Постановление Европейского суда по правам человека от 23.04.2009 «Дело Хачукаев (Khachukayev) против России» [англ.]

the investigation to look into that possibility (see paragraph 49 above).
115. The Court finds that the fact that a large group of armed men in uniform during curfew hours was able to move freely through military roadblocks and proceeded to check identity documents strongly supports the applicant's allegation that these were State servicemen. The Court also does not lose sight of some of the applicant's other submissions, none of which are refuted by the Government's arguments or by the materials received by the Court. The domestic investigation also accepted factual assumptions as presented by the applicant and acted to check the involvement of law enforcement bodies in the arrest, but it does not appear that any serious steps were taken in that direction.
116. The Court observes that where the applicants make out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government, and if they fail in their arguments issues will arise under Article 2 and/or Article 3 (see {Togcu} v. Turkey, No. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, No. 21894/93, § 211, ECHR 2005-II).
117. Taking into account the above elements, the Court is satisfied that the applicant has made a prima facie case that his son was detained by State servicemen. The Government's statement that the investigation did not find any evidence to support the involvement of the special forces in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government's failure to submit the documents which were in their exclusive possession or to provide another plausible explanation of the events in question, the Court considers that Murad Khachukayev was arrested on 5 February 2003 at his home in Goyty by State servicemen during an unacknowledged security operation.
118. The remains of Murad Khachukayev were discovered several days later in the nearby Michurina gardens. The forensic documents cited by the Government and witness statements attest that his death was of a violent nature (see, for example, paragraph 59 above).
119. The next point to be considered by the Court is whether there is a causal link between the arrest of Murad Khachukayev by State servicemen and his death. The Court reiterates in this connection that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, such as in cases where persons are under their control in custody, 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, among many authorities, Tomasi v. France, 27 August 1992, Series A No. 241-A, §§ 108 - 111, and {Avsar} v. Turkey, No. 25657/94, § 392, ECHR 2001-VII).
120. In the present case there was no news of the applicant's son between his detention on 5 February 2003 and the discovery of his remains on 10 February 2003. The Court also notes that although forensic expert examination was carried out on the remains, it failed to establish the cause of his death (see paragraph 30 above).
121. The Government did not dispute the circumstances of the discovery of the remains. The link between the kidnapping and the death of the applicant's son has furthermore been assumed in the domestic proceedings (see paragraph 59 above), and the Court takes this into account. The Government did not provide any substantiated version of the events which woul



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