Постановление европейского суда по правам человека от 26.07.2007 <дело мусаева и другие (musayeva and others) против россии> [англ.]

or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."
A. Damage
1. Pecuniary damage
126. The applicants claimed compensation for lost earnings of their breadwinners, Ali and Umar Musayev, in the amount of EUR 100,000 for each of them and for each of the three minor children of the third applicant and Ali Musayev. The applicants did not substantiate the amount sought; nor did they indicate whether their two relatives had been gainfully employed at the time of their arrest, and, if so, what occupation they had had and what wages they had received.
127. The Government argued that the applicants' claims under this head were speculative, excessive and unfounded. They also pointed out that the children of the third applicant and Ali Musayev were not listed among the applicants, and therefore their claims should not be taken into account.
128. The Court observes that it has awarded compensation in respect of lost earnings in cases where a violation of Article 2 in its substantive aspect has been found (see, among other authorities, Salman cited above, § 137, or Imakayeva v. Russia, No. 7615/02, § 213, 9 November 2006). However, in those cases the applicants had produced detailed and reliable calculations in support of their claims (see Salman cited above, § 135, or Imakayeva cited above, §§ 210 - 11), whereas in the present case the applicants, while claiming a considerable amount, provided no information or documents to corroborate their claims. In the absence of any relevant information which would enable the Court to assess the amount of the pecuniary damage allegedly sustained by the applicants, it makes no award under this head.
2. Non-pecuniary damage
129. The applicants claimed EUR 50,000 each in respect of non-pecuniary damage for the moral suffering which they had endured as a result of the loss of their close relatives.
130. The Government considered the applicants' claims to be excessive and submitted that should the Court find a violation of the applicants' rights, a token amount would suffice.
131. The Court observes that it has found a violation of Articles 2, 3, 5 and 13 of the Convention on account of the unacknowledged detention and death of the applicants' relatives, the treatment endured by one of the applicant's relatives before he had died and the absence of effective remedies to secure domestic redress for the aforementioned violations. The Court has also found a violation of Article 38 § 1 (a) of the Convention on account of the Government's failure to submit the materials requested by the Court. The applicants must have suffered anguish and distress as a result of all these circumstances. Having regard to these considerations, the Court awards, on an equitable basis, EUR 45,000 to each of the first and second applicants and EUR 40,000 to the third applicant for non-pecuniary damage, plus any tax that may be chargeable on these amounts.
B. Costs and expenses
132. The applicants claimed EUR 10,330 for the costs and expenses incurred by them at the domestic level, which included the expenses for the medical treatment of the second applicant, the amount paid for the plan of the burial site, and transport and postal expenses. They did not submit any documents in support of this claim. The applicants also claimed EUR 12,413 in respect of costs and expenses relating to their legal representation in the proceedings before the Court. They submitted a certificate issued by the Director of the Moscow Bar Association confirming that under the contract between the applicants and their representative the lawyer's fee was equal to the aforementioned amount.
133. The Government contested the applicants' claim for EUR 10,330, stating that it had not been corroborated by any documentary evidence. They further argued that the amount of the lawyer's fee could not be considered as reasonable and necessary and that it was much higher than the usual level of fees payable in Russia for legal services.
134. The Court reiterates that in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, McCann, cited above, § 220).
135. The Court notes firstly that the applicants have not submitted any documents to substantiate their claim for the amount of EUR 10,330. It therefore accepts the Government's argument and makes no award in this respect. As regards the applicants' claim for costs relating to their legal representation before the Court, the applicants submitted a certificate in support of this claim. However, they did not submit any calculations, or a schedule of costs which would indicate the time actually spent by the applicants' lawyer on dealing with their case and the applicable rates, or any document confirming that they had actually paid the amount indicated. Furthermore, they submitted only one set of observations during the proceedings before the Court and it does not appear those observations involved much effort on the part of the applicants' representative or required much research. In such circumstances, having regard to the above criteria and the complexity of the case, the Court awards the applicants EUR 1,000 for costs and expenses, less EUR 715 received by way of legal aid from the Council of Europe, plus any tax, including value-added tax, that may be chargeable.
C. Default interest
136. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objection of non-exhaustion;
2. Holds that there has been a violation of Article 2 of the Convention as regards the killing of Ali and Umar Musayev;
3. Holds that there has been a violation of Article 2 of the Convention on account of the authorities' failure to carry out an adequate and effective investigation into the circumstances surrounding the killing of Ali and Umar Musayev;
4. Holds that there has been a violation of Article 3 of the Convention on account of the treatment suffered by Umar Musayev;
5. Holds that no separate finding is necessary under Article 3 of the Convention in respect of the alleged deficiencies in the investigation into the treatment suffered by Umar Musayev;
6. Holds that there has been no violation of Article 3 of the Convention in respect of Ali Musayev;
7. Holds that there has been a violation of Article 5 of the Convention in respect of Ali and Umar Musayev;
8. Holds that there has been a violation of Article 13 in respect of the alleged violations of Article 2 and the alleged violation of Article 3 of the Convention in respect of Umar Musayev;
9. Holds that no separate issue arises under Article 13 in respect of the alleged violation of Article 5 of the Convention;
10. Holds that there has been a failure to comply with Article 38 § 1 (a) of the Convention in that the Government refused to submit the documents requested by the Court;
11. Holds
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 45,000 (forty-five thousand euros) to each of the first and second applicants and EUR 40,000 (forty thousand euros) to the third applicant in respect of non-pecuniary damage;
(ii) EUR 285 (two hundred and eighty-five euros) in respect of costs and expenses;
(iii) any tax, including value-added tax, that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
12. Dismisses the remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing on 26 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar