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JUDGMENT
STRASBOURG
24 April 2018
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
LOZOVYYE v. RUSSIA JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 4587/09) 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 two Russian nationals, Mr Andrey Mikhaylovich
Lozovoy and Ms Tamara Vasilyevna Lozovaya (“the applicants”) on
10 November 2008.
2. The Russian Government (“the Government”) were represented
initially by Mr G. Matyushkin, the Representative of the Russian Federation
to the European Court of Human Rights, and then by his successor in that
office, Mr M. Galperin.
3. The applicants complained about the domestic authorities’ failure to
notify them of their son’s death.
4. On 8 June 2010 the application was communicated to the
Government. The parties submitted written observations on the
admissibility and merits.
THE FACTS
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.
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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.”
19. The CCrP, as in force at the material time, did not impose an explicit
obligation on the domestic authorities to notify relatives of an individual
who had died in a result of a criminal act. However, as was apparent from
other provisions of the CCrP, identification of relatives was necessary in
most cases of violent death, as relatives fulfilled the procedural role of
victim in the deceased’s stead.
20. Article 5 of the CCrP defined “close relatives” as spouses, parents,
children, adoptive parents, adopted children, brothers and sisters,
grandparents and grandchildren.
21. Article 42 § 1 of the CCrP defined a “victim” as a physical person
who had sustained physical, pecuniary or non-pecuniary damage as a result
of a criminal offence. The decision to recognise an individual as a victim
could be made by an examiner, an investigator, a prosecutor or a court.
22. Article 42 § 8 of the CCrP provided that in cases concerning crimes
which resulted in the death of a person, his or her rights of the victim should
be transferred to one of his or her close relatives.
23. As regards procedural powers of a trial court in a criminal case,
Article 29 § 4 of the CCrP provided that should the trial of a criminal case
reveal circumstances facilitating the commission of an offence or violations
of citizens’ rights and freedoms, a court could render an interim decision
drawing the attention of appropriate organisations and officials to such
circumstances or violations of the law which require adequate measures to
be taken.
24. The Burial and Funeral Affairs Act (Federal Law no. 8-FZ of
12 January 1996 – Федеральный закон от 12.01.1996 № 8-ФЗ «О
погребении и похоронном деле») regulated the organisation of funeral rites
in Russia at the time in question.
25. Section 12(1) of the Act provided that when there was no spouse,
relative or lawful representative or when he or she was unable to make
necessary funeral arrangements, the burial of a deceased was to be
performed by a special funeral agency within three days of the
determination of the cause of death.
LOZOVYYE v. RUSSIA JUDGMENT 5
THE LAW
28. The Government submitted that the authorities had acted diligently
and had made reasonable efforts to locate Mr M. Lozovoy’s relatives. Once
the search had proven fruitless, they had organised his funeral. The
applicants, for their part, had failed to maintain regular contact with their
son and had only started searching for him two months after his death.
29. The applicants maintained their initial complaint. With reference to
the interim decision issued by the Primorskiy District Court (see
paragraph 15 above) they argued that the authorities had had sufficient
information to establish that Mr M. Lozovoy had been their son and that
they could have thus informed them of his death.
1. Admissibility
30. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
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2. Merits
A. Damage
55. The applicants also claimed RUB 25,687 for the costs and expenses
incurred before the domestic courts in the tort proceedings.
56. The Government contested the applicants’ claim.
57. According to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable to grant
the applicants’ claims in full and to award them the sum of EUR 374 for
costs and expenses in the domestic proceedings.
C. Default interest
58. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
3. Holds
(a) that the respondent State is to pay the applicants, jointly, within
three months from the date on which the judgment becomes final in
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