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Постановление Европейского суда по правам человека от 17.09.2009 «Дело Забиева и другие (Zabiyeva and others) против России» [англ.]





prosecutors. The Court observes that the first applicant was not even informed of the fact that an investigation into the infliction of injuries on her had been opened. In such circumstances it finds that these remedies referred to by the Government would not have had any prospects of success and considers that they were ineffective in the circumstances of the case. It thus rejects the Government's objection in this part as well.
132. In the light of the foregoing the Court concludes that the Government have failed to conduct an effective investigation into the ill-treatment of Umar Zabiyev's mother. Accordingly, there has been a violation of Article 3 of the Convention in its procedural aspect in respect of the first applicant.
(c) The complaint concerning the applicants' mental suffering
133. The Court notes that while a family member of a "disappeared person" can claim to be a victim of treatment contrary to Article 3 (see Kurt v. Turkey, 25 May 1998, §§ 130 - 34, Reports 1998-III), the same principle would not usually apply to situations where the person taken into custody has later been found dead (see {Tanli} v. Turkey, No. 26129/95, § 159, ECHR 2001-III). However, if a period of initial disappearance is long it may in certain circumstances give rise to a separate issue under Article 3 (see Gongadze v. Ukraine, No. 34056/02, §§ 184 - 86, ECHR 2005-XI).
134. The Court observes that the applicants' relative went missing under suspicious circumstances after 7 p.m. on 10 June 2003. His remains were found at 12 noon on 11 June 2003, that is, some nineteen hours later. In the Court's opinion, the period during which the applicants suffered uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances was not sufficiently long to give rise to an issue under Article 3 of the Convention (see, by contrast, Luluyev and Others v. Russia, No. 69480/01, § 115, ECHR 2006-XIII, and Kukayev v. Russia, No. 29361/02, § 107, 15 November 2007).
135. In view of the above, the Court finds that there has been no breach of Article 3 of the Convention in respect of the applicants.

V. Alleged violation of Article 13 of the Convention

136. The applicants complained that they had been deprived of effective remedies in respect of the alleged violations of Articles 2 and 3, 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."

A. The parties' submissions

137. The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using them.
138. The applicants reiterated the complaint.

B. The Court's assessment

1. Admissibility

139. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

140. The Court reiterates 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. According to the Court's settled case-law, the effect of Article 13 of the Convention is to require the provision of a remedy allowing the competent domestic authority both to deal with the substance of a relevant Convention complaint and to grant appr



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