de of APCs and looked inside the vehicles but found no trace of Aslanbek Khamzayev (see paragraph 37 above). It is highly unlikely that two motorcades of APCs were moving in the area at the same time. Accordingly, the Court is disinclined to consider Ms E.'s statement in itself as persuasive evidence that Aslanbek Khamzayev was held in the APC by Russian servicemen.
69. Accordingly, the information in the Court's possession does not suffice to establish that Aslanbek Khamzayev was kidnapped by State agents in the course of a security operation. In such circumstances, the Court cannot attribute responsibility for the unlawful acts in the present case to the respondent State without additional evidence to that effect.
70. To sum up, it has not been established to the required standard of proof "beyond reasonable doubt" that the security forces were implicated in the disappearance of Aslanbek Khamzayev; nor does the Court consider that the burden of proof can be entirely shifted to the Government.
V. Alleged violation of Article 2 of the Convention
71. The applicants complained under Article 2 of the Convention that their relative had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. 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 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. The parties' submissions
72. The Government contended that the domestic investigation had obtained no evidence that Aslanbek Khamzayev was dead or that any servicemen from federal law-enforcement agencies had been involved in his kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of the applicants' relative met the Convention requirement of effectiveness, as all measures available in national law were being taken to identify the perpetrators. The applicants themselves had been responsible for the delay in opening the investigation as they had reported the crime to the district prosecutor's office only on 5 August 2002.
73. The applicants argued that Aslanbek Khamzayev had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for more than six years. They also argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court's case-law on Article 2. The applicants invited the Court to draw conclusions from the Government's unjustified failure to submit the documents from the case file to them or to the Court.
B. The Court's assessment
1. Admissibility
74. 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. Further, the Court has already found that the Government's objection concerning the alleged non-exhaustion of criminal domestic remedies should be joined to the merits of the complaint (see paragraph 55 above). The complaint under Article 2 of the Convention must therefore be declared admissible.
2. Me
> 1 2 3 ... 8 9 10 ... 15 16 17
Zaki.ru законы и право
поиск по сайту
каталог документов
добавить сайт Zaki.ru в избранное
Правовые акты международные
Правовые акты Российской Федерации
