ssumption.
72. Accordingly, the Court finds that the evidence available permits it to establish that Balavdi Ustarkhanov must be presumed dead following his unacknowledged detention by State servicemen.
III. Alleged violation of Article 2 of the Convention
73. The applicant complained under Article 2 of the Convention that her son had been deprived of his life by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads:
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."
A. The parties' submissions
74. The Government contended that the domestic investigation had obtained no evidence to the effect that Balavdi Ustarkhanov was dead or that any servicemen of the federal law-enforcement agencies had been involved in his kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of the applicant's son met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible.
75. The applicant argued that Balavdi Ustarkhanov had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for several years. The applicant also argued that the investigation had not met the effectiveness and adequacy requirements laid down by the Court's case-law. The applicant pointed out that the investigation had failed to take some crucial investigative steps, such as questioning the neighbours of Mr Magomed M. and members of his family who had witnessed the abduction, or questioning representatives of local law-enforcement and military structures who could have had information about the events in question. The investigation into Balavdi Ustarkhanov's abduction had been opened fourteen days after the events, and had then been suspended and resumed a number of times - thus delaying the taking of the most basic steps - and that the applicant had not been properly informed of the most important investigative measures. The fact that the investigation had been under way for such a long period of time without producing any known results was further proof of its ineffectiveness. The applicant also invited the Court to draw conclusions from the Government's unjustified failure to submit the documents from the case file to her or to the Court.
B. The Court's assessment
1. Admissibility
76. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination 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 58 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 Balavdi Ustarkhanov
77. The Court has already found that the applicant's son must be presumed dead following unackn
> 1 2 3 ... 27 28 29 ... 34 35 36
Zaki.ru законы и право
поиск по сайту
каталог документов
добавить сайт Zaki.ru в избранное
Правовые акты международные
Правовые акты Российской Федерации
