Постановление Европейского суда по правам человека от 09.04.2009 «Дело Джабраилова (Dzhabrailova) против России» [англ.]

r than of the ineffectiveness of the investigation. According to the Government, the investigation was ongoing at present. The Government also argued that Mr Khanpasha Dzhabrailov's relatives who had been acknowledged as victims in the case had received explanations concerning their procedural rights, and in particular of the opportunity to gain access to the case file upon the completion of the investigation. The Government thus insisted that they had fulfilled their procedural obligation under Article 2 of the Convention.
(b) The Court's assessment
71. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to "secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention", requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force, in particular by agents of the State. The investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see {Ogur} v. Turkey [GC], No. 21594/93, § 88, ECHR 1999-III). In particular, there is an implicit requirement of promptness and reasonable expedition (see {Yasa} v. Turkey, 2 September 1998, § 102 - 04, Reports of Judgments and Decisions 1998-VI, and Mahmut Kaya v. Turkey, No. 22535/93, §§ 106 - 07, ECHR 2000-III). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating the use of lethal force may generally be regarded as essential in maintaining public confidence in the maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Shanaghan v. the United Kingdom, No. 37715/97, §§ 91 - 92, 4 May 2001).
72. In the instant case, the Court observes that some degree of investigation was carried out into the abduction of the applicant's son. It must assess whether that investigation met the requirements of Article 2 of the Convention.
73. In this connection, the Court notes that despite its repeated requests for a copy of the file on the investigation concerning the abduction of Mr Khanpasha Dzhabrailov, the Government refused to disclose any of the documents from that file, referring to Article 161 of the Russian Code of Criminal Procedure. Drawing inferences from the respondent Government's conduct when evidence is being obtained (see Ireland v. the United Kingdom, § 161, 18 January 1978, Series A No. 25), the Court, in the light of these inferences, will have to assess the merits of this complaint on the basis of the information on the course of investigation submitted by the Government and the few documents produced by the applicant.
74. The Court observes that although the applicant notified the authorities of the incident of 10 April 2003 the next day (see paragraphs 15 and 19 above), it was not until 27 April 2003 that the criminal proceedings were brought in connection with Mr Khanpasha Dzhabrailov's abduction, that is more than a fortnight after the applicant had lodged her complaint. The Government advanced no explanation for such a delay in a situation where prompt action had been vital.
75. The Court further notes with concern that not only did the Government refuse to produce the cas



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