PARTLY DISSENTING OPINION OF JUDGES KOVLER AND HAJIYEV

We share the main conclusions of the Chamber in this case with the exception of the conclusion that there has been a violation of Article 2 of the Convention in respect of the killing of three members of the applicant ’ s family.

In the light of the importance of the protection provided by Article 2 of the Convention, the Court 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 (see, among other authorities, Avşar v. Turkey , no. 25657/94, judgment of 10 July 2001, § 391, ECHR 2001-VII).

In this case the applicant was unable to submit persuasive evidence to support her allegations as to the State ’ s responsibility for the murders. The exact cause and circumstances of the applicant ’ s relatives ’ deaths have never been established. The applicant did not seek the opinion of a medical doctor before the burial of her relatives ’ remains. No official death certificates were produced by the competent authorities such as to suggest that a basic fact-finding exercise had been carried out on the domestic level and at least indicate the dates and causes of the deaths. No photographs were taken and no detailed description of the bodies was recorded before burial, nor did the applicant apply to a domestic court in order to establish the facts and circumstances of her relatives ’ deaths (see, by contrast, Khashiyev and Akayeva v. Russia , nos. 57942/00 and 57945/00, judgment of 24 February 2005, §§ 28-30 and §§ 39-42, and Estamirov and Others v. Russia , no. 60272/00, judgment of 12 October 2006, §§ 18, 20 and 21). Furthermore, in the criminal proceedings the applicant refused to allow the exhumation of her relatives ’ remains and the preparation of a forensic expert report, or even to identify the place where they were buried. If such reports had been produced their results could have provided valuable information about the exact manner of the deaths and served to support or undermine the applicant ’ s allegation.

The investigation examined the version of the events advanced by the applicant, as well as other possibilities, such as the possibility that the deaths were a result of the shelling of the house or a feud with the illegal “insurgents” operating in the district (it appears that it found no conclusive evidence to support any of these theories). The applicant herself was not an eyewitness to the events. No witnesses were identified who could corroborate her statements about the servicemen being responsible for the murders. The absence of any independent information concerning the cause of the deaths was undoubtedly a major impediment to the investigation.

The Court, to our regret, took into account only the applicant ’ s allegation that the servicemen had been the perpetrators of the crime. According to the applicant, the killings of her relatives were directly linked to the other murders which had occurred in the Staropromyslovskiy district in January 2000 (see paragraph 80 of the judgment). By analogy, she referred to the Court ’ s conclusions in Khashiyev and Akayeva .

In view of the Court ’ s conclusions in the Khashiyev and Akayeva case, where the Court found it established that the Russian forces had been in control of the district at the time and that they had been responsible for the deaths of the applicants ’ relatives on 19 and 20 January 2000 (see Khashiyev and Akayeva , cited above, §§ 142-45), we think that Mrs Tangiyeva ’ s allegation cannot be discarded as prima facie untenable . However, we cannot agree with the applicant and apply these conclusions to the facts of the present case to an extent which would attribute the responsibility for unlawful acts to the respondent State, without having the benefit of additional evidence to that effect.

We reiterate that the required evidentiary standard for the purposes of the Convention is that of proof “beyond reasonable doubt” and that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. We cannot share the conclusion that the burden of proof is exclusively shifted to the Government, even though we regret that the respondent Government failed to disclose all the documents in the investigation file.