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FIRST
SECTION
CASE OF KAMALIYEVY v. RUSSIA
(Application
no. 52812/07)
JUDGMENT
(just
satisfaction)
STRASBOURG
28 June
2011
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 Kamaliyevy v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
Khanlar
Hajiyev,
George Nicolaou,
Mirjana Lazarova
Trajkovska,
Julia Laffranque, judges,
and
Søren Nielsen,
Section Registrar,
Having
deliberated in private on 7 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 52812/07) 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 Mr Abdugani Kamaliyev, a national of
Uzbekistan, and his wife Mrs Maymuna Kamaliyeva, a national of Russia
(“the applicants”), on 3 December 2007. On 20 August 2008
the second applicant died, and the application was continued on her
behalf by the first applicant.
- In
a judgment delivered on 3 June 2010 (“the principal judgment”),
the Court decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1). Having dismissed
the first applicant’s complaints under Articles 3 and 6 of the
Convention and Article 2 of Protocol No. 4 as inadmissible, the Court
held that there had been a violation of Article 34 of the Convention
on account of the Government’s failure to comply with the
interim measure ordered under Rule 39 of the Rules of Court. It also
decided that there had been no violation of Article 8 of the
Convention.
- Under
Article 41 of the Convention the applicants’ representative,
Mr Koroteyev, claimed monetary compensation for the damage
suffered by the first applicant as a result of the breach of Article
34. He left the amount to the Court’s discretion. He also
referred to the absence of contact between him and the first
applicant since the latter’s expulsion to Uzbekistan and asked
the Court to order the respondent State to
facilitate such contact (see Muminov v. Russia (just
satisfaction), no. 42502/06, § 19, 4 November
2010). Finally, he claimed 8,025 euros (EUR) for costs and expenses.
- 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 first 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 (§ 84 and
point 4 of the operative provisions of the main judgment).
- The
first applicant and the Government each filed observations.
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 the finding of a violation of Article 34
in the present case would constitute just satisfaction. They stressed
that no other violations of the Convention had been found by the
Court. They reiterated that the situation which had given rise to the
finding of a breach of Article 34 had arisen unintentionally.
- The
applicants’ representatives referred to their previous
submissions. In respect of non-pecuniary damage, in addition to the
monetary award, they sought measures of the following nature: “to
recognise the detriment to the [first] applicant’s ‘life
plan’... caused by his unlawful removal from Russia in
violation of the Convention”. They further requested that the
respondent Government be required to undertake, via their diplomatic
contacts in Uzbekistan, measures aimed at re-establishing contact
between the first applicant and his relatives, commuting his sentence
by way of amnesty or pardon, securing his eventual release and
facilitating his departure for a country which would be willing to
accept him.
- In
their latest observations the applicants’ representatives also
referred to the Muminov judgment on just satisfaction, cited
above, seeking to oblige the respondent State to facilitate contact
between them and the first applicant.
2. The Court’s assessment
- The
Court notes that where it has found a violation of the substantive
Articles of the Convention resulting from the transfer of applicants
outside the competence of the respondent State, it has been able to
order the latter, with reference to Article 46 of the Convention, to
take steps in order to put an end to the applicants’ suffering
as soon as possible, for example by taking every possible measure to
put an end to the arbitrary detention (see Ilaşcu and Others
v. Moldova and Russia [GC], no. 48787/99, § 490, ECHR
2004 VII) or by taking all possible steps to obtain an assurance
that the applicants would not be subjected to the death penalty (see
Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, §
171, ECHR 2010 ...).
- At
the same time, the Court is mindful of the limits to findings which
could be made under this provision in respect of applicants who are
outside of the jurisdiction of the respondent State. Thus, in the
above-mentioned Muminov case, it considered it inappropriate
to request measures similar to those requested by the applicants in
the present case (see Muminov v. Russia, no. 42502/06,
§ 145, 11 December 2008).
- Turning
to the circumstances of the present case, the Court notes that no
violation has been found in the principal judgment other than that of
Article 34 on account of the first applicant’s expulsion. It
therefore does not find it appropriate to request the measures sought
by the applicants’ representatives as described above in
paragraph 8.
- The
Court further reiterates that as a result of a failure by a country
to comply with its obligations under Article 34 of the Convention
applicants are liable to suffer non-pecuniary damage which cannot be
repaired solely by such a finding (see Mamatkulov and Askarov v.
Turkey [GC], nos. 46827/99 and 46951/99, § 134, ECHR
2005 I). The Court considers it appropriate to award the first
applicant EUR 9,000 for the violation of that provision, plus
any tax that may be chargeable.
- Noting
the absence of contact between the first applicant since his removal
to Uzbekistan and his representatives and following the approach
taken in the above-mentioned Muminov case (just satisfaction),
the Court also holds that the respondent State shall secure, by
appropriate means, the execution of the just satisfaction award, in
particular, by facilitating contact between the first applicant, and
the Committee of Ministers of the Council of Europe acting under
Article 46 of the Convention, his representatives in the Convention
proceedings, or any other person entitled or authorised to represent
him in the enforcement proceedings.
B. Costs and expenses
- The
applicants’ representatives submitted an amended claim for
reimbursement of costs and expenses incurred in the proceedings.
Mrs Ryabinina claimed reimbursement of 60 hours of work. Two
other representatives claimed 12 and 3 hours of legal work each. They
estimated the cost of their work at EUR 100 per hour. They also
claimed 7% of that amount to cover administrative costs.
- The
Government disputed the reasonableness and necessity of the expenses
claimed and noted the absence of any documentary evidence. They found
the overall sum to be excessive.
- The
Court may make an award in respect of costs and expenses only in so
far as they were actually and necessarily incurred and are reasonable
as to quantum (see Bottazzi v. Italy [GC], no. 34884/97,
§ 30, ECHR 1999 V, and Sawicka v. Poland, no.
37645/97, § 54, 1 October 2002).
- The
Court notes that the applicants enclosed no documents to corroborate
the amounts claimed, apart from the breakdown of work performed by
the representatives. At the same time it observes that the applicants
issued authority forms for three lawyers, who submitted an
application form and observations on their behalf. Therefore, the
Court is satisfied that the applicants’ representatives did
carry out a certain amount of legal work in relation to the present
application (see Aliyeva v. Russia, no. 1901/05, § 122,
18 February 2010).
- The
Court further notes that most of the complaints have been found
inadmissible. No domestic proceedings were pending after 5 December
2007. The Court thus doubts whether the research was necessary to the
extent claimed.
- Having regard to the above, the Court awards to the
first applicant the amount of EUR 2,000, together with any
value-added tax that may be chargeable to him, the net award to be
paid into the bank account identified by the applicants’ legal
representatives.
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 first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts:
(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 applicant, in respect of costs and expenses, to be converted into
Russian roubles at the rate applicable at the date of settlement, to
be paid into the representatives’ bank account, as identified
by the applicant;
(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;
(c) that
the respondent State, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2 of the
Convention, shall secure, by appropriate means, payment of the above
amount, in particular by facilitating contact between the first
applicant and the Committee of Ministers of the Council of Europe,
his representatives in the Convention proceedings, or any other
person entitled or authorised to represent him in the enforcement
proceedings.
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 28 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić Registrar President
