THIRD SECTION
DECISION
Application no. 41917/06
Batyr Dzhorakulovich ROZYYEV
against Russia
The European Court of Human Rights (Third Section), sitting on 17 December 2020 as a Committee composed of:
Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having regard to the above application lodged on 31 July 2006,
Having regard to the decision to restore the application to its list of cases,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Batyr Dzhorakulovich Rozyyev, a Russian national, was born in 1970 and lived in Vyazniki. He was represented before the Court by Ms O. Preobrazhenskaya and Mr N. Tsoy, lawyers practising in Strasbourg and Moscow, respectively.
The applicant’s complaint about poor conditions of detention was communicated to the Russian Government (“the Government”).
On 21 March 2019, the Court (Third Section) sitting as a Committee, delivered a decision in a group of cases, which included the current application (see Rozyyev and Others v. Russia, no. 41917/06 and 19 others, 21 March 2019). It decided to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration submitted by the Government and awarding the applicant the amount of 13,675 euros (EUR) in respect of pecuniary and non-pecuniary damage and costs and expenses.
On 18 June 2019, the Government made a request to restore the application to the Court’s list of cases, as in the course of the proceedings to enforce the Court’s decision, they were informed that the applicant had died on 28 October 2018. The Government noted that the applicant’s representatives had failed to inform the Court of their client’s death and that no legal heir had manifested intention to join the proceedings in the applicant’s place.
On 12 December 2019 the Court decided, under Rule 43 § 5 of the Rules of the Court, to disjoin the current application from those to which it had been joined and to restore it to its list of cases.
By letters dated 17 December 2019 and 28 May 2020, sent by registered post, the applicant’s representatives were notified that the application had been restored to the Court’s list of cases and they were invited, in particular, to inform the Court whether there were any heirs who wished to pursue the application before the Court.
By letters dated 20 January and 8 June 2020 the applicant’s representatives informed the Court that Ms Djamilya Gerasimova, who presented herself as a sister of the applicant, wished to pursue the application before the Court.
THE LAW
The Court must address the question of Ms Gerasimova’s right to pursue the application originally lodged by the applicant, who died on 28 October 2018.
Where the applicant has died after the application was lodged, the Court has accepted that the next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, with further references).
In this connection the Court has considered whether or not the persons wishing to pursue the proceedings were the applicant’s close relatives (see, among many other authorities, Scherer v. Switzerland, 25 March 1994, §§ 31 and 32, Series A no. 287, and Thévenon v. France (dec.), no. 2476/02, ECHR 2006‑III).
As a second criterion, the Court has examined whether the rights concerned were transferable. On the one hand, the Court has continued the examination of cases involving pecuniary claims that were transferable to the deceased applicant’s heirs. On the other hand, the Court has found that certain other rights, such as those guaranteed by Articles 2, 3, 5, 8, 9 and 14 were of an eminently personal and non-transferable nature (see, for example, Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000‑XI).
However, the transferability of the applicant’s claim is not always decisive. It is not only material interests which the successor of a deceased applicant may pursue by his or her wish to maintain the application. Human rights cases before the Court generally also have a moral dimension and persons near to an applicant may thus have a legitimate interest in seeing to it that justice is done even after the applicant’s death (see, among many other authorities, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII, and Zverevy v. Russia (dec.), no. 55098/10, 5 January 2016).
Turning to the present case, the Court first observes that Ms Gerasimova presented herself as the applicant’s sister. However, she did not present the Court with unequivocal evidence of family relationship with the late applicant. She provided the Court with copies of her passport and birth certificate. They contain information that could only be seen as indirect evidence of existence of family ties. The remaining documents, predominately correspondence with the applicant’s representatives, also do not contain explicit indication of close kinship.
Nonetheless, it is not necessary to ascertain the veracity of Ms Gerasimova submissions, as irrespective of that the Court finds her unable to pursue the application due to the following considerations.
The Court reiterates that the applicant had raised complaints under Articles 3 and 5 of the Convention about inadequate conditions of his detention, excessive length of pre-trial detention and the lack of effective remedies therefor. These complaints are so closely linked to the person of the original applicant that they cannot be regarded as transferable (see, for example, Stankevich v. Ukraine (dec.), no. 48814/07, 26 May 2009; M.P. and Others v. Bulgaria, no. 22457/08, §§ 97 and 99, 15 November 2011, with further references; and Brūzītis, v. Latvia (dec.), no. 15028/04, 26 August 2014).
It remains to be seen whether Ms Gerasimova can still be regarded as having sufficient legitimate interest in the case for the Court to continue its examination.
The Court is mindful that Ms Gerasimova did not state that she had suffered any consequences from the alleged violation of the applicant’s rights. Furthermore, she did not dispute the she did not actively participate in the proceedings and that she did not herself seek contact with the applicant’s representatives after the applicant’s death. It is not even clear whether she maintained contact with the applicant prior to his death and whether she knew about important developments in his life, or even that he had lodged an application with the Court.
In view of the above, the Court is not convinced that Ms Gerasimova has a legitimate interest to pursue the proceedings before the Court in the applicant’s stead.
Finally, the Court considers that respect for human rights does not require it to continue the examination of the present case.
In these circumstances the Court finds that it is no longer justified to continue the examination of the application and concludes pursuant to Article 37 § 1 (c) of the Convention that the application should be struck out of its list of cases.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Done in English and notified in writing on 21 January 2021.
Liv TigerstedtDarian Pavli
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy