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Постановление Европейского суда по правам человека от 08.01.2009 «Дело Шахгириева и другие (Shakhgiriyeva and others) против России» [англ.]





hat the fact that a large group of armed men in uniform during curfew hours, equipped with military vehicles, was able to move freely through military roadblocks and proceeded to check identity documents and to arrest several persons at their homes in an urban area strongly supports the applicants' allegation that these were State servicemen. The other detainees' accounts about the circumstances of their detention and release support this conclusion. The domestic investigation also accepted factual assumptions as presented by the applicants and took steps to check the involvement of law-enforcement bodies in the arrest. The investigation was unable to establish which precise military or security units had carried out the operation, but it does not appear that any serious steps were taken in that direction.
146. The Court observes that where the applicants make out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to argue 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).
147. Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relatives were detained 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 abduction 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 Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov and Umalat Abayev were arrested on 3 November 2002 at their homes in Chechen-Aul by State servicemen during an unacknowledged security operation.
148. The bodies of the five detained men, including four of the applicants' relatives, were discovered on 8 November 2002 in a forest. The forensic documents cited by the Government and witness statements attest that the deaths were violent, referring to gunshot wounds to the heads.
149. The next point to be considered by the Court is whether there is a causal link between the arrest of the four men by State servicemen and their deaths. The Court reiterates in this connection that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, such as in cases where persons are under their control in custody, 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, among many authorities, Tomasi v. France, 27 August 1992, Series A No. 241-A, §§ 108 - 11, and {Avsar} v. Turkey, No. 25657/94, § 392, ECHR 2001-VII).
150. In the present case there was no news of the four men between their apprehension on 23 October 2002 and the finding of their bodies on 8 November 2002. The Court also notes that although forensic expert examinations have been carried out on the bodies, it does not appear that they established the dates of the deaths with any degree of precision.
151. The Government did not dispute the circumstances of the finding of the bodies. The link between the kidnappings and deaths has furthermore been assumed in the domestic proceedings, and the Court takes this in



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