Постановление Европейского суда по правам человека от 08.01.2009 «Дело Джамаева и другие (Dzhamayeva and others) против России» [англ.]

III. Alleged violation of Article 3 of the Convention

106. The applicants relied on Article 3 of the Convention, submitting that as a result of their relative's disappearance and the State's failure to investigate it properly, they had endured mental suffering in breach of Article 3 of the Convention. They also stated that it was highly probable that Mr Ismail Dzhamayev had been subjected to treatment contrary to Article 3 of the Convention, which reads as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. The parties' submissions

107. The Government disagreed with these allegations and argued that the investigation had not established that either the applicants or Mr Ismail Dzhamayev had been subjected to treatment prohibited by Article 3 of the Convention.
108. In their observations on the admissibility and merits of the application the applicants submitted that they no longer wished to have the complaint regarding the alleged ill-treatment of Mr Ismail Dzhamayev examined. They further reiterated the complaint concerning the mental suffering endured.

B. The Court's assessment

1. Admissibility

(a) The complaint concerning the ill-treatment of Mr Ismail Dzhamayev
109. The Court, having regard to Article 37 of the Convention, finds that the applicants do not intend to pursue this part of the application, within the meaning of Article 37 § 1 (a). The Court also finds no reasons of a general character, affecting respect for human rights, as defined in the Convention, which require further examination of the present complaints by virtue of Article 37 § 1 of the Convention in fine (see, for example, Chojak v. Poland, No. 32220/96, Commission decision of 23 April 1998, unpublished; Singh and Others v. the United Kingdom (dec.), No. 30024/96, 26 September 2000; and Stamatios Karagiannis v. Greece, No. 27806/02, § 28, 10 February 2005).
110. It follows that this part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention.
(b) The complaint concerning the applicants' mental suffering
111. The Court notes that this part of the complaint under Article 3 of the Convention 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

112. 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 applicants a dimension and character distinct from the emotional distress which may be regarded as inevitably 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, cited above, § 358, and Imakayeva, cited above, § 164).
113. The Court notes that the applicants are close relatives of Mr Ismail Dzhamayev. After unidentified bo



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