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

submissions.
74. The Court observes that where the applicants make out a prima facie case and the Court is prevented from reaching factual conclusions owing to a lack of 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).
75. Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relatives were abducted by State servicemen. The Government's statement that the investigation did not find any evidence to support the involvement of 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 Ruslan Askhabov, Isa Dubayev and Isa Dokayev were abducted on 10 December 2002 by State servicemen during an unacknowledged security operation.
76. There has been no reliable news of Ruslan Askhabov, Isa Dubayev and Isa Dokayev since the date of their abduction. Their names have not been found in any official detention facilities' records. Finally, the Government did not submit any explanation as to what had happened to them after their arrest.
77. Having regard to the previous cases concerning disappearances in Chechnya which have come before the Court (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, No. 69480/01, ECHR 2006-... (extracts); Baysayeva v. Russia, No. 74237/01, 5 April 2007; Akhmadova and Sadulayeva, cited above; and Alikhadzhiyeva v. Russia, No. 68007/01, 5 July 2007), in the context of the conflict in the Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Ruslan Askhabov, Isa Dubayev and Isa Dokayev or of any news of them for several years supports this assumption.
78. The Court further notes that, regrettably, it has been unable to benefit from the results of the domestic investigation, owing to the Government's failure to disclose any of the documents from the case file (see paragraph 59 above). Nevertheless, it is clear that the investigation did not identify the perpetrators of the kidnapping.
79. Accordingly, the Court finds that the evidence available permits it to establish that Ruslan Askhabov, Isa Dubayev and Isa Dokayev must be presumed dead following their unacknowledged detention by State servicemen.

III. Alleged violation of Article 2 of the Convention

80. The applicants complained under Article 2 of the Convention that their relatives had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads:
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest



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