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





n the State authorities consistently denied that they had ever detained them. Having regard to the previous cases concerning disappearances of people in Chechnya which have come before the Court (see, for example, Imakayeva v. Russia, No. 7615/02, ECHR 2006-... (extracts), 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 his or her detention, this can be regarded as life-threatening. The disappearance of Mr Suliman Malikov, Mr Adlan Khatuyev, Mr Aslan Khatuyev, Mr Sayd-Salu Akhmatov and Mr Mansur Ismailov and the absence of any news of them for over six years corroborate this assumption. Furthermore, the Government have failed to provide any explanation for the applicants' relatives' disappearance and the official investigation into their abduction, which has gone on for over six years, has produced no tangible results.
104. Accordingly, the Court finds that the evidence available permits it to find it established to the requisite standard of proof that on 9 June 2002 Mr Suliman Malikov, Mr Adlan Khatuyev, Mr Aslan Khatuyev, Mr SaydSalu Akhmatov and Mr Mansur Ismailov were apprehended by State servicemen and that they must be presumed dead following their unacknowledged detention.
(iii) The State's compliance with Article 2
105. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146 - 147, Series A No. 324, and {Avsar} v. Turkey, No. 25657/94, § 391, ECHR 2001-VII (extracts)).
106. The Court has already found it established that the applicants' relatives must be presumed dead following their unacknowledged detention by State servicemen. Noting that the authorities do not rely on any ground justifying the use of lethal force by their agents, or otherwise accounting for their deaths, it follows that liability for their presumed death is attributable to the respondent Government.
107. Accordingly, the Court finds that there has been a violation of Article 2 in respect of Mr Suliman Malikov, Mr Adlan Khatuyev, Mr Aslan Khatuyev, Mr Sayd-Salu Akhmatov and Mr Mansur Ismailov.
(b) The alleged inadequacy of the investigation into the abduction
108. 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", also 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 (see, mutatis mutandis, McCann and Others, cited above, § 161, and Kaya v. Turkey, 19 February 1998, § 86, Reports of Judgments and Decisions 1998-I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim's family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the fo



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