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





system of adequate and effective safeguards against arbitrariness and abuse of force and even against avoidable accident (see Makaratzis, cited above, § 58). In particular, law-enforcement agents must be trained to assess whether or not there is an absolute necessity to use firearms, not only on the basis of the letter of the relevant regulations, but also with due regard to the pre-eminence of respect for human life as a fundamental value (see Nachova and Others, cited above, § 97).
86. In the present case, it has been acknowledged by the Government that Mr Ismail Dzhamayev was killed by State agents as a result of the intentional use of lethal force against him. The State's responsibility is therefore engaged, and it is for the State to account for the deaths of the applicants' relative. It is notably for the State to demonstrate that the force used against him by the federal servicemen could be said to have been absolutely necessary and therefore strictly proportionate to the achievement of one of the aims set out in paragraph 2 of Article 2.
87. The Court notes that it is faced with conflicting accounts of the events which led to the killing of Mr Ismail Dzhamayev. According to the applicants, after he had been apprehended by the State servicemen on 6 March 2002, the latter had unlawfully killed him and staged the fight on 9 March 2002 so as to justify the killing. According to the Government, the fight on 9 March 2002 had indeed taken place and the applicants' relative had been killed as a result of the use of force which was no more than "absolutely necessary". The Court will address these conflicting accounts below.
88. The Court notes firstly that it is aware of the difficult situation in the Chechen Republic at the material time, which called for exceptional measures on the part of the State to suppress the illegal armed insurgency (see Isayeva and Others v. Russia, Nos. 57947/00, 57948/00 and 57949/00, § 178, 24 February 2005, or Khatsiyeva and Others v. Russia, No. 5108/02, § 134, 17 January 2008). It also does not overlook the fact that an armed conflict, such as that in Chechnya, may entail developments to which State agents are called upon to react without prior preparation. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the obligation to protect the right to life must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, mutatis mutandis, Makaratzis, cited above, § 69, and Mahmut Kaya v. Turkey, No. 22535/93, § 86, ECHR 2000-III).
89. Turning to the facts of the present case, the Court notes the Government's contention that the special operation conducted in Stariye Atagi between 6 and 13 March 2002 had been properly planned and carried out in compliance with the applicable legislation, in particular with Federal Law No. 130-FZ of 25 July 1998 on Suppression of Terrorism, Federal Law No. 1026-1 of 18 April 1991 on Police and Presidential Decree No. 1255c of 23 September 1999 on Measures Enhancing the Efficiency of Counter-Terrorist Operations in the Territory of the North Caucasia Region of the Russian Federation. The Court leaves open the question whether the legal acts in question constituted an appropriate legal framework for the use of force and contained clear and sufficient safeguards to prevent arbitrary deprivation of life since, in any event, the Government have failed to demonstrate that the circumstances in which the applicants' relative was killed rendered the use of lethal force against him inevitable.
90. The Court notes that in their observations on the admissibility and merits of the present application the Government provided a concise description of the fight of 9 March 2002, reproduced in paragraph 18 above. The circumstances



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