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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.]





on. In their application to the authorities the applicants consistently maintained that Aslambek Ismailov, Aslan Ismailov, Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev had been detained by unknown servicemen, and requested the investigation to look into that possibility (see paragraphs 33, 43, 47, 52, 53, 57 and 58 above). The domestic investigation also accepted factual assumptions as presented by the applicants, and took steps to check whether law enforcement agencies were involved in the kidnapping. The investigation confirmed the involvement of military servicemen in the abduction, but it was unable to establish precisely which military or security units had detained the applicants' relatives (see paragraph 31 above). It does not appear that any serious steps had been taken in that direction.
80. The Government questioned the credibility of the applicants' statements in view of certain discrepancies relating to the exact circumstances of the arrests and the description of the hours immediately following the detention. The Court notes in this respect that no other elements underlying the applicants' submissions of facts have been disputed by the Government. The Government did not provide the Court with the witness statements to which they referred in their submissions. In the Court's view, the fact that the applicants' recollections of an extremely traumatic and stressful event differed in very insignificant details does not in itself suffice to cast doubt on the overall veracity of their statements.
81. The Court observes that where the applicants make 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 applicants, 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).
82. Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relatives were taken away by State servicemen. The Government's statement that the investigators had not found any evidence to support the involvement of special forces in the kidnapping is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the parties, and drawing inferences from the Government's failure to submit the remaining documents which were in their exclusive possession or to provide another plausible explanation for the events in question, the Court finds that Aslambek Ismailov, Aslan Ismailov, Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev were abducted on 14 January 2003 by State servicemen during an unacknowledged security operation.
83. There has been no reliable news of Aslambek Ismailov, Aslan Ismailov, Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev since the date of the kidnapping. Their names have not been found in any official detention facility records. Finally, the Government have not submitted any explanation of what happened to them after their arrest.
84. 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 Republic, when a person is detained by unidentified servic



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