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Постановление Европейского суда по правам человека от 05.02.2009 «Дело Хайдаева и другие (Khaydayeva and others) против России» [англ.]





pplicants invited the Court to draw inferences from the Government's unjustified failure to provide the documents from the case file to them or to the Court.

B. The Court's assessment

1. Admissibility

98. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court has already found that the Government's objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 94 above). The complaint under Article 2 of the Convention must therefore be declared admissible.

2. Merits

(a) The alleged violation of the right to life of Mr Suliman Malikov, Mr Adlan Khatuyev, Mr Aslan Khatuyev, Mr Sayd-Salu Akhmatov and Mr Mansur Ismailov
(i) General principles
99. The Court reiterates that, in the light of the importance of the protection afforded by Article 2, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey, No. 25656/94, § 326, 18 June 2002, and the authorities cited therein). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], No. 21986/93, § 100, ECHR 2000-VII, and {Cakici} v. Turkey [GC], No. 23657/94, § 85, ECHR 1999-IV).
(ii) Establishment of the facts
100. The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, No. 69481/01, §§ 103 - 109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A No. 25).
101. The Court notes that it is common ground between the parties that Mr Suliman Malikov, Mr Adlan Khatuyev, Mr Aslan Khatuyev, Mr Sayd Salu Akhmatov and Mr Mansur Ismailov were apprehended at around 3 p.m. on 9 June 2002 by servicemen involved in a security operation in Duba-Yurt. As regards the subsequent events, the Government alleged that the applicants' relatives had been released at around 4 p.m. on 10 June 2002. The applicants contended that their relatives had remained under the control of the authorities and, since no news had been received from them since their arrest, must be presumed dead.
102. The Court observes that the Government submitted no evidence, such as detention facility records, to corroborate their contention that the applicants' relatives had been released on 10 June 2002. In the absence of such evidence, the Court finds it established that Mr Suliman Malikov, Mr Adlan Khatuyev, Mr Aslan Khatuyev, Mr Sayd-Salu Akhmatov and Mr Mansur Ismailov remained under the control of the authorities after that date.
103. The Court further notes that no documents pertaining to the applicants' relatives' detention were made available to the Court. Furthermore, for two years after their apprehensio



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