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Постановление Европейского суда по правам человека от 12.02.2009 «Дело Бантаева и другие (Bantayeva and others) против России» [англ.]





ue 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).
73. The Government seemed to question the credibility of the applicants' statements concerning the factual circumstances of the abduction of Abubakar and Salman Bantayev (see paragraph 28 above). The Court notes in this respect that no other elements underlying the applicants' submissions of facts have been disputed by the Government. The Court finds that the inconsistency pointed out by the Government is so insignificant that it cannot cast doubt on the overall credibility of the applicants' submissions.
74. 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 the special forces in the kidnapping 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 Abubakar Bantayev and Salman Bantayev were detained on 2 January 2003 by State servicemen during an unacknowledged security operation.
75. There has been no reliable news of Abubakar Bantayev and Salman Bantayev since the date of their kidnapping. 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.
76. 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 Abubakar and Salman Bantayev or of any news of them for several years supports this assumption.
77. 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 most of the documents from the file (see paragraph 56 above). Nevertheless, it is clear that the investigation did not identify the perpetrators of the kidnapping.
78. Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Abubakar Bantayev and Salman Bantayev must be dead following their unacknowledged detention by State servicemen.

IV. Alleged violation of Article 2 of the Convention

79. 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 into the events. 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



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