European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

CASE OF ZABELIN AND ZABELINA v. RUSSIA

 

(Application no. 55382/07)

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

4 October 2016

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Zabelin and Zabelina v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Helen Keller, President,
          Pere Pastor Vilanova,
          Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 13 September 2016,

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

PROCEDURE

1.  The case originated in an application (no. 55382/07) 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 two Russian nationals, Mr Viktor Aleksandrovich Zabelin and Ms Galina Pavlovna Zabelina (“the applicants”), on 10 December 2007. Ms Zabelina died on 24 December 2013.

2.  The applicants were represented by Mr M. Krylovskiy, a lawyer practising in Tambov. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.

3.  The applicants alleged, in particular, that the removal of their travel documents had been unlawful.

4.  On 10 September 2013 the application was communicated to the Government.

THE FACTS

5.  The applicants were born in 1942 and 1943, respectively, and lived in Tambov.

6.  On 25 April 2007, the applicants’ son, P.Z., was charged with large-scale fraud; his name was placed on the list of fugitives from justice.

7.  On 7 May 2007 the Basmannyy District Court in Moscow authorised a search of the applicant’s flat in Tambov with a view to locating P.Z. and removing accounting, legal and financial documents relating to the alleged fraud.

8.  The search was carried out three days later and a number of documents, communication devices and the applicants’ travel passports were removed.

9.  The applicants complained to a court about the investigator’s actions. They submitted, in particular, that there had been no legal basis for removing their identity documents.

10.  On 9 July 2007 the Basmannyy District Court rejected their complaints. It held that it was not competent to review the way in which the evidence in the criminal proceedings had been obtained, and that the applicants’ constitutional rights had not suffered any impairment.

11.  On 10 October 2007 the Moscow City Court upheld the District Court’s decision in a summary fashion, without addressing the applicants’ arguments.

THE LAW

I.  AS TO THE LEGAL CONSEQUENCES OF THE DEATH OF THE SECOND APPLICANT

12.  In the observations on the admissibility and merits of the application of 28 February 2014, the first applicant indicated his intention to pursue the proceedings also on behalf of his late wife, the second applicant (see paragraph 1 above).

13.  The Court reiterates that in various cases where an applicant has died in the course of the proceedings, it has taken into account the statements of the applicant’s heirs or close family members who expressed the wish to pursue the proceedings before it (see Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999-VI). It observes that the complaints raised by both applicants were identical in substance and that the situations they complained about affected them in an equal measure. It therefore accepts that the first applicant may pursue the application in so far as it was lodged by the late second applicant (see Khuzhin and Others v. Russia, no. 13470/02, § 71, 23 October 2008).

II.  ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4

14.  The applicants complained that the removal of their travel documents during the search unlawfully interfered with their right to leave Russia guaranteed under Article 2 of Protocol No. 4 to the Convention, the relevant part of which reads as follows:

“2.  Everyone shall be free to leave any country, including his own.

3.  No restrictions shall be placed on the exercise of [this right] other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A.  Admissibility

15.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

16.  The Government acknowledged that the removal of the applicants’ travel documents did not have a basis in national law. However, they maintained that there was no violation of Article 2 of Protocol No. 4 because the applicants had not proved their intention to leave Russia. They could also have applied for replacement travel documents or petitioned the investigator for the return of those removed.

17.  The applicants maintained their complaint.

18.  The Court reiterates that Article 2 § 2 of Protocol No. 4 guarantees to any person the right to leave any country for any other country of the person’s choice to which he or she may be admitted. A measure by means of which an individual is dispossessed of an identity document such as, for example, a passport, undoubtedly amounts to an interference with the exercise of liberty of movement (see Napijalo v. Croatia, no. 66485/01, § 69, 13 November 2003, and Baumann v. France, no. 33592/96, § 52, ECHR 2001-V (extracts)).

19.  The removal of the applicants’ travel passports had the effect of dispossessing them of documents which would have permitted them to leave the country if they so wished and amounted therefore to an interference with their rights under Article 2 § 2 of Protocol No. 4. It must therefore be examined whether it was “in accordance with law”, pursued one or more of the legitimate aims set out in Article 2 § 3 of Protocol No. 4 and whether it was “necessary in a democratic society” to achieve such an aim.

20.  The parties agreed that the interference did not have a basis in Russian law. This is sufficient to enable the Court to conclude that the interference was not justified and to make the examination of the remaining issues redundant.

21.  There has accordingly been a violation of Article 2 of Protocol No. 4 to the Convention.

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

22.  The Court has examined the other complaints submitted by the applicants. However, having regard to all the material in its possession, and in so far as these 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 manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

23.  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.”

24.  The applicants claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

25.  The Government considered the claim excessive.

26.  The Court awards the applicants EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

27.  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 that the first applicant may pursue the application in so far as it was lodged by the late second applicant;

 

2.  Declares the complaints concerning the applicants’ right to leave Russia admissible and the remainder of the application inadmissible;

 

3.  Holds that there has been a violation of Article 2 of Protocol No. 4 to the Convention;

 

4.  Holds

(a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

 

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

Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                         Helen Keller
Deputy Registrar                                                                       President