Постановление Европейского суда по правам человека от 23.07.2009 «Дело Муцаева (Mutsayeva) против России» [англ.]

requirement of effectiveness, as all measures available under national law were being taken to identify those responsible.
93. The applicant argued that Khizir Tepsurkayev 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 by May 2003 the district prosecutor's office had not taken some crucial investigative steps, such as questioning of officer V. Vasiliy, and that throughout the entire length of the proceedings the investigators had not questioned any of the military servicemen from military unit No. 6779 who had participated in the abduction of Khizir Tepsurkayev. The investigation into the kidnapping had been opened almost five months after the events and then had 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 pending for more than six years 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 them or to the Court.

B. The Court's assessment

1. Admissibility

94. 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 77 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 Khizir Tepsurkayev
95. The Court has already found that the applicant's son must be presumed dead following unacknowledged detention by State servicemen. In the absence of any justification put forward by the Government, the Court finds that his death can be attributed to the State and that there has been a violation of Article 2 in respect of Khizir Tepsurkayev.
(b) The alleged inadequacy of the investigation of the kidnapping
96. The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention's requirements (for a summary of these principles see Bazorkina, cited above, §§ 117 - 119).
97. In the present case, the kidnapping of Khizir Tepsurkayev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.
98. The Court notes at the outset that none of the documents from the investigation were disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the applicant and the information about its progress presented by the Government.
99. The Court notes that the authorities were immediately made aware of the crime by the applicant's submissions. The investigation in case No. 61008 was instituted on 25 January 2002, that is almost five months after Khizir Tepsurkayev's abduction. Such a postponement per se was liable to affect the inve



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