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Законодательство Российской Федерации

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(по состоянию на 20 октября 2006 года)

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                            SECOND SECTION
                     CASE OF GARTUKAYEV v. RUSSIA
                      (Application No. 71933/01)
                             JUDGMENT <*>
                       (Strasbourg, 13.XII.2005)
       <*>  This  judgment will become final in the circumstances  set
   out  in  Article  44 з 2 of the Convention. It may  be  subject  to
   editorial revision.
       In the case of Gartukayev v. Russia,
       The European Court of Human Rights (Second Section), sitting as
   a Chamber composed of:
       Mr A.B. Baka, President,
       MR I. Cabral-Barreto,
       Mr V. Butkevych,
       Mr M. Ugrekhelidze,
       Mr A. Kovler,
       Mrs A. Mularoni,
       Mrs {E. Fura-Sandstrom} <*>, judges,
       <*> Здесь и далее по тексту слова на национальном языке набраны
   латинским шрифтом и выделены фигурными скобками.
       and Mrs {S. Dolle}, Section Registrar,
       Having deliberated in private on 22 November 2005,
       Delivers the following judgment, which was adopted on the last-
   mentioned date:
       1. The case originated in an application (No. 71933/01) 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  a  Russian  national,  Mr  Vakha
   Gartukayev, on 5 July 2001.
       2.  The  applicant was represented before the Court  by  Mr  I.
   Timishev,  a  lawyer practising in Nalchik. The Russian  Government
   ("the  Government") were represented by their Agent, Mr P.  Laptev,
   Representative of the Russian Federation at the European  Court  of
   Human Rights.
       3.  The applicant alleged, in particular, that a restriction on
   his right to liberty of movement had not been lawful or justified.
       4.  The application was allocated to the Second Section of  the
   Court  (Rule  52 з 1 of the Rules of Court). Within  that  Section,
   the  Chamber that would consider the case (Article 27 з  1  of  the
   Convention) was constituted as provided in Rule 26 з 1.
       5.  By  a  decision  of 30 March 2004, the Court  declared  the
   application partly admissible.
       6.  On 1 November 2004 the Court changed the composition of its
   Sections  (Rule  25  з  1). This case was  assigned  to  the  newly
   composed Second Section (Rule 52 з 1).
                               THE FACTS
                   I. The circumstances of the case
       7.  The applicant is an ethnic Chechen; he was born in 1941  in
   the  Chechen Republic and lived there. In 1994 his property in  the
   Chechen   Republic   was  destroyed  as  a   result   of   military
   hostilities. Since 1996 the applicant has been living  in  Nalchik;
   on  30 December 1996 a forced migrant's card was issued to him.  At
   the  material  time the applicant was the deputy  chairman  of  the
   Board  of  the  Union  of  Consumer  Associations  of  the  Chechen
       8.  On  27  January 2000 the applicant returned by car  from  a
   mission  in  the Chechen Republic to Nalchik in Kabardino-Balkaria.
   He  was  accompanied  by Mr Ba., driver, Mr M.,  a  member  of  the
   Parliament  of  the Chechen Republic, and Mr Bi., a  representative
   of the Chechen elders.
       9. At about 5 p.m. the applicant's car was stopped at the check-
   point "Kurp-2" on the administrative border between Ingushetia  and
   Kabardino-Balkaria.  After three hours of  checking  the  documents
   and  identities  of  the  applicant and his travelling  companions,
   officers  of  the  Kabardino-Balkaria State Inspectorate  for  Road
   Safety (ГИБДД МВД КБР) refused them entry to Kabardino-Balkaria  on
   the ground of their Chechen ethnic origin.
       10.  In  the  night of 27 January 2000, the applicant  and  his
   companions  took  a  long  detour and  reached  Nalchik  through  a
   different check-point.
       11.  On 24 February 2000 the applicant lodged a complaint  with
   the  Nalchik Town Court against the Kabardino-Balkaria Ministry  of
   the  Interior  (МВД КБР). The applicant sought a  declaration  that
   the  actions of the police officers had been unlawful, and  claimed
   compensation  for  non-pecuniary  damage  caused  by  the   alleged
   violation of his constitutional right to liberty of movement.
       12.  The  Nalchik  Town Court accepted the  complaint,  but  no
   proceedings  took  place  for  more  than  a  year.  Following  the
   applicant's  complaint  to  the Supreme  Court  of  the  Kabardino-
   Balkaria Republic, the Nalchik Town Court held a hearing.
       13.  On 13 April 2001 the Nalchik Town Court gave its judgment.
   The  court  found  that on 28 September 1999 the  Ministry  of  the
   Interior  of  Kabardino-Balkaria had  issued  Directive  No.  1/220
   (Указание  МВД  КБР  N  1/220) on the procedure  for  crossing  the
   administrative  border of Kabardino-Balkaria by  residents  of  the
   Chechen  Republic. The regulation provided for stricter  checks  of
   vehicles  and  passengers of Chechen origin, as  well  as  for  the
   special  registration of Chechens on the basis of migrants'  cards.
   The  court questioned the police officers who had been on  duty  on
   27   January  2000.  The  officers  maintained  that  neither   the
   applicant  nor  his companions had produced their migrants'  cards;
   the  officers had informed their superior on duty of this situation
   and,  pursuant  to  his oral order, they refused admission  to  the
   applicant  and  his companions. The court held that  the  applicant
   had failed to prove that he had indeed shown his migrant's card  to
   the  police officers and, therefore, there was no ground to declare
   their actions unlawful. The court noted that on the same night  the
   applicant  had gained admission into Kabardino-Balkaria  through  a
   different  check-point. The court also inspected  the  registration
   log  of  27  January  2000 and noted that on  the  same  day  other
   Chechen passengers carrying migrants' cards had been admitted  into
       14.  The  applicant appealed against the judgment of  13  April
   2001.  He  submitted,  in particular, that  the  regulation  of  28
   September  1999 had not been valid and enforceable because  it  had
   never been officially published.
       15.  On 22 May 2001 the Supreme Court of the Kabardino-Balkaria
   Republic  upheld the judgment of 13 April 2001. The  court  pointed
   out  that the burden of proof was on the applicant, who had  failed
   to  show  that  he  had  been denied entry because  of  his  ethnic
   (Chechen) origin.
                       II. Relevant domestic law
       16.  Article  19 of the Constitution of the Russian  Federation
   provides for the equality of all before the law and courts of  law,
   and equality of rights and liberties.
       17.  Article  27  provides that everyone  lawfully  within  the
   territory  of the Russian Federation shall have the right  to  move
   freely and choose his or her place of stay or residence.
                                THE LAW
          I. Alleged violation of Article 2 of Protocol No. 4
       18. The applicant complained that he had been refused admission
   to  Kabardino-Balkaria through the "Kurp-2" check-point. He  relied
   on  Article 2 of Protocol No. 4 which reads, in the relevant  part,
   as follows:
       "1.  Everyone  lawfully within the territory of a State  shall,
   within  that  territory, have the right to liberty of movement  and
   freedom to choose his residence. ...
       3.  No  restrictions shall be placed on the exercise  of  these
   rights  other  than  such as are in accordance  with  law  and  are
   necessary  in  a  democratic society in the interests  of  national
   security  or  public safety, for the maintenance of  ordre  public,
   for  the  prevention  of  crime, for the protection  of  health  or
   morals,  or  for  the  protection of the  rights  and  freedoms  of
       4.  The rights set forth in paragraph 1 may also be subject, in
   particular  areas, to restrictions imposed in accordance  with  law
   and justified by the public interest in a democratic society."
       19.  The  Government acknowledged that the restriction  on  the
   applicant's right to liberty of movement had been unlawful. It  had
   been  imposed  by  a  regulation issued  by  the  Ministry  of  the
   Interior  of  Kabardino-Balkaria, whereas the Liberty  of  Movement
   Law   (No.  5242-I  of  25  June  1993)  required  that  any   such
   restriction be established by an act of the legislature.
       20. The applicant took note of the Government's submission.
       21. The Court recalls that the common requirement of paragraphs
   3  and  4  of  Article  2 of Protocol No. 4 is  that  the  impugned
   restriction  should  be  imposed  "in  accordance  with  law".  The
   Government  accepted that this condition had not been  met  in  the
   present  case because the requirement for former Chechen  residents
   to  produce  a  migrant's  card at the administrative  border  with
   Kabardino-Balkaria  had been introduced by a regulation  which  had
   not  had  the  quality of "law" in the domestic legal  system.  The
   Court  has  no  reason to doubt the Government's interpretation  of
   their   own  legislation.  Accordingly,  the  restriction  on   the
   applicant's  right  to  liberty of  movement  was  not  imposed  in
   accordance   with  law.  This  finding  makes  it  unnecessary   to
   determine whether it pursued a legitimate aim and was justified  in
   a democratic society.
       22.  There  has  been therefore a violation  of  Article  2  of
   Protocol No. 4.
            II. Application of Article 41 of the Convention
       23. Article 41 of the Convention provides:
       "If  the  Court  finds that there has been a violation  of  the
   Convention  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
       24.   The  applicant  claimed  300,000  euros  in  respect   of
   compensation for non-pecuniary damage.
       25.  The  Government submitted that the applicant's  claim  was
   excessive  and  unreasonable, and that  a  token  amount  would  be
   equitable in the circumstances of the case.
       26.  The  Court considers that the applicant has suffered  non-
   pecuniary  damage resulting from the actions and decisions  of  the
   domestic  authorities  incompatible with  the  Convention  and  its
   Protocols, which is not sufficiently compensated by its finding  of
   a  violation. However, it considers that the amount claimed by  the
   applicant  is  excessive.  Making its assessment  on  an  equitable
   basis, the Court awards the applicant EUR 2,000.
                         B. Costs and expenses
       27.  The  applicant claimed 40 euros in respect  of  costs  and
       28.  The  Government  submitted that the  applicant  failed  to
   substantiate his claim for costs with appropriate documents.
       29.  The  Court  notes that the applicant did not  produce  any
   receipts  or  vouchers showing that the expenses had been  actually
   incurred. Accordingly, it does not make an award under this head.
                          C. Default interest
       30.  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
       1.  Holds  that  there has been a violation  of  Article  2  of
   Protocol No. 4;
       2. Holds
       (a)  that the respondent State is to pay the applicant,  within
   three  months from the date on which the judgment becomes final  in
   accordance  with Article 44 з 2 of the Convention, EUR  2,000  (two
   thousand  euros)  in  respect  of  non-pecuniary  damage,   to   be
   converted into Russian roubles at the rate applicable at  the  date
   of settlement, plus any tax that may be chargeable;
       (b)  that  from the expiry of the above-mentioned three  months
   until  settlement  simple interest shall be payable  on  the  above
   amount  at  a  rate  equal  to the marginal  lending  rate  of  the
   European  Central  Bank  during  the  default  period  plus   three
   percentage points;
       3.  Dismisses the remainder of the applicant's claim  for  just
       Done  in English, and notified in writing on 13 December  2005,
   pursuant to Rule 77 зз 2 and 3 of the Rules of Court.

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