Постановление Европейского суда по правам человека от 26.11.2009 "Дело "Устарханова (Ustarkhanova) против Российской Федерации" [рус., англ.]

to the applicant's presentation of facts. The fact that the perpetrators of the abduction spoke unaccented Russian and were wearing camouflage uniforms did not mean that these men could not have been members of illegal armed groups, criminals pursuing mercenary goals or the men with whom Balavdi Ustarkhanov had fought on the night of 31 December 2002 to 1 January 2003. The Government further alleged that the applicant's description of the circumstances surrounding the abduction was inconsistent. In particular, referring to the statements provided by the applicant and other witnesses to the domestic investigation, the Government stressed that they had not seen in person Balavdi Ustarkhanov being taken away in a grey UAZ vehicle and a ZIL lorry, and that therefore this information was unsubstantiated; that the applicant had failed to inform the investigators about Mr Magomed M.'s neighbours across the street, who had witnessed the abduction, and that she had failed to provide the investigators with the name of the intermediary who had approached her with an offer to assist in obtaining the release of her son. In addition, the applicant had not informed the investigators that on 3 January 2003 she had gone to Zakan-Yurt to take her son to the hospital. The Government did not submit to the Court the statements it referred to in its submissions.

B. The Court's evaluation of the facts

61. The Court observes that in its extensive case-law it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, No. 69481/01, §§ 103 - 109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, § 161, Series A No. 25).
62. The Court notes that despite its requests for a copy of the investigation file into the abduction of Balavdi Ustarkhanov, the Government produced none of the documents from the case file. The Government referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, No. 7615/02, § 123, ECHR 2006-... (extracts)).
63. In view of this and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government's conduct in respect of the well-foundedness of the applicant's allegations. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the applicant's son can be presumed dead and whether his death can be attributed to the authorities.
64. The applicant alleged that the persons who had taken Balavdi Ustarkhanov away on 7 January 2003 and then presumably killed him had been State agents.
65. The Government suggested in their submissions that the abductors of Balavdi Ustarkhanov may have been members of paramilitary groups, criminals pursuing mercenary goals or the men with whom Balavdi Ustarkhanov had fought on the night of 31 December 2002 to 1 January 2003. However, this allegation was not specific and the Government did not submit any material to support it. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see {Celikbilek} v. Turkey, No. 27693/95, § 71, 31 May 2005).
66. The Court notes that the applicant's allegation is supported by the witness statements collected by the applicant and by the investigation. It finds that the fact that a



> 1 2 3 ... 25 26 27 ... 34 35 36

	Поделиться:	Tweet