JOINT PARTLY DISSENTING OPINION OF JUDGES LEMMENS AND KELLER

1. We agree with the main conclusions adopted in this case, in particular those relating to the violations of Articles 2 and 3 of the Convention.

To our regret, however, we cannot agree with the majority ’ s decision to declare inadmissible the applicants ’ complaint of a violation of Article 13 in conjunction with Article 3, in respect of Mr Murdalov ’ s ill-treatment. According to the majority, since the Court found no violation of Article 3 there was no “arguable claim”, and therefore the Article 13 complaint has been declared manifestly ill-founded (see paragraph 97 of the judgment and operative point 3). In our opinion, such reasoning is too straightforward.

2. We of course agree that under Article 13 an effective remedy is required only for Convention complaints that can be regarded as “arguable” under the Convention (see, among many other authorities, Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131; Nada v. Switzerland [GC], no. 10593/08, § 208, ECHR 2012; and Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 207, 23 February 2016).

The arguability of a Convention complaint forming the basis of a complaint under Article 13 must be determined in the light of the particular facts and the nature of the legal issue or issues raised (see, among other authorities, Boyle and Rice , cited above, § 55; Plattform “Ärzte für das Leben” v. Austria , 21 June 1988, § 27, Series A no. 139; Diallo v. the Czech Republic , no. 20493/07, § 64, 23 June 2011; M.A. v. Cyprus , no. 41872/10, § 117, ECHR 2013 (extracts); and Asalya v. Turkey , no. 43875/09, § 97, 15 April 2014). A complaint may be regarded as arguable when it is not prima facie untenable and warrants an examination on the merits by the appropriate national authorities (see Çelik and İmret v. Turkey , no. 44093/98, § 57, 26 October 2004; Nuri Kurt v. Turkey , no. 37038/97, § 117, 29 November 2005; and Singh and Others v. Belgium , no. 33210/11, § 84, 2 October 2012).

The fact that the Court finds that a substantive right has not been violated does not necessarily imply that the relevant complaint was not arguable for the purposes of Article 13 (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 137, ECHR 2003 ‑ VIII, and Diallo , cited above, § 64). Even the fact that a substantive complaint is declared inadmissible does not necessarily exclude the operation of Article 13 (see M.A. v. Cyprus , cited above, § 117, and Asalya , cited above, § 97).

3. In the present case, the Court has found that the ill-treatment inflicted on Mr Murdalov amounted to torture within the meaning of Article 3 (see paragraph 74 of the judgment). That means, in our opinion, that the applicants ’ complaint under Article 3 was arguable – indeed, more than arguable.

The effective investigation conduct ed into the ill-treatment of Mr Murdalov (see paragraph 91 of the judgment) and the fact that the first applicant has received a reasonable amount as compensation for the torture to which Mr Murdalov was subjected (see paragraph 90 of the judgment), while neither the second nor the third applicant has ever lodged a claim for compensation (see paragraph 70 of the judgment), are all circumstances which in our opinion cannot detract from the arguability of the Article 3 complaint.

Given the arguability of that complaint, we consider that the applicants ’ Article 13 complaint should have been declared admissible.

4. On the merits, the Court would then have had to ascertain whether the applicants enjoyed the right to an effective remedy in respect of their complaint that Mr Murdalov had been ill-treated.

Since we agree with our colleagues that there has been an effective investigation and that it was possible to obtain a reasonable amount of compensation for the ill-treatment inflicted on Mr Murdalov (see point 3 above), we would have concluded that there had been no violation of Article 13.

That would, however, be a decision on the merits, not one on the admissibility of the complaint.

APPENDIX

Application no.

Lodged on

Applicants

Date of Birth

Place of Residence

Nationality

Kinship to the abducted person

Represented by

Pecuniary damage

Non-pecuniary damage

Costs and expenses

51933/08

14/10/2008

1. Mr Astemir MURDALOV

1951

Grozny

Russian

2. Ms Rukiyat MURDALOVA

1953

Grozny

Russian

3. Ms Zalina MURDALOVA

1977

Grozny

Russian

Father

Mother

Sister

STICHTING RUSSIAN JUSTICE INITIATIVE/

ASTREYA

Sought by the applicants

RUB 803,661 (EUR 11,010) to each of the first and second applicants

No claim by the third applicant

In an amount to be determined by the Court

EUR 6,336

Awarded by the Court

EUR 5,000 (five thousand euros) to the first and second applicants each

EUR 80,000 (eighty thousand euros) to the applicants jointly

EUR 2,000 (two thousand euros)