness statements obtained during the trial of Mr Kulayev (see paragraphs 293, 294, 298, 300, 303 above). The North Ossetian Parliament's report found it established that two tanks had fired at the canteen and kitchen premises between 2 p.m. and 4.30 p.m. (see paragraph 386 above). An important part of Mr Savelyev's report was devoted to the use of tanks, grenade launchers and flame-throwers, pointing to their use between 1.30 p.m. and 4 p.m. (see paragraphs 408–411 above). As noted above, the investigation had failed to establish the circumstances of the use of lethal force and to fully assess these allegations (see paragraphs 523, 524 and 527 above).

Irrespective of whether the indiscriminate weapons such as a tank cannon, grenade launchers and flame-throwers had been used before or after 6 p.m. on 3 September, it remains unexplained how the agents employing them were able to verify the absence of hostages in the premises under attack. The statement that it could be guaranteed that after that time indiscriminate weapons would be directed exclusively at the terrorists is not supported by sufficient objective evidence, in view of the limited information about the circumstances of the deaths and injuries sustained and the use of those weapons, as noted above (see paragraph 524 above). This was also the conclusion endorsed by the North Ossetian Parliament's report into the events (see paragraph 388 above).

Overall, the Court finds that the evidence establishes a prima facie claim that the State agents used indiscriminate weapons upon the building while the terrorists and hostages were intermingled. Accordingly, it seems impossible that it could be ensured that the risk to the hostages could be avoided or at least minimised.

The Court cannot agree that the Government provided a ‘satisfactory and convincing explanation’ about the use of force and the circumstances of the deaths and injuries complained of by the applicants. It accepts that presumptions can be drawn from the co-existence of an unrebutted body of evidence pointing to the use of indiscriminate weapons upon the building where both the terrorists and hostages had been present, and the absence of proper fact-finding into the causes of death and circumstances of the use of arms. Similarly to the planning and control aspect of the operation, the Court is unwilling to speculate about the individual deaths and injuries sustained. Despite this lack of individual certainty, the Court accepts that the known elements of the case allow it to conclude that the use of lethal force by the State agents contributed, to some extent, to the casualties among the hostages.

The Court next needs to examine whether the use of lethal force can be considered justified under Article 2 of the Convention. The Court found in Finogenov and Others (cited above, § 226) that:

In the present case, after the first explosions in the gymnasium and the terrorists had opened fire upon the escaping hostages, the risk of massive human loss became a reality, and the authorities had no choice but to intervene by force. Accordingly, the Court accepts that the decision to resort to the use of force by the State agents was justified in the circumstances, under Article 2 § 2 (a) of the Convention.

The Court reiterates, next, that in previous cases it has examined the legal or regulatory framework existing for the use of lethal force (see McCann and Others, cited above, § 150, and Makaratzis v. Greece [GC], no. 50385/99, §§ 56–59, ECHR 2004-XI). The same approach is reflected in the UN Basic Principles (cited above in paragraph 465) which indicate that laws and regulations on the use of force should be sufficiently detailed and should prescribe, inter alia, the types of arms and ammunition permitted. The Court will thus examine the legal framework of the use of lethal force, which the applicants considered to be inadequate.

In the cases reviewed in the context of anti-terrorist operations in the North Caucasus, the Russian Government have essentially relied on the provisions of the Suppression of Terrorism Act as the legal basis of the use of force. The Court has left open the question whether the existing regulations constituted an appropriate legal framework for the use of force and contained clear and sufficient safeguards to prevent arbitrary deprivation of life, focusing its analysis on the practical application of the ‘absolute necessity’ test to the circumstances of the cases (see Isayeva, cited above, § 199; Arzu Akhmadova and Others v. Russia, no. 13670/03, § 164, 8 January 2009; Dzhamayeva and Others v. Russia, no. 43170/04, § 89, 8 January 2009; and Esmukhambetov and Others v. Russia, no. 23445/03, § 143, 29 March 2011).

In Finogenov and Others (cited above) the Court also explained that the lack of clarity in the legislative framework providing for the use of means that were at least potentially lethal (an unknown gas) could not, on its own, lead to a finding of a violation of Article 2 of the Convention. It said that the ‘general vagueness of the Russian anti-terrorism law does not necessarily mean that in every particular case the authorities failed to respect the applicants' right to life. Even if necessary regulations did exist, they probably would be of limited use in the situation at hand, which was totally unpredictable, exceptional and required a tailor-made response. The unique character and the scale of the Moscow hostage crisis allows the Court to distinguish the present case from other cases where it examined more or less routine police operations and where the laxity of a regulatory framework for the use of lethal weapons was found to violate, as such, the State's positive obligations under Article 2 of the Convention’ (ibid. § 230).

In view of the practice summarised above, the Court confirms that a difference should be drawn between ‘routine police operations’ and situations of large-scale anti-terrorist operations. In the latter case, often in situations of acute crisis requiring ‘tailor-made’ responses, the States should be able to rely on solutions that would be appropriate to the circumstances. That being said, in a lawful security operation which is aimed, in the first place, at protecting the lives of people who find themselves in danger of unlawful violence from third parties, the use of lethal force remains governed by the strict rules of ‘absolute necessity’ within the meaning of Article 2 of the Convention. It is of primary importance that the domestic regulations be guided by the same principle and contain clear indications to that extent, including the obligations to decrease the risk of unnecessary harm and exclude the use of weapons and ammunition that carry unwarranted consequences.

Turning to the legislative framework in the present case, the Court first notes that, unlike the situation described in the Finogenov and Others judgment, the weapons used in the present case were ‘conventional weapons,’ falling under the general legal framework. Although the applicants suggested that thermobaric weapons were governed by the more restrictive legal regime of incendiary weapons, international military experts classed them as enhanced explosive munitions, and not incendiary (see paragraph 472 above). This was also the view of the Russian military experts (see paragraph 212 above).

As to the general legal framework, the Suppression of Terrorism Act allowed the use of ‘weapons and [other] special-purpose hardware and means’ in an anti-terrorist operation, subject to the OH's decisions. The choice of type of weapons, including indiscriminate ones, was not regulated in any detail. Furthermore, the law required that the specific technical methods of anti-terrorist operations be kept secret. At the same time, the Act obliged the OH to be guided by the ‘the interests of people endangered by a terrorist act’ (see paragraphs 457 and 458 above). The applicants referred to the provisions of the Army Field Manual (see paragraph 578 above), as in force at the relevant time (see paragraph 462 above). But the documents reviewed stipulated that during the anti-terrorist operation the operational management of the army servicemen and units, including use of arms, was taken over by the FSB, in line with the Suppression of Terrorism Act.

The Court notes that the Suppression of Terrorism Act remained silent not only on the types of weapons and ammunition that could be used, but also on the rules and constraints applicable to this choice. It did not incorporate in any clear manner the principles of using force that should be no more than ‘absolutely necessary,’ such as the obligations to decrease the risk of unnecessary harm and exclude the use of weapons and ammunition that carried unwarranted consequences (see the UN Basic Principles and the Council of Europe Guidelines, cited in paragraphs 465–467 above). At the same time, it provided near blanket immunity to the participants of anti-terrorist operations from responsibility for any harm caused by them to ‘legally protected interests’ (see paragraph 460 above). It is not surprising that in the absence of clear rules on conducting anti-terrorist operations, references were made to the Army Field Manual, which applied to combat situations in armed conflicts and appeared inappropriate for the situation (see paragraph 462 above).

The Court thus finds that the domestic legal framework failed to set the most important principles and constraints of the use of force in lawful anti-terrorist operations, including the obligation to protect everyone's life by law, as required by the Convention. Coupled with wide-ranging immunity for any harm caused in the course of anti-terrorist operations, this situation resulted in a dangerous gap in regulating situations involving deprivation of life — the most fundamental human right under the Convention. In this case, the Court finds that in view of the inadequate level of legal safeguards, Russia had failed to set up a ‘framework of a system of adequate and effective safeguards against arbitrariness and abuse of force’ (see Makaratzis, cited above, §§ 58 and 71). This weakness of the regulatory framework bears a relevance on the Court's considerations with regard to the proportionality of the force used, as examined below.

The applicants were of the opinion that the lethal force used had been excessive, that the weapons used had been indiscriminate and their use could not be justified in the circumstances. The Government insisted that the weapons had been used ‘directly and precisely’ against the terrorists and that the hostages had not been affected, thus, even if the ‘absolute necessity’ test had been applied, it would have been satisfied.

The Court reiterates that the exceptions contained in Article 2 § 2 of the Convention indicate that this provision extends to, but is not concerned exclusively with, intentional killing. The text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to ‘use force’ which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than ‘absolutely necessary’ for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c). In this connection, the use of the term ‘absolutely necessary’ in Article 2 § 2 indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is ‘necessary in a democratic society’ under paragraph 2 of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) (see McCann and Others, cited above, § 149).

In the present case, the Court has already found that the conclusion reached by the domestic investigation about the absence of casualties or fatalities among the hostages on account of the use of force by the State agents was untenable, and that it must be assumed that such use of force did contribute, to some extent, to the casualties among the hostages (see paragraphs 524 and 590 above). Having found above that the decision to resort to the use of lethal force was justified under Article 2 (a) of the Convention, the Court must now move on to the applicants' remaining argument — that the lethal force had been used indiscriminately against both terrorists and hostages, ‘which cannot be considered compatible with the standard of care prerequisite to an operation involving use of lethal force by State agents’ (see Isayeva, § 191, and Finogenov and Others, § 231, both cited above). The Court acknowledges the Government's argument that the situation was different from the circumstances described in the Finogenov and Others judgment, where it had found that the use of gas could not be qualified as ‘indiscriminate’, as it had left the hostages a high chance of survival, depending on the efficiency of the subsequent rescue efforts (Finogenov and Others, cited above, § 232).

The Court has noted the failure to plan and control the operation with the aim of minimising the risk to civilians, and the absence of an adequate regulatory framework that would reflect the applicable international principles. These findings have direct relevance on the analysis below. As to the planning and control of the operation, the Court has concluded that the OH failed to establish lines of responsibility and ensure coordination in the most important aspects of the operation, including planning of rescue and storming operation (see paragraph 574 above). Next, the gaps in the legal framework resulted in the absence of clear guidelines about the principles and constraints for the use of lethal force, including the obligations to decrease the risk of unnecessary harm and exclude use of weapons and ammunition that carry unwarranted consequences. All those factors led to a situation where decisions about the types of weapons used, evaluation of the constraints and conditions, and deciding the practical instructions were left to the commanders in charge of the storming operation.

In the present case, several officials testified that this responsibility had laid with the commanders of the FSB special forces who had been called in to play the principal role in the event of any violent confrontation. General Andreyev, the head of the OH appointed on 2 September, explained that the OH had not worked out the possibility of resolving the situation by force, except if the risk to the hostages' lives had materialised. In such cases, questions concerning the types and use of weapons, including special weapons such as flame-throwers, lay within the competence of the FSB Special Services Centre (see paragraph 323 above). The Duma report concluded that the use of flame-throwers and a tank cannon had been authorised by the commander of the Centre after 6 p.m. on 3 September (see paragraph 401 above). According to the North Ossetian Minister of Emercom, the commander of the Centre had authorised the fire services to intervene after 3 p.m. (see paragraph 326 above). This evidence indicates that the key person during the operation was the commander of the Centre, General Tikhonov. Although some sources indicated that he had been a member of the OH (see paragraphs 183 and 543 above above), others did not (see paragraph 377 above). Mr Andreyev, the head of the OH, did not name him among the members of the OH (see paragraph 319 above), nor was he mentioned by any other members of the OH as participating in their work.

Despite the commander of the Special Services Centre playing such a key role in the events, it does not seem that he was questioned within the framework of investigation no. 20/849, and the list of documents contained in the related file does not include his testimony (see paragraph 203 above). He testified before the Duma commission, but the testimony was not disclosed. Two sources referred to different contents of this statement: while the majority found it confirmed that the use of indiscriminate weapons had been authorised by him after 6 p.m., Mr Savelyev cited his deposition of 28 October 2004 to allege that grenade launchers and flame-throwers had been used at around 3 p.m. (see paragraphs 401 and 409 above). The Court reiterates that the evidence establishes a prima facie claim that the State agents used indiscriminate weapons upon the building while the terrorists and hostages were intermingled (see paragraph 589 above). In the absence of first-hand explanations from the person who had been de facto in charge of the use of force during the operation, and irreconcilable differences on this key matter in other sources, the Court finds that the Government have not provided a ‘satisfactory and convincing explanation’ that the lethal force used had been no more than absolutely necessary. Therefore, inferences can be drawn against the Government's position in this respect.

The Court confirms that the situation that led to the storming of the school was exceptional. Sudden and powerful explosions in the gymnasium left many dead and many more wounded, burned and shell-shocked. In the ensuing confusion, the terrorists fired upon the escaping hostages and at those who were trying to assist them. The terrorists were armed not only with firearms and explosives, but also powerful weapons, such as grenade launchers. It is clear that in this situation operational command should have been able to take rapid and difficult decisions about the means and methods to employ so as to eliminate the threat posed by the terrorists as soon as possible.

Having said that, the operation was aimed at saving lives and re-establishing law and order. Therefore, apart from the danger presented by the terrorists, the commanders had to consider the lives of over 1,000 people held by them, including hundreds of children. The hostages, who had been left exhausted by more than fifty hours of detention in stressful conditions, without access to food or water, clearly constituted a vulnerable group. The acute danger of the use of indiscriminate weapons in such circumstances should have been apparent to anyone taking such decisions. All relevant factors should have been weighed up and carefully pondered upon in advance, and the use of such weapons, if unavoidable in the circumstances, should have been subject to strict supervision and control at all stages to ensure that the risks to the hostages were minimised.

The Court notes that the security forces used a wide array of weapons, some of them extremely powerful and capable of inflicting heavy damage upon the terrorists and hostages, without distinction. In particular, although the exact quantity of flame-throwers used was not established, it appears that between twelve and seventeen RPO-A Shmel were used, about forty charges for a portable flame-thrower LPO-97, no fewer than twenty-eight charges for grenade launchers and eight high-fragmentation shells for a tank cannon. To this must be added 7,000 cartridges for automatic and machine guns, over 2,000 tracer bullets, 450 armour-piercing incendiary cartridges for large-calibre machine guns and ten hand grenades. Furthermore, an unknown quantity of other powerful explosive and thermobaric weapons is mentioned in the documents contained in the case file (see paragraph 521 above).

As in the Isayeva case (cited above), the Court finds that ‘the primary aim of the operation should be to protect lives from unlawful violence. The massive use of indiscriminate weapons stands in flagrant contrast with this aim and cannot be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by State agents.’ It is not for the Court, with detached reflection, to substitute its own opinion of the situation for that of security officers who were required to intervene to save human lives, in an extremely tense situation, facing armed and dangerous individuals. While errors of judgment or mistaken assessments, unfortunate in retrospect, will not in themselves entail responsibility under Article 2, such use of explosive and indiscriminate weapons, with the attendant risk for human life, cannot be regarded as absolutely necessary in the circumstances (see, among other authorities, Dimov and Others v. Bulgaria, no. 30086/05, § 78, 6 November 2012).

There has been, accordingly, a breach of Article 2 of the Convention by the State agents, on account of the massive use of lethal force.

To recapitulate, the Court has concluded that although the decision to resort to the use of lethal force was justified in the circumstances, Russia had breached Article 2 of the Convention on the account of the use of lethal force, and, in particular, indiscriminate weapons. The weakness of the legal framework governing the use of force contributed to the above finding. The Court does not find it necessary to examine the applicants' remaining complaint under this heading, notably about who was responsible for the first explosions in the gymnasium.