Постановление Европейского суда по правам человека от 09.04.2009 «Дело Джабраилова (Dzhabrailova) против России» [англ.]

that the person who went missing in the present case was the applicant's son. She was an eyewitness to him being taken away. It has now been over five years since she has had any news of him. The applicant's distress during this period is attested by her numerous efforts to prompt the authorities to act, as well as by her own attempts to search for her son. The Court further refers to its above findings regarding the shortcomings in the investigation. In particular, it considers that the authorities' refusal to allow her access to the case file and the lack of information about the investigation throughout the proceedings are elements that contributed to her suffering. It follows that the applicant's uncertainty about her son's fate was aggravated by the fact that she was denied the opportunity to monitor the progress of the investigation.
89. The Court therefore finds that the applicant suffered distress and anguish as a result of her son's disappearance and of her inability to find out what had happened to him or to receive up-to-date and exhaustive information on the investigation. The manner in which the applicant's complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3 of the Convention.
90. In the light of the foregoing, the Court finds that there has been a violation of Article 3 of the Convention on that account.

IV. Alleged violation of Article 5 of the Convention

91. The applicant complained that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrariness, had been violated in respect of Mr Khanpasha Dzhabrailov. Article 5, in its relevant parts, provides as follows:
"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."
92. The applicant maintained her complaint, arguing that her son had been detained in breach of Article 5 of the Convention.
93. In the Government's submission, the investigation had obtained no evidence to confirm that the applicant's son had been detained by State agents in breach of the guarantees set out in Article 5 of the Convention. According to them, there was no information in the materials of the investigation file that Mr Khanpasha Dzhabrailov had been held in any detention centres.

A. Admissibility

94. The Court notes that this part of the application is not manifestly ill-founded within the



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