Постановление Европейского суда по правам человека от 17.06.2010 «Дело Батаев и другие (Batayev and others) против России» [англ.]

l have an enforceable right to compensation."

A. The parties' submissions

219. The Government asserted that no evidence had been obtained by the investigators to confirm that Khasan Batayev, Zaur Ibragimov, Magomed Temurkayev, Rizvan Ismailov, Sayd-Ali Musayev, Kharon Musayev and Usman Mavluyev had been deprived of their liberty. They were not listed among the persons held in detention centres and none of the regional law-enforcement agencies had any information about their detention.
220. The applicants reiterated the complaint.

B. The Court's assessment

1. Admissibility

221. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible.

2. Merits

222. 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 and Others, cited above, § 122).
223. The Court has found that Khasan Batayev, Zaur Ibragimov, Magomed Temurkayev, Rizvan Ismailov, Sayd-Ali Musayev and Kharon Musayev were apprehended by State servicemen on 18 September and Usman Mavluyev on 8 January 2000 and that they have not been seen since these dates. Their detention was not acknowledged and was not logged in any custody records, and there exists no official trace of their subsequent whereabouts or fate. In accordance with the Court's practice, this fact in itself must be considered a most serious failing, since 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, cited above, § 371).
224. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of 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 them against the risk of disappearance.
225. In view of the foregoing, the Court finds that Khasan Batayev, Zaur Ibragimov, Magomed Temurkayev, Rizvan Ismailov, Sayd-Ali Musayev, Kharon Musayev and Usman Mavluyev 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 enshrined in Article 5 of the Convention.

VII. Alleged violation of Article 13 of the Convention

226. 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."

A



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