Постановление ЕСПЧ от 30.01.2014 «Дело «Микиева и другие (Mikiyeva and Others) против Российской Федерации» (жалобы N 61536/08, 6647/09, 6659/09, 63535/10 и 15695/11) [англ.] Часть 3

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  1. Alleged violations of Articles 3, 5 and 13 of the Convention

 

  1. The applicants complained of a violation of Articles 3 and 5 of the Convention on account of the mental suffering caused to them by the disappearance of their relatives and the unlawfulness of their relatives’ detention. They also argued that, contrary to Article 13 of the Convention, there had been no available domestic remedies in respect of the alleged violations, in particular those under Articles 2 and 3. These Articles read, in so far as relevant:

Article 3

«No one shall be subjected to torture or to inhuman or degrading treatment or punishment.»

Article 5

«1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

  1. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
  2. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
  3. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
  4. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.»

Article 13

«Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.»

 

  1. The parties’ submissions

 

  1. The Government contested the applicants’ claims.
  2. The applicants reiterated their complaints.

 

  1. The Court’s assessment
  1. Admissibility

 

  1. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

 

  1. Merits

 

  1. The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 in respect of the close relatives of the victim. The essence of such a violation does not lie mainly in the fact of the «disappearance» of the family member, but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, No. 25656/94, § 358, 18 June 2002, and Imakayeva, cited above, § 164). Where news of the missing person’s death is preceded by a sufficiently long period in which he or she may be deemed disappeared, there exists a distinct period during which an applicant sustains uncertainty, anguish and distress characteristic to the specific phenomenon of disappearances (see Luluyev and Others, cited above, § 115).
  2. Equally, the Court has found on many occasions that unacknowledged detention is a complete negation of the guarantees contained in Article 5 and discloses a particularly grave violation of its provisions (see v. Turkey, No. 25704/94, § 164, 27 February 2001, Luluyev and Others, cited above, § 122, and Aslakhanova and Others, cited above, § 132).
  3. The Court reiterates its findings regarding the State’s responsibility for the abductions and the failure to carry out meaningful investigations into the fates of the disappeared persons. It finds that the applicants, who are close relatives of the disappeared, must be considered victims of a violation of Article 3 of the Convention on account of the distress and anguish which they suffered, and continue to suffer, as a result of their inability to ascertain the fate of their family members and of the manner in which their complaints have been dealt with.
  4. The Court furthermore confirms that since it has been established that the applicants’ relatives were detained by State agents, apparently without any legal grounds or acknowledgement of such detention, this constitutes a particularly grave violation of the right to liberty and security of persons enshrined in Article 5 of the Convention.
  5. The Court reiterates its findings of the general ineffectiveness of criminal investigations in cases such as those under examination. In the absence of results from a criminal investigation, any other possible remedy becomes inaccessible in practice.
  6. The Court thus finds that the applicants in these cases did not have an effective domestic remedy at their disposal for their grievances under Articles 2 and 3, in breach of Article 13 of the Convention (see, for example, Aslakhanova and Others, cited above, § 157).

 

  1. Other alleged violations of the Convention

 

  1. The Court has examined the other complaints submitted by the applicant in the case of Esuyev (No. 15695/11) under Articles 3, 6, 7 and 8 of the Convention. However, having regard to all the material in its possession, and in so far as those complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

 

VII. Application of Article 41 of the Convention

 

  1. Article 41 of the Convention provides:

«If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.»

 

  1. The applicants’ claims
  1. Damages

 

(a) Application No. 61536/08 Mikiyeva and Menchayeva v. Russia

  1. In respect of pecuniary damage, the first and second applicants claimed 146,174 Russian roubles (RUB) (approximately 3,400 euros (EUR)) and RUB 464,862 (approximately EUR 10,820) respectively for the loss of financial support of their family breadwinner. The applicants based their calculations on the subsistence level provided for by domestic law and the Ogden Actuarial Tables.
  2. In respect of non-pecuniary damage, the applicants jointly claimed EUR 100,000.

(b) Application No. 6647/09 Ibragimova v. Russia

  1. The applicant claimed EUR 100,000 in respect of non-pecuniary damage.

(c) Application No. 6659/09 Kosumova and Others v. Russia

  1. In respect of pecuniary damage, the applicants claimed EUR 30,618, EUR 29,646, EUR 30,684 and EUR 33,176 respectively for the loss of financial support of their family breadwinner. The applicants based their calculations on the subsistence level provided for by domestic law.
  2. In respect of non-pecuniary damage, the applicants asked the Court to award them an amount that the Court would find appropriate and reasonable in the circumstances of the case.

(d) Application No. 63535/10 Batariyeva v. Russia

  1. In respect of non-pecuniary damage, the applicant asked the Court to award an amount that the Court would find appropriate and reasonable in the circumstances of the case.

(e) Application No. 15695/11 Esuyev v. Russia

  1. The applicant claimed EUR 1,000,000 in respect of non-pecuniary damage.

 

  1. Costs and expenses

 

(a) Application No. 61536/08 Mikiyeva and Menchayeva v. Russia

  1. The applicants were represented by SRJI/Astreya. Their aggregate claim in respect of costs and expenses related to their legal representation amounted to EUR 4,445, which included the drafting of legal documents, translation services, and administrative and postal costs. They submitted copies of a legal representation contract and an invoice with a breakdown of the costs incurred.

(b) Application No. 6647/09 Ibragimova v. Russia

  1. The applicant was represented by SRJI/Astreya. Her aggregate claim in respect of costs and expenses related to her legal representation amounted to EUR 4,536, which included the drafting of legal documents, translation services, and administrative and postal costs. She submitted copies of a legal representation contract and an invoice with a breakdown of the costs incurred.

(c) Application No. 6659/09 Kosumova and Others v. Russia

  1. The applicants were represented by Mr D. Itslayev, a lawyer practising in Grozny. Their aggregate claim in respect of costs and expenses related to their legal representation amounted to EUR 7,936, which included the drafting of legal documents, translation services and administrative costs. They submitted copies of a legal representation contract and an invoice for translation services.

(d) Application No. 63535/10 Batariyeva v. Russia

  1. The applicant was represented by Mr D. Itslayev, a lawyer practising in Grozny. Her aggregate claim in respect of costs and expenses related to her legal representation amounted to EUR 6,471, which included the drafting of legal documents, translation services and administrative costs. She submitted copies of a legal representation contract and an invoice for translation services.

(e) Application No. 15695/11 Esuyev v. Russia

  1. The applicant did not make any claims under this head.

 

  1. The Government

 

  1. The Government submitted in respect of each application that the applicants’ claims for damages were unsubstantiated. They further maintained that a finding of a violation would constitute sufficient just satisfaction for the applicants.
  2. The Government further stated in respect of each application that the applicants’ claims for costs and expenses were unsubstantiated, as it had not been shown that the expenses claimed had actually been incurred. They also noted that the application forms and observations submitted by the applicants’ representatives were very similar to each other and therefore, the time and effort spent on the preparation of the documents did not correspond to the amounts claimed.

 

  1. The Court’s assessment

 

  1. The Court reiterates that there must be a clear causal connection between the damages claimed by the applicants and the violation of the Convention, and that this may, where appropriate, include compensation in respect of loss of earnings. The Court further finds that a loss of earnings may be claimed by close relatives of a disappeared person, including spouses, elderly parents and minor children (see, among other authorities, Imakayeva, cited above, § 213).
  2. Whenever the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of the violation, and make a financial award.
  3. As to costs and expenses, the Court first has to establish whether the costs and expenses indicated by the applicants’ representatives were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A No. 324, and Fadeyeva v. Russia, No. 55723/00, § 147, ECHR 2005-IV).
  4. Having regard to the foregoing conclusions, the principles enumerated above and the parties’ submissions, the Court awards the amounts to the applicants as detailed in Appendix II, plus any tax that may be chargeable to the applicants on those amounts. The awards in respect of costs and expenses are to be paid into the representatives’ bank accounts, as identified by the applicants.

 

  1. Default interest

 

  1. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

 

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

 

  1. Decides to join the applications;
  2. Dismisses the Government’s objection regarding locus standi in respect of application Batariyeva v. Russia (No. 63535/10);
  3. Decides to join to the merits the Government’s objection as to the applicability of Article 2 of the Convention and rejects it;
  4. Declares the complaints under Articles 2, 3, 5 and 13 admissible, and the remainder of the applications inadmissible;
  5. Holds that there has been a substantive violation of Article 2 of the Convention in respect of the applicants’ relatives Mr Isa Mikiyev, Mr Artur Ibragimov, Mr Ramzan Shaipov, Mr Zelimkhan Batariyev and Mr Mansur Esuyev;
  6. Holds that there has been a procedural violation of Article 2 of the Convention in respect of the failure to investigate the disappearance of the applicants’ relatives;
  7. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants, on account of their relatives’ disappearance and the authorities’ response to their suffering;
  8. Holds that there has been a violation of Article 5 of the Convention in respect of the applicants’ relatives on account of their unlawful detention;
  9. Holds there has been a violation of Article 13 of the Convention in conjunction with Articles 2 and 3 of the Convention;
  10. Holds

(a) that the respondent State is to pay the applicants (in relation to application No. 63535/10, to Mr Bekkhan Batariyev), within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the amounts as indicated in Appendix II, plus any tax that may be chargeable to the applicants. The payments in respect of costs and expenses to the applicants’ representatives are to be made to the representatives’ bank accounts as indicated by the applicants; the payments are to be made in euros in respect of the applicants represented by SRJI/Astreya, and to be converted into Russian roubles in respect of the applicants represented by Mr D. Itslayev;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

  1. Dismisses the remainder of the applicants’ claim for just satisfaction.

 

Done in English, and notified in writing on 30 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

President

Registrar

 

Appendix I

DETAILS OF THE APPLICATIONS

No. Application No., date of introduction Applicant’s name, year of birth, relation to the disappeared person, place of residence Represented by Abducted person(s) (name, year of birth, date and place of the alleged abduction) Investigation
1. 61536/08

Mikiyeva and Menchayeva v. Russia

09/12/2008

(1) Ms Khedi MIKIYEVA (1981), daughter, Tsa-Vedeno, Vedeno district, the Chechen Republic

(2) Ms Lyubov MENCHAYEVA (1961), wife, idem

STICHTING RUSSIAN JUSTICE INITIATIVE/ASTREYA (1) Mr Isa MIKIYEV (1955), abducted from home on 3 May 2001 at around 7 a.m., Tsa-Vedeno Criminal case No. 37061 opened on 25 November 2001 by the Vedeno district prosecutor’s office.
2. 6647/09

Ibragimova v. Russia

23/01/2009

(1) Ms Deshi IBRAGIMOVA (1947), aunt, Shali, Shali district, the Chechen Republic STICHTING RUSSIAN JUSTICE INITIATIVE/ASTREYA (1) Mr Artur IBRAGIMOV (1983), abducted on 16 July 2003 at 5 p.m., Shali Criminal case No. 22109 opened on 28 July 2003 by the Shali district prosecutor’s office.
3. 6659/09

Kosumova and Others v. Russia

30/12/2008

(1) Ms Ayshat KOSUMOVA (1981), wife, Chiri-Yurt, Shali district, the Chechen Republic

(2) Mr Islam SHAIPOV (2000), son, idem

(3) Mr Rakhman SHAIPOV (2002), son, idem

(4) Mr Deni SHAIPOV (2004), son, idem

Mr Dokka ITSLAYEV, a lawyer practising in Nazran, Ingushetia (1) Mr Ramzan SHAIPOV (also spelled as SHOIPOV) (1974), abducted late at night on 8 May 2004 or in the early hours of 9 May 2004, Chiri-Yurt Criminal case No. 36046 opened on 21 May 2004 by the Shali district prosecutor’s office.
4. 63535/10

Batariyeva v. Russia

28/10/2010

(1) Ms Roza BATARIYEVA (1960), mother, Urus-Martan, Urus-Martan district, the Chechen Republic

On 15 April 2012 the applicant died, the applicant’s son Mr Bekkhan Batariyev pursued the proceedings.

Mr Dokka ITSLAYEV, a lawyer practising in Grozny, the Chechen Republic (1) Mr Zelimkhan BATARIYEV (1982), abducted from his flat on 4 May 2001 at night, Grozny, the Chechen Republic Criminal case No. 50113 opened on 31 July 2002 by the Grozny prosecutor’s office.
5. 15695/11

Esuyev v. Russia

07/02/2011

(1) Mr Batyr ESUYEV (1952), father, Verkhniy Gerzel, Gudermes district, the Chechen Republic Mr Magomed Magomedov, a lawyer practising in Khasavyurt, the Republic of Dagestan (1) Mr Mansur ESUYEV (1980), abducted from home on 11 January 2003 at around 4 a.m., Verkhniy Gerzel Criminal case No. 32133 opened on 6 November 2003 by the Gudermes district prosecutor’s office.

 

Appendix II

AWARDS MADE BY THE COURT UNDER ARTICLE 41 OF THE CONVENTION

Application number and name Represented by Pecuniary damage Non-pecuniary damage Costs and expenses
1 61536/08

Mikiyeva and Menchayeva v. Russia

SRJI/Astreya EUR 2,000 (two thousand euros) to the first applicant;

EUR 7,000 (seven thousand euros) to the second applicant

EUR 60,000

(sixty thousand euros), jointly

EUR 2,500

(two thousand five hundred euros)

2 6647/09

Ibragimova v. Russia

SRJI/Astreya EUR 60,000

(sixty thousand euros)

EUR 2,500

(two thousand five hundred euros)

3 6659/09

Kosumova and Others v. Russia

D. Itslayev EUR 25,000 (twenty-five thousand euros), jointly EUR 60,000

(sixty thousand euros), jointly

EUR 2,500

(two thousand five hundred euros)

4 63535/10

Batariyeva v. Russia

D. Itslayev EUR 60,000

(sixty thousand euros)

EUR 2,500

(two thousand five hundred euros)

5 15695/11

Esuyev v. Russia

M. Magomedov EUR 60,000

(sixty thousand euros)

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