Постановление Европейского суда по правам человека от 11.06.2009 «Дело Хасуева (Khasuyeva) против России» [англ.]

dings.
125. Finally, the Court notes that the investigation was suspended and resumed at least seven times and that on several occasions the supervising prosecutors and the local court criticised deficiencies in the proceedings and ordered remedial measures. However, it appears that these instructions were not complied with.
126. The Government raised the possibility for the applicant to make use of judicial review of the decisions of the investigating authorities in the context of exhaustion of domestic remedies. The Court observes that the applicant, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged the actions or omissions of investigating authorities before a court. Furthermore, the investigation has been resumed by the prosecuting authorities themselves a number of times due to the need to take additional investigative steps. However, they still failed to investigate the applicant's allegations properly. Moreover, owing to the time that had elapsed since the events complained of, certain investigative measures that should have been carried out much earlier could no longer be usefully conducted. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicant's failure to exhaust domestic remedies within the context of the criminal investigation.
127. In the light of the foregoing, the Court dismisses the Government's preliminary objection as regards the applicant's failure to exhaust domestic remedies within the context of the criminal investigation, and holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Abu Khasuyev, in breach of Article 2 in its procedural aspect.

IV. Alleged violation of Article 3 of the Convention

128. The applicant relied on Article 3 of the Convention, submitting that as a result of her son's disappearance and the State's failure to investigate those events properly, she had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
129. The Government contended that there was no evidence confirming that the applicant had been subjected to treatment in breach of Article 3 of the Convention stating that "the investigation did not receive any information concerning inhuman or degrading treatment of the applicant by officials of the Russian Federation".
130. The Court observes that the question whether a member of the family of a "disappeared person" is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably having been caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court would further emphasise that the essence of such a violation does not mainly lie in the fact of the "disappearance" of the family member but rather concerns the authorities' reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities' conduct (see Orhan v. Turkey, No. 25656/94, § 358, 18 June 2002, and Imakayeva, cite



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