Постановление Европейского суда по правам человека от 15.07.2010 <Дело Гелаевы (Gelayevy) против России» [англ.]

ate servicemen and should be presumed dead in the absence of any reliable news of him for more than ten years. They also argued that the investigation had not met the effectiveness and adequacy requirements laid down by the Court's case-law. They pointed out that the authorities had initially refused to initiate a criminal investigation, and that when they had finally decided to open a criminal case several years had already elapsed since the applicants' complaints about the abduction. They further stressed that the servicemen who had served at the Oktyabrskiy VOVD in 2000 had been questioned by the investigators only in 2009, that is nine years after the events, and that even then the questioning had been conducted formally and superficially, without any follow-up questions, with the result that all the witnesses had given short identical replies. The applicants pointed out that the investigators had failed to take such basic investigative steps as questioning a number of villagers who had been detained with Murad Gelayev and had been subsequently released, as well as questioning of the officers in charge of the Oktyabrskiy VOVD at the material time. These steps had not been taken in spite of the fact that the witnesses had provided the investigators with the necessary information pertaining to the officers' current positions and ranks. The investigators had also failed to identify and question the officers who had guarded Murad Gelayev and the other detainees in the Oktyabrskiy VOVD. The applicants also pointed out that the investigation had been suspended and resumed a number of times - thus delaying the taking of the most basic steps - and that the relatives had not been properly informed of the most important investigative measures. The fact that the investigation had been pending for such a long period of time without producing any known results was further proof of its ineffectiveness. The applicants also invited the Court to draw conclusions from the Government's unjustified failure to submit a copy of the entire contents of the investigation file to them or to the Court. In particular, they stressed that the Government had failed to furnish the Court with copies of at least nine witness statements given by the applicants and other residents of Gikalo in 2001, 2006 and 2009, as well as copies of the prosecutors' orders criticising the investigators and ordering them to take certain steps.

B. The Court's assessment

1. Admissibility

108. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government's objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 93 above). The complaint under Article 2 of the Convention must therefore be declared admissible.

2. Merits

(a) The alleged violation of Murad Gelayev's right to life
109. The Court has already found that the applicants' relative must be presumed dead following unacknowledged detention by State servicemen. In the absence of any justification by the Government, the Court finds that his death can be attributed to the State and that there has been a violation of Article 2 in respect of Murad Gelayev.
(b) The alleged inadequacy of the investigation into the kidnapping
110. The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for



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