Решение европейского суда по правам человека от 25.11.1999"по вопросу приемлемости жалобы n 44125/98, поданной василием михайловичем сыркиным против российской федерации" [рус., англ.]
that the reason for continuing the investigation was the fact that it had been
inadequate. On 5 March 1994 the applicant was informed that the basis of the
investigation had been changed as the probable cause of his son"s disappearance
was murder rather than desertion.
On 21 May 1994 the criminal
investigation was suspended again. Following an intervention by the military
prosecutor of the Moscow Military Region, who considered that the investigation
had been inadequate, the proceedings recommenced on 20 October 1994.
On 4
April 1995 the criminal investigation was once more suspended. On 21 February
1996 the military prosecutor of the Moscow Military Region stated that, despite
the suspension of the preliminary investigation, the search for the applicant"s
son"s whereabouts was continuing. However, the efforts of the German and Polish
authorities, as well as of the Interpol national offices in Russia and Ukraine,
had not led to a positive result.
On 10 November 1996 the Chief Military
Prosecutor of Russia announced that, as the criminal investigation had been
incomplete, the proceedings had recommenced 20 October 1996.
On 20 July
1998 the Personnel Division of the Russian Ministry of Defence announced that
the applicant"s son no longer appeared on its staff list.
The applicant
has also addressed numerous letters concerning the fate of his son to the
Ukrainian authorities. On 25 August 1998 the Ukrainian Ministry of Internal
Affairs replied that, according to the German authorities, his son never exited
the German border and that it had sent search requests to Interpol offices in 12
European countries.
COMPLAINTS
The applicant complains that his son is
being unlawfully detained by the authorities and that his son does not have a
possibility to challenge his detention. He suspects that the lack of progress in
the official investigation, as well as the deletion of his son"s name from the
military staff, list serve as a cover-up for his unlawful confinement. He
invokes Articles 4 and 13 of the Convention.
THE LAW
The applicant
complains that his son has been unlawfully deprived of his liberty and that his
son lacks an effective remedy to challenge his detention.
The Court
considers that the applicant"s complaint ought to be examined under Article 13
of the Convention in conjunction with Article 5 of the Convention, which
guarantees the right to liberty and security of person.
Article 13 of the
Convention provides as follows:
"Everyone whose rights and freedoms as
set forth in [the] Convention are violated shall have an effective remedy before
a national authority notwithstanding that the violation has been committed by
persons acting in an official capacity."
The Court first observes that
the applicant"s complaint relates to events which started in 1991, i.e. prior to
5 May 1998, which is the date of the entry into force of the Convention with
respect to Russia. However, according to the generally recognised principles of
international law, the Convention is binding on the Contracting States only in
respect of facts occurring after its entry into force. In so far as the
complaint concerns a situation still existing, the Court, in assessing the
conduct of the authorities as a whole, can nevertheless have regard to the
measures taken by the authorities prior to 5 May 1998.
The Court recalls
that Article 13 of the Convention guarantees the availability at the national
level of a remedy to enforce the substance of the Convention rights and freedoms
in whatever form they might happen to be secured in the domestic legal order.
The effect of Article 13 is thus to require the provision of a domestic remedy
to deal with the substance of the relevant Convention complaint and to grant
appropriate relief, although Contracting States are afforded some discretion as
to the manner in which they conform to their Convention obligations under this
provision. The scope of the obligation under Article 13 varies depending on the
nature of the applicant"s complaint under the Convention. Nevertheless, the
remedy required by Article 13 must be "effective" in practice as well as in law,
in particular in the sense that its exercise must not be unjustifiably hindered
by the acts or the omission of the authorities of the respondent State (see, for
example, the Kaya v. Turkey judgment of 19 February 1998, Reports of Judgments
and Decisions 1998-I, pp. 329 - 330, § 106, and the Kurt v. Turkey judgment of
25 May 1998, Reports 1998-III, p. 1189, § 139).
However, Article 13
cannot be interpreted so as to require a remedy in domestic law in respect of
any supposed grievance under the Convention that an individual may have, no
matter how unmeritorious his complaint may be: the grievance must be an arguable
one in terms of the Convention (see the Boyle and Rice v. the United Kingdom
judgment of 27 April 1988, Series A, no. 131, p. 23, § 52).
In the
present case the applicant"s complaint concerns the failure of the authorities
to make any progress in establishing the whereabouts of his son on account of
their alleged implication in his son"s disappearance. The Court recalls that
where the relatives of a person have an arguable claim that the latter has
disappeared at the hands of the authorities, the notion of an effective remedy
for the purposes of Article 13 entails, in addition to the payment of
compensation where appropriate, a thorough and effective investigation capable
of leading to the identification and punishment of those responsible and
including effective access for the relatives to the investigative procedure (see
the Kurt judgment cited above, p. 1189, § 140).
The Court observes that
at the time of the disappearance of the applicant"s son, the military unit in
which the latter served was stationed in Germany. It further observes that,
faced with the difficulties in conducting a search in a foreign country, the
authorities sought international assistance in establishing the whereabouts of
the applicant"s son. It also finds that the authorities gave adequate
consideration to the applicant"s versions of his son"s possible whereabouts and
allowed him to consult the material gathered in the course of the investigation.
On the basis of the available information the Court does not find it
substantiated that the applicant"s son has been detained by the Russian
authorities. Furthermore, while it is true that the official investigation after
eight years has not led to a positive result, the Court considers that, in the
circumstances of the present case, the authorities have not failed in their duty
to take adequate steps in investigating the disappearance of the applicant"s
son.
In these circumstances, the Court does not find that the applicant
has an arguable claim of unlawful detention under Article 5 of the Convention
which would require a remedy under Article 13 of the Convention, or that the
authorities" reaction to the events in question has otherwise been
inadequate.
It follows that the application must be rejected as being
manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY
Declares the
application inadmissible.
Vincent BERGER
Registrar
{Matti
PELLONPAA}
President
