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

/> 64. 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-... (extracts)), 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 Mr Khanpasha Dzhabrailov or any news of him for over five years corroborates this assumption. In the light of these considerations and having regard to the particular circumstances of the case, and more specifically the considerable lapse of time since Mr Khanpasha Dzhabrailov went missing, the Court finds that he must be presumed dead following unacknowledged detention by State agents.
65. In the absence of any plausible explanation on the part of the Government as to the circumstances of Mr Khanpasha Dzhabrailov's death, the Court further finds that the Government have not accounted for the death of the applicant's son during his detention and that the respondent State's responsibility for this death is therefore engaged.
66. Accordingly, there has been a violation of Article 2 of the Convention in this connection.

2. Alleged inadequacy of he investigation

(a) Submissions by the parties
67. The applicant submitted that the investigation in the present case had fallen short of the Convention standards. She stated that whilst being informed of the incident of 10 April 2003 on the same date, the authorities only instituted criminal proceedings on 27 April 2003. Since then the investigation had been pending for over five years but brought no tangible results.
68. The applicant argued that the authorities had failed to search for and question witnesses, save for her and her three relatives, and to perform a number of other important actions. In particular, they had not established and interviewed servicemen who had been on duty on the night of the incident at the federal check-points blocking the road leading to and from Goyty, or officials responsible for observance of the curfew during the relevant period, had not established which unit of federal forces or special agencies had had UAZ vehicles and buses, had not checked where each of those vehicles had been at the night of the incident. Moreover, in the applicant's submission, the investigators had not inspected the scene of the incident until January 2008.
69. The applicant also argued that she was excluded from the criminal proceedings, as despite her efforts she had been denied access to the case file and had not been properly informed of the course of the investigation. In particular, the authorities had failed to send her copies of procedural decisions suspending and reopening the proceedings. The applicant thus claimed that there had been a violation of Article 2 of the Convention, in it procedural aspect, in the present case.
70. The Government argued that the investigation into the disappearance of the applicant's son met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to find Mr Khanpasha Dzhabrailov and to identify those responsible. They submitted that the investigation was being carried out in full compliance with the domestic law and that a large number of investigative actions had been taken, including sending of numerous enquiries to the federal military and security agencies to verify the possible involvement of federal servicemen in the imputed offence, or to check whether the applicant's son was kept in any detention centres. The investigation was repeatedly suspended and reopened, which, in the Government's view, was evidence of the authorities' effort to resolve the crime rathe



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