[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF MUMINOV v. RUSSIA
(Application
no. 42502/06)
JUDGMENT
(Just
satisfaction)
STRASBOURG
4 November
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 Muminov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and
Søren Nielsen,
Registrar,
Having
deliberated in private on 14 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 42502/06)
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 an Uzbek national, Mr
Rustam Tulaganovich Muminov (“the applicant”), on 23
October 2006.
- In
a judgment delivered on 11 December 2008 (“the principal
judgment”), the Court decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1). The
Court dismissed the Government’s objections as to the
non-exhaustion of domestic remedies in respect of the complaints
about a risk of ill-treatment in the event of the applicant’s
being expelled to Uzbekistan and the unlawfulness of his deprivation
of liberty. The Court held that there had been a violation of Article
3 of the Convention on account of the applicant’s expulsion to
Uzbekistan; a violation of Article 13 of the Convention on account of
the authorities’ failure to afford the applicant an effective
and accessible remedy in relation to his complaint under Article 3 of
the Convention; a violation of Article 5 § 4 of the Convention
on account of the unavailability of any procedure for a judicial
review of the lawfulness of the applicant’s detention with a
view to his extradition to Uzbekistan; and a violation of Article 5 §
1 of the Convention in relation to his detention with a view to his
extradition to Uzbekistan. The Court also held that there had been no
breach of the respondent State’s obligation under Article 34 of
the Convention and that there was no need to examine separately the
complaint under Article 1 of Protocol No. 7.
- Under
Article 41 of the Convention the applicant’s representative
(Ms I. Biryukova) claimed monetary compensation, on her
client’s behalf, in respect of non-pecuniary damage, leaving
the amount to the Court’s discretion.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicant to submit, within three months, their
written observations on that issue and, in particular, to notify the
Court of any agreement they might reach (see § 143 of the
principal judgment and point 9 of the operative provisions).
- The
applicant and the Government each filed observations.
THE FACTS
- The following facts were established in the principal
judgment:
“38. According to the applicant’s
representative before the Court, the applicant had been refused
permission to be represented by his privately retained counsel but
legal-aid counsel had been appointed instead. Neither the applicant’s
representative nor his family members had been informed of the exact
place of his detention in Uzbekistan.
39. The applicant’s representative
before the Court wrote to the Uzbek Prosecutor General’s Office
asking for information regarding the place of the applicant’s
detention and the conditions of access to him. Her request was
forwarded to the prosecutor in the Surkhandaryinsk Region of
Uzbekistan. On 17 January 2007 the prosecutor forwarded the request
to the Surkhandaryinsk Regional Court. The applicant’s
representative also wrote to the Uzbek Ministry of the Interior and
the Ministry of Foreign Affairs. No replies were received.
40. On an unspecified date, the Russian
authorities sent a request concerning the applicant to the Uzbek
authorities. On 6 March 2007 the Uzbek Ministry of the Interior
replied and enclosed a letter in Russian from the applicant dated 20
December 2006 worded as follows:
“... during my arrest and detention ... the police
and other law-enforcement officers did not violate my rights and did
not exert any physical pressure upon me.
I have no claims against the police officers in Moscow
or Lipetsk or against any other law-enforcement authority in Russia.
I confirm that this declaration is correct and written
with my own hand.”
41. According to a linguistic expert report,
produced by the applicant’s representative, the above letter
did not contain any significant mistakes, whereas the applicant’s
personal letters contained numerous mistakes reflecting his Uzbek
mother tongue’s phonetics and grammar. The expert noted that
the applicant would not have been able to acquire a sufficient
command of the Russian language during the three months between the
date of his sample letters (September 2006) and the letter in
question (December 2006). The expert concluded that the letter of 20
December 2006 had not been written spontaneously by the applicant,
who had transcribed the text from the original or written it from a
letter-by-letter dictation by someone else.”
- Following the adoption of the principal judgment by the
Court, by a letter of 9 July 2009 the Prosecutor General’s
Office of the Russian Federation replied to a request from the
applicant’s representative before the Court. The Prosecutor
General’s Office stated that all matters relating to the
execution by the applicant of the prison term imposed by an Uzbek
court in 2007 were within the exclusive competence of the Uzbek
authorities; the applicant’s representative thus had to apply
directly to those authorities.
- By a letter of 17 July 2009, the Office of the
Representative of the Russian Federation at the European Court of
Human Rights indicated to the applicant’s representative that
any correspondence between the national authorities and the
applicant’s representative on procedural matters should be
carried out through the European Court. Thus, the representative was
directed to address all her queries to the Court.
THE LAW
- 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
1. The parties’ submissions
- The
Government considered that a finding of a violation should constitute
such just satisfaction. They alternatively submitted that the award
of compensation in respect of non-pecuniary damage should correspond
to the awards made in two other Russian cases (Garabayev v.
Russia, no. 38411/02, § 115, ECHR 2007 VII
(extracts), and Ryabikin v. Russia, no. 8320/04, §
145, 19 June 2008). They also noted that questions relating to the
execution of the sentence imposed on the applicant following his
conviction in Uzbekistan were within the exclusive competence of the
Uzbek authorities.
- The
applicant’s representative submitted that the Government had
omitted to comment on the consequences to be drawn, in terms of just
satisfaction, from the irreversible effect produced by the violation
by the respondent Government of their obligation under Article 3 of
the Convention in respect of the applicant in the present case.
Despite the fact that the applicant’s representative had
previously suggested a number of non-monetary measures to be taken,
the respondent Government had made no attempt to show that any such
measures had been or could have been effectively taken to attenuate
the effect of the violation found by the Court. Thus, inferences
should be drawn from the Government’s attitude. Lastly, the
Government had failed to provide any examples of comparable awards
made in other cases.
2. The Court’s assessment
- The
Court reiterates at the outset that the applicant’s
representative had previously requested a number of non-monetary
measures to be taken by the respondent State in order to remedy the
violations of the Convention rights and freedoms in respect of the
applicant. In particular, she invited the Court “to recognise
the detriment to the applicant’s ‘life plan’ ...
caused by his unlawful removal from Russia in violation of the
Convention”. She further asked that the respondent Government
be required to undertake, via their diplomatic contacts in
Uzbekistan, measures aimed at re-establishing contact with the
applicant and his relatives, commuting his sentence by way of amnesty
or pardon, securing his eventual release and facilitating his
departure for a country that was ready to accept him (see § 140
of the principal judgment).
- The
Court examined the above requests in the context of Article 46 of the
Convention (ibid., § 144). Having regard to the circumstances of
the present case, the Court did not find it appropriate to indicate,
under this provision, measures to be adopted in order to redress the
violations found (§ 145).
- It
is further reiterated that the Court’s decision to reserve the
examination of the question concerning just satisfaction was, inter
alia, due to the fact that the applicant was held to be no longer
within the jurisdiction of the respondent State and that after his
removal to Uzbekistan he had been convicted and sent to serve a
prison sentence in an unspecified detention facility in that country.
All contact between him and his representative before the Court or
between him and the Court had been interrupted. In fact, the Court
had no means of renewing contact with the applicant. Nor was there
any prospect of making any other arrangements which would allow
execution of any just satisfaction award made by the Court.
- Indeed,
since the applicant was and remains within the jurisdiction of
another State, which is not a High Contracting Party to the
Convention, the execution of a just satisfaction award may prove
difficult in the circumstances of the case (see also paragraph 6
above).
- Moreover,
although it judged insufficient the factual basis for finding a
violation of Article 34 of the Convention in respect of the State’s
obligation concerning the application of Rule 39 of the Rules of
Court, the Court found that the applicant’s expulsion to
Uzbekistan gave rise to violations of Articles 3 and 13 of the
Convention. The Court also stated in this connection that the absence
of any reliable information as to the applicant’s situation
after his expulsion to Uzbekistan, except for the fact of his
conviction, remained a matter of grave concern for the Court (§
98 of the principal judgment).
- In
the Court’s view, in such a situation it could be expected of
the respondent Government that they would cooperate fully in the
conduct of the subsequent proceedings, in particular by helping, by
appropriate means, to re-establish contact between the applicant and
his representative and/or between the applicant and the Court (see,
in that connection, Article 38 of the Convention and Rule 44A of the
Rules of Court). However, it does not appear that such cooperation
has been forthcoming (see paragraphs 7 and 8 above).
- The
Court has found a combination of serious violations in the present
case. In these circumstances, the Court considers that the
applicant’s suffering and frustration cannot be compensated for
by a mere finding of a violation. In view of the considerations
in the preceding paragraphs, having regard to the nature of the
violations found in the principal judgment and making an assessment
on an equitable basis, the Court awards the applicant 20,000 euros
(EUR) in respect of non-pecuniary damage, plus any tax that may be
chargeable.
- The
Court also reiterates that the Convention must be interpreted and
applied in such a way as to guarantee rights that are practical and
effective (see Comingersoll S.A. v. Portugal [GC], no.
35382/97, § 35, ECHR 2000 IV, and, mutatis mutandis,
Lesnova v. Russia, no. 37645/04, § 25, 24 January
2008). Given the particular circumstances of the present case and the
nature of the violations found, the Court considers that the
respondent State shall secure, by appropriate means, the execution of
the just satisfaction award, in particular, by facilitating contact
between the applicant, on the one hand, and the Committee of
Ministers of the Council of Europe acting under Article 46 of the
Convention, the applicant’s representative in the Convention
proceedings or any other person entitled or authorised to represent
the applicant in the enforcement proceedings, on the other.
B. Costs and expenses
- Since
no claim was made under this head, the Court considers that there is
no call to make any award.
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
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 20,000 (twenty
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable;
(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;
(c) that
the respondent State, within three months from the date on which the
judgment becomes final according to Article 44 § 2 of the
Convention, shall secure, by appropriate means, payment of the above
amount, in particular by facilitating contact between the applicant,
on the one hand, and the Committee of Ministers of the Council of
Europe, the applicant’s representative in the Convention
proceedings or any other person entitled or authorised to represent
the applicant in the enforcement proceedings, on the other.
Done in English, and notified in writing on 4 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
