ECHR: Chamber judgements 2.10.2008

The European Court of Human Rights has today notified in writing the following 13 Chamber judgments, none of which are final.

Repetitive cases, with the Court's main finding indicated, can be found at the end of the press release.

Violation of Article 5 §§ 1 (f) and 2

Rusu v. Austria (application no. 34082/02)

The applicant, Cornelia Rusu, is a Romanian national who was born in 1967 and lives in Timisoara (Romania).

On 25 February 2002 Ms Rusu, travelling without a valid passport as it had been stolen, was returned to Austria by the Hungarian border police. She was detained pending expulsion. The District Administrative Authority noted in the detention order that the applicant had entered Austria illegally, that she lacked means to stay in Austria and that, if released, she might therefore abscond. That decision was issued to the applicant in German along with two information sheets in Romanian. On 7 March 2002 an interpreter translated the decision of 25 February into Romanian in the presence of the applicant for the purpose of issuing an expulsion order against her. She was ultimately expelled back to Romania by train on 22 March 2002.

The case concerned the applicant�s complaint about the unlawfulness of her detention and that she was not informed promptly in a language which she understood of the reasons for that detention. She relied on Article 5 §§ 1 and 2 (right to liberty and security) of the European Convention on Human Rights.

The European Court of Human Rights noted that the information sheets issued to the applicant had not contained any specific factual information concerning her detention or arrest and had referred to an out-of-date Aliens Act. It had only been ten days later that the applicant had been informed of the specific reasons and correct legal grounds for her detention when the decision of 25 February had been translated by an interpreter. The Court therefore held that there had been a violation of Article 5 § 2 on the ground that the information given to the applicant concerning the reasons for her arrest and detention had not been sufficient or given to her promptly. The Court further found it striking that the Austrian authorities had paid no attention to the applicant�s situation: she had not apparently intended to stay illegally in Austria or evade expulsion proceedings. The Court reiterated that detention of an individual was such a serious measure that it would be arbitrary unless justified as a last resort. Considering that there had been an element of arbitrariness in the applicant�s detention, the Court therefore held unanimously that there had also been a violation of Article 5 § 1 (f). Mrs Rusu was awarded 3,000 euros (EUR) in respect of non-pecuniary damage. (The judgment is available only in English.)

Violations of Article 6 § 1 (fairness) (length)

Atanasova v. Bulgaria (no. 72001/01)

The applicant, Radka Hristova Atanasova, is a Bulgarian national who was born in 1958 and lives in Montana (Bulgaria).

In January 1992 she was injured in a road accident. In June 1994 she joined as a civil party the criminal proceedings brought against the driver presumed responsible, seeking compensation for the physical injury she had suffered. Ultimately, in June 2002, the Bulgarian courts found that her civil claim could not be examined because the criminal proceedings had been discontinued, the limitation period having expired. However, the applicant was told that it was still open to her to apply to the civil courts. She complained of the discontinuation of the criminal proceedings against the driver and that the criminal courts had not considered her civil claim. Relying on Article 6 § 1 (right to a fair trial) of the Convention, she complained of an infringement of her right of access to a court and of the length of the proceedings, which she considered excessive.

The Court noted that the applicant had used the possibility available to her in domestic law of joining criminal proceedings and seeking compensation by those means. She therefore had a legitimate expectation that the courts would eventually determine her claim one way or the other. It was solely because of the Bulgarian authorities� tardiness in dealing with the case that the limitation period had expired, and that as a result it had become impossible for the applicant to obtain a decision on her compensation claim via the criminal proceedings. The Court took the view that in such circumstances, although it was formally correct to say that the applicant could seek compensation in the civil courts, she could not be required to wait until through the negligence of the judicial authorities the prosecution of the offender had become time-barred before bringing a new civil action, a number of years after the accident, to obtain compensation for her injuries. The Court accordingly held, by five votes to two, that there had been a violation of Article 6 § 1 on account of the infringement of the applicant�s right of access to a court.

The Court further noted that the proceedings complained of had lasted nearly eight years. Considering that period excessive, it unanimously found a second violation of Article 6 § 1. The Court awarded Mrs Atanasova EUR 4,000 for non-pecuniary damage and EUR 16.35 for costs and expenses. (The judgment is available only in French.)

Just satisfaction

Struck out

Kolona v. Cyprus (no. 28025/03)

The applicant, Eleni Kolona, now deceased, was a Cypriot national who was born in 1926 and, at the relevant time, lived in Limassol (Cyprus).

In a judgment of 27 September 2007, the Court held that there had been a violation of Article 1 of Protocol No. 1 (protection of property) and of Article 8 (right to respect for private and family life) concerning the applicant�s complaint about the unlawful demolition of her home, a house in the village of Pelendri (Limassol), in order to build a road and that she had not been given any compensation. The Court considered that the question of the application of Article 41 (just satisfaction) was not ready for decision.

The Court took note of the friendly settlement reached by the parties under the terms of which the applicant�s husband would receive EUR 218,326.28 to cover pecuniary and non-pecuniary damage and costs and expenses, plus EUR 13,800 for legal costs. It accordingly decided to strike the case out of the list. (The judgment is available only in English.)

(Applicants� relatives) Violations of Article 2 (life and investigation)

(Applicants) Violation of Article 3 (treatment)

Violation of Article 5

Violation of Article 13

Khalidova and Others v. Russia (no. 22877/04)

(Applicants� relatives) Violations of Article 2 (life and investigation)

(Applicants) Violation of Article 3 (treatment)

Violation of Article 5

Violation of Article 13

Violation of Article 38 § 1 (a)

Lyanova and Aliyeva v. Russia (nos. 12713/02 and 28440/03)

(Applicants� relative) Violations of Article 2 (life and investigation)

(Applicants) Violation of Article 3 (treatment)

Violation of Article 5

Violation of Article 13

Rasayev and Chankayeva v. Russia (no. 38003/03)

The applicants in the first case are five Russian nationals who are members of the same family: Ayset Magomedovna Khalidova, born in 1959; Khasmagomed Khalidov, born in 1924; Nebisat Khalidova, born in 1916; Atbi Isayevich Khalidov, born in 1993; and, Zarina Isayevna Khalidova, born in 1980. They live in Urus-Martan (Chechen Republic). They are relatives of Isa and Shamil Khalidov, father and son, born in 1950 and 1981 respectively. The two men have not been seen since November 2002 when they were taken away from the factory where they were working by armed men wearing camouflage uniforms.

The applicants in the second case, Asiyat Khusainovna Lyanova and Rashan Mayrbekovna Aliyeva, are Russian nationals who were born in 1956 and 1958 respectively. They live in Ingushetia (Russia) and Grozny. They are the mothers of Murad Lyanov, born in 1983, and Islam Dombayev, born in 1984; they have not seen their teenage sons since they left to spend the night at a friend�s house in June 2000.

The applicants in the third case, Rizvan Said-Khasanovich Rasayev, and his mother, Raisa Abdulayevna Chankayeva, are Russian nationals who were born in 1966 and 1939 respectively. They live in Chechen-Aul (Chechen Republic). They are the brother and mother of Ramzan Said-Khasanovich Rasayev, born in 1963. They have not seen him since December 2001 when he was apprehended by armed men during a security operation in their village.

All the applicants alleged that their relatives disappeared after being abducted by Russian servicemen and that the domestic authorities failed to carry out an effective investigation into their allegations. They relied, in particular, on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security) and 13 (right to an effective remedy). In the case of Lyanova and Aliyeva the applicants also relied on Articles 8 (right to respect for private and family life), 34 (right of individual petition) and 38 § 1 (a) (obligation to furnish necessary facilities for the examination of the case).

In the case of Khalidova and Others the Court noted that the Russian Government had admitted in their submissions that a vehicle belonging to a Russian police unit had allegedly been seen at the scene of the crime. In the case of Lyanova and Aliyeva the commander of the Pskov special police forces (OMON) had filed an official report, corroborated by five other OMON officers, giving a detailed description of a special operation carried out the night the applicants� sons had disappeared in the street where they said they had been heading. The OMON officers had further submitted that the three young men were of Chechen origin and aged between 15 and 20. In the case of Rasayev and Chankayeva a large group of armed men in uniform, with military vehicles, had detained the applicant�s relative in broad daylight at his home. The Court considered that those elements in particular strongly supported the allegation that the five men had been apprehended by Russian servicemen. Drawing inferences from the Russian Government�s failure to submit documents � despite specific requests from the Court � to which it exclusively had access and the fact that it had not provided any other plausible explanation for the events in question, the Court considered that the applicants� relatives had been arrested by Russian servicemen during security operations. There had been no reliable news of the five men since their disappearances and the Russian Government had not submitted any further explanations. In the context of the conflict in Chechnya, when a person had been detained by unidentified servicemen without any subsequent acknowledgment of their detention, that situation could be regarded as life-threatening. The absence of the applicants� relatives or any news of them for several years corroborated that assumption. In particular there had been no news of Isa and Shamil Khalidov for more than five years; Islam Dombayev and Murad Lyanov for more than eight years; and, Ramzan Rasayev for more than seven years. Furthermore, the official investigations in the second two cases, dragging on for more than eight and six years respectively, had had no tangible results. Therefore the Court found that the five men had to be presumed dead following their unacknowledged detention by Russian servicemen. Noting that the authorities had not justified the use of lethal force by their agents, the Court concluded that there had been a violation of Article 2 in respect of the applicants� relatives.

The Court also held that there had been further violations of Article 2 concerning the Russian authorities� failure to carry out effective criminal investigations into the circumstances in which the applicants� relatives had disappeared.

Furthermore, the Court considered that the applicants had suffered, and continued to suffer, distress and anguish as a result of the disappearance of their relatives and their inability to find out what had happened to them. The manner in which their complaints had been dealt with by the authorities had to be considered to constitute inhuman treatment, in violation of Article 3. However, the Court found that it had not been established exactly how Islam Dombayev, Murad Lyanov and Ramzan Rasayev had died and whether they had been subjected to ill-treatment and therefore, in the case of Lyanova and Aliyeva, held that there had been no violation of Article 3 and, in the case of Rasayev and Chankayeva, declared that part of the applicants� complaint inadmissible.

The Court further found that the applicants� relatives had been held in unacknowledged detention without any of the safeguards contained in Article 5, which constituted a particularly grave violation of the right to liberty and security enshrined in that article.

In all three cases the Court held, in particular, that there had been a violation of Article 13 in respect of the alleged violation of Article 2. In the case of Lyanova and Aliyeva it held that there had been no violation of Article 13 as regards the alleged violation of Article 3 in respect of the applicants� sons.

Finally, in the case of Lyanova and Aliyeva the Court held unanimously that there had been a failure to comply with Article 38 § 1 (a) in that the Government had refused to submit documents requested by the Court. No separate issues arose under Articles 8 or 34.

In the case of Khalidova and Others the Court awarded EUR 3,000 to Isa Khalidov�s wife and EUR 1,500 to their younger son in respect of pecuniary damage. In respect of non-pecuniary damage, the latter were also each awarded EUR 30,000 and Isa Khalidov�s daughter EUR 10,000. For costs and expenses, the applicants were awarded EUR 3,650.

In the case of Lyanova and Aliyeva the Court awarded each applicant EUR 2,000 in respect of pecuniary damage and EUR 35,000 in respect of non-pecuniary damage. For costs and expenses, it awarded 1,489.47 pounds sterling (GBP) (approximately EUR 1,882) to Murad Lyanov�s mother and EUR 7,000 to Islam Dombayev�s mother.

In the case of Rasayev and Chankayeva the Court awarded the applicants, jointly, EUR 35,000 in respect of non-pecuniary damage and EUR 5,150 for costs and expenses. (The judgments are available only in English.)

Repetitive cases

The following cases raise issues which have already been submitted to the Court.

Violation of Article 6 § 1 (fairness)

Violation of Article 1 of Protocol No. 1

Ivchenko v. Russia (no. 29411/05)

Smelov v. Russia (no. 33660/04)

Tibilov v. Russia (no. 38943/04)

Zakharov v. Russia (no. 35932/04)

Zubarev v. Russia (no. 38845/04)

The Court found the above violations in these five cases concerning the domestic authorities� failure to enforce final judgments in the applicants� favour in good time or at all.

Length-of-proceedings case

In the following case, the applicant complained in particular about the excessive length of (non-criminal) proceedings.

Violation of Article 6 § 1 (length)

Kurbatov v. Russia