CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 octobre 2008

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display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid }       FIRST SECTION           CASE OF KHALIDOVA AND OTHERS v. RUSSIA   (Application no. 22877/04)               JUDGMENT       STRASBOURG   2 October 2008     FINAL   06/04/2009     This judgment may be subject to editorial revision. In the case of Khalidova and Others 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 11 September 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 22877/04) 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 five Russian nationals (“the applicants”), on 3   February 2004. 2.     The applicants, who had been granted legal aid, were represented by lawyers of the Stichting Russian Justice Initiative (“the SRJI”), an NGO based in the Netherlands with a representative office in Moscow. The Russian Government (“the Government”) were represented by Mrs   V.   Milinchuk, the Representative of the Russian Federation at the European Court of Human Rights. 3.     On 1 September 2005 the Court decided to apply Rule 41 of the Rules of Court. 4.     On 9 March 2007 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5.     The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicants are: 1) Ms Ayset Magomedovna Khalidova, who was born in 1959; 2) Mr Khasmagomed Khalidov, who was born in 1924; 3) Ms Nebisat Khalidova, who was born in 1916; 4) Mr Atbi Isayevich Khalidov, who was born in 1993, and 5) Ms Zarina Isayevna Khalidova, who was born in 1980. They live in the town of Urus-Martan, in the Chechen Republic. 7.     The second and the third applicants are spouses and the parents of Mr   Isa Khalidov, born in 1950. Isa Khalidov was married to the first applicant, they are the parents of Mr Shamil Khalidov, born in 1981, and the fourth and the fifth applicants. A.     Disappearance of Isa and Shamil Khalidov 1.     The applicants’ account 8.     In November 2002 Isa and Shamil Khalidov worked at a juice factory, Dary Prirody, in the village of Psedakh, Malgobekskiy District in the Republic of Ingushetia, a region adjacent to the Chechen Republic. 9.     At about 11 p.m. on 29 November 2002 ten armed men wearing camouflage uniforms and masks arrived at the factory. They identified themselves as officers of law enforcement agencies and, without providing any explanations, took Isa and Shamil Khalidov away in a grey UAZ vehicle with registration number 241 06 RUS. 10.     The applicants did not witness the apprehension of Isa and Shamil Khalidov and only learned of it in the evening of 30   November 2002 from a relative who had heard local rumours. 2.     Information submitted by the Government 11.     The investigation in case no. 03540030 established that at about 11   p.m. on 29 November 2002 unidentified armed persons had entered the territory of the factory, Dary Prirody, where a camp for refugees from the Chechen Republic had been located. They had put Isa and Shamil Khalidov in a UAZ vehicle with registration number 241 06 and had driven away to an unknown destination. B.     The search for Isa and Shamil Khalidov and the investigation 1.     The applicants’ account 12.     Having learned of their relatives’ disappearance, the applicants started searching for Isa and Shamil Khalidov. In an attempt to establish the whereabouts and the fate of those missing, they applied both in person and in writing to various official bodies, such as the Prosecutor General’s Office, the military prosecutor of the United Group Alignment, the Administration of the Chechen Republic, the Russian Ministry of the Interior, the Ministry of Interior of the Chechen Republic, the Ministry of Interior of Ingushetia, the military commander’s office of the Urus-Martan District of the Chechen Republic and the Russian State Duma. The applicants retained copies of some of these complaints and submitted them to the Court. Most of the complaints were lodged by the first applicant on behalf of the whole family. A number of complaints were lodged by the SRJI on the first applicant’s behalf. Some applications remained unanswered, while some of them were forwarded to prosecutors’ offices at different levels. 13.     On 15 December 2002 the first applicant wrote to the Ingushetia prosecutor’s office and the Ministry of Interior of Ingushetia complaining about her husband and son’s disappearance. 14.     On 25 December 2002 the prosecutor’s office of Ingushetia forwarded the first applicant’s letter to the prosecutor’s office of the town of Malgobek (“the Malgobek prosecutor’s office”). 15.     At some point the Ministry of Interior of Ingushetia established that a unit of servicemen of the department of interior of the Nadterechny District of the Chechen Republic (“the Nadterechny ROVD”), under the command of Mr   K., had been in the village of Psedakh at the time of the apprehension of Isa and Shamil Khalidov. 16 .     In a decision of 7 January 2003 the Malgobek prosecutor’s office stated that, according to an inquiry into the events of 29 November 2002, Isa and Shamil Khalidov had been apprehended by an officer of the Nadterechny ROVD, Mr K.; the Malgobek prosecutor’s office had refused to initiate criminal proceedings against the latter in the absence of evidence of a crime. 17 .     On 15 January 2003 the Ministry of Interior of Ingushetia informed the first applicant that an inquiry into the disappearance of her husband and son had established that a group of servicemen of the Chechen police forces commanded by Mr K. had been in the village of Psedakh in the evening of the disappearance of Isa and Shamil Khalidov. The Ministry of Interior of Ingushetia further advised the first applicant to contact the Nadterechny ROVD and assured her that the search for her relatives would be continued. 18.     On 28 January 2003 the Malgobek prosecutor’s office requested the prosecutor’s office of the Nadterechny District of the Chechen Republic (“the Nadterechny prosecutor’s office”) to verify whether Isa and Shamil Khalidov had been arrested and, if so, to report their whereabouts and to provide detailed information concerning the arrest. 19 .     On 4 March 2003 the Malgobek prosecutor’s office wrote to the prosecutor’s office of the Chechen Republic stating that Isa and Shamil Khalidov had been apprehended by the servicemen of the Chechen police forces under the command of Mr K. and that the Nadterechny ROVD had refused to cooperate and provide information concerning the Khalidovs’ detention. The Malgobek prosecutor’s office requested the prosecutor’s office of the Chechen Republic to establish which law enforcement agency had detained Isa and Shamil Khalidov, to provide legal grounds and copies of documents authorising their detention and to inform them of the two men’s whereabouts. 20 .     In reply to the request of 28 January 2003, on 20 March 2003 the Nadterechny prosecutor’s office informed the Malgobek prosecutor’s office that the Nadterechny ROVD had not detained Isa and Shamil Khalidov, that Mr K.’s unit had not been sent to the village of Psedakh on 29 November 2002 and that the Nadterechny ROVD did not own a UAZ vehicle with the registration number 241 06 RUS. 21.     On 7 April 2003 the first applicant wrote to the Nadterechny prosecutor’s office seeking an investigation of her husband and son’s unlawful detention or kidnapping opened. On the same date she wrote to the Nadterechny ROVD enquiring about her relatives’ fate. 22.     On 5 May 2003 the first applicant requested the prosecutor’s office of the Chechen Republic to open an investigation of the unlawful detention or kidnapping of her husband and son. 23.     On 8 May 2003 the Malgobek prosecutor’s office quashed the decision of 7   January 2003 and opened an investigation of the disappearance of Isa and Shamil Khalidov under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was given the number 03540030. 24.     On 15 May 2003 the South Federal Circuit Department of the Prosecutor General’s Office forwarded the first applicant’s letter to the Ingushetia prosecutor’s office. 25.     On 26 May 2003 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaint to the Nadterechny prosecutor’s office. 26.     On 30 May 2003 the first applicant was granted victim status in case no.   03540030. 27.     On 3 June 2003 the Nadterechny prosecutor’s office informed the first applicant that there were no grounds to prosecute Mr K. and the servicemen of his unit because they had not been in the village of Psedakh at the time of the detention of Isa and Shamil Khalidov and that the Nadterechny ROVD did not have a UAZ vehicle with the registration number 241 06 RUS. 28.     On 25 June 2003 the Ingushetia prosecutor’s office informed the first applicant that the Malgobek prosecutor’s office had opened an investigation of the kidnapping of Isa and Shamil Khalidov and mentioned that the investigation had been impeded by the unwillingness to cooperate of the law enforcement agencies of the Chechen Republic. 29.     On 9 July 2003 the SRJI wrote on behalf of the applicants to the Malgobek prosecutor’s office enquiring about the progress of the investigation. 30.     On 23 July 2003 the military prosecutor’s office of the United Group Alignment forwarded the first applicant’s letter concerning the disappearance of her husband and son to the military prosecutor’s office of military unit no. 20102. 31.     On 25 August 2003 the SRJI requested the Nadterechny prosecutor’s office to open an investigation into the Khalidovs’ kidnapping. In reply, on 25 September 2003 the Nadterechny prosecutor’s office submitted that the alleged implication of Mr K.’s unit in the Khalidovs’ disappearance had not been proven and that the investigation was pending before the Malgobek prosecutor’s office. 32.     On 5 September 2003 the military prosecutor’s office of military unit no.   20102 forwarded the first applicant’s letter to the military commander of the Urus-Martan District of the Chechen Republic. 33.     On 15 September 2003 the SRJI requested from the Malgobek prosecutor’s office information on the progress of the investigation of the kidnapping of Isa and Shamil Khalidov. 34.     On 25 September 2003 the Nadterechny prosecutor’s office informed the SRJI and the first applicant that there was no proof of Mr K.’s implication in the Khalidovs’ disappearance and explained that it had not instituted proceedings regarding the kidnapping of Isa and Shamil Khalidov because the investigation in case no. 03540030 was pending before the Malgobek prosecutor’s office. 35.     On 11 November 2003 the first applicant complained to the Malgobek Town Court of Ingushetia that the Malgobek prosecutor’s office had not provided her with information on the course of the investigation in case no. 03540030. 36.     On 16 December 2003 the first applicant wrote to the Malgobek prosecutor’s office enquiring about the investigation of the kidnapping of her husband and son. 37.     On 18 December 2003 the Malgobek prosecutor’s office suspended the investigation in case no. 03540030 for a failure to identify suspects. 38 .     On 28 January 2004 the Malgobek Town Court of Ingushetia allowed the first applicant’s complaint and ordered that the Malgobek prosecutor’s office provide her with copies of the decisions of 7 January, 8   May and 18   December 2003. The judgment became final immediately. 39.     On 28 March 2004 first applicant asked the Malgobek prosecutor’s office to question Mr K. and the servicemen of his unit as witnesses to the disappearance of Isa and Shamil Khalidov. 40.     On 7 July 2004 the SRJI requested from the Malgobek prosecutor’s office information on the progress in the investigation into the kidnapping of Isa and Shamil Khalidov. In reply, on 31   July 2004 the Malgobek prosecutor’s office submitted that the investigation in case no. 03540030 had been stayed on 18 December 2003 due to the investigative authorities’ inability to identify those responsible, that the investigation had examined the implication of the servicemen of the Nadterechny ROVD in the Khalidovs’ kidnapping and and that there were no grounds for resumption of the proceedings. 41.     On 5 August 2004 the first applicant asked the Malgobek prosecutor’s office to inform her of the progress of the investigation. In reply, on 17 August 2004 the Malgobek prosecutor’s office stated that Mr   K. and the servicemen of his unit had been questioned and that there were no grounds to consider them implicated in the kidnapping of Isa and Shamil Khalidov. 2.     Information submitted by the Government 42.     On 15 December 2002 the first applicant reported the kidnapping of her husband and son to the police. 43.     On an unspecified date the military commander advised the first applicant to apply to a prosecutor’s office. 44.     On 29 December 2002 the first applicant lodged a complaint concerning her relatives’ kidnapping with the Malgobek prosecutor’s office. 45.     On 7 January 2003 the Malgobek prosecutor’s office refused to institute criminal proceedings in respect of the events complained of by the first applicant pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure. 46.     On 8 May 2003 the Malgobek prosecutor’s office quashed the decision not to institute criminal proceedings and opened an investigation of Isa and Shamil Khalidov’s disappearance under Article 126 § 2 of the Criminal Code (aggravated kidnapping). 47.     The investigators questioned as witnesses a serviceman of the department of interior of the Malgobek District, a serviceman of the Ministry of Interior of Ingushetia and two servicemen of the Nadterechny ROVD. The servicemen submitted that they had no information concerning those who had kidnapped Isa and Shamil Khalidov or the whereabouts of the missing men. 48.     In November 2002 no servicemen of the Nadterechny ROVD were posted to the Malgobek District of Ingushetia. 49.     The department of the Federal Security Service (“FSB”) of Ingushetia, the FSB department of the Chechen Republic, the Ministry of Interior of Russia, the Ministry of Interior of Ingushetia, the Nadterechny prosecutor’s office and other law enforcement agencies of North Caucasus had no information on the arrest of Isa and Shamil Khalidov, their whereabouts or identities of the kidnappers. 50 .     The UAZ vehicle with registration number 241 06 RUS was assigned to the department of interior of the Dzheyrakhskiy District of Ingushetia (“the Dzheyrakhskiy ROVD”). The investigators questioned the head of the Dzheyrakhskiy ROVD who submitted that in 2002 the UAZ vehicle was being repaired as by that time it had deteriorated as a result of wear and tear. In February 2003 the UAZ vehicle had been written off the books of the Dzheyrakhskiy ROVD. In November 2002 the vehicle had not been moved outside the Dzheyrakhskiy District and its registration plates had not been removed. 51.     In 2002 the Malgobek ROVD did not use the UAZ vehicle with registration number 0   241 MM 06. 52.     A number of witnesses were questioned but their interviews gave no new information concerning the circumstances of the kidnapping of Isa and Shamil Khalidov. 53.     The investigation had not identified the perpetrators and was under way. Investigative measures aimed at resolving the kidnapping of Isa and Shamil Khalidov were being taken. 54.     Despite specific requests by the Court the Government did not disclose any documents of the investigation file in case no. 03540030. 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. II.     RELEVANT DOMESTIC LAW 55.     Article 24 § 2 (1) of the Russian Code of Criminal Procedure (“CCP”) provides that in the absence of the event of a crime a criminal investigation cannot be instituted and an opened criminal investigation should be terminated. 56.     Article 125 of the CCP provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the relevant decisions. 57.     Article 161 of the CCP establishes the rule that data from the preliminary investigation cannot 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 and only in so far as it does not infringe the rights and lawful interests of the participants in criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in the criminal proceedings without their permission. THE LAW I.     The government’s objection AS TO ABUSE OF PETITION 58.     The Government submitted that the application had not been lodged in order to restore the allegedly violated rights of the applicants. The actual object and purpose of the application had been of a clearly political nature. They concluded that the application should be dismissed pursuant to Article 35 § 3 of the Convention. 59.     The Court considers that the Government may be understood to suggest that there was an abuse of the right of petition on the part of the applicants. It observes in this respect that the applicants brought their genuine grievances to its attention. Nothing in the case file discloses any appearances of the abuse of their right of individual petition. Accordingly, the Government’s objection should be dismissed. II.     The government’s objection AS TO non-exhaustion of domestic remedies A.     The parties’ submissions 60.     The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation of the disappearance of Isa and Shamil Khalidov had not yet been completed. They further argued that it had been open to the applicants to lodge court complaints about the kidnapping of their relatives or to challenge in court any actions or omissions of the investigating or other law enforcement authorities. The first applicant had used this opportunity and applied to the Malgobek Town Court, however, the applicants had not brought any complaints concerning the disappearance of Isa and Shamil Khalidov to the courts of the Chechen Republic and the Kabardino-Balkarian Republic or to the courts of the Stavropol, Krasnodar and Rostov Regions. 61.     The applicants stated that the criminal investigation had proved to be ineffective. B.     The Court’s assessment 62.     The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article   35   §   1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey , judgment of 18 December 1996, Reports of Judgments and Decisions 1996 ‑ VI, pp. 2275-76, §§ 51-52; Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, p.   1210,   §§ 65-67; and Cennet Ayhan and Mehmet Salih Ayhan v. Turkey , no. 41964/98, § 64, 27   June 2006). 63.     It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Akdivar and Others , cited above, p.   1211, § 68, or Cennet Ayhan and Mehmet Salih Ayhan , cited above,   §   65). 64.     The Court first notes, having regard to the Government’s objection concerning the applicants’ failure to complain to domestic authorities of their relatives’ unlawful detention, that after Isa and Shamil Khalidov had been taken away by armed men the applicants actively attempted to establish their whereabouts and applied to various official bodies, whereas the authorities first admitted that the two men had been apprehended by the police officers but later denied responsibility for the detention of the missing persons. 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 applicants, it is more than questionable whether a court complaint of the unacknowledged detention of Isa and Shamil Khalidov 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 applicants’ situation, namely that it would have led to the release of Isa and Shamil Khalidov and the identification and punishment of those responsible (see Musayeva and Others v. Russia , no.   74239/01, § 69, 26   July 2007). Accordingly, the Government’s objection concerning non-exhaustion of domestic remedies in respect of Isa and Shamil Khalidov’s unlawful deprivation of liberty must be dismissed. 65.     As to the alleged violation of Isa and Shamil Khalidov’s right to life, the Court notes that that the applicants complained to the law enforcement authorities immediately after they had become aware of their relatives’ disappearance and that the criminal proceedings have been pending since 8   May 2003. The applicants and the Government dispute the effectiveness of the investigation of the kidnapping. 66 .     The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants’ complaints under Article 2. Thus, it considers that these matters fall to be examined below under this provision of the Convention. III.     THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A.     The parties’ submissions 67.     The applicants maintained that it was beyond reasonable doubt that the men who had taken away Isa and Shamil Khalidov had been State agents. In support of the complaint they referred to the fact that the armed men had driven the UAZ vehicle belonging to the police. 68.     The Government submitted that unidentified armed men had kidnapped Isa and Shamil Khalidov. They insisted that no special operations had been carried out in the Malgobek District at the material time. They further contended that the investigation of the incident was pending, that there was no evidence that the perpetrators 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 hypothesis of servicemen’s involvement had been examined by the investigators, who had found no evidence for it. The applicants had not told the investigators the name of the person who had allegedly witnessed Isa and Shamil Khalidov’s kidnapping and seen the UAZ vehicle with registration number 241 06 RUS. In any event, the policemen of the Nadterechny ROVD would never have driven a vehicle belonging to the Dzheyrakhskiy ROVD as such a situation would be unthinkable given the domestic rules on territorial jurisdiction. The Government further argued that there was no convincing evidence that the applicants’ relatives were dead. B. The Court’s evaluation of the facts (a)     General principles 69.     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 ‑ ...). 70.     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 Others , cited above, §   160). 71.     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. 72.     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). 73.     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). 74.     Finally, when there have been criminal proceedings in the domestic courts concerning those same allegations, it must be borne in mind that liability in criminal law is distinct from responsibility in international law under the Convention. The Court’s competence is confined to the latter. Responsibility under the Convention is based on its own provisions, which are to be interpreted and applied on the basis of the objectives of the Convention and in light of the relevant principles of international law. The responsibility of a State under the Convention, for the acts of its organs, agents and servants, is not to be confused with the domestic legal issues of individual criminal responsibility under examination in the national criminal courts. The Court is not concerned with reaching any findings as to guilt or innocence in that sense (see Avsar , cited above, §   284). (b)     Establishment of the facts 75.     The Court notes that despite its requests for a copy of the investigation file into the abduction of Isa and Shamil Khalidov, the Government produced no documents from the case file. The Government referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva   v. Russia , no.   7615/02, §   123, ECHR 2006 ‑ ... (extracts)). 76.     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 the applicants’ relatives can be presumed dead and whether their death can be attributed to the authorities. 77.     The applicants alleged that the persons who had apprehended Isa and Shamil Khalidov on 29 November 2002 had been State agents. 78.     The Court notes that this allegation is supported by the investigation. In particular, it notes that the Malgobek prosecutor’s office refused to institute an investigation of the disappearance of Isa and Shamil Khalidov for the reason that the two men had been taken away by an officer of the Nadterechny ROVD (see paragraph 16 above). Furthermore, the Court observes that the Ingushetia law enforcement agencies alleged that the Nadterechny ROVD servicemen had been in the village of Psedakh at the time of the abduction of the applicants’ relatives, while the State bodies of the Chechen Republic disagreed with that hypothesis (see paragraphs 17, 19 and 20 above). Lastly, it emphasises that the Government admitted that a vehicle with the registration number 241 06 RUS allegedly seen at the crime scene belonged to a police unit (see paragraph 50 above). The Court is not persuaded by the Government’s argument that the possibility of the use of the vehicle in November 2002 by the Nadterechny ROVD servicemen or other State agents was excluded. 79.     The Court observes that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to a lack of documents it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, 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). 80.     Taking into account the above elements, the Court is satisfied that the applicants have made out a prima facie case that Isa and Shamil Khalidov were apprehended 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 kidnapping 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 for the events in question, the Court considers that Isa and Shamil Khalidov were apprehended on 29 November 2002 by State servicemen during an unacknowledged security operation. 81.     There has been no reliable news of Isa and Shamil Khalidov since the date of the kidnapping. Their names have not been found in any official detention facilities’ records. The Government have not submitted any explanation as to what happened to them after their abduction. 82.     Having regard to the previous cases concerning disappearances of people in Chechnya which have come before the Court (see, among others, Imakayeva , cited above; Luluyev and Others v. Russia , no.   69480/01, ECHR 2006 ‑ ... (extracts); Baysayeva v.   Russia , no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva v. Russia , cited above; and Alikhadzhiyeva v.   Russia , no.   68007/01, 5   July 2007), the Court considers that, in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgement of the detention, this can be regarded as life-threatening. The absence of Isa and Shamil Khalidov or of any news of them for several years supports this assumption. 83.     Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Isa and Shamil Khalidov must be presumed dead following their unacknowledged detention by State servicemen. IV.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 84.     The applicants complained under Article 2 of the Convention that their relatives 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 parties’ submissions 85.     The Government contended that the domestic investigation had obtained no evidence to the effect that Isa and Shamil Khalidov were dead or that any servicemen of the federal law enforcement agencies had been involved in their kidnapping or alleged killings. The Government claimed that the investigation of the kidnapping of the applicants’ relatives met the Convention requirement of effectiveness, as all measures envisaged by national law were being taken to identify the perpetrators. 86.     The applicants argued that Isa and Shamil Khalidov had been detained by State servicemen and should be presumed dead in the absence of any reliable news of them for more than five years. The applicants also argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court’s case-law on Article 2. The investigation of Isa and Shamil Khalidov’s kidnapping had been opened more than five months after the events and then had been suspended and resumed a number of times. The applicants had not been properly informed of the most important investigative measures. The fact that the investigation had been pending for many years without producing any known results was further proof of its ineffectiveness. The applicants invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file to him/them or to the Court. B.     The Court’s assessment 1.     Admissibility 87.     The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 66 above). The complaint under Article 2 of the Convention must therefore be declared admissible. 2.     Merits (a)     The alleged violation of the right to life of Isa and Shamil Khalidov 88.     The Court reiterates that 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, from which no derogation is permitted. 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, McCann and Others v. the United Kingdom , judgment of 27   September 1995, Series A no. 324, pp. 45-46, §§ 146-147, and Avşar v.   Turkey , no.   25657/94, §   391, ECHR 2001 ‑ VII (extracts)). 89.     The Court has already found it established that Isa and Shamil Khalidov must be presumed dead following their unacknowledged detention by State servicemen and that their deaths can be attributed to the State. In the absence of any justification in respect of the use of lethal force by State agents, the Court finds that there has been a violation of Article 2 in respect of Isa and Shamil Khalidov. (b)     The alleged inadequacy of the investigation of the kidnapping 90 .     The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article   1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis , McCann and Others, cited above, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, §   86). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom , no.   24746/94, §§ 105-109, 4   May   2001, and Douglas-Williams v. the United Kingdom (dec.), no.   56413/00, 8   January 2002). 91.     In the present case the kidnapping of Isa and Shamil Khalidov was investigated. The Court must assess whether the investigation met the requirements of Article 2 of the Convention. 92.     The Court notes at the outset that the documents from the investigation were not 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 scarce information about its progress presented by the Government. 93.     The Court notes that, as soon as the applicants had learned of their relatives’ abduction, they reported it to the police. It considers that by doing so the applicants duly and diligently informed the authorities of the crime and that they could not be required to lodge any additional complaints. As soon as the police became aware of the crime allegedly committed, it was for them to report the incident to a prosecutor’s office via official channels of communication that should exist between various law enforcement agencies. 94.     One month after the abduction the district prosecutor’s office refused to open an investigation, insisting that Isa and Shamil Khalidov had been apprehended by the police and thus there had been no crime. The investigation in case no.   03540030 was instituted on 8 May 2003, that is, four months and twenty-two days after the crime had been reported to the authorities on 15 December 2002. Such a postponement per se was liable to affect the investigation of the kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event. Furthermore, it appears that even after the institution of the investigation a number of essential steps were delayed and were eventu