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Analysis & Opinion
22.12.11 Show Me The Money
By Dan Peleschuk

The European Court of Human Rights (ECHR) handed a victory to families of hostages taken during the 2002 terrorist siege of Moscow’s Dubrovka theater, ordering the Russian government to financially compensate them for the botched rescue operation, in which more than 100 people died. While it remains unclear whether the Kremlin will heed to the ECHR’s demand, the decision nevertheless highlights the weaknesses in both EU policy toward Russia and Russia’s own domestic legal situation.

The court ruled on December 20 that the Russian government must pay about $1.6 million in damages for violating the rights of the hostages during the rescue operation, in which special forces pumped the theater with chemical gas after a three-day standoff in an effort to knock out the 41 mostly Chechen terrorists that had descended upon it with guns and explosives. In the end, security forces successfully eliminated the terrorists, but 130 – out of about 800 – theatergoers died, most of them from asphyxiation, after the attempted rescue operation.

The ruling, however, was mixed. While the Strasbourg court found Russia guilty of violating the hostages’ right to life, it also noted that the authorities’ use of the gas to end the crisis was justified, as it believed the terrorists posed a serious and immediate threat. Mostly, however, the court placed an emphasis on what it believed to be a hasty and poorly organized rescue operation undertaken after the hostages, along with the terrorists, had been gassed into unconsciousness.

“[It] was evident that the authorities had not been sufficiently prepared,” read a press release issued by the ECHR after its ruling. “The government could provide no written documents with a comprehensive description of the evacuation plan. Indeed, the crisis cell ordered the deployment of hundreds of doctors, rescue workers and others to assist the hostages, but it seemed that little had been done to coordinate the work of those services.”

Russia has long shared a strained and, at times, somewhat ambiguous relationship with the ECHR. The court has reprimanded Russia on a number of issues, including most recently over the country’s pressure on gay and lesbian activist groups, which the authorities believe promote “extremism.” Yet, perhaps more curiously, the ECHR has also issued rulings more favorable to the Kremlin: in September, the court ruled that the Russian judicial system had not been misused for the politically motivated jailing of ex-tycoon Mikhail Khodorkovsky. While it noted that the authorities were at fault for rushing into the case, it also said that Yukos, Khodorkovsky’s former oil empire, failed to prove it was singled out by the Kremlin.

The signals sent from the court vary; sometimes the ECHR rules in favor of Russia, while at other times it reprimands the government. Taken together, these inconsistencies may seem puzzling, especially as various forms of power politics and efforts at Russian containment have typically colored the EU’s relations with Russia.

But according to Arkady Moshes, an expert on EU-Russia relations at the Finnish Institute for International Affairs, this in fact reflects the court’s true independence from EU power structures, and, at times, compensates for the bloc’s political or diplomatic failings. He pointed to the EU-Russia summit last week, in which “toothless” EU leaders failed to stand tough against President Dmitry Medvedev, who harshly chided them for their expressed concern over the recent parliamentary elections. “In this situation, the legal system linked to European institutions becomes not only a face saver for the European Union, it becomes a really working institution – an institution that shows it cares about legality, and that it cares about values,” he said.

The court’s ruling also has an effect on Russia’s domestic audience. Dubrovka victims and their families have reportedly lost more than 80 lawsuits regarding the issue in Russia, with the courts awarding compensation only in cases where the principal income source was lost. The Russian Constitutional Court, however, decreed last year that any rulings by the court can be reconsidered in domestic retrials. "Today's decision of the European court means that we have a right to re-file suits for damages against the Moscow government that were earlier rejected by Moscow's Tverskoi Court," Igor Trunov, the families’ lawyer, told The Moscow Times.

Yet it remains unclear how successful the victims may be back in Russian courts. Moshes reminds that Russians, in the first place, are driven to Strasbourg because of the substandard quality and bureaucratic dependence of Russian judicial system. “The more Russia deals with the court, the more it becomes evident that Russia’s own legal system does not protect the rights of Russian citizens,” he said. “The willingness to seek protection from bodies which are outside of Russia is an important indicator of people’s dissatisfaction with the legal system in the country.”
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