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

in respect of her complaints.
44. The applicant called into question the effectiveness of the investigation, stating that it was not an effective remedy for the purposes of Article 35 of the Convention. She also stated that an administrative practice consisting in the authorities' continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in Chechnya rendered any potentially effective remedies inadequate and illusory in her case. In this connection she relied on the Court's judgements in cases brought by other individuals claiming to be victims of similar violations.
45. The Court considers that the Government's objection as to the exhaustion of domestic remedies raises issues which are closely linked to the question of the effectiveness of the investigation. It therefore decides to join this objection to the merits of the applicant's complaint under the procedural limb of Article 2 of the Convention.

II. Alleged violation of Article 2 of the Convention

46. The applicant complained of a violation of the right to life in respect of her son, Mr Khanpasha Dzhabrailov. She submitted that the circumstances of his disappearance and the long period during which it had not been possible to establish his whereabouts indicated that Mr Khanpasha Dzhabrailov had been killed by representatives of the federal forces. The applicant also complained that no effective investigation had been conducted into her son's disappearance. She relied on Article 2 of the Convention, which reads as follows:
"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 or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."

A. Admissibility

47. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Alleged failure to protect the right to life

(a) Submissions by the parties
(i) The applicant
48. The applicant insisted that it was beyond reasonable doubt that on 10 April 2003 her son had been detained by State agents. She argued that at the relevant time the village of Goyty where Mr Khanpasha Dzhabrailov had been apprehended had been under the control of the State, that he had been apprehended during the curfew by a large group of people moving around in UAZ vehicles - the type of vehicle often used by representatives of the federal forces - and a bus of a colour typical of police vehicles, and that those vehicles must have passed federal checkpoints leading to and from the village. The applicant further argued that once informed of the incident of 10 April 2003 the authorities had not made any attempts to search for and arrest the alleged perpetrators, whereas an armed group uncontrolled by the State would usually be pursued and liquidated by the authorities. The applicant contended that the authorities had a motive to detain Mr Khanpasha Dzhabrailov, as, according to an official of the district prosecutor's office with whom the applicant had talked, her son had apparently been suspected of involvement in the activity of reb



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