CASE OF ASTAMIROVA AND OTHERS v. RUSSIA
(Application no. 27256/03)
26 February 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Astamirova and Others v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 5 February 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
Ms Rumisa Zayndyevna Astamirova, born in 1978;
Ms Zoya Khamzatovna Astamirova, born in 1944;
Ms Roza Zayndyevna Astamirova, born in 1970;
Ms Petimat Shaitovna Algiriyeva, born in 1976;
Ms Kheda Aslanbekovna Algiriyeva, born in 2001;
Ms Dinara Aslanbekovna Algiriyeva, born in 2003;
Ms Raisa Zayndyevna Astamirova, born in 1968.
A. The applicants’ relative’s arrest
B. The search for Aslanbek Astamirov and the investigation
C. Information from the Government
II. RELEVANT DOMESTIC LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
A. Arguments of the parties
55 The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They noted in this regard that the investigation into the abduction of the applicants’ relative had not yet been completed. They submitted that the applicants had not made use of the rights accorded to them as victims in criminal proceedings, such as lodging applications and requests with the investigators or a court. They could have appealed to a court the investigators’ decisions. The applicants were furthermore entitled to sue the investigation bodies in civil proceedings for pecuniary and non-pecuniary damage.
B. The Court’s assessment
II. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS
A. The parties’ arguments
B. Article 38 § 1 (a) and consequent inferences drawn by the Court
C. The Court’s evaluation of the facts
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
A. The alleged violation of the right to life of Aslanbek Astamirov
B. The alleged inadequacy of the investigation of the abduction
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ”
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
“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;
2. 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.
3. 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.
4. 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.
5. 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.”
VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“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.”
VII. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
“The enjoyment of the right and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
A. Pecuniary damage
B. Non-pecuniary damage
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
4. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Aslanbek Astamirov had disappeared;
5. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants;
7. Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violations of Article 2 of the Convention;
8. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5;
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts,:
(i) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the second, fourth, fifth and sixth applicants jointly, to be converted into Russian roubles at the rate applicable at the date of settlement;
(ii) EUR 35,000 (thirty-five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicants jointly, to be converted into Russian roubles at the rate applicable at the date of settlement;
(iii) EUR 7,903 (seven thousand nine hundred and three euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands;
(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;
Done in English, and notified in writing on 26 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis