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





large group of armed men in uniform was able to move freely through military roadblocks during curfew hours and proceeded to check identity documents strongly supports the applicant's allegation that these were State servicemen conducting a security operation. In her application to the authorities the applicant expressed her concerns that Balavdi Ustarkhanov had been detained by unknown servicemen and requested the investigation to look into that possibility (see paragraph 30 above). The domestic investigation also accepted the factual assumptions as presented by the applicant and took measures to check whether federal forces were involved in the kidnapping (see paragraph 27 above), but it does not appear that any serious steps had been taken in that direction.
67. The Government questioned the credibility of the applicant's statements in view of certain discrepancies relating to the exact circumstances of the arrest and the circumstances following it. The Court notes in this respect that no other elements underlying the applicant's submissions of facts have been disputed by the Government. The Government did not provide to the Court those witness statements to which they referred in their submissions. In the Court's view, the fact that over a period of several years the applicant's recollection of an extremely traumatic and stressful event differed in rather insignificant details does not in itself suffice to cast doubt on the overall veracity of her statement.
68. The Court observes that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to a lack of relevant documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see {Togcu} v. Turkey, No. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, No. 21894/93, § 211, ECHR 2005-II).
69. Taking into account the above elements, the Court is satisfied that the applicant has made a prima facie case that her son was apprehended by State servicemen. The Government's statement that the investigators had not found any evidence to support the involvement of the special forces in the kidnapping is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the applicant, and drawing inferences from the Government's failure to submit the documents which were in their exclusive possession or to provide another plausible explanation for the events in question, the Court finds that Balavdi Ustarkhanov was arrested on 7 January 2003 by State servicemen during an unacknowledged security operation.
70. There has been no reliable news of Balavdi Ustarkhanov since the date of the kidnapping. His name has not been found in any official detention facility records. Finally, the Government have not submitted any explanation as to what happened to him after his arrest.
71. 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-... (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 Chechen 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 Balavdi Ustarkhanov or of any news of him for several years supports this a



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