Постановление Европейского суда по правам человека от 22.04.2010 «Дело Мутаева (Mutayeva) против России» [англ.]

v. Turkey, No. 21894/93, § 211, ECHR 2005-II (extracts)).
76. Taking into account the above elements, the Court is satisfied that the applicant has made a prima facie case that her relative was abducted by State servicemen. The Government's statement that the investigation had not found any evidence to support the involvement of servicemen in the kidnapping and their vague reference to the possibility that Luiza Mutayeva had been kidnapped for marriage once again, particularly in view of the lack of any indication that this thesis had been examined by the domestic investigation (see paragraph 29 above), is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government's failure to submit the remaining documents which were in their exclusive possession, or to provide another plausible explanation for the events in question, the Court finds that Luiza Mutayeva was arrested on 19 January 2004 by State servicemen during an unacknowledged security operation.
77. There has been no reliable news of Luiza Mutayeva since the date of the kidnapping. Her name has not been found in any official detention facility records. Finally, the Government have not submitted any explanation as to what happened to her after her arrest.
78. Having regard to the previous cases concerning disappearances in Chechnya which have come before it (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, No. 69480/01, ECHR 2006-XIII (extracts); Baysayeva v. Russia, No. 74237/01, 5 April 2007; Akhmadova and Sadulayeva, cited above; and Alikhadzhiyeva v. Russia, No. 68007/01, 5 July 2007), the Court finds that in the context of the conflict in the Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Luiza Mutayeva or of any news of her for more than five years supports this assumption.
79. Accordingly, the Court finds that the evidence available permits it to establish that Luiza Mutayeva must be presumed dead following her unacknowledged detention by State servicemen.
(iii) The State's compliance with Article 2
80. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, Series A No. 324, §§ 146 - 147, and {Avsar} v. Turkey, No. 25657/94, § 391, ECHR 2001-VII (extracts)).
81. The Court has already found it established that the applicant's daughter must be presumed dead following unacknowledged detention by State servicemen. Noting that the authorities do not rely on any ground of justification in respect of any use of lethal force by their agents, it follows that liability for her presumed death is attributable to the respondent Government.
82. Accordingly, the Court finds that there has been a violation of Article 2 in respect of Luiza Mutayeva.
(b) The alleged inadequacy of the investigation of the kidnapping
83. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to "secure to everyone within [its] jurisdiction the rights and freedoms defined in [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



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