Постановление Европейского суда по правам человека от 12.02.2009 «Дело Мешаева и другие (Meshayeva and others) против России» [англ.]

V. Alleged violation of Article 5 of the Convention

126. The applicants further stated that Leoma Meshayev and Bislan Saydayev 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."
127. The Court has found that Leoma Meshayev and Bislan Saydayev were detained by State servicemen on 17 December 2002 and have not been seen since. Their detention was not acknowledged, was not logged in any custody records and no official trace of their subsequent whereabouts or fate exists. The Court has found before that unacknowledged detention is a complete negation of the above 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).
128. Consequently, the Court finds that Leoma Meshayev and Bislan Saydayev were held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

VI. Alleged violation of Article 13 of the Convention

129. The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, 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."
130. The Government contended that the applicants had had effective remedies at their disposal and that the authorities had not prevented them from using them. They referred to Article 125 of the Code of Criminal Procedure, which allowed participants in criminal proceedings to complain to a court about measures taken during an investigation. This was an effective remedy to ensure the observation of their rights. They had also failed to claim damages in civil proceedings.
131. The Court reiterates that in circumstances where, as here, the criminal investigation into the violent deaths was ineffective and the effectiveness of any other remedy that may have existed, including civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, §



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