d effective control of the areas in question by the Russian military. On that basis, it has concluded that the areas in question were "within the exclusive control of the authorities of the State" in view of military or security operations being conducted there and the presence of servicemen (see, mutatis mutandis, Akkum v. Turkey, cited above, § 211, and Zubayrayev v. Russia, No. 67797/01, § 82, 10 January 2008).
98. However, in the present case the Court has little evidence on which to draw such conclusions, as the account of the events given by the applicants on the basis of the witnesses' submissions is rather disjointed.
99. First, the Court emphasises that neither the applicants nor any other witnesses have ever stated that they saw Khava Magomadova being placed inside the white Gazel spotted in Chervlennaya village on the morning of 16 December 2002. Neither was she seen inside the Gazel at any later stage.
100. Secondly, the Court points out that the Gazel as a civilian vehicle could be owned by private individuals. Accordingly, even assuming that Khava Magomadova was indeed taken away in the white Gazel, it does not necessarily prove any State agents' involvement in her kidnapping.
101. Thirdly, the Court is not persuaded by the applicants' assertion that there was a connection between the persons travelling in the Gazel and those travelling in the UAZ vehicles seen by the witnesses on the day of the crime and considers it plausible that those two types of vehicles moved around the village simultaneously by pure coincidence.
102. The Court also takes note of the Government's hypothesis that Khava Magomadova, being an official at the railway station, could have been kidnapped by members of illegal armed groups, given the importance of the railway system in general and the specific interest it might represent for insurgents as a potential target for a terrorist attack.
103. Lastly, the Court observes that Khava Magomadova was not seen in the company of any armed men who resembled State agents. The witness's allegation to have seen a person wearing a military-style pea coat inside the Gazel is in itself insufficient to reach the conclusion that that person belonged to the federal troops or other law enforcement bodices. Furthermore, the Court cannot firmly rely on the first applicant's allegations made before the domestic investigation that some unnamed witnesses saw the official badges of those who had taken his wife away, as no relevant statements have ever been submitted to its attention.
104. Accordingly, the Court considers that the applicants have not made a prima facie case that Khava Magomadova was kidnapped by State agents in the course of a security operation. In such circumstances, the Court cannot attribute responsibility for the unlawful acts in the present case to the respondent State without additional evidence to that effect.
105. To sum up, it has not been established to the required standard of proof "beyond reasonable doubt" that the security forces were implicated in the disappearance of Khava Magomadova; nor does the Court consider that the burden of proof can be entirely shifted to the Government.
ii. The State's compliance with Article 2
106. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted (see McCann and Others v. the United Kingdom, 27 September 1995, § 147, Series A No. 324).
107. In the present case the domestic investigation failed to produce any tangible results as to the identities of the persons responsible for the alleged kidnapping of Khava Magomadova. The applicants have not submitted persuasive evidence to support their allegations that State ag
> 1 2 3 ... 9 10 11 ... 15 16 17
Zaki.ru законы и право
поиск по сайту
каталог документов
добавить сайт Zaki.ru в избранное
Правовые акты международные
Правовые акты Российской Федерации
