mination 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 80 above). The complaint under Article 2 of the Convention must therefore be declared admissible.
2. Merits
(a) The alleged violation of the right to life of Aslan and Mokhmad Mudayev
99. The Court has already found that the applicants' relatives must be presumed dead following unacknowledged detention by State servicemen. In the absence of any justification put forward by the Government, the Court finds that their deaths can be attributed to the State and that there has been a violation of Article 2 in respect of Aslan and Mokhmad Mudayev.
(b) The alleged inadequacy of the investigation of the kidnapping
100. 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 an investigation to comply with the Convention's requirements (for a summary of these principles see Bazorkina, cited above, §§ 117 - 119).
101. In the present case, the kidnapping of Aslan and Mokhmad Mudayev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.
102. The Court notes at the outset that most of the documents from the investigation file were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the parties and the information about its progress presented by the Government.
103. The Court notes that the authorities were made aware of the crime by the applicants' written submission on 22 September 2003. The investigation in case No. 42172 was instituted on 29 September 2003. Taking into account that the Government failed to furnish the Court with any information as to the dates of the investigative measures taken by the prosecutor's office, it is nonetheless clear that after the opening of the criminal case the investigators did not take even the most basic steps. For instance, the Court notes that, as can be seen from the decision of the district court of 30 December 2004, by that date the investigators had not questioned any of the persons involved in the arrest of the Mudayev brothers even though "...in the course of the preliminary investigation it had been unequivocally established by whom and when the Mudayev brothers had been arrested and where they had been detained..." (see paragraph 44 above). It is obvious that if they were to produce any meaningful results such investigative measures should have been taken immediately after the investigation obtained the relevant information. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities' failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious matter (see {Oneryildiz} v. Turkey [GC], No. 48939/99, § 94, ECHR 2004-XII). Further, it does not appear that the investigation tried to identify and question any of the servicemen who had worked in the Nadterechniy district department of the FSB, other than officer M.Kh., in order to establish whether Aslan and Mokhmad Mudayev had been detained there after 29 January 2003, or that the investigators tried to identify and question the more than twenty other residents of Raduzhnoye who had been arrested in the course of the same special operation.
104. The Court also notes that even though the applicants were
> 1 2 3 ... 13 14 15 ... 18 19 20
Zaki.ru законы и право
поиск по сайту
каталог документов
добавить сайт Zaki.ru в избранное
Правовые акты международные
Правовые акты Российской Федерации
