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Постановление Европейского суда по правам человека от 08.04.2010 «Дело Абдурашидова (Abdurashidova) против России» [англ.]





societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman, cited above, § 116).
75. In the light of the foregoing, the Court will have to determine whether the way in which the police operation was conducted showed that the police officers had taken appropriate care to ensure that any risk to the life of the applicant's daughter was kept to a minimum. In carrying out its assessment of the planning and control phase of the operation from the standpoint of Article 2 of the Convention, the Court must have particular regard to the context in which the incident occurred as well as to the way in which the situation developed (see Andronicou and Constantinou v. Cyprus, 9 October 1997, § 182, Reports 1997-VI).
76. Turning to the circumstances of the present case, the Court notes that its ability to evaluate the operation has been seriously hampered by the absence of any meaningful investigation into the police's conduct. Nevertheless, the Court will assess the organisation of the operation on the basis of the material available to it, in particular by relying on the relevant evidence submitted by the Government, which is not disputed by the applicant.
77. First of all, the Court notes that the operation was not spontaneous and the police had time to gather and bring to the applicant's house a significant number of well-equipped and trained servicemen. They arrived in the early hours of the morning and surrounded the house, without encountering any difficulties or resistance from the suspected criminals (see paragraphs 39 and 42 above). The prosecutor's office and the police conducting the operation were aware of the danger posed by the two criminal suspects, as is demonstrated by the impressive scope of the security arrangements. They also had sufficient time and personnel for the adequate planning and execution of the search and apprehension, while bearing in mind the need to ensure the safety of the inhabitants of the house, including three small children. However, there is nothing in the documents reviewed by the Court to suggest that any serious consideration was devoted to this issue at the planning stage of the operation.
78. It further appears that once the operation had commenced, the police took steps to remove the applicant's family from the house. According to the Government, as the head of the criminal investigations department of the district police office stated, one member of the special police force was allowed into the house and was able to walk away unharmed with the applicant, her husband and their two children (see paragraph 42 above). Nevertheless, it remains entirely unclear why at that moment it was impossible to evacuate the applicant's daughter. In the absence of any explanations from the authorities, this has to be seen as a major failure of the operation, which subjected the child to an impermissibly high risk of injury or death.
79. The police officers should have been aware of the extreme vulnerability of a six-year-old girl, who would undoubtedly have been frightened and disoriented by the events. Once it became apparent that she had b



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