THIRD SECTION
DECISION
Applications nos. 39496/14 and 39727/14
N. against Russia
and M. against Russia
The European Court of Human Rights (Third Section), sitting on 26 April 2016 as a Chamber composed of:
Luis López Guerra, President,
Helena Jäderblom,
Helen Keller,
Dmitry Dedov,
Branko Lubarda,
Pere Pastor Vilanova,
Alena Poláčková, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above applications lodged on 27 May 2014,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the decision to grant priority to the above applications under Rule 41 of the Rules of Court,
Having regard to the decision to grant anonymity to N. and M. under Rule 47 § 4 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by Ms Gribanova,
Having deliberated, decides as follows:
THE FACTS
1. The case originated in two applications (nos. 39496/14 and 39727/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms Ye. V. Gribanova, on 27 May 2014, on behalf of two Uzbek nationals, N. and M.
2. Ms Gribanova did not provide any written authority to act on behalf of N. and M.
3. N. and M. were born in 1972 and 1975 respectively and prior to their alleged disappearance lived in Kaliningrad.
4. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
A. Background of N. and M. and their arrival in Russia
6. Prior to 2008 N. lived in Uzbekistan. In December 2008 he left Uzbekistan for Russia, and settled in Kaliningrad.
7. Prior to 2009 M. lived in Uzbekistan. In November 2009 he left Uzbekistan for Russia and settled in Kaliningrad.
8. Both N. and M. are practising Muslims.
B. Criminal proceedings against N. and M. in Uzbekistan and extradition proceedings in Russia
9. In 2010 the Uzbek authorities charged N. and M. in absentia with being members of banned religious organisations, issued international warrants for their arrest, and ordered that they be placed in detention once arrested. During those criminal proceedings, on two occasions (in December 2008 and August 2010) the Uzbek authorities questioned N.’s relatives about his whereabouts.
10. In 2011 and 2012 the Russian police arrested N. and M. in Kaliningrad under an international warrant. The Kaliningrad Tsentralnyy District prosecutor’s office ordered their detention pending extradition. This was subsequently extended by the Kaliningrad Tsentralnyy District Court.
11. N. and M. retained Ms Gribanova to represent them in the extradition proceedings. She applied to the Prosecutor General’s Office of Russia (“the GPO”) with a request for their extradition to Uzbekistan to be refused.
12. The GPO refused to extradite N. and M. on the grounds that the acts imputed to them by the Uzbek authorities were not regarded as criminal under Russian law.
13. On 13 March and 12 July 2012 respectively the Kaliningrad regional prosecutor ordered N. and M.’s release. The Government submitted that since their release N. and M. had not informed the relevant authorities of their place of residence on the territory of the Russian Federation.
14. In April 2012 N. and M. addressed the following statements to Ms Gribanova:
Statement by N.:
“In the event I give any written or oral submissions to the mass media to the effect that I have voluntarily decided to return to Uzbekistan, this should be regarded as a forced return to the Republic of Uzbekistan.”
Statement by M.:
“In the event I give any written or oral submissions to the mass media to the effect that I have voluntarily decided to return to Uzbekistan, this should be regarded as a statement made under pressure and my return to my country of origin, Uzbekistan, should be regarded as a forced return.”
15. In March 2012 and May 2013 respectively N. and M.’s names were removed from the international wanted list following the prosecutor’s decision not to extradite them to Uzbekistan.
C. Applications for refugee status and temporary asylum
16. N. and M. applied for refugee status and temporary asylum in Russia. They lodged their applications with the Kaliningrad regional branch of the Russian Federal Migration Service (“the FMS”). They submitted that they had been persecuted in Uzbekistan on the basis of their religious beliefs, and would be subjected to ill-treatment if they returned. They indicated that Ms Gribanova was their point of contact.
17. In July 2012 and April 2013 respectively the FMS dismissed their requests for refugee status. In 2013 the Russian courts upheld those decisions. M. was represented in the proceedings by Ms Ye. Ryabinina, a lawyer practising in Moscow.
18. In October 2013 and April 2014 respectively the FMS dismissed their applications for temporary asylum. They lodged appeals against those decisions. The outcome of those proceedings is unknown.
D. Administrative proceedings against N.
19. On 11 February 2014 N. was arrested for violating residence regulations for foreign nationals. On 13 February 2014 the court refused to expel him and terminated the administrative proceedings for lack of corpus delicti. N. was represented by Ms Gribanova in those proceedings.
E. Alleged disappearance of N. and M.
20. On 22 May 2014 N. was summoned to the FMS and questioned about his place of residence. After being questioned he telephoned Ms Gribanova. According to her, he seemed very scared.
21. According to Ms Gribanova, on 23 May 2014 N. received a call from the Uzbek security service, which insisted that he return to Uzbekistan.
22. On the morning of 26 May 2014 N. was again summoned to the FMS and was asked to bring copies of all the appeals he had lodged with the FMS and the courts in connection with the asylum proceedings. Ms Gribanova stated that he seemed scared, and asked her to attend in his place.
23. At 8 p.m. on 26 May 2014 N. telephoned Ms Gribanova to ask for help. He said that unknown persons had forced him into a car and taken him to the airport. Immediately after this call his mobile telephone was switched off.
24. That evening Ms Gribanova informed M. that N. had been abducted, and asked him to be extremely careful.
25. Around 3 p.m. on 27 May 2014 Ms Gribanova received a call from a man who introduced himself as one of M.’s friends. According to him, at around 9 a.m. that day three unidentified men had approached M. in the street. Two of them were wearing camouflage uniforms, while one was in civilian clothes. They forced M. into a yellow minibus and drove him away to an unknown destination.
26. Ms Gribanova submitted that prior to their abduction N. and M. had given her their passports, which she still held.
F. Indication of interim measures under Rule 39 of the Rules of Court
27. On 27 May 2014 Ms Gribanova sought the application of Rule 39 of the Rules of Court. She asked the Court to indicate to the Russian Government that N. and M.’s removal to Uzbekistan should be suspended.
28. On the same date the Court granted that request, indicating to the Russian Government that N. and M. should not be extradited, expelled or otherwise involuntarily removed from Russia to Uzbekistan or any other country for the duration of the proceedings before the Court. It also asked the Government for information as to N. and M.’s whereabouts.
G. Subsequent events
1. Information provided by the Government
29. On 17 June 2014 the Government informed the Court that N. and M. had not been arrested by the Russian authorities on 26 and 27 May, and that since 25 May 2014 they had not passed through any border crossing points in the Kaliningrad region. Their whereabouts were unknown.
2. Information provided by Ms Gribanova
30. On 28 May 2014 Ms Gribanova received a telephone call from N.’s wife, who told her that she and N.’s father had been summoned by the Uzbek security service several times. The Uzbek authorities had insisted that N. return to Uzbekistan voluntarily or else he would be forcibly returned.
31. On 25 July 2014 Ms Gribanova submitted to the Court that there were grounds to believe that N. and M. had been transferred to Uzbekistan on one of the two direct flights from Kaliningrad which had been scheduled after the Court’s indication of interim measures. She also submitted that at the time of their abduction N. and M. had not been in possession of their passports, so they could not have crossed the border without the knowledge and passive or active involvement of the Russian authorities.
32. On an unspecified date Ms Gribanova was visited by a man who introduced himself as N.’s “mate”. He said that N.’s father had informed him that N. was in Uzbekistan.
33. On an unspecified date M.’s relatives informed Ms Gribanova that he had been transported to Uzbekistan on 2 June 2014.
34. In mid-October 2014 Ms Gribanova was contacted by some people who introduced themselves as N. and M.’s relatives. They asked her to return N. and M.’s passports. They explained that N. and M. were standing trial in Uzbekistan and therefore needed them. She refused to hand them over unless they made a written statement confirming that the passports had been taken by them and why. The people disappeared and never contacted her again.
H. Investigation into the disappearance of N. and M.
35. At the end of June 2014 the Kaliningrad regional department of the interior informed Ms Gribanova that enquiries had been made after she had reported that N. and M. had been abducted, but that their abduction by unknown persons and transportation to Uzbekistan had not been confirmed. In particular, N.’s relatives in Uzbekistan had submitted that he had been living in Kaliningrad, and there had been no information regarding N. and M.’s possible arrest by Russian law-enforcement bodies or their departure from the Kaliningrad region. Nor were their names on the list of deceased persons.
36. Between July 2014 and January 2015 the investigating authorities on several occasions refused to initiate criminal proceedings into N. and M.’s disappearance, for lack of corpus delicti. However, the decisions were overruled each time by the head of the Investigation Committee, and the matter was sent for additional investigation.
37. In one of the refusals to initiate criminal proceedings, namely a decision taken on 20 November 2014, the investigator referred to information provided by the information centre of the Kaliningrad department of the interior, to the effect that N. had been arrested in Uzbekistan on 11 June 2014.
38. On 31 March 2015 an investigator from the local investigation committee initiated criminal proceedings into N. and M.’s abduction by unknown persons. The Government did not inform the Court of the outcome of those proceedings.
39. Ms Gribanova submitted that on 16 June 2015 she had been summoned by the investigator in charge of the case to give evidence as a witness.
40. On 17 June 2015 she appeared before the Investigation Committee and claimed that she could not be questioned as a witness. She applied to be acknowledged as representing N. and M. She was allegedly told that the investigator possessed information to the effect that M. had been detained by the Uzbek authorities in Tashkent, Uzbekistan, shortly after his disappearance from Kaliningrad.
I. Family situation of N. and M.
41. In various proceedings in Russia N. and M. were questioned about their family situation, among other things.
42. N. submitted that all his relatives lived in Uzbekistan. He had been married but was divorced. He had a son from his marriage. He was not in contact with his former wife or their son. Since 2003 he had been living with his female partner B., an Uzbek national, with whom he had two daughters. Between 2011 and 2013 B. and their daughters had lived in Kaliningrad. In August 2013 B. and the children had returned to Uzbekistan, because one of their daughters needed to undergo an operation there. N. was in regular telephone contact with his parents, sisters and brothers. He submitted that he was not aware of any persecution of his family members in Uzbekistan.
43. M. submitted that all his relatives lived in Uzbekistan. He was married to Kh., an Uzbek national, and they had two sons. In 2011 his wife came to Russia to visit him and stayed with him. Their children stayed in Uzbekistan with their grandparents. In March 2013 his wife returned to Uzbekistan. He was in regular telephone contact with his wife and their two young children, as well as his father and brothers and sisters.
COMPLAINTS
44. Ms Gribanova complained under Article 3 of the Convention that N. and M. had been abducted in Russia with a view to their unlawful expulsion to Uzbekistan where they would be persecuted on charges of being members of banned religious organisations and subjected to torture. She considered that the Russian authorities had been involved in their abduction and transfer to Uzbekistan.
45. She also complained under Article 3 that the Russian authorities had not created an effective mechanism for the protection of persons such as N. and M. from abductions and transfers.
46. She further complained under Article 34 that N. and M. had been transferred from Russia to Uzbekistan in breach of the interim measures indicated by the Court.
47. Lastly, she complained under Articles 3 and 34 that there had been no effective remedy in Russia to protect N. and M. from abduction and transfer to Uzbekistan and that the Russian authorities had not carried out an effective investigation into the circumstances of their abduction.
THE LAW
A. Joinder of the applications
48. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.
B. The Government’s preliminary objection
1. The Government’s submissions
49. The Government considered the applications incompatible ratione personae with the provisions of the Convention. In particular, they submitted that Ms Gribanova had not provided any valid authority confirming her standing to lodge applications with the Court on behalf of N. and M., so she was acting on her own initiative and in her own name. Taking into account that the present applications had been lodged after N. and M.’s disappearance, and that their current whereabouts were unknown, the applications should have been lodged by N. and M.’s relatives or a lawyer hired by them, as had been the case in numerous previous disappearance cases examined by the Court. In the absence of any valid authority to act issued by the relatives it was impossible to establish N. and M.’s true intentions, or to ascertain whether their interests were being properly represented by Ms Gribanova.
2. Ms Gribanova’s submissions
50. Ms Gribanova claimed that she did have legal standing to lodge applications on behalf of N. and M. with the Court. She relied on two arguments. Firstly, the nature of the violation of the Convention raised before the Court in the present case had made it impossible for N. and M. to issue a valid authority to act. However, the statements they had addressed to her prior to their disappearance proved their wish to be represented by her. Secondly, the present case was similar to the cases of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, ECHR 2014) and Association for the Defence of Human Rights in Romania – Helsinki Committee on behalf of Ionel Garcea v. Romania (no. 2959/11, 24 March 2015), in which the Court held that in exceptional circumstances and in cases involving allegations of a serious nature it should be open to associations to represent victims in the absence of a power of attorney, and notwithstanding that the victim may have died before the application was lodged with the Court. The present case concerned serious allegations of breaches of N. and M.’s rights guaranteed under Articles 3 and 13 of the Convention; neither of them had relatives or close family members in Russia, and she had represented them in the domestic proceedings.
3. The Court’s assessment
(a) The Court’s case-law
51. In order to rely on Article 34 of the Convention, an applicant must be able to claim to be a victim of a violation of the Convention. According to the Court’s established case-law, the concept of “victim” must be interpreted autonomously, and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Nencheva and Others v. Bulgaria, no. 48609/06, § 88, 18 June 2013). The individual concerned must be able to show that he or she was “directly affected” by the measure complained of (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, cited above, § 96, with further references).
52. An exception is made to this principle where the alleged violation or violations of the Convention are closely linked to a death or disappearance in circumstances allegedly engaging the responsibility of the State. In such cases, the Court has recognised the standing of the victim’s next of kin to submit an application (see Nencheva and Others, cited above, § 89, and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, §§ 98-99, with further references).
53. Where the application is not lodged by the victims themselves, Rule 45 § 3 of the Rules of Court requires the production of a written authority to act, duly signed. It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim on whose behalf they purport to act before the Court (see Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009; Nencheva and Others, cited above, § 83; and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 102).
54. Special considerations may arise in the case of victims of alleged breaches of Articles 2, 3 and 8 of the Convention at the hands of the national authorities.
55. In Lambert and Others v. France [GC] (no. 46043/14, §§ 93-95, ECHR 2015 (extracts)) the Court reviewed the cases in which the Convention institutions had accepted that a third party (a close relative, an association or a legal professional), could, in exceptional circumstances, act in the name and on behalf of a vulnerable person who had not been able to lodge a complaint with the Court on account of his or her age, sex or disability, and identified the following criteria: the risk that the direct victim would be deprived of effective protection of his or her rights, and the absence of a conflict of interests between the victim and the applicant (see Lambert and Others, cited above, § 102).
(b) Application to the present case
56. It is not disputed by the parties that N. and M., who appear to be direct victims of the alleged violation of the Convention, have never been in contact with the Court. The present applications on their behalf were lodged with the Court by Ms Gribanova, a lawyer practising in Kaliningrad. She did not provide any written authority to act, but claimed that prior to their disappearance N. and M. had addressed statements to her which should be regarded as the expression of their wish to authorise her to lodge applications with the Court on their behalf. Alternatively, she considered that, having regard to the serious nature of the violations alleged, the fact that there were no close family members in Russia and the fact that she had represented N. and M. in the domestic proceedings, it should be open to her to act on their behalf in the proceedings before the Court, notwithstanding the fact that she did not have specific authority to do so.
57. In so far as Ms Gribanova referred to the statements which N. and M. had addressed to her in April 2012 (see paragraph 14 above), the Court agrees that the statements could have been regarded as an indication that N. and M. had trust in Ms Gribanova, particularly taking into account that they had also given her their passports. However, the Court observes that the statements had been made two years prior to the alleged disappearance of N. and M. and contain no specific and explicit instructions as to the actions to be taken before the Court. It follows that the statements by N. and M. addressed to Ms Gribanova two years prior to their alleged disappearance cannot be accepted as proof of their wish to be represented by Ms Gribanova in the proceedings before it.
58. It remains to be examined whether, in the circumstances of the present case, Ms Gribanova may lodge applications with the Court in the name of and on behalf of N. and M.
59. In order to answer this question the Court has to decide whether the principles established in the Lambert and Others case are applicable in the present case and, more particularly, whether N. and M. can be considered vulnerable persons who were not able to lodge complaints to the Court themselves.
60. In Lambert and Others the Court held that third parties could, in exceptional circumstances, act in the name of and on behalf of a vulnerable person who had not been able to lodge a complaint with the Court on account of his or her age, sex or disability. The Court considers that this list is not exhaustive. Indeed, individuals may be considered vulnerable on account of many other factors, such as the very nature of the complaint lodged with the Court on their behalf, as in the present case. The Court therefore considers that N. and M. can be regarded as vulnerable individuals who have not been able to lodge applications with the Court as, allegedly, they have been abducted. It follows that the criteria established in Lambert and Others can be applied to the present case. It thus remains to be determined whether the case at hand satisfies those criteria: whether there is a risk of N. and M. being deprived of effective protection of their rights and whether there is a conflict of interests between them and Ms Gribanova (see Lambert and Others, cited above, § 102).
61. It was established in the domestic proceedings that both N. and M. had close family members in Uzbekistan with whom they were in regular contact (see paragraphs 41-43 above). After their disappearance their relatives had been in contact with Ms Gribanova (see paragraphs 30 and 33 above) so could have become aware of their alleged abduction. The Court does not have at its disposal any information allowing it to conclude that members of N. and M.’s families have been unable to lodge applications with the Court to complain about (the investigation concerning) N. and M.’s disappearance. The fact that N. and M.’s family members were questioned by the Uzbek authorities does not automatically mean that they were subject to any kind of pressure which prevented them from applying to the Court.
62. In such circumstances, the Court does not discern any risk of N. and M. being deprived of effective protection of their rights since, in accordance with the Court’s settled case-law, it has been open to the immediate family to cite before the Court on their own behalf the rights set out in the relevant Convention provisions (see, for instance, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, §§ 111-13, ECHR 2009). Therefore, the present case is different from the cases of Centre for Legal Resources on behalf of Valentin Câmpeanu and Association for the Defence of Human Rights in Romania – Helsinki Committee on behalf of Ionel Garcea, both cited above, in which the direct victims of the alleged violations had died and had no one to represent them.
63. Regard being had to the above, the Court discerns no exceptional circumstances in the present case that would allow Ms Gribanova to act in the name and on behalf of N. and M. and concludes that she does not have standing to lodge the applications in the name and on behalf of N. and M. It follows that the applications are incompatible ratione personae with the provisions of the Convention, pursuant to Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4.
64. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court, by a majority,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 19 May 2016.
Stephen PhillipsLuis López Guerra
RegistrarPresident
Full & Egal Universal Law Academy