Постановление Европейского суда по правам человека от 23.04.2009 «Дело Гакиев и Гакиева (Gakiyev and Gakiyeva) против России» [англ.]

this respect.
(b) The complaint concerning the applicants' mental suffering
135. 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 (extracts)). 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 - 186, ECHR 2005-XI).
136. The Court observes that the applicants' son was abducted on 30 November 2002. His remains were found on 29 March 2004, that is, four months later. In the Court's opinion, this period, during which the applicants suffered uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances, was sufficiently long to give rise to an issue under Article 3 of the Convention. The applicants' distress during that period is attested by their numerous efforts to prompt the authorities to act. Moreover, their uncertainty about Idris Gakiyev's fate was aggravated by their exclusion from monitoring the progress of the investigation (see Kukayev v. Russia, No. 29361/02, §§ 107 - 08, 15 November 2007).
137. In view of the above, the Court finds that there has been a breach of Article 3 of the Convention in respect of the applicants.

V. Alleged violation of Article 5 of the Convention

138. The applicants further stated that upon his abduction Idris Gakiyev had been detained in violation of the guarantees of 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

139. The Government asserted that Idris Gakiyev had not been kept in any detention facilities and claimed that there had been no breach of the guarantees set out in Article 5 of the Convention.
140. The applicants reiterated the complaint.

B. The Court's assessment

1. Admissibility

141. 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 the complaint is not inadmissible on any other grounds and must therefore be



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