Постановление Европейского суда по правам человека от 23.04.2009 «Дело Хачукаев (Khachukayev) против России» [англ.]

with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
139. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see {Cicek} v. Turkey, No. 25704/94, § 164, 27 February 2001, and Luluyev and Others v. Russia, No. 69480/01, § 122, ECHR 2006-... (extracts)).
140. The Court has established that Murad Khachukayev was detained by State servicemen on 5 February 2003 and then unlawfully deprived of his life. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate.
141. Consequently, the Court finds that Murad Khachukayev was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

V. Alleged violation of Article 13 of the Convention

142. The applicant complained that he had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides:
"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."
143. The Government contended that the applicant had had effective remedies at his disposal as required by Article 13 of the Convention and that the authorities had not prevented him from using them. They referred to Article 125 of the Code of Criminal Procedure, which allowed participants in criminal proceedings to complain to a court about measures taken during an investigation. This was an effective remedy to ensure the observation of his rights. In addition, the applicant had failed to claim damages in civil proceedings.
144. The Court reiterates that in circumstances where, as here, the criminal investigation into the violent death was ineffective and the effectiveness of any other remedy that may have existed, including civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183).
145. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.
146. As regards the applicant's reference to Article 5 of the Convention, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in conjunction with Article 5 of the Convention (see Kukayev v. Russia, No. 29361/02, § 119, 15 November 2007, and Aziyevy v. Russia, No. 77626/01, § 118, 20 March 2008).

VI. Application of Article 41 of the Convention

147. 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

> 1 2 3 ... 17 18 19 20