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Постановление Европейского суда по правам человека от 26.11.2009 "Дело "Исмаилов и другие (Ismailov and others) против Российской Федерации" [рус., англ.]





licants' rights. They further argued that there was no convincing evidence that the applicants' relatives were dead. The Government raised a number of objections to the applicants' 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. The Government further alleged that the applicants' description of the circumstances surrounding the abduction was inconsistent. In particular, the fourth applicant and Ms M.D. stated that along with the APCs the abductors had used a Kamaz lorry, whereas other witnesses stated that the abductors had used a Ural lorry; there were no direct witnesses who had seen the direction in which the abductors had left, and the first applicant had failed to inform the investigators about the source of information concerning the detention of his relatives in Grozny.

B. The Court's evaluation of the facts

74. The Court observes that in its extensive jurisprudence 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).
75. The Court notes that despite its requests for a copy of the entire investigation file into the abduction of Aslambek Ismailov, Aslan Ismailov, Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev, the Government produced only some 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)).
76. 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 applicants' allegations. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the applicants' relatives can be presumed dead and whether their deaths can be attributed to the authorities.
77. The applicants alleged that the persons who had taken Aslambek Ismailov, Aslan Ismailov, Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev away on 14 January 2003 and then killed them had been State agents.
78. The Government suggested in their submissions that the abductors of Aslambek Ismailov, Aslan Ismailov, Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev may have been members of paramilitary groups. 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).
79. The Court notes that the applicants' allegation is supported by the witness statements collected by the applicants and by the investigation. It finds that the fact that a large group of armed men in uniform during curfew hours, equipped with military vehicles, was able to move freely in the settlement and proceed to check identity documents and take several persons out of their homes strongly supports the applicants' allegation that these were State servicemen conducting a security operati



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