Постановление Европейского суда по правам человека от 17.06.2010 «Дело Товсултанова (Tovsultanova) против России» [англ.]

ives. In the present case, by contrast, it has not been established to the required standard of proof "beyond reasonable doubt" that the Russian authorities were implicated in Said-Magamed Tovsultanov's disappearance (see paragraph 82 above). In these circumstances the Court considers that the case is clearly distinguishable from those mentioned above and therefore concludes that the State cannot be held responsible for the applicant's mental distress caused by the commission of the crime itself.
104. Furthermore, in the absence of a finding of State responsibility for the disappearance of Said-Magamed Tovsultanov, 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, 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, Khumaydov and Khumaydov v. Russia, No. 13862/05, §§ 130 - 131, 28 May 2009 and Zakriyeva and Others v. Russia, No. 20583/04, §§ 97 - 98, 8 January 2009).
105. It follows that this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

V. Alleged violation of Article 5 of the Convention

106. The applicant further stated that Said-Magamed Tovsultanov had been detained in violation of the guarantees contained in Article 5 of the Convention, which reads, in so far as relevant:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance 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."

A. The parties' submissions

107. The Government asserted that no evidence had been obtained by the investigators to confirm that Said-Magamed Tovsultanov had been deprived of his liberty by State agents in breach of the guarantees set out in Article 5 of the Convention.
108. The applicant reiterated the complaint.

B. The Court's assessment

109. 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, cited above, § 122).
110.



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