FOURTH SECTION
DECISION
Application no. 56437/07
Said Shamilovich KADZOEV
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 1 October 2013 as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 20 December 2007,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Said Shamilovich Kadzoev was born in 1979. He is of Chechen origin but his nationality is in dispute. He was represented by Mrs N. Mole and Mr A. Weiss, lawyers practising in London with the AIRE Centre. The Bulgarian Government (“the Government”) were represented by their Agents, Ms S. Atanasova and Ms M. Dimova, of the Ministry of Justice.
2. The applicant arrived in Bulgaria in October 2006 and claimed asylum. He was taken into immigration detention. Attempts to remove him from Bulgaria, inter alia to Russia, failed because the Russian Federation refused to recognise that he was a Russian citizen and thus to provide the necessary travel documents for removal. In the context of the domestic proceedings concerning the applicant’s detention, the Sofia Administrative Court made a reference for a preliminary ruling to the then Court of Justice of the European Communities (ECJ) concerning the proper construction of Article 15 of the Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals. Following the ECJ judgment of 30 November 2009 (Saïd Shamilovich Kadzoev v. Direktsia ‘Migratsia’ pri Ministerstvo na vatreshnite raboti, case C‑357/09), the applicant was released on 3 December 2009.
3. In his application, the applicant made a series of complaints under Articles 3, 5, 8, 13 and 14 of the Convention, concerning attempts to remove him to Russia, the effectiveness of Bulgaria’s asylum procedures at the material time, the length and legality of his immigration detention, and the ill-treatment and discrimination he alleged that he had suffered while in that detention.
4. On 15 January 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
5. On 2 July 2013 – that is, after the parties’ observations had been received – the applicant’s representatives informed the Court that they had not had contact with the applicant for several months and that they had concerns for his safety. They were, however, in contact with his mother who had similar concerns and who wished to continue the case on her son’s behalf. A form of authority signed by her was provided. No further communication had been received from the applicant or his representatives.
THE LAW
6. Article 37 of the Convention provides:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
7. In light of the absence of contact between the applicant and his representatives, the Court considers that the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention (see Ali v. Switzerland, 5 August 1998, Reports of Judgments and Decisions 1998‑V). This conclusion is not altered by the intention of the applicant’s mother to continue the application on his behalf. Although the Court has allowed family members to continue with applications where the original applicant has died (see, for instance, Jėčius v. Lithuania, no. 34578/97, ECHR 2000‑IX), there is no provision in the Convention or in the Court’s case-law for an applicant’s relative to continue a case when the applicant cannot be contacted, especially when, as in this case, there is nothing suspicious in that absence of contact and when there would appear to be no objective grounds for the concerns of the applicant’s mother and his representatives as to the applicant’s safety.
8. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.
9. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş AracıIneta Ziemele
Deputy RegistrarPresident
Full & Egal Universal Law Academy