European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

 

 

 

CASE OF DZHABRAILOVY v. RUSSIA

 

(Application no. 68860/10)

 

 

 

 

 

 

 

 

 

JUDGMENT

(Revision)

 

 

 

STRASBOURG

 

4 February 2016

 

 

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 Dzhabrailovy v. Russia, (request for revision of the judgment of 15 January 2015),

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Mirjana Lazarova Trajkovska, President,
          Khanlar Hajiyev,
          Julia Laffranque,
          Linos-Alexandre Sicilianos,
          Erik Møse,
          Ksenija Turković,
          Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 12 January 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in five applications (nos. 14705/09, 4386/10, 67305/10, 68860/10 and 70695/10) 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 Russian nationals (“the applicants”), on the dates indicated in Appendix I of the judgement delivered on 15 January 2015.

2.  In that judgment the Court held that there had been a violation of Articles 2, 5 and 13 of the Convention on account of the disappearance of the applicants’ relatives and the authorities’ failure to carry out an effective investigation into the matter, and of Article 3 on account of the applicants’ mental distress and the authorities’ response to it. The Court also decided to award jointly, amongst other amounts, to the three applicants in the case of Dzhabrailovy v. Russia (no. 68860/10) 60,000 euros (EUR) for non-pecuniary damage and EUR 1,000 for costs and expenses and dismissed the remainder of their claim for just satisfaction.

3.  On 11 March 2015 the applicants’ representatives informed the Court that they had learned that the third applicant in the case of Dzhabrailovy (no. 68860/10), Mr Suleyman Dzhabrailov, had died on 2 July 2014. They accordingly requested revision of the judgment within the meaning of Rule 80 of the Rules of Court.

4.  On 9 June 2015 the Court considered the request for revision and decided to give the Government five weeks in which to submit any observations (Rule 80 § 4). Those observations were received on 22 July 2015 and forwarded to the applicants for comments.

5.  On 15 August 2015 the applicants submitted their comments.

THE LAW

THE REQUEST FOR REVISION

6.  The applicants’ representatives requested revision of the judgment of 15 January 2015, which had not been executed because Mr Suleyman Dzhabrailov had died before the judgment had been adopted. The two remaining applicants, Ms Kisa Dzhabrailova and Mr Adlan Dzhabrailov, were the heirs and should therefore receive the sums awarded to them and the deceased jointly.

7.  The Government asked the Court to strike the application out in respect of the deceased Mr Suleyman Dzhabrailov and requested that the sum of compensation awarded to the two remaining applicants be reduced accordingly. They referred to cases Eremiášová and Pechová v. the Czech Republic (revision), no. 23944/04, §§ 8-10, 20 June 2013; Gabay v. Turkey (revision), no. 70829/01, §§ 7 and 8, 27 June 2006; and Bolovan v. Romania (revision), no. 64541/01, §§ 9-13, 20 September 2011.

8.  In reply the applicants stressed that they had clearly expressed their wish to pursue the application; that they were the heirs of Mr Suleyman Dzhabrailov; and that the mental distress caused by the demise of their son and brother had precluded them from informing the Court of the death of the third applicant earlier.

9.  The Court notes that the present case differs from the cases referred to by the Government. In the latter cases the Court allowed the Government’s requests for revision of the judgments and considered, having regard to the fact that the applicants had died during the proceedings and that no relatives expressed the wish to pursue the proceedings, that it was no longer justified to continue the examination of the applications. In the present case the two remaining applicants, the mother and brother of the deceased applicant, have made an express request for the judgment to be revised as otherwise the judgment would not be executed.

10.  The Court reiterates that the sum of EUR 60,000 was awarded to the applicants jointly as just satisfaction for the loss of their relative. Whereas it makes no difference to the order to pay EUR 60,000 that one of the applicants has died and whereas the applicants’ failure to inform the Court prior to its judgment of the death of the third applicant did not have any effect on its examination of the case, the Court finds that the total amount of EUR 60,000 should be paid to the two remaining applicants, Ms Kisa Dzhabrailova and Mr Adlan Dzhabrailov and Article 41 of the Court’s judgment of 15 January 2015 revised accordingly pursuant to Rule 80 of the Rules of Court as set out below (see, among many other authorities Wypukoł-Piętka v. Poland (revision), no. 3441/02, § 7, 8 June 2010; Gülbahar Özer and Others v. Turkey (revision), no. 44125/06, § 8, 10 June 2014; and Dyller v. Poland (revision), no. 39842/05, § 8, 15 February 2011).

11.  Furthermore, 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 revise its judgment of 15 January 2015 insofar as it concerns the claims made under Article 41 of the Convention in application no. 68860/10;

 

and accordingly,

 

2.  Holds

(a)  that the respondent State is to pay Ms Kisa Dzhabrailova and Mr Adlan Dzhabrailov jointly, within three months from the date on which this judgment becomes final in accordance with Article 44 § 2 of the Convention:

(i)  EUR 60,000 (sixty thousand euros) for non-pecuniary damage to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable on that sum;

(ii)  EUR 1,000 (one thousand euros) for costs and expenses, to be converted into the currency of the respondent State plus any tax that may be chargeable to the applicants. This sum is to be paid to the bank account of the applicants’ representatives as indicated by the applicants;

(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 4 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach                                                        Mirjana Lazarova Trajkovska
Deputy Registrar                                                                       President