he applicants' relative had been abducted by armed men and, at the same time, confirmed that a special operation had been conducted in the village on the date of his abduction. The fact that a large group of armed men in uniform, equipped with military vehicles which could not have been available to paramilitary groups, proceeded during a large-scale special operation conducted in the village by the State's forces in broad daylight to apprehend several persons with a view to checking their identity documents, strongly supports the applicants' allegation that these were State servicemen. It further notes that after six years the domestic investigation has produced no tangible results.
81. The Court reiterates that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of the necessary documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, 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).
82. Taking into account the above elements, the Court is satisfied that the applicants have made out a prima facie case that Mr Ismail Dzhamayev was apprehended by State servicemen. The Government's statement that the investigation did not find any evidence to support the allegation of 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 a plausible explanation of the events in question, the Court finds it established that Mr Ismail Dzhamayev was apprehended on 6 March 2002 by State servicemen during a security operation in Stariye Atagi.
83. The Court further notes that his burnt body, which was identified more than two years later, was found at one of the two locations of the fights which took place on 7 and 9 March 2002. According to the Government, he was killed by servicemen during the fight on 9 March 2002. The Government have submitted no documents, however, such as military reports, which could enable the Court to establish the exact circumstances of the fight the events that took place between Mr Ismail Dzhamayev's apprehension and his death. However, the Court finds it more appropriate to address this issue below when assessing the State's compliance with Article 2 of the Convention. For the purpose of establishing the facts the Court accepts that Mr Ismail Dzhamayev was killed by servicemen on 9 March 2002.
84. Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that on 6 March 2002 Mr Ismail Dzhamayev was apprehended by State servicemen and that he was killed by them on 9 March 2002.
iii. The State's compliance with the substantive obligation under Article 2
85. The Court reiterates that in addition to setting out the circumstances when deprivation of life may be justified, Article 2 implies a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework defining the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the relevant international standards (see Makaratzis v. Greece [GC], No. 50385/99, §§ 57 - 59, ECHR 2004-XI, and Nachova and Others v. Bulgaria [GC], Nos. 43577/98 and 43579/98, § 96, ECHR 2005-VII). Furthermore, the national law regulating policing operations must secure a
> 1 2 3 ... 12 13 14 ... 22 23 24
Zaki.ru законы и право
поиск по сайту
каталог документов
добавить сайт Zaki.ru в избранное
Правовые акты международные
Правовые акты Российской Федерации
