CASE OF MAKSIMOVA AND KAPUSTIN v. RUSSIA (European Court of Human Rights) Application no. 43955/11

The case concerns allegations of ineffectiveness of the authorities’ investigation into the disappearance of the applicant’s relative, who was a journalist, in Saint Petersburg in 2004.


THIRD SECTION
CASE OF MAKSIMOVA AND KAPUSTIN v. RUSSIA
(Application no. 43955/11)
JUDGMENT
STRASBOURG
19 October 2021

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

In the case of Maksimova and Kapustin v. Russia,

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

Peeter Roosma, President,
Dmitry Dedov,
Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 43955/11) 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 a German national, Ms Rimma Vasilyevna Maksimova and Mr Sergey Mikhaylovich Kapustin, a Russian national, (“the first and the second applicant” respectively), on 30 June 2011;

the decision of 13 October 2014 to give notice to the Russian Government (“the Government”) of the applicants’ complaints under the substantive and procedural aspects of Article 2 of the Convention and the first applicant’s complaint under Article 3 of the Convention and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 28 September 2021,

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

INTRODUCTION

1. The case concerns allegations of ineffectiveness of the authorities’ investigation into the disappearance of the applicant’s relative, who was a journalist, in Saint Petersburg in 2004.

THE FACTS

2. The applicants were born in 1941 and 1963, respectively. The first applicant lived in Potsdam, Germany, and the second applicant lives in Moscow, Russia. They are represented before the Court by Mr P. Leach, Ms J. Evans and Mr B. Bowring, lawyers of the European Human Rights Advocacy Centre (EHRAC), an NGO based in London. On 26 September 2014 the first applicant passed away and the second applicant expressed his wish to pursue the application in her stead.

3. The Government were represented initially by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, his successor in that office.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

I. The disappearance of Mr Maksimov

A. Information submitted by the applicants

5. The first applicant was the mother of Mr Maksim Maksimov, who worked as an investigative journalist in St Petersburg. The second applicant is the nephew of the first applicant and Mr Maksimov’s cousin. At the material time the first applicant resided in Germany and the second applicant in Moscow.

6. In June 2004 Mr Maksimov was carrying out a journalistic investigation into corruption among senior officers of the Ministry of the Interior in St Petersburg (the police). In particular, he was interested in the activities of police officer M.S., then deputy head of a police department, and his subordinates.

7. At around 7.30 p.m. on 29 June 2004 Mr Maksimov called his girlfriend, Ms A., and told her he was going to a meeting and that he would join her in her country house immediately after. Neither Ms A. nor any other friend or relative heard from Mr Maksimov that day and he has been missing ever since.

B. Information submitted by the Government

8. The Government did not dispute the description of the circumstances of Mr Maksimov’s disappearance as submitted by the applicants.

9. The Government submitted that Mr Maksimov’s abduction and presumed murder had been perpetrated by unidentified individuals, such as members of an organised criminal group in St Petersburg whose activities Mr Maksimov had also been investigating at the material time. In addition, shortly before his disappearance, Mr Maksimov had planned to sell his flat in the centre of St Petersburg and buy a larger one. He could thus have fallen victim to a sham real-estate transaction, the organisers of which could have abducted and killed him.

10. In support of their observations, the Government furnished several documents from the file comprising 119 pages in total. The documents submitted, as well as the information submitted by the applicants, can be summarised as follows.

II. The investigation into the disappearance

A. The complaint about the disappearance

11. On 30 June or 1 July 2004 Mr Maksimov’s girlfriend Ms A. went to the police to report his disappearance. The police refused to register her report due to the fact that she was not a family member.

12. On 6 July 2004 the first applicant travelled from Potsdam to Russia to look for her son. On 9 July 2004 she visited police station no. 78 in St Petersburg and reported her son’s disappearance.

B. The criminal case opened into the disappearance

13. On 15 July 2004 the Tsentralniy district prosecutor’s office in St Petersburg (“the investigators”) opened a criminal investigation into Mr Maksimov’s disappearance in case no. 747506 under Article 105 of the Russian Criminal Code (“murder”). Shortly after the investigators questioned the first applicant.

14. On 20 July 2004 the police examined Mr Maksimov’s flat in the first applicant’s presence and seized a phone and a computer hard drive. From the documents submitted it transpires that no forensic examination of the evidence was commissioned. According to the applicants, the computer hard drive was subsequently lost from the evidence under unclear circumstances. The Government did not dispute this assertion.

15. On 24 July 2004 a police raid was carried out in the course of which Mr Maksimov’s mobile phone was seized from Mr V.M. who claimed that he had bought a second-hand phone from an unknown seller at an electronic goods’ market in St Petersburg. From the documents submitted it transpires that no forensic examination of the telephone was commissioned.

16. On 28 July 2004 Mr Maksimov’s abandoned car was found in a street in St Petersburg and fingerprinted. On 31 July 2004 the forensic examination established that the fingerprints belonged not to Mr Maksimov, but to unidentified individuals.

17. On 2 August 2004 the first applicant was granted victim status in the criminal case.

18. According to the applicants, between August and December 2004 the investigators did not take any meaningful steps to resolve the crime. Neither Mr Maksimov’s girlfriend Ms A. nor any other persons were questioned, including his colleagues who had seen him just before his disappearance. The Government did not dispute this assertion.

19. On 27 December 2004 the investigators suspended the investigation as it was impossible to identify the perpetrators. The first applicant was not notified of that decision.

20. On an unspecified date between January and March 2005 Mr I., allegedly a paid informer of police officer M.S., informed Mr Maksimov’s journalist colleagues that officer M.S. had instructed him to lure Mr Maksimov inside a building in St Petersburg under the pretense of a meeting, where the officer and/or his acolytes had killed Mr Maksimov. Then police officers M.S. and L.P. had taken Mr Maksimov’s dead body to a forest and had buried him there. Mr I. also indicated the approximate area of the burial. The journalists gave Mr I.’s written statement to the investigators shortly after it was obtained. It appears that this information was subsequently verified by the investigation in June 2005 and August 2006 (see paragraphs 24, 28 and 30 below).

21. On 8 April 2005 the deputy prosecutor of St Petersburg quashed the suspension of the investigation of 27 December 2004 and ordered a number of steps to be taken to resolve the crime. In particular, the investigators were to verify, inter alia, whether a certain Mr T. had been involved in Mr Maksimov’s disappearance and whether the fingerprints discovered in Mr Maksimov’s car matched those in the forensic fingerprints database. The investigators were also to obtain and analyse records of Mr Maksimov’s mobile telephone activity.

22. On 27 April 2005 the investigators requested from the telephone provider the list of calls made to and from the telephone found on 24 July 2004 (see paragraph 15 above). It appears that the request did not contain the court authorisation, which was requested subsequently and granted by a court on 8 November 2007.

23. On 13 May 2005 the investigation was suspended again and then on 15 June 2005 it was resumed. The first applicant was informed thereof on 6 July 2005.

24. On 29 June 2005 the investigators examined the premises of the building where Mr Maksimov had allegedly been lured in and killed (see paragraph 20 above). As a result, several pieces of wallpaper, knife and linoleum with traces of blood were collected. The subsequent forensic DNA examination of the evidence on 25 November 2005 concluded that the blood belonged neither to Mr Maksimov, nor to officers M.S. and L.P.

25. By letter of 29 July 2005 the first applicant was informed by the investigators’ superiors that an investigation had been opened in criminal case no. 172604, and charges of corruption had been brought against police officers M.S., L.P. and A.B. The letter stated, in particular, that according to the unidentified sources, the possibility of the involvement of the three officers in the murder of Mr Maksimov was under examination. The investigation in cases nos. 172604 and 747506 might therefore be joined at a later stage and the first applicant would be informed of any further progress.

26. On 27 September 2005 the investigators of Mr Maksimov’s disappearance questioned police officer M.S. who denied any involvement in the incident and stated that he had learnt about it from newspapers.

27. On 25 April 2006 the investigators replied to the first applicant’s request for information stating that the investigation into her son’s disappearance was ongoing and that the alleged involvement of the police officers had not been confirmed.

28. On 2 May 2006 the investigators informed the first applicant that they had searched for her son’s remains in forests and bodies of water in the St Petersburg area but to no avail.

29. On various dates in July 2006 the investigators compared Mr Maksimov’s picture with descriptions of unidentified male bodies found in the vicinity of St Petersburg between January and July 2006. No matches were found.

30. On 10 August 2006 the police searched a country house and its plot of land in the vicinity of St Petersburg looking for Mr Maksimov’s body, but to no avail (see paragraph 20 above).

31. On 14 September 2006 the additional forensic examination of the fingerprints found in Mr Maksimov’s car (see paragraph 16 above) established that they did not belong to officers M.S., L.P. and A.B.

32. On 7 April 2008 the investigation was suspended again. On the same date the first applicant was informed thereof.

33. On 9 January 2009 the first applicant wrote to the investigators’ superiors asking that the investigation be resumed. On 27 February 2009 she was informed that all requisite measures had been taken but to no avail and that there were no grounds to quash the suspension decision of 7 April 2008.

34. On 17 September 2009 the first applicant wrote to the Prosecutor General of Russia asking to resume the investigation into her son’s disappearance.

35. On 18 January 2010 the investigation was resumed upon the order of the investigators’ superiors, who also requested that the investigators take a number of steps, including additional questioning of officers M.S. and L.P.

36. Between 18 February and 30 December 2010, the investigation was suspended and resumed on several occasions. The applicant was not informed of those procedural decisions.

37. On various dates in 2010 the investigators questioned several additional witnesses, but no new information was obtained.

38. According to the applicants, between 2004 and 2010 the first applicant lodged numerous requests, in person and in writing, with the investigators and their superiors asking for information on the progress of the proceedings and requesting that steps be taken to resolve the crime.

39. According to the Government’s submission of 4 February 2015 on the admissibility and merits of the case, the investigation into the abduction and murder of Mr Maksimov was still pending. However, his body has not been found, which obstructed further progress in the investigation. The investigators took all steps possible to identify the perpetrators of the crime, but to no avail.

RELEVANT LEGAL FRAMEWORK

40. For a summary of the relevant domestic regulations see Turluyeva v. Russia (no. 63638/09, §§ 56-64, 20 June 2013).

THE LAW

I. preliminary IssueS

A. Locus standi

41. The Court notes that the first applicant, Ms Maksimova, died after lodging the application, on 26 September 2014, and that her nephew, Mr Kapustin (the second applicant), has expressed his wish to continue the proceedings in her stead. The Government objected to his standing before the Court submitting that he was neither a close relative of Mr Maksimov, nor did he have close ties with the disappeared man as he lived in another city (Moscow). In addition, he was not actively involved in the investigation of the criminal case.

42. As far as the Government could be understood as challenging the second applicant’s standing, it should be noted that the Court has considered that a close relative of a person whose disappearance was alleged to engage the responsibility of the respondent Government can claim to be the victim of an alleged violation of Article 2 of the Convention (see Amanat Ilyasova and Others v. Russia, no. 27001/06, §§ 66-67, 1 October 2009, and Mikiyeva and Others v. Russia, nos. 61536/08 and 4 others, § 114, 30 January 2014). Having examined the applicants’ submission, the Court finds it that there is no reason to doubt that the second applicant and Mr Maksimov maintained close relationship. The Court is thus satisfied that Mr Kapustin has standing to complain about Mr Maksimov’s disappearance.

43. As for the Government’s contention concerning the second applicant’s inability to pursue the application in the first applicant’s stead, the Court notes that the second applicant is one of the two applicants who lodged the application. The Court recalls that in various cases in which an applicant has died in the course of the Convention proceedings, it has accepted that the next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, and Ksenz and Others v. Russia, nos. 45044/06 and 5 others, § 86, 12 December 2017). In this connection, the Court reiterates that human rights cases before it generally have a moral dimension and persons near to an applicant may thus have a legitimate interest in ensuring that justice is done, even after the applicant’s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII, and Karner v. Austria, no. 40016/98, §§ 22-28, ECHR 2003‑IX).

44. In view of the above and having regard to the circumstances of the present case, the Court accepts that the second applicant has a legitimate interest in pursuing the application in the late applicant’s stead. For reasons of convenience, the text of this judgment will continue to refer to Ms Maksimova as “the first applicant” and Mr Kapustin as “the second applicant” (see Mammadov and Others v. Azerbaijan, no. 35432/07, § 80, 21 February 2019).

B. Scope of the case

45. The Court notes that in their observations on the admissibility and merits of the case the applicants insisted that the Court’s examination should include not only their complaints under Articles 2 and 3 of the Convention, but also the examination of other provisions of the Convention.

46. When communicating the application to the respondent Government, the Court put questions to the parties pertaining exclusively to the examination of the substantive and procedural obligations under Article 2, as well as the examination of the first applicant’s complaint under Article 3 of the Convention. On 13 October 2014 the President of the Section, sitting in a single‑judge formation, declared the remainder of the application inadmissible.

47. Emphasising that a single judge’s decision to declare an application inadmissible is final under Article 27 § 2 of the Convention, the Court concludes that the applicants’ request to examine additional issues, seen as a request to widen the scope of the case, should be dismissed (compare to Mazepa and Others v. Russia, no. 15086/07, § 62, 17 July 2018).

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

48. The applicants complained that the police officers were responsible for the abduction and murder of Mr Maksimov and that the ensuing investigation thereof did not meet the Convention standards, in violation of Article 2 of the Convention, which reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

A. Admissibility

49. The Government submitted that the application had been lodged belatedly as almost seven years had passed between the disappearance of Mr Maksimov and the lodging of the application before the Court.

50. The applicants submitted that they lodged their application as soon as they had realised that the investigation into the incident would not bring about any tangible results.

51. Considering the overall time frame between the disappearance of Mr Maksimov and the lodging of the application (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 165, ECHR 2009), the Court does not find that the lack of progress in the criminal investigation of the incident should be held against the applicants or interpreted as either a failure on their part to demonstrate due diligence or comply with the six‑month requirement (see, by contrast, Doshuyeva and Yusupov v. Russia (dec.), no. 58055/10, 31 May 2016).

52. In the light of the foregoing, the Court finds that the applicants complied with that admissibility criterion.

53. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B. Merits

1. Alleged violation of the substantive aspect of Article 2 of the Convention

(a) The parties’ submissions

54. The applicants submitted that the officers M.S. and L.P. and their acolytes were responsible for abducting and killing Mr Maksimov.

55. The Government submitted that the domestic investigation had not confirmed the involvement of the police officers in the abduction and alleged killing of Mr Maksimov and that unidentified individuals had committed that crime.

(b) The Court’s assessment

56. The Court recalls that it must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, Tahsin Acar v. Turkey [GC], no. 26307/95, § 210, ECHR 2004‑III, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 131, ECHR 2014). However, for the Court, the required evidentiary standard of proof for the purposes of the Convention is that of “beyond reasonable doubt”, and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 161, and Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 181, ECHR 2011 (extracts)).

57. The Court notes that in support of their observations, the Government furnished partial contents of the criminal investigation file. The Government also provided an explanation of the events in question. In particular, the Government submitted that the perpetrators of the crime against Mr Maksimov could have been individuals who had been the subjects of his journalist investigations, or that he could have been killed as a result of his involvement in a real-estate transaction (see paragraph 9 above). The applicants disagreed and submitted that Mr Maksimov had been abducted and killed by officers M.S. and L.P. and their acolytes in retaliation for his investigation of corruption in the police.

58. The Court observes, on the basis of the documents submitted, that the circumstances of Mr Maksimov’s disappearance cannot warrant the conclusion that the police officers were responsible for his alleged abduction and murder for the following reasons. From the documents submitted it transpires that the only witness statement concerning the circumstances of Mr Maksimov’s murder (see paragraph 20 above) was not substantiated by evidence proving the involvement of the officers in the incident: the forensic examination of the fingerprints from Mr Maksimov’s car, as well as the examination of the blood traces found at the place of his alleged killing, had not confirmed the officers’ presence at the crime scene (see paragraphs 24 and 31 above). In the absence of either other information from the parties or the results of the domestic investigation, it is impossible to make a conclusion to the contrary.

59. As for the applicants’ contention that the disappearance of Mr Maksimov could have been related to his investigation of the police corruption, there is nothing in the documents submitted to substantiate this allegation (compare to Mazepa and Others, cited above, §§ 73 and 75).

60. Thus, the information submitted by the parties does not permit the Court to establish to the required standard of proof –“beyond reasonable doubt”- that the perpetrators of the crime committed against Mr Maksimov had been the police officers as alleged by the applicants, nor does the Court consider that the burden of proof can be entirely shifted to the Government (compare to Huseynova v. Azerbaijan, no. 10653/10, § 97, 13 April 2017).

61. In such circumstances, the Court finds that there has been no substantive violation of Article 2 of the Convention.

2. Alleged violation of the procedural aspect of Article 2 of the Convention

(a) The parties’ submissions

62. The applicants submitted that the investigation into the disappearance of Mr Maksimov was ineffective. They pointed out that a number of important steps had been carried out belatedly and in a perfunctory manner, such as the initiation of the criminal proceedings and the questioning of witnesses and police officers M.S. and L.P. and their acolytes. The investigators had systematically failed to inform them of the progress in the proceedings or done it belatedly, after the time limit for appeals against the investigators’ decisions.

63. The Government submitted that the investigation into Mr Maksimov’s disappearance complied with the Convention requirements, as all possible steps had been taken. In particular, within the course of the investigation about a hundred individuals had been questioned, a number of expert evaluations of the evidence had been commissioned and numerous requests had been made for information on unidentified male bodies found in various districts in the St Petersburg area.

(b) The Court’s assessment

64. The Court recalls that compliance of an official investigation with the procedural requirement of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness and reasonable expedition of the investigation, the involvement of the victim’s family, and the independence of the investigation. In order to be “effective,” an investigation must be adequate. That is to say it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007‑II, and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §§ 172-74 and 225, 14 April 2015).

65. The Court notes that the Government furnished copies of a number of documents from the case file, but not of its entire contents. Despite the limitations, on the basis of those documents and the parties’ submissions, the Court is able to conclude that the investigation into the disappearance of Mr Maksimov fell below the Convention standards for the following reasons. The criminal case into the disappearance was opened only about two weeks after it had first been reported to the authorities and almost a week after the second request was made (see paragraphs 11 and 12 above). The evidence collected in Mr Maksimov’s flat at the beginning of investigation was never examined and some of it has subsequently gone missing (see paragraphs 14 and 15 above). Within the most important initial period of the investigation, for almost nine months, the investigators failed to take basic steps, such as questioning the witnesses who had seen Mr Maksimov prior to his disappearance (see paragraphs 18, 19 and 21 above). Furthermore, the information obtained from Mr I. concerning the alleged involvement of the officers in Mr Maksimov’s murder as retaliation for his professional activities was verified only several months later (see paragraphs 24, 26, 28 and 30 above) (compare to Mazepa and Others, cited above, § 75).

66. As to the requirement of reasonable expedition, the Court notes that the investigation started on 15 July 2004 (see paragraph 13 above), and it was suspended for the first time in December 2004 without any meaningful steps having been taken (see paragraph 19 above). Then it was suspended and resumed on numerous occasions and was still pending at the time of the submission of the Government’s observations in February 2015 (see paragraph 39 above). The Court is not convinced that the reference to the number of witnesses questioned (see paragraph 63 above) provides sufficient reason to justify the length of the proceedings given the absence of any palpable results for more than ten years.

67. In the Court’s view, the above deficiencies in the criminal proceedings in respect of their adequacy, promptness and reasonable expedition are enough to conclude that the investigation into Mr Maksimov’s disappearance has not been effective, as required by Article 2 of the Convention. In such circumstances the Court does not deem it necessary to consider the issue of independence of the investigation.

68. There has accordingly been a violation of Article 2 of the Convention in its procedural limb.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

69. The first applicant complained of mental suffering caused by her son’s disappearance and the manner in which the investigation thereof was carried out by the authorities. She referred to Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Admissibility

70. The Government submitted that the State agents were not involved in the disappearance of Mr Maksimov and the authorities reacted appropriately when the crime had been brought to their attention. In particular, the first applicant had been allowed to meet in person with high‑ranking superiors of the investigators, as well as with the Governor of St Petersburg, who had taken the investigation under personal review. By contrast to the applicant’s situation in Bazorkina v. Russia, no. 69481/01, § 140, 27 July 2006, the manner in which the first applicant’s complaints were dealt with by the authorities, their reactions and attitudes could therefore not be regarded as inhuman treatment.

71. The first applicant maintained her submission.

72. The Court has not established that State agents were responsible for the disappearance Mr Maksimov (see paragraph 61 above). In the absence of a finding of State responsibility for the disappearance of the first applicant’s son, the Court is not persuaded that the investigating authorities’ conduct, albeit negligent to the extent that it has breached Article 2 in its procedural aspect (see paragraph 68 above), could have in itself caused the applicant mental distress in excess of the minimum level of severity which is necessary in order to consider treatment as falling within the scope of Article 3 (see, for a similar situation, Shafiyeva v. Russia, no. 49379/09, § 103, 3 May 2012). Therefore, this complaint must be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. ARTICLE 38 OF THE CONVENTION

73. The applicants could be understood as alleging that the Government’s failure to submit copies of additional documents from the investigation file which were in their exclusive possession had been prejudicial to the Court’s assessment of the evidence in this case. The Court will examine the complaint under Article 38 of the Convention, which reads as follows:

“The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.”

74. The Court notes that the applicants submitted a number of documents from the case file and that no specific requests to produce additional documents were made to the Government, apart from the usual practice that requires the party to produce the necessary evidence, including copies of the documents on which it relies. Having regard to the above, and to its conclusions under the procedural limb of Article 2, the Court finds that the alleged incompleteness of certain documents and information had no bearing on its examination of the application (see, mutatis mutandis, Amadayev v. Russia, no. 18114/06, § 93, 3 July 2014).

75. There has accordingly been no failure to comply with Article 38 of the Convention.

V. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION

76. The relevant provisions provide as follows:

Article 41

“If the Court finds that there has been a violation of the Convention … the Court shall, if necessary, afford just satisfaction to the injured party.”

Article 46

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”

A. Damage

77. The applicants claimed neither pecuniary nor non-pecuniary damage.

B. Costs and expenses

78. The applicants claimed the overall amount of 10,337 pounds sterling (GBP) for the costs and expenses incurred before the Court. The amount was comprised as follows: GBP 6,263 in respect of fees of Ms J. Evans for 41.45 hours of her work on the case at GBP 150 per hour; GBP 300 in respect of Mr Leach’s fees for 2 hours of his work on the case at GBP 150 per hour; GBP 180 in respect of clerical expenses and GBP 3,595 in respect of translation costs. In support of that claim, the applicants submitted timesheets for Ms J. Evans and Mr Leach, a schedule of administrative expenses and copies of the translators’ invoices.

79. The Government submitted that the amount claimed was exaggerated as the legal work was not necessary to the extent claimed and requested that the amount of the award be reduced.

80. According to the Court’s case-law, in the absence of documents showing that the applicants had paid or were under a legal obligation to pay the fees charged by their representatives or the expenses incurred by them, the Court is not in a position to assess the points mentioned in paragraph 78 above. It therefore finds no basis on which to accept that the costs and expenses claimed by the applicants have actually been incurred by them and therefore, rejects the claim (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 372-73, 28 November 2017).

C. The applicants’ request for an investigation

81. The applicants also requested that an effective investigation complying with the requirements of the Convention be conducted into Mr Maksimov’s disappearance.

82. The Court notes that in numerous cases concerning disappearances (see, among others, Sultygov and Others v. Russia, nos. 42575/07 and 11 others, § 504, 9 October 2014, and Tsakoyevy v. Russia, no. 16397/07, § 160, 2 October 2018), it has decided that it was most appropriate to leave it to the respondent State to choose the means to be used in the domestic legal order in order to discharge its legal obligation under Article 46 of the Convention. The Court does not discern any exceptional circumstances which would lead it to reach a different conclusion in the present case.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides that the second applicant has locus standi in the proceedings before the Court;

2. Declares the complaints concerning Article 2 of the Convention admissible and the first applicant’s complaint under Article 3 of the Convention inadmissible;

3. Holds that there has been no violation of the substantive limb of Article 2 of the Convention;

4. Holds that there has been a violation of the procedural limb of Article 2 of the Convention;

5. Holds that there has been no failure by the respondent State to comply with Article 38 of the Convention;

6. Dismisses the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 19 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                              Peeter Roosma
Deputy Registrar                                    President

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