Communicated on 9 February 2010

FIRST SECTION

Application no. 14985/07 Shakhi KVARATSKHELIA and Shakhi KVARATSKHELIA against Russia lodged on 3 April 2007

STATEMENT OF FACTS

A. The background to the case

1 . During the period from the end of September 2006 to the end of January 2007 identity checks of Georgian nationals residing in Russia were carried out in the streets, markets and other workplaces and at their homes. Many were subsequently arrested and taken to police stations. After a period of custody in police stations, they were grouped together and taken by bus to a court, which summarily imposed administrative penalties on them and gave decisions ordering their administrative expulsion from Russian territory. Subsequently, after sometimes undergoing a medical visit and a blood test, they were taken to detention centres for foreigners where they were detained for varying periods of time, and then taken by bus to various airports in Moscow, and expelled to Georgia by aeroplane. Some of the Georgian nationals against whom expulsion orders were issued left the territory of the Russian Federation by their own means (for further details as to the background of the case see Georgia v. Russia (I) [GC], no. 13255/07, § 45, ECHR 2014).

B. The circumstances of the present case

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

3 . The applicants, Mr Shakhi Kvaratskhelia (the first applicant) and Mr Shakhi Kvaratskhelia (the second applicant), are Georgian nationals who were born on 19 June 1937 and on 22 September 1974 respectively and live in Tbilisi (Georgia). They are Internally Displaced Persons (IDPs) from Abkhazia, Georgia. They are represented before the Court by Mr P. Beria and Mr G. Mirtskhulava, lawyers practising in Tbilisi.

4 . On 28 September 1993 the first applicant and his family were forced to leave their place of residence in Abkhazia, Georgia, due to the armed conflict in this region. In August 1994, owing to financial problems, they settled in the Russian Federation, in Moscow, where they sold farm produce on a market stall.

5 . From 1994 to 2006 the applicants were temporarily registered as living in Russia. From January 2006 the applicants stopped working for fear of being expelled from the Russian Federation, whereupon the first applicant ’ s wife and the second applicant ’ s mother, Mrs Jabelia, had been the only one with any income as she continued selling farm produce at the market.

6 . As an IDP from Abkhazia, Mrs Jabelia was issued with yearly visas in accordance with the agreement signed on 1 March 2001 between the Russian Federation and Georgia. Her last visa expired on 23 December 2005 and was not extended. Her passport was valid until 11 August 2006.

7 . On 5 January 2006 she obtained a temporary document from the Consulate of Georgia in Moscow pending the issuing of her new passport.

8 . On 2 October 2006 the Consulate of Georgia issued her with a new passport.

1. The arrest and the conditions of detention of Mrs Jabelia

9 . At about 11 a.m. on 4 October 2006 Mrs Jabelia was arrested while working at the Domodedovo market in Moscow and taken into police custody at Moscow police station no. 143.

10 . At about 3.30 p.m. on 5 October she was brought before the Nogatinski District Court (Moscow). The Court heard Mrs Jabelia and four other Georgian nationals.

11 . In a decision of the same day the court ordered Mrs Jabelia to pay a fine of 1,000 roubles and ordered her detention in the Moscow detention centre for aliens pending her administrative expulsion from the Russian Federation on the grounds that she had breached the residence rules applicable to aliens, contrary to Article 18. 8 of the Code of Administrative Offences.

12 . Upon arrival at the centre for aliens on 5 October 2006 Mrs Jabelia was examined by the medical staff and was found to be in good health. On 10 October 2006 she started complaining of very severe headaches and was diagnosed with high blood pressure. According to the applicants she had expressed her worries about her and her family ’ s situation and appeared morally depressed. The doctor of the centre visited her several times.

13 . On 13 October 2006 Mrs Jabelia lodged an appeal against the decision of 5 October 2006 with the Moscow Court of Appeal through her lawyer, Mrs I. Bergalieva.

14 . On 26 October and 10 November 2006 Mrs Jabelia requested the Court of Appeal to expedite its decision, submitting that the conditions of detention in the detention centre for aliens were unbearable and that her health had seriously deteriorated.

15 . She submitted that in the detention centre for aliens there was no drinking water, that she could only go to the toilets every four hours and had to pay a sum of money if she wanted to go to the bathroom. She alleged, further, that she had been constantly harassed by the prison authorities on account of her Georgian nationality, being made to sweep the cells and the guards ’ offices. She also maintained that she had been forced to sign a document waiving her right of appeal.

16 . On 13 November 2006 Mrs Jabelia started a hunger strike as the hearing in her case had not yet been scheduled. On 20 November 2006 she stopped her hunger strike.

17 . On 30 November 2006 a hearing was held before the Moscow Court of Appeal during which Mrs Jabelia appeared alone as the director of the detention centre for aliens had failed to validate her lawyer ’ s power of representation.

18 . On the same day the Court of Appeal set aside the decision of the Nogatinski District Court on the ground that, until 23 December 2005, Mrs Jabelia and her family had been living in Moscow and were lawfully registered. Subsequently Mrs Jabelia had not received her new passport until early October 2006, which had prevented her from having her registration extended. Accordingly the Court of Appeal found that Mrs Jabelia had not breached the residence rules applicable to aliens.

19 . Despite that decision Mrs Jabelia remained in the detention centre for aliens. At 5. 30 a.m. on 2 December 2006 Mrs Jabelia had a heart attack. The doctor from the detention centre for aliens was not available as his working hours were from 10 a.m. to 6 p.m. The staff called an ambulance, but Mrs Jabelia was already dead when it arrived.

20 . During December 2006, with the help of the Consulate of Georgia, the applicants arranged for her body to be returned to Tbilisi.

2. The investigation carried out by the Russian authorities following Mrs Jabelia ’ s death

21 . In accordance with Articles 144 and 145 of the Code of Criminal Procedure, the prosecutor ’ s office of the Tver District (Moscow) opened an investigation which was carried out from 2 December 2006 to 9 January 2007.

22 . In an order of 9 January 2007, the prosecutor indicated that there was no need to institute criminal proceedings in respect of Mrs Jabelia ’ s death. According to that order, the autopsy report had established that Mrs Jabelia had died of a stroke following a cardiac ischemia combined with high blood pressure. Furthermore, she had been compelled to return to the detention centre despite the decision of the Court of Appeal, which had failed to immediately inform the prison authorities. A copy of that decision had not arrived at the detention centre for aliens until 5 December 2006. However, there was no direct causal link between that lack of information, Mrs Jabelia ’ s unauthorised return to the detention centre and her death.

23 . On 11 September 2007 the applicants appealed against that order.

24 . In an order of 26 September 2007 the Tver District Court dismissed the appeal.

COMPLAINTS

25 . The applicants complained that there has been a violation of Article 2 of the Convention in connection with the death of Mrs Jabelia. They submitted that the authorities had known the risk related to her deteriorating health but had failed to take the necessary measures to prevent her death. Furthermore, they maintained that the authorities had not carried out an effective investigation as required by Articles 2 and 13 of the Convention.

26 . The applicants alleged that the authorities had failed to provide Mrs Jabelia with the appropriate medical treatment and that this, in connection with the uncertainty of her fate and the distress suffered, amounted to a violation of Article 3 of the Convention.

27 . They furthermore maintained that their own situation and mental suffering endured in connection with Mrs Jabelia ’ s arrest, detention and death amounted to a violation of Article 3 of the Convention.

28 . They also considered that the lack of an effective remedy amounted to a violation of Article 13 of the Convention taken in conjunction with Article 3 of the Convention in respect of Mrs Jabelia and themselves.

29 . Under Article 5 § 1 (f) of the Convention, the applicants complained that Mrs Jabelia ’ s arrest and detention had been unlawful, in particular after 30 November 2006 when the decision to detain her had been set aside. They also alleged a violation of Article 13 of the Convention taken in conjunction with Article 5 § 1 (f). Furthermore, they maintained that the proceedings related to her arrest and detention had not complied with the requirements of Article 5 § 4 of the Convention.

30 . Finally, the applicants maintained that the Russian authorities ’ treatment of Mrs Jabelia disclosed a violation of Article 18 of the Convention taken in conjunction with Article 5 § 1 (f) of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the right to life, enshrined in Article 2 of the Convention, of Mrs Jabelia, the wife of the first applicant and mother of the second applicant?

Having regard to the procedural protection of the right to life (see paragraph 104 of the judgment in Salman v. Turkey [GC], no. 21986/93, ECHR 2000 ‑ VII ), did the investigation carried out in the present case by the domestic authorities meet the requirements of Article 2 of the Convention, as well as those of Article 13 of the Convention taken in conjunction with Article 2?

2. Did the detention conditions of Ms Jabelia amount to a violation of Article 3 of the Convention? Has there been a violation of Article 13 of the Convention taken in conjunction with Article 3?

3. Has there been a violation of Article 3 of the Convention and of Article 13 of the Convention taken in conjunction with Article 3 in respect of the applicants themselves?

4. Did Mrs Jabelia ’ s arrest and detention amount to a violation of Article 5 § 1 (f) of the Convention? In particular, what was the legal basis for her detention from 30 November until 2 December 2006 after the decision of the Moscow Court of Appeal of 30 November 2006 to set aside the decision to detain her? Has there been a violation of Article 13 of the Convention taken in conjunction with Article 5 § 1 (f)?

5. Did the proceedings related to Ms Jabelia ’ s arrest and detention comply with the requirements of Article 5 § 4 of the Convention?

6. Was Ms Jabelia deprived of her liberty for a purpose other than the one mentioned in Article 5 § 1 (f) of the Convention? Accordingly, has there been a violation of Article 18 of the Convention taken in conjunction with Article 5 § 1 (f)?