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

pplicant had been arrested by State agents.
174. 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 and Others, cited above, § 122).
175. The Court has found it established that Muslim Nenkayev and the third applicant were arrested by State servicemen on 8 June 2002 (see paragraph 143 above). Their arrest and detention were not acknowledged and were not logged in any custody records. Moreover, there exists no official trace of Muslim Nenkayev's subsequent whereabouts or fate.
176. The Court reiterates that the absence of documented evidence to the arrest and detention 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).
177. Turning to the Government's preliminary objection concerning non-exhaustion of domestic remedies by the third applicant, which has been joined to the merits of the complaint, the Court first observes that the third applicant duly and promptly informed the authorities of his abduction by a group of armed men most likely belonging to State agencies. The investigation into his kidnapping in case No. 61116 was instituted on 15 August 2002 and has not been completed to date. In such circumstances the Court cannot conclude that the third applicant has not raised a complaint concerning his unlawful detention at national level. Secondly, the Government did not specify what type of claim or complaint would have been an effective remedy and before which authority it should have been lodged in their view. Neither did they provide any further information as to how this could have provided the third applicant with adequate redress. The Court thus finds that the Government have not substantiated their claim that the remedies that the third applicant had allegedly failed to exhaust in relation to his complaints concerning his unacknowledged detention were effective (see, among other authorities, Kranz v. Poland, No. 6214/02, § 23, 17 February 2004, and Skawinska v. Poland (dec.), No. 42096/98, 4 March 2003). The Government's preliminary objection in this respect is therefore dismissed.
178. Consequently, the Court finds that Muslim Nenkayev and the third applicant 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.

V. Alleged violation of Article 6 of the Convention

179. The applicants stated that they had been deprived of access to a court, contrary to the provisions of Article 6 of the Convention, the relevant parts of which provide:
"In the determination of his civil rights and obligations..., everyone is entitled to a fair... hearing... by [a]... tribunal..."
180. The applicants maintained their complaint.
181. The Government disputed this allegation.
182. The Court finds that the applicants' complaint under Article 6 concerns essentially the same issues as those discussed above under the procedural aspect of Article 2 and to be examined below under Article 13. It should also be noted that the applica



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