Постановление Европейского суда по правам человека от 20.05.2010 «Дело Джабраиловы (Dzhabrailovy) против России» [англ.]

railov were detained in breach of the guarantees set out in Article 5 of the Convention. They were not listed among the persons kept in detention centres.
101. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see {Cicek} v. Turkey, No. 25704/94, § 164, 27 February 2001, and Luluyev, 69480/01, § 122, 9 November 2006).
102. The Court has already established that the first applicant and Valid Dzhabrailov were detained by State servicemen on 16 February 2003. Their detention was not acknowledged, it was not logged in any custody records and there exists no official trace of it. In accordance with the Court's practice, this fact in itself must be considered a most serious failing because it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, 25656/94, § 371, 6 November 2002).
103. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation into the applicants' complaints that their relatives had been detained and taken away in life-threatening circumstances. However, the Court's findings above in relation to Article 2 and, in particular, the conduct of the investigation leave no doubt that the authorities failed to take prompt and effective measures to safeguard the lives of the first applicant and Valid Dzhabrailov.
104. Consequently, the Court finds that the first applicant and Valid Dzhabrailov were held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security as enshrined in Article 5 of the Convention.

VI. Alleged violation of Article 13 of the Convention

105. The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides:
"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
106. The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented the applicants from using them. They referred to Article 125 of the Code of Criminal Procedure, which allowed participants in criminal proceedings to complain to a court about measures taken during an investigation. This was an effective remedy to ensure the observation of their rights. The applicants should have made more use of that possibility which required the initiative of the participants in criminal proceedings, and thus the absence of court action could not constitute a violation of Article 13.
107. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the p

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