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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.]





ut their detention.
109. The applicants reiterated the complaint.

B. The Court's assessment

1. Admissibility

110. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible.

2. Merits

111. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see {Cicek} v. Turkey, No. 25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122).
112. The Court has found that Aslambek Ismailov, Aslan Ismailov, Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev were abducted by State servicemen on 14 January 2003 and have not been seen since. Their detention was not acknowledged, was not logged in any custody records and there exists no official trace of their subsequent whereabouts or fate. In accordance with the Court's practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records noting such matters as the date, time and location of detention and the name of the detainee, as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).
113. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants' complaints that their relatives had been detained and taken away in life-threatening circumstances. However, the Court's findings above in relation to Article 2, and in particular as regards the conduct of the investigation, leave no doubt that the authorities failed to take prompt and effective measures to safeguard them against the risk of disappearance.
114. In view of the foregoing, the Court finds that Aslambek Ismailov, Aslan Ismailov, Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev were held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

VI. Alleged violation of Article 8 of the Convention

115. The applicants alleged that the search carried out in their houses on 14 January 2003 was illegal and constituted a violation of their right to respect for home. Under the same heading they complained that the disappearance of their relatives after their detention by the State authorities caused them distress and anguish which had amounted to a violation of their right to family life. It thus disclosed a violation of Article 8 of the Convention, which provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
(a) The right to respect for home
116. The Court reiterates tha



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