JOINT PARTLY DISSENTING OPINION OF JUDGES HAJIYEV AND DEDOV

1. We regret that we cannot agree with the majority that there was a violation of Article 2 of the Convention in respect of the obligation to plan and control the operation involving the use of lethal force so as to minimise the risk to life, and consider that the use of lethal force by the State agents was more than absolutely necessary.

A. Positive obligation to prevent the threat to life

2. We take the view that the most important issue in the present case is positive obligation of the State to prevent any threat to life. We agree that there was a violation of the Convention on that point. Notwithstanding that the authorities knew that the threat was real, and that the terrorist group had gathered in a forested area, training and preparing for their next attack (see paragraphs 16, 19 and 132-35 of the judgment), no reasonable preventive measures had been taken by the authorities to locate the terrorists, isolate them, prevent their moving to any other populated area and destroy them. Also, no measures had been taken in Beslan, and the terrorists had reached the school unhampered.

B. Planning and control

3. We agree with the Court’s conclusion that the situation was exceptional. The Court has to acknowledge the difficulties that the authorities faced in managing the security operation. Indeed, the situation where more than 1,000 hostages were captured in the school was beyond the control of the authorities. It took time to realise that a peaceful resolution of the problem and the release of all hostages were not, in fact, possible.

4. The Court and the domestic investigation confirmed that the first explosions had occurred unexpectedly. We therefore accept the Government’s observation that the authorities were under tremendous pressure and that their control over the situation was minimal. The situation was aggravated by a number of factors: the majority of hostages were children; the terrorists had lost the so-called second Chechen war and demonstrated that they were ready to die together with the hostages (see paragraph 451 of the judgment); some of them were suicide-bombers; they also fixed explosives around the hostages, so that they could all be killed immediately. The terrorists had been much better prepared and were more resistant to releasing the hostages than in the Nord-Ost theatre in Moscow two years earlier (see Finogenov and Others v. Russia , nos. 18299/03 and 27311/03, ECHR 2011 (extracts)). It was the last attack on such a massive scale. It is hard to compare the scale of the terrorist attack in the present case with any precedent.

5. We are of the view that due to all these factors enormous emotional and psychological pressure was imposed on those officials responsible for planning and controlling the operation (as if “control” were an appropriate term in the context of fierce, almost hand-to-hand fighting). However, the majority has concluded that “the operation involving use of lethal force was not planned and controlled so as to ensure that any risk to life was minimised” (see paragraphs 562, 589, 611 and 639 of the judgment). This conclusion is general in character and it does not take into account the objective impossibility of controlling such a risk. The hostages’ vulnerability was, rather, a reason for the authorities to take prompt action to release them.

6. We ought to mention that in the Finogenov and Others case the use of gas had been a significant part of the planning process, and had pursued certain aims, namely to avoid armed fighting with the strict minimum application of lethal force, and therefore to reduce the risk to hostages’ lives (see Finogenov and Others, cited above). The present case is very different because it is impossible to pinpoint any action taken by the authorities which could have been planned in advance and subsequently controlled, especially during the first few hours after a series of explosions, apart from the organisation of medical assistance for surviving hostages, but this issue lies outside the scope of the complaints in the present case.

7. After the first explosions the hostages rushed out of the building, the terrorists rained bullets on them, State agents, under fire and with the help of parents and relatives of hostages, organised the evacuation while at the same time exchanging fire with the terrorists. The latter were also armed, inter alia , with indiscriminate weapons and heavy ammunition capable of destroying the roof of the building and causing mass killing (see, for example, paragraphs 140-42 of the judgment). The Court confirmed the gravity and complexity of the situation, in particular, in paragraphs 564, 606 and 607 of the judgment. In the light of those considerations, we would prefer not to examine the issue of planning and control of the operation, because the situation was extremely complex, and a clear finding of a violation or no violation is almost impossible.

8. Again, in the Finogenov and Others case the deficiencies on the part of the authorities were clear enough (the rescue of the hostages affected by the gas had not been properly organised, leading to the fatal consequences) (see Finogenov and Others, cited above). In the present case, the Court has found a violation solely because of the inability of the command structure in charge of the operation to maintain clear lines of command and accountability and to coordinate and communicate the important details relevant to the rescue operation (see paragraph 574 of the judgment). In support of this conclusion, the majority referred, in particular, to the absence of any records of the OH meetings and decisions adopted which made it impossible to understand how the most important decisions had been taken and communicated with the principal partners (see paragraph 570). In our view, such a general wording cannot itself serve as a basis for finding a violation of the Convention.

9. In our view, the Court’s conclusion on the violation of the Convention regarding the planning and control over the security operation concerns the positive obligation of the State to prevent the threat to life, which covers not only the presentation of the terrorist attack, but also the appropriate measures to be taken during the security operation to save the hostages’ lives (see, for example, Finogenov and Others, cited above, §§ 208 and 237).

C. Use of lethal force

1. Prima facie complaint

10. The majority have found that there was evidence establishing a prima facie complaint that the State agents used indiscriminate weapons on the premises while the terrorists and hostages were still intermingled. The Court then comes to the conclusion that it seems to have been impossible to avoid or at least minimise the risk to the hostages (see paragraph 589 of the judgment). It is difficult to agree with this conclusion for the following reasons.

11. The conclusion is twofold: (1) the State agents used indiscriminate weapons on the premises while the terrorists and hostages were still grouped together; (2) the authorities did not ensure that there were no hostages in the premises under attack. These two factors are, in our view, mutually contradictory, as the majority shows different levels of certainty in its approach to the prima facie evidence.

12. In our view, it is doubtful whether the witness statements referred to in paragraph 523 of the judgment could be used as a prima facie evidence. Not all those statements gave precise details concerning the time and the exact targets. The domestic investigation and the Government’s observations provided the Court with further testimonies confirming that immediately after the first explosions lethal force had been used against the terrorists who had fired at hostages escaping from the gymnasium, and other terrorists hiding in other sections of the building (on the upper floor of another part of the building, see paragraph 76 of the judgment). It was established that before the explosions all the hostages had been concentrated in the gymnasium, where deaths were caused by three explosions, fire, destruction of the roof and gunfire from the terrorists. It is therefore unlikely that the majority of the hostages died as a result of the indiscriminate lethal force used by the State agents elsewhere on the premises.

13. Although the Government stated that none of the hostages was injured or killed by the lethal force used by the State agents, the Court disagreed on whether the Government had provided a “satisfactory and convincing explanation” of the use of force and the circumstances of the deaths and injuries complained of by the applicants (see paragraph 590). However, it is difficult to take either of the above-mentioned positions in the absence of any objective and detailed evidence produced by the applicants or the Government.

14. We could admit that it would be almost impossible, in practice, for the investigation to establish whether the death of the hostages had been caused by the State agents or by the terrorists, since their ammunition was very similar. Yet even if the authorities did not take the necessary investigative steps to establish the responsibility of the security forces, this should be decided in the framework of the effectiveness of the investigation, rather than of the use of indiscriminate lethal force. We take the view that the Court cannot replace the domestic authorities in establishing this fact thirteen years after the events.

15. We ought to accept that the prima facie complaint is not well founded because the evidence collected under the domestic proceedings was very controversial (see paragraph 523, with further references). There is solid evidence to refute the applicant’s allegations (see, for example, paragraph 587). It was confirmed, or at least not excluded, that the indiscriminate lethal force was applied after 3 p.m., that is to say after the evacuation was completed (see paragraphs 142, 293, 294, 298 and 300 of the judgment).

16. Also, contrary to the general principles, the link between the evidence and the claim lacked any element of objectivity. For example, in line with the Court’s usual practice, the involvement of State agents is supported: (1) in cases of disappearance: by the fact that the abduction had taken place during a security operation or in the vicinity of a police department, or the car transporting the perpetrators had passed a police road-block without any difficulties; (2) in cases of illegal transfer (see, for example, Savriddin Dzhurayev v. Russia , no. 71386/10, 25 April 2013): by the fact that the authorities controlled the borders by means of passport, transportation and customs checks limiting the opportunities for crossing the State border unnoticed.

17. In the present case, the fact that the State agents used lethal force does not mean that they used it when the hostages and terrorists had been intermingled and the hostages had been fatally affected by that force. The probability of the above-mentioned consequences could be accepted on the basis of additional objective evidence, but such a link was not established by the Court. It should therefore be ascertained whether the State agents had been in a position to ensure whether the premises under attack were occupied solely by terrorists, and whether the use of force was absolutely necessary.

2. Absolutely necessary

18. The majority concluded that although the decision to resort to lethal force was justified in the circumstances, Russia had breached Article 2 of the Convention by using greater lethal force than had been necessary (see paragraphs 611 and 639 of the judgment). In other words, in the Court’s view, the use of force had been excessive. In particular, the Court refers to the total quantity of ammunition used by State agents during the storming of the building (see paragraph 608).

19. We agree with the Court that the security forces used a wide array of weapons, some of them extremely powerful and capable of inflicting heavy damage on the terrorists and hostages, without distinction (see paragraph 608). This assumption, however, is theoretical and needs to be examined on the basis of the case file.

20. Although the majority has found the explanations of the Government unsatisfactory, the case file does contain enough evidence to confirm that the force was applied under the control of the State agents and directly against the terrorists. In the majority’s view, it remains unexplained how the agents employing lethal force were able to verify the absence of hostages in the premises under attack (see paragraphs 552 and 588 of the judgment). In our view, the conclusion that the use of force was not absolutely necessary contradicts the fact that the agents (who testified to the investigators) honestly believed that there were no hostages or that that there were unlikely to be any hostages. They confirmed that they had not seen or heard anything that would point to the presence of any hostages. Also, the records of the site examinations and video material showed that no dead hostages had been found in the places where the terrorists had been killed by heavy arms and indiscriminate weapons (see paragraph 142).

21. The failure of the commander of the Special Services Centre to testify (see paragraph 605) does not mean that the lethal force which he had approved had been applied improperly. If the Court confirms that in the present case the situation was exceptional, complex and dynamic (see paragraph 606), it has to admit that the commander exercised control over the operation in an effective manner: the lethal force was applied for a variety of tasks (for example, the T-72 tank had been used to make openings in the walls); the operation was split between the evacuation and the storming of the building, and mass indiscriminate lethal force was only used during the final stage of the security operation.

22. That means that the instructions were given before the storming, and that there is a policy on storming premises in the presence of hostages which sets out detailed instructions, depending on circumstances, on the tactics and strategy for releasing hostages. This policy is vital for training, and should not necessarily be disclosed to the public, for security reasons. The Government referred to the Suppression of Terrorism Act, Section 2 (c) of which provides that the State must, as far as possible, keep the technical methodology of anti-terrorist operations and the identities of those involved in them secret (see paragraph 458).

23. This renders nugatory the whole section of the judgment on the legal framework (see paragraphs 592-99 and 640 of the judgment). The Court stated that the legal framework should be appropriate so as to clearly formulate the rules governing the principles and constraints of the use of lethal force during security operations. As mentioned below, the domestic law already contains the relevant principles. The principles of international law set out in the judgment apply in Russia too. In our view, further improvements are needed in terms of putting those principles into practice.

24. As regards the satisfactory explanations provided by the Government, the criminal file contains descriptions of actions conducted during the storming of the building which show that the rescue operations covered other premises and confirm that the authorities ensured that no hostages remained in the building before using indiscriminate lethal force: “a group of servicemen had entered the weights room and evacuated from it several women with small children”; “their (the security agents’) movements inside the building had been slowed down by... the presence of hostages whom the terrorists had been using as human shields”; “the terrorists had used automatic weapons, hand grenades and portable grenade launchers, while the FSB forces had been constrained to fire single shots, to avoid excessive harm to the hostages” (see paragraphs 140-43 of the judgment). While the State agents were present in the building during the storming, it would have been reasonable not to use indiscriminate weapons without proper coordination by the agents who were inside the building not far from the hostages and terrorists.

25. The majority noted that the security forces had used a wide array of weapons, some of them extremely powerful and capable of inflicting heavy damage on both the terrorists and the hostages, without distinction (see paragraph 608). The majority did not take account of the fact that the indiscriminate lethal force was used much less intensively than the ordinary weapons and that the security operation relied mainly on ordinary weapons. As regards the total number of weapons, it would be difficult to use such statistics to conclude that the use of force had been excessive. We would suggest that this issue is much more complex, as it requires detailed assessment of the concrete circumstances of the situation which may include, in particular: the total arsenal of weapons belonging to and used by the terrorists, the safety of their positions during the storming operation, difficulties with the identification of hostages during the storming operation, possibility of coordinated gunfire minimising the threat to hostages, and the proportion of losses (dead and injured) among the State agents and the terrorists.

26. We should remember that the terrorists had been heavily armed and had also used indiscriminate lethal force against the hostages and the State agents. It should be noted that, unfortunately, the terrorists used lethal force very effectively. The impugned events occurred after eight years of war in the region, in which about 20,000 State agents have died. The terrorists were very experienced and well-trained fighters. In those circumstances it would be beyond the Court’s competence to assess whether the use of lethal force was necessary or not.

27. We conclude that the use of force was absolutely necessary, and it was applied as a last resort in exceptional circumstances in order to remove the actual threat.

3. Nature and tasks of the security operation

28. The Court has reiterated 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” (see paragraph 609). According to the Court, the operation was security-oriented, geared to saving lives and restoring 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 (see paragraph 607).

29. The Government responded that the lethal force had been used “directly and precisely” against the terrorists, with a view to eliminating the threat they had posed to the hostages and others. The Russian Government also relied on the provisions of the Suppression of Terrorism Act as the legal basis of the use of force. This Act refers to the following principles quoted in paragraph 457:

“(a) priority should be given to the interests of people endangered by a terrorist act;

(b) the State should make minimal concessions to terrorists; ...”

30. These principles set out the priorities of the security operation, and the first priority is the life of the hostages. The majority, however, have paid scant attention to those principles. Instead, the Court stated that “the 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” (see paragraph 606). This makes the majority’s position less clear. The Court failed to explain what kind of strategy should have been implemented: one geared to saving the hostages’ lives, or an effort to eliminate the threat posed by the terrorists.

31. This is a twofold task, and the priorities are interdependent, and therefore this issue of professional activity, including the tactics and the strategy governing security operations, should lie outside the scrutiny of the Court or any other judicial authority unless there is objective and non-controversial evidence that the innocent people died as a result of errors committed during the security operation (compare with the case Armani Da Silva v. the United Kingdom , no. 5878/08, 30 March 2016) or of negligence (see the part of the judgment concerning the violation of a positive obligation in the present case).

32. If you compare the present case with Armani Da Silva, cited above, the difference might even be considered as setting double standards. In Armani Da Silva the Court agreed with the respondent Government that the Charlie agents had been informed, and they had honestly believed, that the person was a terrorist and they were in a situation of self-defence. The Court did not accept the arguments of the applicant who claimed that the Charlie agents should have verified first whether he was a terrorist or not before using lethal force. However, the Charlie agents were not prosecuted, and the Court did not find that the agents were obliged to carry out such verification as a part of the security operation. In the present case, the Court imposed that obligation on the national authorities under both the material and the procedural limbs of Article 2 of the Convention.

33. Due to the complexity and high dynamism of the situation, the conclusion on the use of lethal force has to be based, in our view, on a very complex analysis. The analysis would take account of the facts that the whole situation was exceptional, that all the surviving hostages had been concentrated in the gymnasium, that some of the hostages had been killed by the terrorists two days before the storming and kept on other premises, that the hostages tried to escape from the building rather than hide inside it, that the storming and the evacuation occurred simultaneously, that it was objectively impossible to halt the storming and to allow the terrorists to leave the school in order to prevent further killings, that it was difficult to assess how many terrorists were actually in the building and how many were required to control the whole building with more than 1,000 hostages, that the agents should have had far greater resources to eliminate the terrorists, and that during police operations (and it was certainly a police operation because of the hostages) State agents always face the problem of terrorists hiding behind the hostages. Accordingly, we believe that it would have been sufficient to find that the investigation had not been effective.