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





siders, 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 domestic criminal remedies should be joined to the merits of the complaint (see paragraph 66 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 Ismail Dzhamayev
i. General principles
72. 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).
73. The situations where deprivation of life may be justified are exhaustive and must be narrowly interpreted. The use of force which may result in the deprivation of life must be no more than "absolutely necessary" for the achievement of one of the purposes set out in Article 2 § 2 (a), (b) and (c). This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is "necessary in a democratic society" under paragraphs 2 of Articles 8 to 11 of the Convention. In assessing the proportionality of the force used the Court must take into consideration not only the actions of State agents who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146 - 50, Series A No. 324; Andronicou and Constantinou v. Cyprus, 9 October 1997, § 171, Reports of Judgments and Decisions 1997-VI; and {Ogur} v. Turkey [GC], No. 21594/93, § 78, ECHR 1999-III).
ii. Establishment of the facts
74. 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 - 09, 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).
75. The applicants alleged that on 6 March 2002 Mr Ismail Dzhamayev had been apprehended by Russian servicemen and then disappeared. In this regard the applicants referred to a statement of Mr B., who had been apprehended together with him.
76. The Government confirmed that a special operation had been conducted in Stariye Atagi between 6 and 13 March 2002. However, they submitted that servicemen had not apprehended Mr Ismail Dzhamayev. At the same time the Government stated that he had been



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