Постановление Европейского суда по правам человека от 28.05.2009 «Дело Ненкаев и другие (Nenkayev and others) против России» [англ.]

/> (a) General principles
131. The Court reiterates that, in the light of the importance of the protection afforded by Article 2, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see Orhan v. Turkey, No. 25656/94, § 326, 18 June 2002). Where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], No. 21986/93, § 100, ECHR 2000-VII, and {Cakici} v. Turkey [GC], No. 23657/94, § 85, ECHR 1999-IV).
(b) Establishment of the facts
132. The Court observes that 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 - 09, 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, 18 January 1978, § 161, Series A No. 25).
133. The applicants maintained that it was beyond reasonable doubt that the men who had taken Muslim Nenkayev and the third applicant away were State agents, since they were armed with machine guns with silencers used by the military, wore camouflage uniforms, spoke unaccented Russian and were able to move freely about Urus-Martan at night.
134. The Government submitted that on 8 June 2002 unidentified persons wearing camouflage uniforms and masks and armed with machine guns had taken Muslim Nenkayev and the third applicant to an unknown destination. The third applicant had later been released; Muslim Nenkayev's whereabouts had not been established.
135. The Government emphasised that the armed men had kidnapped only those members of the Nenkayev family who had been police officers, which proved that the perpetrators had been members of illegal armed groups. The tenth applicant had heard the perpetrators speaking Chechen, which proved that they were not necessarily ethnic Russians. The third applicant had claimed that he had been detained in the premises of the military commander's office only in his deposition addressed to the Court; he had never informed the domestic investigative authorities of it, apparently out of fear of being prosecuted for perjury. The officials of the local administrative authority and the FSB officer mentioned in the application form had been questioned and had denied the applicants' statement that they had ever confirmed the involvement of federal servicemen in the crime. Camouflage uniforms and machine guns could have been illegally purchased by insurgents; they could also have forged identity documents of the military or other State agencies to move freely through checkpoints.
136. The Court notes that despite its repeated requests for a copy of the entire investigation file concerning the kidnapping of Muslim Nenkayev and the third applicant, the Government have failed to produce it. They 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-...).
137. In view of the fore

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