Strasbourg Observers

(In)justice and admissibility: No standing for their representative, but effective protection for disappeared victims?

June 09, 2016

By Helena De Vylder

In the inadmissibility decision delivered on 26 April 2016 in the case of N. v. Russia and M. v. Russia, the Court rejects the petition for lack of standing of the applicants’ representative. The victims were unable to formally appoint their representative by signing a ‘power of attorney-document’, since they disappeared, allegedly as the result of a forced extradition to Uzbekistan. The Court considered that their representative could not lodge applications to the Court in their name, in the absence of a duly signed power of attorney to represent them, not just in the domestic proceedings, but also before the ECtHR. According to the Court, the vulnerable applicants did not risk being deprived of effective protection, since it was open to their immediate family to complain. The fact that the direct family members all reside in Uzbekistan, and were formerly questioned by the authorities there, were not considered to prevent the family members from applying. It will consequently never be examined whether the applicants’ abduction and transfer to their home state of Uzbekistan violate the prohibition of torture (article 3 ECHR).


The two applicants are Uzbek nationals residing in Russia. They were charged in Uzbekistan in absentia with membership of banned religious and terrorist organisations, and therefore the subject of extradition proceedings in Russia. Eventually those proceedings did not obtain the wanted result; both applicants were released by the Russian authorities. Consequent applications for refugee-status or temporary asylum based on the fear to be subjected to ill-treatment upon their return to Uzbekistan, remained unsuccessful.

Shortly after, both applicants disappeared in mysterious circumstances: after having been summoned by the FMS – the Federal Migration Services – and under pressure of the Uzbek Security Services to return. The applicants’ representative, Ms Gribanova, was informed by the first applicant that he had been forced into a car and been taken to the airport, after which his phone died and he was never again heard off. Similar facts seem to have been the second applicant’s faith. One of his friends contacted Ms Gribanova to tell her that he had been forced into a minibus and driven away to an unknown destination. In the meantime, Ms Gribanova still holds both their passports.

The Court’s decision

Ms Gribanova claimed that she had legal standing to represent the applicants, because the nature of the violation made it impossible for the applicants to issue a valid power of attorney. Moreover, she argued that the case was similar to Centre of Legal Ressources on behalf of Vincent Campeanu v. Romania, given that (1) the case concerned alleged violations of Article 3 and 13, (2) the victims had no relatives in Russia, and (3) she had represented the applicants during the domestic proceedings. In Campeanu, the Court considered these circumstances exceptional and therefore the applicants could be represented without valid power of attorney.

To determine the standing of Ms Gribanova, the Court applied not the Campeanu, but the Lambert v. France-criteria. The Court acknowledged that the applicants must be regarded as vulnerable individuals unable to lodge applications themselves, given that they have been abducted. But the Court found that the victims were not deprived of effective protection, because they had close family members in Uzbekistan, who must have been able to introduce complaints. The fact that those relatives were questioned by the Uzbek authorities did not mean that they were subjected to pressure which prevented them from applying, according to the Court. Consequently, the Court decided that the representative lacked standing.


The Court’s decision in N. and M. v. Russia is open for criticism on several levels.

At first sight, it is curious that the Court refuses to examine the case on its merits, and thus to lend the victims effective protection, based on the argument that ‘they did not risk being deprived of effective protection’. (§62) The result is a catch 22-situation. According to the Court the relatives could have instigated proceedings in order to protect the victims, guaranteeing effective protection. But, the Court fails to recognize that in the absence of action on the relatives’ behalf, effective protection is denied.

Moreover, it is admirable that the Court examines whether the relatives were not put under pressure to prevent them from applying. However, the conclusion is disappointing. The Court holds that the fact that the relatives were questioned by the Uzbek authorities did not ‘automatically mean’ that they were subjected to any form of pressure to refrain from complaining. Whether pressure happened or not in casu remains therefore obscure. It would have been more rewarding for the Court to take into account the circumstances of the case, e.g. the fact that the case concerns alleged abductions by the authorities, threats happened before, and the relatives live in Uzbekistan, which is allegedly responsible for the abductions. The fact that the relatives live in another state than the representative, possibly leading to numerous barriers to contact her, was not even mentioned. In these instances, in my opinion, the vulnerability of the applicants, determined by the Court in § 60, extends to the family members. In these conditions, the Court falls shorts of delivering effective protection, or fails to guarantee rights that are not only theoretical or illusory but practical and effective.

In the Court’s conclusion, the absence of a mere formality, a signed power of attorney, taken together with the relatives inaction to complain to the Court, leads to the impossibility to examine the alleged violations of the disappeared applicants’ Convention rights. In my opinion, a correct and not theoretical, but practical application of the criteria in Lambert v. France should have led to the opposite conclusion. That the applicants are vulnerable, and that there is no conflict of interest between them and Ms Gribanova is not disputed. But the Court should also have held that the applicants risk being deprived of effective protection, if Ms Gribanova could not complain in their names before the Court. Similarly, the criteria in Centre of Legal Resources on behalf of Vincent Campeanu v. Romania call for standing of Ms Gribanova to submit the petition on behalf of the disappeared victims. The Court did not explain why it examines the case on the basis of the criteria in Lambert and not the ones in Campeanu, even though the representative argued that she had standing according to the Campeanu-criteria. In sum, this case is a missed opportunity for the Court to fine-tune its case-law in Campeanu and Lambert and to render protection for the applicants.

This is all the more sad, given the fact that Rule 47 of the Rules of Court was recently amended. Rule 47 prescribes the contents of an application, which includes the signed authority for representatives. The amendments mean that applications lodged from 1 January 2014 on, that do not comply with this rule, will not be allocated to a judicial formation for a decision anymore according to Rule 47, § 5. In these instances, the Court’s administrative staff will reject the application by a simple letter. The applicants are free to submit a new application after the rejection, since this kind of rejection is no formal inadmissibility decision. However, according to the new Rule 47 only a correct and completed application form stops the running of the time-limit, and for the application form to be completed, a signed authority is required. Under these circumstances, introducing a new application within the time-limit seems virtually impossible.

Petitions which fail to live up to the strict formalities – such as  presenting a authority to act – lodged from 1 January 2014 on will not be examined by a judge anymore. The case under review does thus truly mean a missed last opportunity to set things right for vulnerable applicants who cannot defend themselves, and whose relatives fail to act. In the future, the administration will make a simple application of the principles, and the Court will not be able to change these anymore in the benefit of effective protection.

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