CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 mars 2008

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RUSSIA     (Application no. 77626/01)     JUDGMENT           STRASBOURG     20 March 2008     FINAL     29/09/2008       This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Aziyevy v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 28 February 2008, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 77626/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian nationals, Mr Lech and Mrs Zulay Aziyevy (“the applicants”), on 16 July 2001. 2.     The applicants, who had been granted legal aid, were represented by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Mr   P.   Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicants alleged that their sons had disappeared after being detained by servicemen in Chechnya in September 2000. They complained under Articles 2, 3, 5 and 13 of the Convention. 4.     By a decision of 21 September 2006 the Court declared the application partly admissible. 5.     The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ), the parties replied in writing to each other’s observations. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicants were born in 1947 and 1949 respectively. They are married and had two sons: Lom-Ali Aziyev, born in 1973, and Umar-Ali Aziyev, born in 1974. They all lived in an apartment situated on the second floor of a block of flats at 49 Tukhachevskogo Street, Grozny. A.     The applicants’ sons’ arrest 7.     During the night of 24 September 2000 the applicants and their sons were asleep at home. At around 1.20 a.m. a group of eight armed men wearing camouflage uniforms and masks and carrying torches entered the applicants’ flat, having broken down the door. The men did not identify themselves. The applicants claimed that the men were members of the Russian military, since they spoke Russian and could move around freely in Grozny during the curfew. 8.     The men kicked the first applicant and beat him with machine guns. They aimed their guns at both applicants and ordered them to be silent. 9.     Thereafter the men proceeded to the applicants’ sons’ room. Without producing any documents to authorise their actions, the men searched the room and arrested Lom-Ali and Umar-Ali Aziyev. As the applicants’ younger son resisted, he was knocked off his feet, handcuffed and blindfolded. Then the men took away the Aziyev brothers, who only had their underwear on and were barefoot. One of the men also took a pair of shoes and a tape recorder. The second applicant’s attempts to obstruct the detention of her sons failed as the men threatened her with firearms. According to the applicants, the men assured them that they would check their sons’ identities and release them immediately afterwards. 10.     In the morning the applicants found their sons’ identity documents on a bedside table in the room. The room was in a mess and a sofa was broken. 11.     The applicants submitted that the neighbours had told them later that on that night armed men wearing masks, with torches, had been standing on all the landings of their building, between the first and the ninth floors. One of the women neighbours told them that she had been asked about the Aziyev brothers and that she had replied that they were “good boys”. 12.     In support of their statements, the applicants submitted two written accounts signed by five of their neighbours from the building, including Mr   R., and one account from a man who lived in the building opposite theirs, about 30 metres away. They confirmed the applicants’ submissions and stated that in the early hours of 24 September 2000 the doors of two flats in that building had been broken down by a group of men wearing training shoes and armed with automatic rifles. They asked the neighbours about the Aziyev family, with whom the neighbours were on good terms. One of the neighbours saw the group of armed men walking afterwards towards the military roadblock at the intersection of Tukhachevskogo and Kaspara Streets. 13.     The applicants have had no news of their sons since. 14.     The Government did not dispute the circumstances of the Aziyev brothers’ detention as presented by the applicants. They submitted that during the night of 24 September 2000 unidentified persons wearing camouflage uniforms and masks and armed with automatic weapons had arrested the brothers L.-A. and U.-A. Aziyev at 49 Tukhachevskogo Street, apartment no.   79, and taken them away to an unknown destination. The same persons had caused physical injuries to the first applicant. B.     The first applicant’s injuries 15.     On 24   September   2000, in the morning, the first applicant was taken by his neighbours to Hospital no.   9 and underwent a medical examination. 16.     The examination established that he had a craniocerebral injury, an avulsed wound (with detached tissue) in the temple area, a haematoma of the head as well as concussion, temporary blindness, a haematoma of the thorax and the subcutaneous stomach tissue, a haematoma of the scrotum, uraemia, fractured ribs and a contusion of the liver, of the kidneys and of the bladder. 17.     The first applicant submitted that he had had to stay in bed for about a month to recover. 18.     According to the Government, the first applicant had first notified the authorities of the beatings in February 2001. The first applicant argued that he had talked about his injuries to the investigators who had questioned him on 24 September 2000, and that he had mentioned the beatings in a letter to the prosecutor of the Chechen Republic dated 9 December 2000, a copy of which had been submitted to the Court. 19.     On an unspecified date the Grozny Town Prosecutor’s Office (“the Grozny prosecutor’s office”) ordered a forensic medical examination of the first applicant so as to ascertain whether there was a causal link between his injuries and the actions of unknown servicemen who had raided his flat on 24   September   2000 and beaten him. 20.     This examination was carried out on 8   February   2001. The report relied on a medical record indicating the results of the medical examination carried out on 24 September 2000 and confirmed that the injuries in question could have been sustained during the period and in the circumstances described by the first applicant. 21.     It appears that the first applicant’s allegations were investigated in the context of criminal proceedings brought in respect of the abduction of his two sons and that on 17 December 2003 he was granted victim status in that connection. 22.     In 2005 the investigating authorities ordered another forensic medical examination on the ground that the results of the examination of 8   February 2001 were unreliable. On 10 March 2005 experts reported that they had not found any signs of injury to the first applicant’s head, face or body, and that X-ray examinations had not disclosed any damage to the first applicant’s heart, lungs or ribs. With reference to the medical record made in Hospital no. 9 on 24 September 2000 the experts concluded that the injuries complained of by the applicant had been acquired on that date, and that the first applicant had been likely to have sustained those injuries during the period and in the circumstances described by him. The report also stated that there were no objective data to confirm the conclusion of the examination of 24 September 2000 that the applicant had had fractured ribs, concussion and contusions of the liver, of the kidneys and of the bladder. C.     The search for Lom-Ali and Umar-Ali Aziyev and the investigation 23.     Since 24   September   2000 the applicants have repeatedly applied in person and in writing to various public bodies, including the district office of the Ministry of the Interior (“the ROVD”), prosecutors at various levels, a military commander’s office, the administrative authorities of Chechnya and the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms. They have been supported in their efforts by two NGOs: Memorial and the SRJI. In their letters to the authorities the applicants referred to their sons’ detention and asked for assistance and details of the investigation. Mostly these enquiries have remained unanswered, or purely formal replies have been given in which the applicants’ requests have been forwarded to various prosecutors’ offices. 24.     The first applicant has also visited a number of detention centres and prisons in Chechnya as well as further afield in the Northern Caucasus, but has received no information as to the whereabouts of his sons. 25.     On 29   September   2000 the Grozny prosecutor’s office instituted a criminal investigation into the disappearance of the applicants’ sons under Article 126   §   2 of the Criminal Code (kidnapping of two or more persons by a group using firearms). The case file was assigned no.   12200. 26.     On 11   October   2000 the Grozny prosecutor’s office granted the second applicant victim status. According to the Government, she was notified of that decision the same day. From the applicants’ submissions it appears that they were not informed of that decision until May 2003, when they received a copy of it. 27.     On 29   November   2000 the Grozny prosecutor’s office suspended the criminal proceedings for failure to establish the identity of those responsible. 28.     On 9 December 2000 the first applicant wrote to the public prosecutor’s office of the Chechen Republic (“the Chechnya prosecutor’s office”) and stated the circumstances of his sons’ detention and of his injuries. He stated that his children had never taken part in the activities of illegal armed groups and asked for the persons who had committed the crime to be identified. 29.     In a letter of 19 January 2001 the Chechnya prosecutor’s office informed the applicants that the decision of 29   November   2000 had been set aside. 30.     On 1   February   2001 the investigation of the disappearance of Lom-Ali and Umar-Ali Aziyev was resumed. 31.     On 1   March   2001 the criminal proceedings in case no.   12200 were adjourned, since no culprits had been identified. 32.     On 11 September 2001 the second applicant submitted a complaint to the Chechnya prosecutor’s office. In it she outlined the circumstances of her sons’ detention and mentioned that in June 2001 she had seen a list of persons who had allegedly been detained at the Khankala military base and that the name of Lom-Ali Aziyev, detained on 23   September 2000, had been on that list. 33.     In a letter of 19   June   2002, in response to a request from Memorial on the applicants’ behalf, the Chechnya prosecutor’s office stated that the decision of 1   March   2001 had been quashed, and the investigation of the abduction of the Aziyev brothers reopened. 34.     In a letter of 30 July 2002 the Chechnya prosecutor’s office informed the applicants of the decision to reopen the criminal proceedings in case no. 12200. 35.     According to a letter from the Grozny prosecutor’s office dated 29   October   2002, the criminal proceedings were again suspended on 6   September   2002. 36.     In a letter of 17   September   2003 the Chechnya prosecutor’s office informed the applicants that the investigation of the disappearance of their sons had been suspended on 27   July   2003, as the perpetrators had not been found. 37.     It appears that some time later the investigation was resumed, as in a decision of 17 December 2003 the prosecutor’s office of the Leninskiy District of Grozny (“the Leninskiy district prosecutor’s office) declared the first applicant to be a victim of crime in case no. 12200. 38.     On 22 June 2005 the SRJI, on behalf of the applicants, requested the Leninskiy district prosecutor’s office to give them an update of the investigation of the kidnapping of the Aziyev brothers and to allow the applicants, as victims, access to the investigation file. In July 2005 the district prosecutor’s office replied that the investigation had been adjourned on 28 April 2005 and that all the necessary investigative measures had been taken. The second applicant was invited to access the file at the prosecutor’s office during working hours. 39.     On 1 November 2005 the Leninskiy district prosecutor’s office informed the first applicant that the investigation had been resumed. On 1   December 2005 the first applicant was informed that the investigation had been adjourned and of his right to appeal. 40.     The applicants submitted that their health had deteriorated significantly since the events of 24 September 2000 and the disappearance of their sons. They presented a number of medical documents, according to which the first applicant was suffering from the consequences of a stroke and the second applicant had chronic hypertension and rheumatological problems. D.     Information from the Government 41.     In their observations the Government did not dispute the information concerning the investigation of the abduction of the Aziyev brothers as presented by the applicants. Relying on information obtained from the General Prosecutor’s Office, they referred to a number of other procedural steps taken by the investigation which had not been mentioned by the applicants. However, despite specific requests from the Court and two reminders, the Government did not submit copies of most of the documents to which they referred (see below). 42.     With reference to the information provided by the Prosecutor General’s Office, the Government submitted that the investigation of the abduction of Lom-Ali and Umar-Ali Aziyev and the inflicting of injuries to the first applicant by “unidentified masked men in camouflage uniforms with machine guns” had commenced on 29 September 2000. They further submitted that an investigator from the Grozny prosecutor’s office had examined the scene of the incident on 24 September 2000, but “had not found any evidence of crime”. The investigator also questioned the applicants. 43.     The first applicant was questioned further on 22 June 2002, 17   December 2003, 21 February and 5 April 2005, and the second applicant was questioned as a witness on 11 October 2000 and 22 June 2002. The applicants were granted victim status on 17 December 2003 and 11   October 2000 respectively. 44.     In April 2005 new charges were brought against the same unidentified persons who had stolen the applicants’ property. The Government submitted that in September 2006 the investigation had sent requests to all the district departments of the interior in Chechnya with the aim of establishing the whereabouts of the pair of shoes and video player stolen from the applicants. 45.     As the Government stated, the investigation questioned a number of witnesses. On unspecified dates two of the applicants’ neighbours, including Mr. R., testified that during the night of 24 September 2000 “unidentified armed men in camouflage uniforms had burst into their flat, checked their documents and then left”. Mr R. had been additionally questioned in October and November 2006, when the investigation decided that no further criminal investigation would be opened, as the witness had not sustained any damage. 46.     In November 2005 and October 2006 the investigation questioned twelve persons, some of them the applicants’ relatives and neighbours. According to the Government, they confirmed the arrest of the Aziyev brothers in September 2000 by unidentified armed men. Apparently, the witnesses were mostly aware of this event by hearsay. According to the Government, it was impossible to find other witnesses in the case. 47.     The Government submitted that the investigating authorities had sent a number of queries to various State bodies on 11 October 2000, 3, 10, 11   and 16 February and 23 October 2001, 21 June 2002, 1 December 2003, 14   February and 2 November 2005 and had taken other investigative measures, but did not specify what those measures had been. They also submitted that in April 2005 the investigation had sent requests to all district departments of the interior in Chechnya with the aim of establishing the whereabouts of the Aziyev brothers; however, no relevant information had been obtained. The Government referred to a reply from the criminal police Department of the Ministry of the Interior of Chechnya, which had stated that the two men had not been detained by that body and had not been delivered to the law-enforcement authorities. 48.     According to the documents submitted by the Government, between September 2000 and November 2006 the investigation was suspended and resumed on eight occasions, and has so far failed to identify those guilty. In the latest decision to resume the investigation, dated 10   November 2006, the deputy prosecutor of the Leninskiy district prosecutor’s office criticised the progress of the investigation and stated that a number of important investigative steps should be taken without delay. These included the following actions: “ – to collect his sons’ identity documents from [the first applicant];   - to obtain full descriptions of the brothers U.-A. and L.-A. Aziyev;   - to question the applicants further in order to find out which language the abductors spoke;   - to make a legal assessment of the actions of the persons who unlawfully broke into the apartments of [the applicants] and [their neighbour Mr. R.];   - to question the sister of the two kidnapped men;   - to question the inhabitants of the nearby houses in order to find out whether they saw servicemen walking to the checkpoint that night.” The Government further submitted that the progress of the investigation was being supervised by the Prosecutor General’s Office. According to the Government, the applicants had been duly informed of all decisions taken during the investigation. 49.     Despite specific requests by the Court the Government did not disclose most of the contents of criminal case no.   12200, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of several notifications to the relatives of the adjournment and reopening of the proceedings. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. E.     Proceedings against law-enforcement officials 50.     On 30   December   2002 the SRJI applied on the applicants’ behalf to the Leninskiy District Court of Grozny (“the District Court”), complaining that the Grozny prosecutor’s office had failed to investigate the disappearance of Lom-Ali and Umar-Ali Aziyev effectively. 51.     On 19 May 2003 the District Court dismissed that complaint, having found that the investigating authorities had taken all necessary measures to find the Aziyev brothers and those involved in their abduction. The applicants did not appeal against that decision. In their submissions to the Court they alleged that they had been unable to do so, as they had not been notified of the court session and that the decision in question had been taken in their absence. From the copy of the court decision submitted by the Government it transpires that the first applicant attended the court session. II.     RELEVANT DOMESTIC LAW 52.     Until 1 July 2002 criminal law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP). 53.     Article 161 of the new CCP establishes the rule that data from a preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from an investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission. THE LAW I.     THE GOVERNMENT’S PRELIMINARY OBJECTION A.     Arguments of the parties 54.     The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation of the disappearance of the applicants’ sons had not yet been completed. They further argued that it had been open to the applicants to lodge court complaints about the allegedly unlawful detention of their sons or to challenge in court any actions or omissions of the investigating or other law-enforcement authorities, but that the applicants had not availed themselves of any such remedy. The Government pointed out that the applicants had not appealed against the decision given by the Leninskiy District Court of Grozny on 19 May 2003. They also enclosed a number of letters from various higher courts in Russia, stating that the applicants had never lodged complaints regarding their sons’ detention or the authorities’ inactivity to the respective courts. 55.     The applicants contested that objection. They first stated that in 2000 they had not been able to make effective use of any remedy within the territory of the Chechen Republic, as the courts and law-enforcement agencies had not functioned properly there. With reference to the Court’s judgment in the case of Isayeva v. Russia , they further argued that they had not been obliged to apply to courts in other regions of Russia in order to exhaust domestic remedies (see Isayeva v. Russia no. 57950/00, §§ 151-161, 24 February 2005). The applicants further stated that the administrative practice on the part of the authorities, of failing to conduct adequate investigations of offences committed by representatives of the federal forces in Chechnya, rendered any potentially effective remedies inadequate and illusory in their case. In this connection they relied on applications submitted to the Court by other individuals claiming to be victims of similar violations, documents of the Council of Europe, and NGO and media reports. The applicants contended that, in any event, they had repeatedly applied to law-enforcement bodies, including various prosecutors, and actively participated in the investigation. This avenue, however, had proved futile, given that the criminal investigation had been pending for several years but had failed to identify those involved in the illegal detention and disappearance of Lom-Ali and Umar-Ali Aziyev and the beating of the first applicant. As regards the decision of the Leninskiy District Court of 19 May 2003, the applicants argued that the reference made therein that the first applicant had appeared before the court was false, and that in fact the applicants and their representatives had not been notified of that hearing and had therefore been unable to attend it. Furthermore, they had only received a copy of this decision as an enclosure to the Government’s memorandum of 9 March 2005. The applicants therefore argued that they had been effectively prevented from appealing against the decision of 19 May 2003. B.     The Court’s assessment 56.     In the present case, the Court took no decision about the exhaustion of domestic remedies at the admissibility stage, having found that this question was too closely linked to the merits. It will now proceed to examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia , no. 60272/00, §   73-74, 12 October 2006). 57.     The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies. 58.     As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v.   Russia , nos.   57942/00 and 57945/00, §§   119-121, 24 February 2005, and Estamirov and Others , cited above, §   77). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. The preliminary objection in this regard is thus dismissed. 59.     As regards criminal law remedies, the Court observes that the applicants complained to the law enforcement authorities immediately after the detention of their sons and that an investigation has been pending since September 2000. The applicants and the Government dispute the effectiveness of this investigation. 60.     The Court considers that this limb of the Government’s preliminary objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicants’ complaints. Thus, it considers that these matters fall to be examined below under the substantive provisions of the Convention. II.     THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A.     The parties’ arguments 61.     The applicants maintained that it was beyond reasonable doubt that the men who had intruded into their flat on 24 September 2000, taken away their sons and beaten the first applicant had represented federal forces. In particular, those men had spoken Russian without any accent and had told the applicants that they would check their sons’ identity and release them immediately afterwards. Moreover, the men had arrived late at night, which indicated that they were able to circulate freely during the curfew in Grozny, which in September 2000 had been under the firm control of the Russian armed forces. The applicants further referred to their neighbours’ witness statements to the effect that on the night of the incident they had seen armed men walking from the block of flats in which the Aziyev family lived towards a federal military checkpoint (see paragraph 12 above). The applicants also pointed out that the ground for the Government’s refusal to submit the file in criminal case no. 12200 was that it contained “information of a military nature disclosing the location and nature of actions by military and special security forces”. 62.     The Government submitted that during the night of 24 September 2000 “unidentified masked men in camouflage uniforms armed with machine guns” had abducted the applicants’ sons and inflicted physical injuries on the first applicant. They further contended that the investigation into the incident had been pending, that there was no evidence that the men had been State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants’ rights. The Government also stated that, according to one of the versions of the events looked upon by the investigation, the crime could have been committed by members of illegal armed groups. According to the Government, in September 2000 such persons had committed a number of murders, armed robberies and other crimes, pretending to be servicemen or representatives of law enforcement authorities. B.     Article 38 § 1   (a) and consequent inferences drawn by the Court 63.     The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanrıkulu v. Turkey [GC], no. 23763/94, §   70, ECHR   1999 ‑ IV). This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. Failure on a Government’s part to submit such information which is in their hands, without a satisfactory explanation, may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article   38   §   1   (a) of the Convention (see Timurtaş v. Turkey , no. 23531/94, § 66, ECHR 2000-VI). 64.     In the present case the applicants alleged that Lom-Ali and Umar-Ali Aziyev had been arrested by the authorities. In view of this allegation, the Court asked the Government to produce documents from the criminal investigation file opened in relation to the kidnapping. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case. 65.     In their submissions the Government confirmed that on the night of 24   September 2000 the Aziyev brothers had been taken away from their flat by unknown armed men, after which there had been no news of them. However, they argued that the perpetrators of this crime had not been found. They refused to disclose most of the documents of substance from the criminal investigation file, relying on Article 161 of the Code of Criminal Procedure. 66.     The Court notes that the Government did not request the application of Rule 33   §   2 of the Rules of Court, which permits a restriction on the principle of the public character of documents deposited with the Court for legitimate purposes, such as the protection of national security and the private life of the parties, as well as the interests of justice. The Court further notes that it has already found on a number of occasions that the provisions of Article 161 of the Code of Criminal Procedure do not preclude disclosure of documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure (see Mikheyev v.   Russia , no.   77617/01, §   104, 26 January 2006, and Imakayeva v. Russia , no.   7615/02, §   123, ECHR 2006 ‑ ... (extracts)). For these reasons the Court considers the Government’s explanation insufficient to justify the withholding of the key information requested by the Court. 67.     Referring to the importance of a respondent government’s cooperation in Convention proceedings, the Court notes that there has been a breach of the obligations laid down in Article 38   §   1   (a) of the Convention to furnish all necessary facilities to the Court in its task of establishing the facts. C.     The Court’s evaluation of the facts 68.     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, §§   103-109, 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 , cited above, pp. 64-65, § 161). In view of this and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government’s conduct in respect of the well-foundedness of the applicants’ allegations. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether Lom-Ali and Umar-Ali Aziyev can be presumed dead and whether their deaths can be attributed to the authorities. 69.     The applicants alleged that the persons who had taken their sons away and injured the first applicant on 24 September 2000 had been State agents. 70.     The Government suggested in their submission that the persons who had detained the Aziyev brothers could be members of paramilitary groups. However, this allegation was not specific and they did not submit any material to support it. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see Çelikbilek v. Turkey , no.   27693/95, §   71, 31   May 2005). 71.     The Court notes that, on the contrary, the applicants’ version of the events is supported by the witness statements collected by the applicants and by the investigation. The applicants and the neighbours stated that the perpetrators had acted in a manner similar to that of a security operation – they had checked the neighbours’ passports and the identity documents of the applicants, they had placed armed guards with torches on the landings of the building, they had spoken Russian among themselves and to the residents. Some witnesses also indicated that the men had then gone towards the military checkpoint situated several hundred metres from the building (see paragraphs 7, 9, 11 and 12 above). In their applications to the authorities, the applicants consistently maintained that their sons had been detained by unknown servicemen and requested the investigation to look into that possibility, including also mentioning their sons’ possible detention at the Khankala military base (see paragraphs 28 and 32 above). 72.     The Court finds that the fact that a large group of armed men in uniform during curfew hours proceeded to check identity documents and to arrest several persons at their homes in a town area strongly supports the applicants’ allegation that these were State servicemen. The domestic investigation also accepted these factual assumptions and took steps to check the involvement of law-enforcement bodies in the Aziyevs’ detention. The investigation was unable to establish which precise units had carried out the operation, but it does not appear that any serious steps had been taken in that direction. 73.     The Court observes that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, 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 Toğcu v. Turkey , no.   27601/95, §   95, 31 May 2005, and Akkum and Others v. Turkey , no.   21894/93, §   211, ECHR 2005 ‑ II). 74.     Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their sons were detained by State servicemen. The Government’s statement that the investigation did not find any evidence to support the 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 another plausible explanation of the events in question, the Court considers that that Lom-Ali and Umar-Ali Aziyev were arrested on 24   September 2000 at their house in Grozny by State servicemen during an unacknowledged security operation. 75.     There has been no reliable news of the applicants’ sons since 24   September 2000. Their names have not been found in any official detention facilities’ records. Finally, the Government did not submit any explanation as to what had happened to them after their arrest. 76.     The Court notes with great concern that a number of cases have come before it which suggest that the phenomenon of “disappearances” is well known in Chechnya (see, among other authorities, Bazorkina , cited above; Imakayeva v. Russia , no.   7615/02, ECHR 2006 ‑ ... (extracts); Luluyev and Others v. Russia , no.   69480/01, ECHR 2006 ‑ ... (extracts); Akhmadova and Sadulayeva v. Russia , no. 40464/02, 10   May 2007; and Baysayeva v.   Russia , no. 74237/01, 5 April 2007). A number of international reports point to the same conclusion. The Court agrees with the applicants that, in the context of the conflict in Chechnya, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Lom-Ali and Umar-Ali Aziyev or of any news of them for over seven years supports this assumption. For the above reasons the Court considers that it has been established beyond reasonable doubt that Lom-Ali and Umar-Ali Aziyev must be presumed dead following their unacknowledged detention by State servicemen. 77.     The Court has already noted above that it has been unable to benefit from the results of the domestic investigation, owing to the Government’s failure to disclose certain documents from the file. Nevertheless, it is clear that the investigation did not identify the perpetrators of the kidnapping. As it follows from the documents submitted by the Government, as late as November 2006, more than six years after the crime had occurred and the investigation had been opened, the most basic investigation steps related to the establishment of the identity of the victims and the questioning of the witnesses about the events of the night of 24 September 2000 had not been taken (see paragraph 48 above). 78.     Furthermore, in a case involving disappearance, the Court finds it particularly regrettable that there should have been no thorough investigation of the relevant facts by the domestic prosecutors or courts. The few documents submitted by the Government from the investigation file opened by the district prosecutor do not suggest any progress in more than seven years and, if anything, show the incomplete and inadequate nature of those proceedings. Moreover, the stance of the prosecutor’s office and the other law-enforcement authorities after the news of their detention had been communicated to them by the applicants contributed significantly to the likelihood of the disappearance, as no necessary steps were taken in the crucial first days and weeks after the arrests. The authorities’ behaviour in the face of the applicants’ well-substantiated complaints gives rise to a strong presumption of at least acquiescence in the situation and raises strong doubts as to the objectivity of the investigation. 79.     For the above reasons the Court considers that it has been established beyond reasonable doubt that Lom-Ali and Umar-Ali Aziyev must be presumed dead following their unacknowledged detention by State servicemen. The Court also finds it established that no proper investigation of the abduction has taken place, which contributed to the eventual disappearance of the two men. Consequently, the responsibility of the respondent State is engaged. III.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 80.     The applicants complained under Article 2 of the Convention that their two sons had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads: “1.     Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.     Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a)     in defence of any person from unlawful violence; (b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c)     in action lawfully taken for the purpose of quelling a riot or insurrection.” A.     The alleged violation of the right to life of Lom-Ali and Umar-Ali Aziyev 81.     The applicants maintained their complaint and argued that their sons had been detained by State servicemen and should be presumed dead in the absence of any reliable news of them for several years. 82.     The Government referred to the fact that the investigation had obtained no evidence to the effect that the Aziyev brothers were dead, or that representatives of the federal power structures had been involved in their abduction or alleged killing. 83.     Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which a deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom , judgment of 27   September 1995, Series A no. 324, pp. 45-46, §§ 146-147). In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation 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 , cited above, § 391). 84.     The Court has already found it established that the applicants’ sons must be presumed dead following unacknowledged arrest by State servicemen and t