Постановление Европейского суда по правам человека от 09.04.2009 «Дело Малсагова и другие (Malsagova and others) против России» [англ.]

ledged arrest by State servicemen even more plausible.
108. Moreover, the Court considers it rather dubious that insurgents could travel through federal checkpoints using forged documents of the military or other State agencies without being caught by servicemen on duty at those points. The Court thus finds that the fact that a large group of armed men in uniforms was able to move freely about the town controlled by the federal forces past curfew and abducted a man at his home in a town area strongly supports the applicants' allegation that these were State servicemen. The Court further notes that after six years the domestic investigation had produced no tangible results.
109. The Court reiterates that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of documents withheld by the Government, it is for the latter to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, 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).
110. Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that Saydi Malsagov 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 for the events in question, the Court considers that Saydi Malsagov was apprehended on 7 November 2002 at his house in Urus-Martan by State servicemen during an unacknowledged security operation.
111. The Court has to decide further whether Saydi Malsagov is to be considered dead. It notes in this regard that there has been no reliable news of the applicants' relative since 7 November 2002. His name has not been found in any official records of detention facilities. Lastly, the Government did not submit any explanation as to what had happened to him after his abduction.
112. Having regard to the previous cases concerning disappearances of people in Chechnya which have come before the Court (see, for example, Imakayeva, cited above, and Luluyev and Others v. Russia, No. 69480/01, ECHR 2006-...), the Court considers that, in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgement of the detention, this can be regarded as life-threatening. The absence of Saydi Malsagov or any news of him for six years corroborates this assumption. Furthermore, the Government have failed to provide any explanation of Saydi Malsagov's disappearance and the official investigation into his abduction, dragging on for six years, has produced no tangible results.
113. Accordingly, the Court finds it established that on 7 November 2002 Saydi Malsagov was apprehended by State servicemen and that he must be presumed dead following his unacknowledged detention.
(c) The State's compliance with Article 2
114. Article 2, which safeguards the right to life and sets out the circumstances in which deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scr



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