CASE OF LOZOVYYE v. RUSSIA
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
5. The applicants are Russian nationals who were born in 1952 and 1954 respectively, and live in the town of Belomorsk in the Republic of Karelia. 6. On 1 December 2005 the applicants’ son, Mr M. Lozovoy, was killed in St Petersburg. Criminal proceedings were instituted against a Mr O. on a murder charge. 7. On 18 January 2006 Ms L., an investigator of the Primorskiy district prosecutor’s office in St Petersburg, asked the head of the Primorskiy district police to identify relatives of the deceased, Mr M. Lozovoy; to establish their place of residence and to summon them to the prosecutor’s office for the purpose of granting them victim status in the criminal case. 8. A week later the applicants’ son was buried under his full name in St Petersburg. A record in a cemetery registration log indicated that the body had been unclaimed. 9. On 30 January 2006 the investigator, having concluded that it was impossible to identify relatives of the deceased, assigned the status of victim in the criminal case to a representative of the municipal authorities. The following day police officials informed the investigator that operative measures undertaken by them to identify Mr M. Lozovoy’s relatives had not produced any result. 10. On 2 February 2006 the applicants contacted Ms L. and informed her of their intention to come to St Petersburg to take part in the criminal proceedings. 11. Despite the applicants’ notice, five days later Ms L. sent the criminal case file to the Primorskiy District Court for trial. 12. Sometime later the applicants were invited to take part in the criminal proceedings in the capacity of victims. 13. On 14 February 2006 the applicants were allowed to exhume their son’s remains. Two days later they buried him in Belomorsk. 14. On 6 June 2006 the Primorskiy District Court found Mr O. guilty of having murdered the applicants’ son and sentenced him to six years’ imprisonment. 15. On the same day, responding to the applicants’ complaints about the authorities’ failure to notify them of their son’s death, the District Court issued an interim decision (частное постановление) in respect of the investigator, Ms L. The decision, addressed to the Primorskiy district prosecutor, in so far as relevant, read as follows: “Moreover, the [finding] that the investigator, Ms L., did not take sufficient steps to find relatives of the deceased and that measures undertaken [by her] were formalistic in character is not only confirmed by the fact that the decision assigning victim status to [a representative of the municipal authority], had been taken before the information was received from the police officials, but also by the fact that criminal-case-file material contained sufficient information about [the applicants’ son], on the basis of which it was possible to establish the place of residence of his relatives ([there was] an explanation from Mr O. made on 1 December 2005, in which he had given the information about the place of residence of [the applicants’ son]; a statement made by Mr O. on 8 December 2005 in which he said that a criminal case against [the applicants’ son] was pending before a court; statements by a witness, Ms A., who asserted that [the deceased’s] mother had occasionally made telephone calls to [the deceased’s] flat; a certificate on [the deceased’s] criminal record from which it is apparent that the Primorskiy district prosecutor’s office of St. Petersburg applied a measure of restraint in the form of a written undertaking in respect of [the applicants’ son] in criminal case no. 137755; the material in the abovementioned criminal case file contain a copy of [the applicants’ son’s] passport; and so forth). It follows that the victims’ rights envisaged by the law in force were substantially violated in the course of the preliminary investigation. Relying on Article 29 § 4 of the Russian Code of Criminal Procedure, [the court] rules: that the violations of criminal-procedural law committed during the preliminary investigation in the criminal case should be brought to the attention of the Primorskiy district prosecutor in St Petersburg; that the Primorskiy District Court of St Petersburg should be informed of the measures taken no later than a month after the receipt of the present decision.” 16. In 2007 the applicants lodged an action against the Prosecutor General’s Office and the Ministry of Finance, seeking compensation for pecuniary and non-pecuniary damage. Relying on the Primorskiy District Court’s interim decision of 6 June 2006, the applicants argued that as a result of the investigator’s failure to promptly notify them of their son’s death, they had sustained pecuniary damage, having been forced to pay for the exhumation and transport of their son’s remains from St. Petersburg to Belomorsk. In addition, they had suffered non-pecuniary damage as they had been unaware of their son’s whereabouts for a long time and had been forced to initiate a search for him; they had been unable to properly say “goodbye” to their son and to provide him with a decent burial; they had been forced to go through a two-week bureaucratic procedure to obtain permission to exhume their son’s remains; and subsequently, after the exhumation, they had been forced to identify his disfigured remains. 17. On 5 February 2008 the Tverskoy District Court of Moscow dismissed the claim, having found that the investigator had not committed any unlawful actions and there had been no final decision by any domestic court to establish otherwise. 18. On 20 May 2008 the Moscow City Court upheld the judgment endorsing the District Court’s reasoning.