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





9 September 2006 that the car with several persons in it, which had already been shot at and set on fire, was crushed by an APC, which is further supported by photographs of the car submitted by the applicants. No explanation has been provided to the Court as to why an action as drastic as this was necessary in the circumstances. Accordingly, the Court considers that even assuming that Mr Ismail Dzhamayev was killed in the circumstances described by the Government, the latter have not justified their submission that the use of force was no more than "absolutely necessary".
93. The Court observes that the applicants contended that, having been under the control of the authorities, Mr Ismail Dzhamayev could not have been involved in the fight on 9 March 2002. The Court does not find it necessary to make specific findings in this respect since it has established above that even assuming the Government's version of the events to be correct, they have failed to justify that the lethal force was used in compliance with Article 2 of the Convention. Nevertheless, it cannot but be perplexed, in view of its finding in paragraph 82 above that Mr Ismail Dzhamayev was apprehended by State servicemen and in the absence of any information provided by the Government on his subsequent release or escape, by the submission that - despite being in detention - he somehow managed to procure firearms and a car and engage in a fight with federal forces. No explanation has been provided by the Government in this respect.
94. The Court finds that in the absence of information on the crucial elements mentioned in paragraphs 90 - 93 above, the Government cannot be regarded as having accounted for the use of lethal force in the circumstances of the present case. It is therefore not persuaded that the killing of Mr Ismail Dzhamayev constituted a use of force which was no more than absolutely necessary in pursuit of the aims provided for in paragraph 2 of Article 2 of the Convention.
95. There has accordingly been a violation of Article 2 of the Convention in this respect.
(b) The alleged inadequacy of the investigation of the kidnapping
96. The Court notes at the outset that no documents from the investigation file were disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the applicants and the information about its progress submitted by the Government. The Court will also take into account the relevant information disclosed in relation to the case of Arzu Akhmadova and Others v. Russia, No. 13670/03.
97. Turning to the facts of the present case, the Court notes that Mr Ismail Dzhamayev was apprehended on 6 March 2002 during a special operation conducted in Stariye Atagi between 6 and 13 March 2002. The investigation was opened on 13 March 2002. The Court is therefore satisfied that the authorities' reaction was sufficiently prompt.
98. The Court further notes that on an unspecified date within six months of the events Mr B., who had witnessed Mr Ismail Dzhamayev's apprehension, and his mother were questioned. However, it appears that after that a number of crucial steps were either delayed or not taken at all.
99. The Court observes, firstly, that the body of the applicants' relative which was severely burnt was not identified until over two years after the events which led to his death. Not only did the authorities not take any steps to identify the body of their own motion, but no forensic examination was conducted even after one had been requested by the applicants (see paragraphs 21 - 24 and 45 above) and the body remained unidentified until 17 June 2004. Such a delay, for which no explanation has been provided, could only have significantly impeded the establishment of the exact circumstances of his death.
100. From the materials available to the Court i



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