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ZAKAYEV AND SAFANOVA v. RUSSIA - 11870/03 [2010] ECHR 161 (11 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/161.html
Cite as:
[2010] ECHR 161
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FIRST
SECTION
CASE OF ZAKAYEV AND SAFANOVA v. RUSSIA
(Application
no. 11870/03)
JUDGMENT
STRASBOURG
11
February 2010
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 Zakayev and
Safanova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 11870/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Ramzan Zakayev, a national of Kazakhstan,
and his wife Mrs Imani Safanova (Zakayeva), a national of Russia
(“the applicants”), on 8 April 2003.
The
applicants were represented by lawyers from the Memorial Human Rights
Centre. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
The
applicants alleged, in particular, a violation of their right to
respect for their family life on account of the first applicant’s
removal to Kazakhstan.
On
20 May 2008 the President of the First Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1958 and 1963 respectively. The first
applicant was removed to Kazakhstan in April 2003; the second
applicant lives in Moscow.
1. Events prior to January 2003
Both
applicants come from families of ethnic Chechens who were forcibly
deported to Kazakhstan in the 1940s. The second applicant’s
family returned to Chechnya in 1981. On 1 March 1992 the first
applicant acquired Kazakh nationality, since at that time he was
living with his family in Kazakhstan. Some time later in 1992 the
first applicant and some of his family moved to Russia and settled in
Chechnya. His parents and two adult sisters remained in Kazakhstan.
Since the creation of the independent states of Russia and Kazakhstan
in 1991 citizens of Kazakhstan have not needed a visa to enter
Russia.
In
1994 the applicants married in Chechnya. Between 1994 and 1999 the
couple had three children – P.Z. born in 1994, I.Z. born in
1996 and K.Z. born in 1999. The family lived in the village of Gikalo
in the Grozny district of Chechnya, as attested in September 2003 by
the head of the village authority. It does not appear that the first
applicant took any steps to obtain Russian nationality or to
regularise his stay during that period.
At
some point between 1994 and 1995 the family went to Kazakhstan,
fleeing from the hostilities in Chechnya. However, as soon as the
situation calmed down they returned to Chechnya.
In
October 1999 a second round of hostilities started in Chechnya. In
December 2000 the second applicant moved to Moscow. The three
children joined her there in August 2001. The first applicant was in
Kazakhstan between August 2001 and March 2002, when he came to Moscow
to live with his family.
In
February 2002 the second applicant was living in a room let to her by
the proprietor, who had left to receive medical treatment abroad.
Hence, as she submitted, she was unable to obtain a temporary
registration permit in Moscow, since that required written permission
from the landlord. The second applicant submitted that she had
informed the local police station about the practical difficulties
she had faced in obtaining registration and that they had been
willing to allow her to resolve those difficulties.
On
28 October 2002 the first applicant was arrested at home and taken to
the local police station (the Levoberezhny ROVD of Moscow) for about
two hours. He submitted that he had been questioned about the
hostage-taking in the Moscow “Nord-Ost” theatre on
23-26 October 2002 by a group of Chechen fighters, of which he
had denied any knowledge.
On
15 November 2002 the first applicant was asked to come to the
Levoberezhny ROVD. He was again questioned about his status in Moscow
and about Chechen illegal armed groups and was released several hours
later. The Government submitted a copy of the registration log of the
ROVD for 15 November 2002, which contained an entry concerning the
first applicant’s questioning. It did not refer to any offences
or sanctions.
On
22 November 2002 a member of the State Duma Mr Igrunov, at the
request of the NGO Civic Assistance, wrote to the head of the
Levoberezhny ROVD requesting permission for the applicants to remain
in the flat without registration until the family were able to
resolve the practical difficulties encountered in obtaining the
necessary documents.
Also
on 22 November 2002 Mr Igrunov wrote a letter to the Prosecutor
General asking him whether the police in Moscow had been instructed
to conduct checks on all Chechens in relation to the hostage crisis
of 23-26 October 2002. He referred to information from the NGO Civic
Assistance, which helped refugees and forced migrants, according to
which a large number of Chechens in Moscow had been detained and
questioned in the days and weeks following the terrorist attack. Mr
Igrunov reminded the Prosecutor General of the unlawfulness of such a
practice. He attached seventeen pages to the letter giving details of
individual cases, including the applicants’ case.
On
12 December 2002 the head of the Levoberezhny ROVD replied to Mr
Igrunov and stated that the applicants had not applied to that office
for registration. The letter recalled that temporary registration was
necessary for both Russian citizens and foreign nationals within
three days of arrival. The letter further pointed out that the first
applicant was a national of Kazakhstan and that his failure to comply
with the relevant provisions of Russian law could lead to his
expulsion.
On
10 January 2003 the Moscow city prosecutor’s office informed
Mr Igrunov that the information concerning the individual cases
had been checked. In respect of the applicants, the Golovinskiy
district prosecutor’s office had established that they had been
residing unlawfully in Moscow. In summer 2002 the first applicant had
been warned of the need to take steps to obtain temporary
registration. On 14 November 2002 the second applicant had been fined
by the Levoberezhny ROVD for residing in Moscow without registration.
On 28 October and 15 November 2002 the first applicant had been
brought to the Levoberezhny ROVD and questioned about his residence
status. The applicants never sought to obtain temporary registration
at the local police station.
2. The first applicant’s arrest and expulsion
On
15 January 2003 a police officer visited the applicants’ home
and asked them to appear at the Levobereznhy ROVD the following day.
According to the applicants, on the morning of 16 January 2003 they
went to the police station. Their documents were examined and the
first applicant had his passport taken from him and was placed in a
cell. The second applicant was allowed to leave.
On
17 January 2003 an officer of the Levoberezhny ROVD drew up a report
concerning the first applicant’s administrative arrest for a
breach of Article 18.8 of the Code of Administrative Offences.
According to the transcript of the questioning, the first applicant
explained that he had lived in Moscow since January 2002 with his
wife and three children. He did not work, but remained at home and
looked after the children. On the same day the documents were
transferred to a court, with a recommendation for removal.
On
17 January 2003 a judge of the Golovinskiy District Court of Moscow
ordered, in accordance with Article 18.8 of the Code of
Administrative Offences, that the first applicant should pay a fine
of 500 Russian roubles (RUB) and be removed to Kazakhstan.
According to the decision, the applicant had explained that he had
been living in Moscow without registration because he intended to
return to Kazakhstan but had no means of paying for the ticket. He
had no permanent work and mostly remained at home assisting his wife
in looking after the children. By the same decision the judge ordered
the first applicant’s detention in temporary detention centre
No. 1 of the Moscow City Department of the Interior until 17
April 2003.
On
24 January 2003 the applicant’s lawyer submitted an appeal to
the Moscow City Court. In the appeal the lawyer referred to the
applicant’s family situation, the fact that his wife and three
children were Russian nationals and the fact that he had attempted to
obtain registration papers in Moscow. She also contested the
lawfulness of the first applicant’s detention.
On
27 February 2003 the Moscow City Court, in the presence of the
applicant’s lawyer, upheld the decision of 17 January 2003. The
City Court noted that the first applicant had been living in Russia
for a long time but had taken no steps to regularise his position.
Referring to section 25(10) of the Law on the Procedure for Entering
and Leaving the Russian Federation, the court found that the first
applicant had been guilty of a breach of the residence regulations
for foreign nationals. The court remarked that the first applicant’s
“personal circumstances did not call for a mitigation of the
sentence imposed”.
On
15 April 2003 the first applicant was removed to Kazakhstan at the
expense of the NGO Civic Assistance, which had been supporting the
family.
3. Subsequent developments
On
30 September 2003 the applicants’ fourth child, D.Z., was born
in Moscow.
The
applicants attempted to obtain judicial review of the removal order
by means of supervisory review. On 25 December 2003 the
vice president of the Moscow City Court refused to take action
to start supervisory review proceedings. He found no reasons to
consider the sentence unfair or disproportionate to the offence
committed.
According
to the applicants, in 2004 the first applicant attempted to return to
Russia by train, but was stopped by the border police since he was
not allowed to enter Russia for five years after his removal.
The
applicants submitted that the second applicant continued to live in
Moscow with the couple’s four minor children, without permanent
registration. She was unable to take up a permanent job and had no
means of visiting her husband in Kazakhstan. The first applicant
lived with his parents in a small village in Kazakhstan; his
financial situation was very poor and he was not in a position to
send money to his family. They maintained regular telephone contact.
The
applicants submitted that the children were deeply affected by the
separation. They attached several medical certificates issued in 2004
which confirmed that the four children were regularly examined by the
local children’s health centre for various problems related to
heart conditions and respiratory and gastric diseases.
In
2008 the applicants obtained papers from the local school and from a
psychologist. According to these documents, the applicants’
three eldest children were fully integrated in the school, spoke
fluent Russian and were accustomed to living in Moscow. The youngest
child attended a kindergarten. They missed their father, with whom
they maintained regular telephone contact. The fourth child had never
seen his father. His absence from their lives was a source of stress
for the children and for the second applicant.
The
second applicant submitted that after her husband’s expulsion
she had been unable to work for a while, since she had no one to look
after the children. This situation had further deteriorated after the
birth of D.Z. in September 2003. In November 2004 the second
applicant was diagnosed with tuberculosis of the lungs. For several
years she survived by receiving regular financial aid from Civic
Assistance. In 2008 the second applicant resumed casual work and,
according to her own estimates, earned between RUB 800 and
RUB 1,000 a day.
II. RELEVANT DOMESTIC LAW
Article 18.8 of the Code of Administrative Offences of
the Russian Federation provides that a foreign national who infringes
the residence regulations of the Russian Federation, including by
residing on the territory of the Russian Federation without a valid
residence permit or by failing to comply with the established
procedure for residence registration, will be liable to punishment by
an administrative fine of RUB 500 to 1,000 and possible
administrative removal from the Russian Federation. Under
Article 28.3 § 2 (1) a report on the offence described in
Article 18.8 is drawn up by a police officer. Article 28.8 requires
such a report to be transmitted within one day to a judge or to an
officer competent to examine administrative matters. Article 23.1 § 3
provides that the determination of any administrative charge that may
result in removal from the Russian Federation shall be made by a
judge of a court of general jurisdiction. Article 30.1 § 1
guarantees the right to appeal against a decision on an
administrative offence to a court or to a higher court.
Section
25.10 of the Federal Law on the Procedure for Entering and Leaving
the Russian Federation (no. 114-FZ of 15 August 1996, as amended
in 2008) provides that a foreign national who does not have documents
proving the lawfulness of his stay in Russia, or who does not leave
the territory of Russia after the expiry of his permitted stay, is
deemed to be residing in Russia unlawfully and incurs liability in
accordance with the relevant legislation. Section 27(2) of the same
Law provides that a foreign national is not allowed to enter the
country for five years after the day of his administrative
deportation from Russia.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicants complained that the decision to remove the first applicant
constituted an unjustified interference with their family life, in so
far as it had led to the separation of the nuclear family. In
particular, the applicants argued that the first applicant’s
removal had not been necessary in a democratic society and was in
breach of the guarantees of Article 8 of the Convention, which reads
as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The applicants
The
applicants stressed, first, that they could not be held entirely
responsible for the first applicant’s failure to obtain a
residence permit. They referred to their attempts to regularise their
stay in Moscow. However, due to the prevailing circumstances,
including the fact that as ethnic Chechens they had been viewed with
suspicion, none of their attempts had been successful.
The
applicants stressed that the domestic courts had not taken into
account their family situation, thus failing to balance their rights
against the public interest being protected, in particular in view of
the rather minor nature of the offence. They pointed out that as a
result of the first applicant’s removal, contact between the
members of the applicants’ family had been reduced to sporadic
telephone conversations, a situation which adversely affected the
emotional ties between parents and children. This was also a cause of
suffering and distress to both applicants. As to the possibility of
the family moving to Kazakhstan, the applicants referred to the first
applicant’s precarious financial situation in that country, to
the documents attesting to the children’s integration in Moscow
and to the regular financial support provided to the second applicant
by the NGO Civic Assistance.
2. The Government
The
Government argued that the first applicant’s removal had been
carried out in accordance with the law and in compliance with the
procedural safeguards. The decision had been taken by a judge in full
cognisance of the applicants’ family situation and had been
reviewed and found lawful by the second-instance court. The first
applicant had been represented by a lawyer and could raise his
arguments about the proportionality of the measure. In their
additional observations, the Government referred to several decisions
taken by the Russian courts in similar circumstances, when the second
level of jurisdiction had reversed decisions by the lower courts to
expel illegal immigrants, in view of their family situation.
The
Government further pointed out that the first applicant had for a
long time failed to comply with the domestic regulations on the stay
of foreign nationals. Despite being fined on 28 October 2002 and
warned of the impeding consequences of unlawful residence, on 17
January 2003 he had again been found in breach of the same
provisions. In ordering his removal the courts had taken into account
his previous breaches of the immigration rules and the fact that he
had no fixed residence and no stable source of income. The Government
stressed that the first applicant held Kazakh citizenship, that he
had been born and lived most of his life in that country and that his
parents and other family members continued to live there. The second
applicant had also been born in Kazakhstan and lived there, before
her family had moved to the Russian Federation and again in
1994-1995. The age of the children was such that they could easily
adjust to life in Kazakhstan. There were thus no obstacles to their
continuing their family life outside Russia. Finally, the Government
argued that after the expiry of the five-year limitation period, it
would be open to the first applicant to resume his family life in
Moscow, provided he complied with the applicable rules.
The
Government argued that the discretion granted to the member States of
the Council of Europe permitted them to make sovereign choices as to
the expulsion of undesirable aliens from their territory. They
referred to the Court’s own jurisprudence in this respect and
to the widespread practice of forcible return of illegal immigrants
from other European countries.
3. The Court’s assessment
The
parties do not dispute that the first applicant’s removal
constituted an interference with the applicants’ right to
respect for their family life, as guaranteed by Article 8 § 1
of the Convention. The Court also finds that the interference was in
accordance with the law, namely Article 18.8 of the Code of
Administrative Offences, and that it pursued legitimate aims, such as
the economic well-being of the country and the prevention of disorder
and crime.
The
key question for the Court is whether the measure was necessary in a
democratic society. The relevant criteria that the Court uses to
assess whether an expulsion measure is necessary in a democratic
society have recently been summarised as follows (see Üner v.
the Netherlands [GC], no. 46410/99, §§ 57-58,
ECHR 2006-...):
“57. Even if Article 8 of the
Convention does not therefore contain an absolute right for any
category of alien not to be expelled, the Court’s case-law
amply demonstrates that there are circumstances where the expulsion
of an alien will give rise to a violation of that provision (see, for
example, the judgments in Moustaquim v. Belgium,
Beldjoudi v. France and Boultif v. Switzerland, [cited
above]; see also Amrollahi v. Denmark, no. 56811/00, 11
July 2002; Yılmaz v. Germany, no. 52853/99, 17 April
2003; and Keles v. Germany, 32231/02, 27 October 2005). In the
case of Boultif the Court elaborated the relevant criteria
which it would use in order to assess whether an expulsion measure
was necessary in a democratic society and proportionate to the
legitimate aim pursued. These criteria, as reproduced in paragraph 40
of the Chamber judgment in the present case, are the following:
- the nature and seriousness of the offence
committed by the applicant;
- the length of the applicant’s stay in
the country from which he or she is to be expelled;
- the time elapsed since the offence was
committed and the applicant’s conduct during that period;
- the nationalities of the various persons
concerned;
- the applicant’s family situation,
such as the length of the marriage, and other factors expressing the
effectiveness of a couple’s family life;
- whether the spouse knew about the offence
at the time when he or she entered into a family relationship;
- whether there are children of the marriage,
and if so, their age; and
- the seriousness of the difficulties which
the spouse is likely to encounter in the country to which the
applicant is to be expelled.
58. The Court would wish to make explicit two
criteria which may already be implicit in those identified in the
Boultif judgment:
- the best interests and well-being of the
children, in particular the seriousness of the difficulties which any
children of the applicant are likely to encounter in the country to
which the applicant is to be expelled; and
- the solidity of social, cultural and family
ties with the host country and with the country of destination.”
Turning
to the circumstances of the present case, the Court first notes that
the offence for which the first applicant was expelled consisted of a
breach of the registration rules for foreign nationals. This offence
is punishable under the Code of Administrative Offences by a fine of
RUB 500 to 1,000 (about 11 to 23 euros (EUR)) and possible
administrative removal. The Court also notes that there is no
evidence of the first applicant having been previously penalised for
this offence, even though his irregular situation had been known to
the authorities prior to 17 January 2003. Given the margin of
sanctions in the national law and the fact that the first applicant
was simply warned on previous occasions about the need to obtain
registration, the Court concludes that the offence was not a
particularly serious one and that on 17 January 2003 the first
applicant was punished under the relevant provisions for the first
time.
Further,
the Court notes that the first applicant arrived in Russia in 1992
and remained there most of the time, with the exception of two
periods in 1994-1995 and August 2001-March 2002. On both occasions he
was forced to leave for Kazakhstan by the fighting and insecurity in
Chechnya and on both occasions he returned to Russia, where his wife
and children had remained since 1995. Being a national of Kazakhstan,
the first applicant did not need a visa to travel to Russia and thus
did not face any difficulties in crossing the border. The local
village authority in Chechnya confirmed the first applicant’s
residence in that village between the periods of hostilities (see
paragraph 7 above).
Next,
the Court notes that the second applicant and the couple’s four
minor children are citizens of Russia. They have never held Kazakh
citizenship, and even though the second applicant was born and spent
her childhood years in Kazakhstan, by 1991 – the time of the
dissolution of the Soviet Union – she and her family had
returned to their native Chechnya and resided there for ten years. It
is not alleged that she has any grounds on which to claim Kazakh
nationality, and this link would be even more tenuous for the
couple’s children. The first applicant does not have a stable
job in Kazakhstan and has been unable to provide a source of income
for his family since he was removed to there.
As
to the applicants’ family situation, by the time of the first
applicant’s removal the applicants had been in a lawful
marriage for over ten years. Three children were born of that
marriage and the fourth child was conceived. The applicants lived
together, brought up the children and both contributed to the common
household. The existence of strong emotional ties between them has
never been disputed. The applicants submitted that the first
applicant had played a particularly important role in the upbringing
of the couple’s three elder children, since it was the second
applicant who had worked following their move to Moscow. This
information was supported by the documents from the removal procedure
(see paragraph 19) and was not disputed by the Government. It is
apparent that the expulsion of the first applicant has seriously
affected the situation of the children and the second applicant,
especially in view of the birth of D.Z. in September 2003 (see
paragraphs 27-29).
Finally,
the Court notes that the applicants and their children were already
subjected to the stress of forced migration on at least two occasions
between 1994 and 2003. The reports submitted by the applicants
described the fragile health of their children and their integration
in their current environment (see paragraphs 27-28 above). The second
applicant’s assertion that further moves to an unfamiliar
milieu could only be contrary to the children’s interests and
lead to a deterioration of their well-being do not appear ill-founded
in such circumstances.
The
Court does not overlook the Government’s argument that in 2002
the first applicant failed for several months to comply with the
Russian legislation concerning the residence of foreign nationals. It
also notes that no attempts were made by him prior to 2002 to obtain
a permanent residence permit or Russian nationality, despite his
long-term presence in Russia and his marriage to a Russian citizen.
Although such behaviour is open to serious reproach, this case should
be distinguished from others where the Court considered that the
persons concerned could not at any time have reasonably expected to
be able to continue family life in the host country (see, for
example, Jerry Olajide Sarumi v. the United Kingdom
(dec.), no. 43279/98, 26 January 1999, and Y.
v. Russia, no. 20113/07, §
105, 4 December 2008). The Court considers that these arguments are
particularly valid in the present case, since for a significant
period of time the applicants lived in Chechnya, an area of the
Russian Federation which had witnessed a virtual breakdown of law and
order and where State institutions had ceased to function. It is also
apparent that the applicants at least attempted to comply with the
regulations in Moscow in 2002 (see paragraphs 10, 13, 15 and 16);
however they were not successful because of practical difficulties.
In
view of the above considerations the Court finds that the first
applicant’s removal in 2003 for a breach of the residence
regulations had far-reaching negative consequences for the family
life of the applicants and their children. The authorities did not
give proper consideration to these issues. In the particular
circumstances of the present case the Court considers that the
economic well-being of the country and the prevention of disorder and
crime did not outweigh the applicants’ rights under Article 8.
There
has accordingly been a violation of Article 8 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicants complained that the first applicant’s removal to
Kazakhstan amounted to a violation of Article 3 of the Convention.
The first applicant alleged a violation of Article 5 § 1 (f)
on account of his detention between 17 January and 15 April 2003.
Under the same heading he alleged a violation of Article 5 § 5.
The applicants claimed that the decision of the Golovinskiy District
Court of 17 January 2003 had been adopted in breach of the fair trial
guarantees of Article 6 § 1 of the Convention. They
claimed a violation of Article 14 in so far as the above violations
had occurred on account of their Chechen ethnic origin. Finally, the
applicants alleged a violation of Article 1 of Protocol No. 7
to the Convention, because the first applicant had been expelled in
breach of its guarantees for aliens lawfully residing in the
territory of a Contracting Party.
However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court 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 these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The applicants claimed 50,000 euros (EUR) in
respect of non pecuniary damage. They also asked the Court to
restore their rights by ordering positive measures to secure their
family’s reunion.
The
Government found the claims exaggerated and unfounded. As to the
applicants’ request to obtain a temporary residence permit, the
Government stressed that it was open to them to submit the relevant
requests to the authorities in accordance with the applicable
national legislation. So far they had failed to do so.
Having
regard to its above findings regarding the violation of the right to
family life under Article 8, the Court finds it appropriate to award
the applicants EUR 9,000 in respect of non-pecuniary damage. As
to the applicants’ claim for additional measures, the Court
finds that this request is unnecessary in view of the relevant
national legislation (see paragraph 31 above). The applicants have
not taken any steps to secure the reunion of their family and it is
premature to judge whether there are any obstacles to it. The Court
therefore dismisses this claim.
B. Costs and expenses
The aggregate claim in respect of costs and expenses
relating to the applicants’ legal representation amounted to
EUR 4,041 (3,782.98 pounds sterling (GBP)). They submitted the
following breakdown of costs:
(a) GBP
2,700 for 27 hours’ legal work by a United Kingdom-based lawyer
at a rate of GBP 100 per hour;
(b) GBP
907.98 for translation costs; and
(c) GBP 175
for administrative and postal costs.
The
Government questioned whether the amounts claimed under this head
were reasonable and justified.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum.
Having
regard to the details of the documentation submitted, the Court is
satisfied that these rates are reasonable and reflect the expenses
actually incurred by the applicants’ representatives.
The
Court, however, notes that it found a violation of Article 8 while
finding the remainder of the complaints inadmissible. The Court
therefore finds that it can reduce the amount claimed.
Having
regard to the details of the claims submitted by the applicants’
representatives and its findings set out above, the Court awards them
the amount of EUR 2,000 together with any value-added tax that
may be chargeable to the applicants, the net award to be paid into
the representatives’ bank account in the United Kingdom, as
identified by the applicants.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares the complaint concerning Article 8
admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
8 of the Convention;
Holds
(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, to be converted into
Russian roubles at the rate applicable at the date of settlement,
save in the case of the payment in respect of costs and expenses:
(i) EUR 9,000
(nine thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR 2,000
(two thousand 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 United Kingdom;
(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;
Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 11 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
