CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 3 juillet 2008

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page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FIRST SECTION         CASE OF MUSAYEVA v. RUSSIA   (Application no. 12703/02)               JUDGMENT       STRASBOURG   3 July 2008   FINAL     01/12/2008     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 Musayeva 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 12 June 2008, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 12703/02) 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 a Russian national, Ms Khapta Musayeva (“the applicant”), on 3 February 2002. 2.     The applicant was represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights and subsequently by their representative, Mrs V. Milinchuk. 3.     The applicant alleged that her son had disappeared after being detained by servicemen in Chechnya on 5   February 2000. She complained under Articles 2, 3, 5 and 13 of the Convention. 4.     By a decision of 18 January 2007, the Court declared the application 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 applicant was born in 1921 and lives in Grozny, the Chechen Republic. A.   The applicant's son arrest 7.     The applicant lives with her family in a private house at 17 Zabolotny Lane in the Oktyabrskiy District of Grozny. In the winter of 1999–2000 most members of the applicant's family left Grozny because of the hostilities, which had begun in early October 1999. The applicant's youngest son, Yakub Iznaurov, who was born in 1966, remained in Grozny in order to look after the applicant who was unwell and could not travel. He had previously lived with his family in the Republic of Kalmykia, but came back to Grozny several years before the events described below to stay with his mother because of her state of health. 8.     Yakub Iznaurov was married and had five minor children. In November 1999 Yakub Iznaurov's wife and children left for the Republic of Ingushetia with the rest of the applicant's family. (a)     The applicant's account of the events 9.     According to the applicant, the federal armed forces regained control over the northern and central parts of Grozny by the end of December 1999 and January 2000, respectively. The applicant further submitted that the southern part of the city, in which her house was situated, was taken over by the federal forces by 4 February 2000. On that day Russian servicemen warned those living in the applicant's street that a “sweeping” operation (“ zachistka ”) would take place there the next day. 10.     On 5 February 2000 at around 10 a.m. a group of about 50   servicemen in camouflage uniforms arrived at Zabolotny Lane and started checking the houses one by one. They left their military vehicles and armoured personnel carriers (“APCs”) at the end of the lane and proceeded along the street. They did not introduce themselves or produce any documents in justification of their actions. 11.     Having been notified of the “sweeping” operation, the residents of Zabolotny Lane gathered in front of the applicant's house, because there was a big cellar in the basement of the house in which they used to hide from shelling during the winter. The federal soldiers ordered the men to undress and show their shoulders, arms and knees, in order to enable the servicemen to check if there were any signs of them having used firearms. When the soldiers did not find any suspicious signs, they ordered the male residents to show their identity documents. 12.     A soldier who was checking Yakub Iznaurov's passport noted that his permanent place of residence was in the Republic of Kalmykia. The serviceman asked the applicant's son why he had come to Grozny and whether he had come to Chechnya to fight against the Russian forces. Without listening to Yakub Iznaurov's explanations, he then called his superior, who ordered to that Yakub be taken away for “clarification of the circumstances”. 13.     The applicant and other neighbours from the street tried to intervene and explain that Yakub had not been involved in any unlawful activities and that he had been staying with the other residents in the basement during the winter, but the servicemen kept saying that they would release him after the check. They then placed the applicant's son in a military vehicle without registration plates. There was another man, M. D., together with his five-year-old son, in the car. The vehicle moved towards the settlement of Novye Aldy, and the applicant and other residents followed it. 14.     The vehicle having stopped near the tram rails, the soldiers ordered the men out. They then brought three other men, Z. D., M. G. and R. A., to the same place. The servicemen ordered all the detained men to kneel on the rails and to put their hands up. 15.     Then a new officer with the rank of colonel arrived in a car. The colonel, who was wearing military insignia (shoulder straps with three stars), saw the child among the detained men and ordered the soldiers to take him away, but when they tried to do so the boy started screaming and clung to his father's leg. This made the colonel check M. D.'s documents himself, and he released him together with his son. 16.     The rest of the men remained kneeling and undressed to their waists. The servicemen tied the men's hands behind their backs with metal wire and pulled their caps over their faces. They also recorded these actions with a video camera. 17.     The detained men were kept in that position for about two hours. Then the soldiers took them back into the same military vehicle. The applicant and other relatives asked the servicemen where they were taking the men. The soldiers replied that the detainees would be delivered to Staraya Sunzha, a suburb of Grozny, for questioning. The servicemen also said that they were from the special police unit of St. Petersburg (“the St. Petersburg OMON”). The military vehicles then drove off in a column, together with other vehicles that had arrived from Novye Aldy. 18.     There has been no news of the applicant's son or the other three detainees ever since. 19.     The applicant submitted detailed eye-witness statements about the events of 5 February 2000, including those by her neighbours N. M., V. S., Z. S., S. Sh. and S. M., and by M. D., who had been apprehended on 5   February   2000 with his five-year-old son but later released. She also submitted a number of press articles and NGO reports, including that by the Memorial Human Rights Centre entitled “Mopping Up. Settlement of Novye Aldy, 5 February 2000 – Deliberate Crimes Against Civilians” («Зачистка». Поселок Новые Алды, 5 февраля 2000 – преднамеренные преступления против мирного населения) , relating to the events in the southern suburbs of Grozny on 5 February 2000 and subsequent investigation. They stated that on 5 February 2000 at least 60 civilians had been killed in the settlements of Novye Aldy and Chernorechye in the southern suburbs of Grozny. The Human Rights Watch Report of June 2000 entitled “February 5: A Day of Slaughter in Novye Aldi” put the blame for extra-judicial executions on the Russian police special units and military. (b)     The Government's account of the events 20.     The Government relied on information provided by the Prosecutor General's Office ( Генеральная Прокуратура РФ ) to the effect that, at about 10 a.m. on 5   February 2000, “unidentified men wearing camouflage uniforms and masks and armed with automatic firearms had arrived at Zabolotny Lane in the city of Grozny, detained the applicant's son and taken him away in an unknown direction.” 21.     They also submitted that until the middle of February 2000 the vicinity of the applicant's domicile was out of the federal armed forces' control, which had ruled out the possibility for them to carry out any special operations within that territory on the date in question. B.     The applicant's search for Yakub Iznaurov and the authorities' replies 22.     Immediately after her son's detention, the applicant and other members of her family started searching for him. They coordinated their efforts with relatives of the three other men who had been detained on 5   February 2000 and subsequently disappeared. On numerous occasions, both in person and in writing, they applied to the prosecutors at various levels, to the Ministry of the Interior and to the administrative authorities in Chechnya. In their letters to the authorities the applicant and her family members stated the facts of Yakub Iznaurov's detention and asked for assistance and details on the investigation. They also visited different military commander's offices and pre-trial detention centres in Chechnya and further afield in the region. These attempts yielded little result. On several occasions the applicant received copies of letters from various officials, forwarding her requests to different prosecutors' services. 23.     On 6 February 2000 the applicant, together with the mothers of the three other detainees, went to Staraya Sunzha, because on the day of her son's detention the servicemen had mentioned that they would take the detained men there for questioning. A military officer in Staraya Sunzha told them that all the detainees had been taken to Khankala, the main Russian military base in Chechnya. The applicant tried to enter the Khankala military base, but was denied access by guards. On the same day the applicant and the mothers of the other detainees went to the administration of the Staropromyslovskiy District and talked to the head of the district administration, who wrote down the names of the detainees and promised to help. 24.     On 7 February 2000 the applicant and the relatives of the other detainees lodged an application with the military commander of the Oktyabrskiy District of Grozny and asked for their children's release. They applied to him again on 12 March and 5 May 2000. 25.     On 15 February 2000 they lodged a similar application with the head of the Grozny police department. They contacted him again on 10, 13 and 20   April 2000. 26.     On 17 March 2000 the applicant's husband applied to the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic ( Специальный представитель Президента РФ по соблюдению прав и свобод человека в Чеченской Республике ). He described briefly the circumstances of his son's detention and listed the authorities and detention centres which he and his relatives had visited by that date. He resubmitted his application on 12 May and 26 July 2000. 27.     On 28 March 2000 the applicant's husband wrote to the prosecutor's office of the Chechen Republic ( прокуратура Чеченской Республики – “the republican prosecutor's office”), seeking their assistance in establishing his son's whereabouts and securing his release. 28.     On 3 April 2000 the applicant's daughter wrote to the military prosecutor of the Chechen Republic ( военный прокурор Чеченской Республики ) asking for assistance in finding her brother. The family re-submitted their request on 15 November 2001. 29.     On 15 May 2000 the applicant's daughter received a letter from the military commander of the Oktyabrskiy District of Grozny, which stated that her brother had not been listed among those detained in the district. 30.     On 16 May 2000 the Chief Military Prosecutor's Office ( Главная военная прокуратура ) forwarded a request lodged on the applicant's behalf by the Memorial Human Rights Centre to the military prosecutor's office of the Northern Caucasus Military Circuit ( военная прокуратура Северо-Кавказского военного округа ). The latter transferred this request to the republican prosecutor's office on 13 June 2000. 31.     By letter of 31 May 2000 the republican prosecutor's office instructed the Chechen Department of the Interior to organise a search for a number of missing persons, listed in the applications lodged by relatives of those missing with the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic. 32.     On 5 July 2000 the applicant's husband wrote to the military prosecutor's office of the Northern Caucasus Military Circuit, asking for information concerning his son's disappearance. 33.     On 19 July 2000 the applicant's husband applied to the republican prosecutor's office, stating the circumstances of Yakub Iznaurov's detention, listing official bodies to which he had applied and asking for assistance in finding his son. The applicant's husband sent another letter to the republican prosecutor's office on 14 November 2001. 34.     Following the applicant's request, on 3 October 2000 the military commander of the Oktyabrskiy District of Grozny issued her with a certificate confirming that between 20 September 1999 and 5 February 2000 she and her son, Yakub Iznaurov, had remained in Grozny. 35.     On 22 October 2000 the applicant's husband requested assistance from the Office of the Mayor of Grozny in the search for his son. 36.     On 21 December 2000 the applicant wrote to the Grozny prosecutor's office ( прокуратура г. Грозного ), seeking to have a criminal investigation into her son's kidnapping opened. A similar request was submitted by another member of the applicant's family on 5 January 2001. 37.     On 31 January 2001 the applicant's family addressed the military commander of Grozny and asked for help in finding Yakub Iznaurov. 38.     In February 2001 Yakub Iznaurov's wife applied to a court in Ingushetia, seeking to have her husband declared a missing person, which would enable her, their five children and Yakub Iznaurov's elderly parents to obtain social benefits in connection with the loss of the family's breadwinner. On 17 April 2001 the Nazran District Court granted this request. The court heard two witnesses and examined copies of the family's requests to various authorities and the latter's replies concerning Yakub Iznaurov's whereabouts. On the basis of that evidence, the court established that there had been no news of Yakub Iznaurov for a year and declared him a missing person. 39.     On 9 February 2001 the Grozny prosecutor's office provided the applicant's husband with a notice which stated that their office had opened a criminal investigation into Yakub Iznaurov's disappearance. The notice contained no other information. 40.     In a letter of 21 May 2001 to the Southern Federal Circuit Department of the Prosecutor General's Office ( Управление Генеральной прокуратуры РФ в Южном федеральном округе ) the applicant's husband enquired about the developments in locating Yakub Iznaurov. 41.     On 16 July 2001 the republican prosecutor's office forwarded the letter to the Grozny prosecutor's office, ordering the latter to conduct a check and decide whether criminal proceedings should be instituted under Article   126   (2) of the Russian Criminal Code (aggravated kidnapping). 42.     On 25 July 2001 the applicant asked a military prosecutor to verify whether her son had ever been detained at the Khankala military base. She received no clear reply, and on 15 August 2001 applied again. From a note made by an official on her application it follows that she was “given explanations” on that date. 43.     In August 2001 the office of the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic wrote to the republican prosecutor's office, asking them to reply to their letter of 26   July 2000 concerning the applicant's situation. 44.     On 28 August 2001 the applicant lodged a complaint with the military prosecutor's office of military unit no. 20102, based in Khankala. 45.     On 26 September 2001 the republican prosecutor's office replied to the applicant, stating that her son's whereabouts had not been established. Yakub Iznaurov had not been listed among those kept in the pre-trial detention centres in the Stavropol Region, and the Ministry of the Interior continued searching for him. The letter contained no reference to a criminal investigation file. 46.     On 26 November 2001 the Administration of Chechnya informed the applicant that her son was being searched for as a “missing (forcibly detained) person”. 47.     On 6 December 2001 the applicant's husband wrote to the member of the State Duma elected in respect of Chechnya and asked for his assistance in finding his son. He sent another letter on 14 January 2001. In February 2002 the member of the State Duma replied that this letter had been forwarded to the Prosecutor General's Office. 48.     The Memorial Human Rights Centre applied on 29 December 2001 to the Grozny prosecutor's office on the applicant's behalf. They referred to investigation file no.   15029, opened in relation to Yakub Iznaurov's disappearance by the Grozny prosecutor's office, and asked for details on the investigation. 49.     On 30 December 2001 an investigator, apparently from the Grozny Prosecutor's Office, issued the following notice about the progress of the investigation: “Criminal case no. 15029 opened on 22 March 2001 by the first deputy of the Grozny prosecutor into the kidnapping of Mr   Iznaurov   Ya. A. Questioned as witnesses: Mrs [Sh], Mrs   Musayeva. Granted the status of victim: the sister of the kidnapped, Mrs Iznaurova R. The investigation was suspended on 22 May 2001 by an investigator of the Grozny Prosecutor's Office under Article 195 (3) of the Russian Code of Criminal Procedure”. 50.     The Southern Federal Circuit Department of the General Prosecutor's Office forwarded the applicant's complaint about “the unfounded suspension of the investigation in criminal case no. 15029” to the republican prosecutor's office on 14 February 2002. 51.     On 6 March 2002 an investigator from the Grozny prosecutor's office issued a notice which stated that “on 22 March 2001 the Grozny prosecutor's office opened criminal case file no. 15029 under Article   126   (2) of the Criminal Code into the kidnapping of Yakub Alamatovich Iznaurov on 5 February 2000. The whereabouts of Iznaurov   Ya.A. have not been established”. The notice contained no further details about the investigation. 52.     On 26 March 2002 the Department of the Prosecutor General's Office for the Northern Caucasus informed the applicant that the criminal case concerning her son's kidnapping had been suspended on 22 April 2001 due to a failure to identify the alleged perpetrators. There were no reasons to review that decision. It was not possible to establish which federal agencies had taken away Yakub Iznaurov during the special operation in Grozny on 5   February 2000. 53.     Following a request by the applicant's husband, on 29 May 2002 the republican prosecutor's office asked for information about the criminal case from the Grozny prosecutor's office. 54.     On 6 November 2002 the applicant's husband requested assistance from the department of the Chechnya Administration charged with searching for missing persons. On 21   November 2002 his letter was forwarded to the prosecutor's office, the Chechen Department of the Interior and the Oktyabrskiy District Office of the Interior. 55.     On 25 November 2002 the republican prosecutor's office again informed the applicant's husband that the decision to suspend the investigation in the criminal case had been well-founded, because it had been impossible to establish which federal agencies had taken away his son during the special operation. The letter stated that measures were being taken to establish Yakub Iznaurov's whereabouts and that he would be informed of any results. 56.     The criminal investigation division of the Chechen Department of the Interior replied to the applicant on 4 December 2002, stating that they had been searching for her son since 3 October 2000 and that she would be informed of any results. 57.     In reply to the applicant's query, on 9 December 2002 the Oktyabrskiy ROVD confirmed that they had opened a search file in respect of Yakub Iznaurov. 58.     In March 2003 the applicant's husband again wrote to the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic. That latter forwarded his letters to the republican prosecutor's office, to the military prosecutor of the Chechen Republic and to the Chechen Department of the Interior. 59.     On 27 March 2003 the applicant's husband complained to the Chairman of the State Duma that he had by that time applied to every possible authority in Russia and Chechnya which could help him establish his son's whereabouts, but despite these efforts and numerous witness-statements to the effect that the St. Petersburg OMON had taken his son on 5 February 2000, there were no results. 60.     On 7 April 2003 the department of criminal investigations of the Chechen Department of the Interior replied to the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic, with a copy to the applicant, stating that on 12 November 2000 the Grozny prosecutor's office had opened criminal case no. 12255 into the abduction of the applicant's son. The search for Yakub Iznaurov was in progress. 61.     In a letter of 21 April 2003 the republican prosecutor's office informed the applicant that on 19 March 2003 the investigation in case no.   12255 had been suspended. On 21 April 2003 the decision to suspend had been quashed by the republican prosecutor's office and the case had been remitted for further investigation with instructions to take more active steps. 62.     On 28 April 2003 the applicant's husband was granted the status of victim in criminal case no. 15025. 63.     On 1 December 2003 the Memorial Human Rights Centre requested, on the applicant's behalf, an update on the investigation from the Prosecutor General's Office. On 8 December 2003 the applicant also wrote to the Prosecutor General's Office. 64.     The republican prosecutor's office replied on 11 February 2004 to the Memorial Human Rights Centre, stating that a criminal investigation into Yakub Iznaurov's abduction was pending. 65.     According to the applicant, in their replies to her queries the authorities had referred to three different registration numbers for the investigation file concerning her son's abduction, namely to nos. 12255, 15025 and 15029, as well as to two different dates on which the investigation had allegedly been commenced, namely 12   November 2000 and 22 March 2001. C.     Official investigation 66.     According to the Government, neither the applicant nor any other relative of Yakub Iznaurov had applied to the law-enforcement bodies until 8   June   2000, when the applicant's husband lodged a complaint about his son's abduction with the Oktyabrskiy District Office of the Interior (“the Oktyabrskiy ROVD”). The latter had carried out an inquiry following this complaint and on 30 September 2000 had refused to institute criminal proceedings in the absence of evidence of a crime, as it had not been established during the inquiry that Yakub Iznaurov had been kidnapped. 67.     On 3 October 2000 the Oktyabrskiy ROVD commenced a search for Yakub Iznaurov and opened search file ( розыскное дело ) no. 030/00. 68.     Following this decision, on 9 November 2000 the Ministry of the Interior placed Yakub Iznaurov on the federal list of missing persons. The applicant was informed of this step on 4 January 2001. 69.     The Government submitted that the Grozny prosecutor's office had carried out an inquiry in connection with the information submitted by the Memorial Human Rights Centre on the involvement of personnel from the St. Petersburg OMON in the kidnapping of the applicant's son. The inquiry had established that the area around the applicant's domicile had been out of the federal forces' control until February 2000 and that therefore they had been unable to conduct any special operations there at the material time. Accordingly, on 12 October 2000 it had been decided to dispense with criminal proceedings as there was no evidence of a crime. 70.     According to the Government, on 22 February 2001 the Grozny prosecutor's office had quashed the decision of 12 October 2000 and instituted criminal proceedings in connection with Yakub Iznaurov's abduction under Article 126 (2) of the Russian Criminal Code (aggravated kidnapping). The case file had been assigned the number 15025. 71.     The Government also submitted that on 22 February 2001 the Grozny prosecutor's office had set aside the decision of 30 September 2000 and on 22 March 2001 had instituted criminal proceedings in connection with Yakub Iznaurov's kidnapping under Article 126 (2) of the Russian Criminal Code. That case file had been assigned the number 15029. On 16   April 2001 cases nos. 15025 and 15029 had been joined and given the number 15025. 72.     According to the Government, the investigation had been suspended on 22 April 2001, 28 May 2003, 4 July 2004 and 21 March 2005, and resumed on 28 April 2003, 2 June 2004, 20 January, 23 June and 23   July   2005 respectively, but had to date failed to identify the alleged perpetrators. The investigation was being carried out by the prosecutor's office of the Oktyabrskiy District of Grozny and was being supervised by the Prosecutor General's Office. It was resumed on 19 March 2007. 73.     The Government submitted that the investigating authorities had taken a number of measures during the investigation. In particular, on 13   April 2001 the investigator in charge had instructed the head of the Oktyabrskiy VOVD to take measures to search for and establish the whereabouts of the applicant's son. The applicant and her two neighbours had been questioned as witnesses on 22 April 2001. The applicant had been questioned as a witness on numerous occasions and she had received detailed replies to all her queries. The applicant's daughter, Yakub Iznaurov's sister, had been given victim status and questioned on 22 April 2001 and then again on 2 February 2005. The applicant's husband, Yakub Iznaurov's father, had been granted victim status and questioned as a witness on 28 April 2003. The investigating authorities had also questioned five other witnesses, including Yakub Iznaurov's other relatives and acquaintances, on 29 April 2003 and between 7 and 14   June   2004. Subsequently the authorities had questioned five more witnesses. All the witnesses had confirmed the circumstances of Yakub Iznaurov's detention and stated that they had no information as to his whereabouts. 74.     The Government stated that on 21 January 2005 the prosecutor of the Oktyabrskiy District of Grozny had set up an investigative group to investigate the kidnapping of the applicant's son and on 23   January 2005 the investigator in charge had inspected the scene of the incident. The investigating authorities had also sent a number of queries to various State bodies on 13 April 2001, 12 May 2003, 23 and 30 January 2005 and 25   June   2005 and had taken other investigative measures. The Government did not specify what those measures had been. In the Government's submission, the investigation had not established that the representatives of federal agencies had participated in Yakub Iznaurov's kidnapping. Furthermore, the personnel of the St. Petersburg OMON had not conducted any special operations in the vicinity of the applicant's domicile on 5   February 2000. D.     The Court's request for submission of the investigation file 75.     Despite specific requests made by the Court on two occasions, the Government did not submit a copy of any of the documents to which they referred, except for two decisions on the suspension and resumption of the investigation, of 23 July 2005 and 19 March 2007 respectively. 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 Russian 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. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right to make copies of the case file and to transmit it to others”. II.     RELEVANT DOMESTIC LAW 76.     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 (the new CCP). 77.     Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court. 78.     Article 161 of the new CCP stipulates that evidence from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator, but 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.     GOVERNMENT'S PRELIMINARY OBJECTION FOR FAILURE TO EXHAUST DOMESTIC REMEDIES A.     Arguments of the parties 79.     The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the abduction of the applicant's son had not yet been completed. They further argued that it had been open to the applicant to file court complaints about the allegedly unlawful detention of her son or to challenge in court any actions or omissions of the investigating or other law-enforcement authorities; however, she had not availed herself of any such remedy. The Government also enclosed a number of letters from various higher courts in Russia, stating that the applicant had never lodged complaints regarding her son's detention or the authorities' inactivity with the courts in question. 80.     The applicant disputed the Government's objection. She claimed that, rather than indicating that her complaints were premature, the fact that the investigation into the circumstances of her son's disappearance was still pending cast doubt on its effectiveness. The applicant also argued that the Government had failed to demonstrate that a court complaint against the actions or omissions of the investigating authorities would have been an effective remedy in her situation. She stated that this remedy was incapable of leading to the identification and punishment of those responsible and that under national law she could only make use of it after those responsible for the crime had been identified in the course of criminal proceedings. B.     The Court's assessment 81.     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). 82.     Inasmuch as the Government's preliminary objection concerns the applicant's failure to complain of her son's unlawful detention, the Court observes that after he was taken away by armed men on 5 February   2000, the applicant actively attempted to establish his whereabouts and applied to various official bodies, whereas the authorities denied that they had ever detained Yakub Iznaurov. In such circumstances, and in particular in the absence of any proof to confirm the very fact of the detention, even assuming that the remedy referred to by the Government was accessible to the applicant, it is more than questionable whether a complaint to a court about the unacknowledged detention of the applicant's son by the authorities would have had any prospects of success. Moreover, the Government have not demonstrated that the remedy indicated by them would have been capable of providing redress in the applicant's situation, namely that it would have led to the release of Yakub Iznaurov and the identification and punishment of those responsible. 83.     Inasmuch as the Government's objection relates to the fact that the domestic investigation is still pending, the Court observes that the applicant complained to the law enforcement authorities shortly after the detention of Yakub Iznaurov and that an investigation had subsequently been instituted. The applicant and the Government dispute the effectiveness of this investigation. The Court considers that this limb of the Government's preliminary objection raises issues which are closely linked to the merits of the applicant's complaints. Thus, it considers that these matters fall to be examined below under the substantive provisions of the Convention (see paragraph 115 below). 84.     The Government also pointed out that the applicant had not complained to a court about the actions or omissions of the investigating or other law-enforcing authorities. 85.     Inasmuch as this limb of the Government's preliminary objection concerns complaints that might be lodged by the applicant outside the framework of criminal proceedings, the Government have submitted neither any evidence that this remedy was accessible to the applicant in practice nor any explanation as to how it could have provided the applicant with adequate redress. Therefore, the Government have not substantiated their contention that the remedy which the applicant had allegedly failed to exhaust was an effective one. 86.     Inasmuch as this limb of the Government's preliminary objection concerns complaints that might be lodged by the applicant within criminal proceedings, the Court notes that the accessibility and prospects of success of this remedy largely depended on whether the applicant had been duly informed about the progress of the investigation and the way it had been handled. The Court considers that these issues are closely linked to the question of the effectiveness of the investigation, and therefore it would be appropriate to address the matter in the examination of the substance of the applicant's complaints under Article   2 of the Convention (see paragraph 115 below). II.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 87.     The applicant complained under Article 2 of the Convention that her son 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 Yakub Iznaurov 1.     Arguments of the parties 88.     The applicant maintained her complaint and argued that her son had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for several years. 89.     The Government referred to the fact that the investigation had obtained no evidence to the effect that this person was dead, or that representatives of the federal forces had been involved in his abduction or alleged killing. 2.     The Court's assessment (a)     General principles 90.     In cases in which there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. When, as in the instant case, the respondent Government have exclusive access to information able to corroborate or refute the applicants' allegations, any lack of cooperation by the Government without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant's allegations (see Taniş and Others v. Turkey , no. 65899/01, § 160, ECHR   2005 ‑ ...). 91.     The Court points out that a number of principles have been developed in its case-law when it is faced with a task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey , no.   25657/94, §   282, ECHR 2001 ‑ VII (extracts)). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Other , cited above, §   160). 92.     The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny (see, mutatis mutandis , Ribitsch v.   Austria , 4   December   1995, Series A no. 336, § 32, and Avşar v. Turkey , cited above, § 283) even if certain domestic proceedings and investigations have already taken place. 93.     Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, such as in cases where persons are under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Tomasi v.   France , 27 August 1992, Series A no. 241-A, pp. 40-41, §§ 108-11; Ribitsch , cited above, § 34; and Selmouni v. France [GC], no.   25803/94, § 87, ECHR 1999-V). 94.     These principles apply also to cases in which, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible explanation of what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty (see Taniş, cited above, § 160).   (b)     Establishment of the facts 95.     The applicant alleged that on 5 February 2000 her son, Yakub Iznaurov, had been apprehended by Russian servicemen and then disappeared. She invited the Court to draw inferences as to the well-foundedness of her allegations from the Government's failure to provide the documents requested from them. The applicant supported her allegations with statements by several witnesses, including her neighbours and M. D., who had been also apprehended on 5   February   2000 but later released. The witnesses provided a coherent account of the special operation conducted on that date and stated that Yakub Iznaurov had been apprehended by the servicemen involved in the operation. 96.     The Government contended that the federal forces had not regained control over the Oktyabrskiy District of Grozny in which the applicant and her family lived until the middle of February 2000, and had therefore been unable to conduct any operations there on 5 February 2000. They particularly stressed that the St. Petersburg OMON had not participated in “a passport check in Zabolotny Lane on 5 February 2000”. They did not deny, however, that Yakub Iznaurov had been abducted by unknown armed men on the same date. However, the Government referred to the absence of conclusions from the pending investigation and denied that the State was responsible for the disappearance of the applicant's son. 97.     The Court notes that despite its repeated requests for a copy of the investigation file into the abduction of Yakub Iznaurov, the Government failed to produce it. The Government referred to Article 161 of the Code o