FOURTH SECTION

DECISIONNote

AS TO THE ADMISSIBILITY OF

Application no. 44125/98 
by Vasily Mikhailovich SYRKINNote 
against RussiaNote

The European Court of Human Rights (Fourth Section) sitting on 25 November 1999 as a Chamber composed of

Mr M. Pellonpää, President
 Mr A. Pastor Ridruejo, 
 Mr L. Caflisch, 
 Mr J. Makarczyk, 
 Mr V. Butkevych, 
 Mr J. Hedigan,

Mr A. Kovler, judges

and Mr V. Berger, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 July 1998 by Vasily Mikhailovich Syrkin against Russia and registered on 28 October 1998 under file no. 44125/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

 

THE FACTS

The applicant is a Russian citizen, born in 1942 and living in Poltava, Ukraine.

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1990 the applicant’s son, an army officer, was sent to serve in the Soviet military unit in Eberswalde, Germany.  On 9 October 1991 he informed his parents over the phone that he would be leaving for his home leave in Ukraine by car.  Following this announcement he disappeared.  On 25 November 1991 the military authorities initiated a criminal investigation into his disappearance on the suspicion of his having deserted his duty station after failing to return at the end of his leave.

Since then the applicant has addressed numerous letters to various authorities concerning the fate of his son.

On 27 December 1991 the military prosecutor informed the applicant that he had contacted the German authorities with a request for assistance in establishing his son’s whereabouts.

On 2 March 1992 the military prosecutor announced that the German authorities had not yet reported anything positive and that the applicant’s theory of his son possibly being in a city hospital had not been proved to be true.

On 29 June 1992 the military prosecutor informed the applicant that the authorities of Poland, Belarus and Ukraine had also been involved in the investigation of his son’s whereabouts.

In January 1993 the applicant visited his son’s military duty station in Germany. During his visit he had the possibility of acquainting himself with his son’s case file and of discussing the matter with the investigative authorities as well as with his son’s fellow servicemen.

On 18 February 1993 the military prosecutor assured the applicant of the continuing active search for his son.

On 23 April 1993 the military prosecutor informed the applicant that, based on the reply by the German authorities, his son had not been  found in any of the German medical or military establishments.

On 30 July 1993 the military prosecutor stated that the physical search for his son in the territory of foreign States could only be carried out by the authorities of those States and that search requests had been sent to the German, Polish, Belarus and Ukrainian authorities.

In 1993 the military unit in which the applicant’s son had served was withdrawn from Germany and stationed in Russia.

It appears that on an unspecified date in 1992 the criminal investigation had been suspended.  The investigation, however, recommenced prior to April 1993, apparently after an intervention by the Prosecutor General’s office.

On 30 December 1993 the Prosecutor General’s office stated that the reason for continuing the investigation was the fact that it had been inadequate.  On 5 March 1994 the applicant was informed that the basis of the investigation had been changed as the probable cause of his son’s disappearance was murder rather than desertion.

On 21 May 1994 the criminal investigation was suspended again.  Following an intervention by the military prosecutor of the Moscow Military Region, who considered that the investigation had been inadequate, the proceedings recommenced on 20 October 1994.

On 4 April 1995 the criminal investigation was once more suspended.  On 21 February 1996 the military prosecutor of the Moscow Military Region stated that, despite the suspension of the preliminary investigation, the search for the applicant’s son’s whereabouts was continuing.  However, the efforts of the German and Polish authorities, as well as of the Interpol national offices in Russia and Ukraine, had not led to a positive result.

On 10 November 1996 the Chief Military Prosecutor of Russia announced that, as the criminal investigation had been incomplete, the proceedings had recommenced 20 October 1996.

On 20 July 1998 the Personnel Division of the Russian Ministry of Defence announced that the applicant’s son no longer appeared on its staff list.

The applicant has also addressed numerous letters concerning the fate of his son to the Ukrainian authorities.  On 25 August 1998 the Ukrainian Ministry of Internal Affairs replied that, according to the German authorities, his son never exited the German border and that it had sent search requests to Interpol offices in 12 European countries.

COMPLAINTS

The applicant complains that his son is being unlawfully detained by the authorities and that his son does not have a possibility to challenge his detention.  He suspects that the lack of progress in the official investigation, as well as the deletion of his son’s name from the military staff, list serve as a cover-up for his unlawful confinement.  He invokes Articles 4 and 13 of the Convention.

THE LAW

The applicant complains that his son has been unlawfully deprived of his liberty and that his son lacks an effective remedy to challenge his detention.

The Court considers that the applicant’s complaint ought to be examined under Article 13 of the Convention in conjunction with Article 5 of the Convention, which guarantees the right to liberty and security of person.

Article 13 of the Convention provides as follows:

“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.”

The Court first observes that the applicant’s complaint relates to events which started in 1991, i.e. prior to 5 May 1998, which is the date of the entry into force of the Convention with respect to Russia.  However, according to the generally recognised principles of international law, the Convention is binding on the Contracting States only in respect of facts occurring after its entry into force.  In so far as the complaint concerns a situation still existing, the Court, in assessing the conduct of the authorities as a whole, can nevertheless have regard to the measures taken by the authorities prior to 5 May 1998.

The Court recalls that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order.  The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision.  The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or the omission of the authorities of the respondent State (see, for example, the Kaya v. Turkey judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, pp. 329-330, § 106, and the Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1189, § 139).

However, Article 13 cannot be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A, no. 131, p. 23, § 52).

In the present case the applicant’s complaint concerns the failure of the authorities to make any progress in establishing the whereabouts of his son on account of their alleged implication in his son’s disappearance.  The Court recalls that where the relatives of a person have an arguable claim that the latter has disappeared at the hands of the authorities, the notion of an effective remedy for the purposes of Article 13 entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigative procedure (see the Kurt judgment cited above, p. 1189, § 140).

The Court observes that at the time of the disappearance of the applicant’s son, the military unit in which the latter served was stationed in Germany.  It further observes that, faced with the difficulties in conducting a search in a foreign country, the authorities sought 
international assistance in establishing the whereabouts of the applicant’s son. It also finds that the authorities gave adequate consideration to the applicant’s versions of his son’s possible whereabouts and allowed him to consult the material gathered in the course of the investigation.  On the basis of the available information the Court does not find it substantiated that the applicant’s son has been detained by the Russian authorities. Furthermore, while it is true that the official investigation after eight years has not led to a positive result, the Court considers that, in the circumstances of the present case, the authorities have not failed in their duty to take adequate steps in investigating the disappearance of the applicant’s son.

In these circumstances, the Court does not find that the applicant has an arguable claim of unlawful detention under Article 5 of the Convention which would require a remedy under Article 13 of the Convention, or that the authorities’ reaction to the events in question has otherwise been inadequate.

It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Vincent Berger Matti Pellonpää 
 Registrar President

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