CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 décembre 2008

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RUSSIA   (Application no. 1895/04)                 JUDGMENT       STRASBOURG   4 December 2008     FINAL   05/06/2009   This judgment may be subject to editorial revision. In the case of Ilyasova and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 13 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 1895/04) 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 four Russian nationals listed below (“the applicants”), on 26 November 2003. 2.     The applicants 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 and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3.     On 26 March 2007 the Court decided to apply Rule   41 of the Rules of Court, to grant priority treatment to the application and 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. 4.     On 13 November 2008 the Court dismissed the Government’s objection concerning the application of Article   29 § 3 of the Convention. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants are: 1.     Ms Mingi Khalidovna Ilyasova, born in 1952; 2.     Mr Ayub Abubakarovich Ilyasov, born in 1973; 3.     Ms Markha Abubakarovna Ilyasova, born in 1975; 4.     Ms Maret Abubakarovna Ilyasova, born in 1978. They live in Mesker-Yurt, Shali District, the Chechen Republic. The first applicant is the mother of Mr Adam Abubakarovich Ilyasov, born in 1983. The other applicants are his brother and sisters. A.     Apprehension and subsequent disappearance of Mr Adam Ilyasov 1.     The applicants’ account 6.     Mr Adam Ilyasov lived with his family at 95 Lenina Street, Mesker-Yurt, Shali District, Chechen Republic. He had never been detained or charged with any offences. 7.     According to the first applicant, on 15 November 2002 at around 6   a.m., when she was at home with her daughter and son, Mr   Adam Ilyasov, armed servicemen of the Russian federal forces approached the Ilyasovs’ house in three armoured personnel carriers (APCs) with licence plates covered with mud. They were wearing masks and uniforms without any insignia. They were armed mostly with small arms and some of them had portable radio transmitters. The servicemen broke into the house and smashed everything inside: they broke doors, tore out window frames, turned the furniture upside down, scattered things everywhere and broke the windows of Mr Adam Ilyasov’s truck, a GAZ-3307, which was parked in the yard of the house. They presented neither identity papers nor a search or detention order. When the first applicant tried to intervene, one of the servicemen kicked her in the chest and she fell on the floor. Then they grabbed Mr   Adam Ilyasov, twisted his arms, threw him in the APC and drove off in an unknown direction. They also took his passport, driving licence and documents for the truck. 8.     Ms M. Il., Mr   Adam Ilyasov’s aunt, and Ms M. Is., his sister-in-law, submitted written statements providing their account of the events. They stated that they shared the same yard as the applicants. On 15   November   2002 at around 6.15   a.m. armed men in four APCs with registration numbers covered with mud came from the Khankala direction. They were tall, spoke Russian without an accent, were wearing uniforms without any insignia and masks and carried small arms. Some of them had portable radio transmitters and shields. They did not let anyone in the Ilyasovs’ house. They searched the house, having broken the windows and the door, and broke the windows of the truck parked in the yard. Then they took Mr   Adam Ilyasov and left in the direction of the Argun Military Commander’s Office. They produced no documents to authorise either the search or Mr   Ilyasov’s arrest. 9.     Mr   Adam Ilyasov has never been seen again. 2.     The Government’s account 10.     The Government submitted that in the course of the investigation in case no. 59274 it was established that on 15 November 2002 at approximately 6.15 a.m. unidentified persons in camouflage uniforms armed with automatic weapons had abducted Mr Adam Ilyasov from his house and had taken him to an unknown destination. B.     Search for Adam Ilyasov and investigation 11.     The applicants applied in writing and in person to numerous State authorities seeking to establish Mr Adam Ilyasov’s whereabouts. Copies of the applications have been submitted to the Court. Their applications filed with the Prosecutor General’s Office and the Prosecutor’s Office of the Chechen Republic were forwarded to the Shalinskiy District Prosecutor’s Office. Their applications filed with the Military Prosecutor of the United Group Alignment (UGA) were forwarded to the Military Prosecutor of military unit no. 20116. A written application was lodged for the first time by the first applicant on 29 November 2002. 12.     On 10 December 2002 the Shalinskiy District Prosecutor’s Office instituted criminal proceedings in case no. 59274 concerning the abduction of Mr Adam Ilyasov by unidentified representatives of the federal forces. 13.     On 11 December 2002 the first applicant was granted victim status in the criminal proceedings. It appears that she was questioned on the same date. The first applicant confirmed her account of the events set out in paragraph 7 above. 14.     On 15 December 2002 the investigating authorities sent requests to the Shali department of the Federal Security Service (FSB), the Shali District Military Commander, the military prosecutor of military unit no.   20116, the deputy commander of the UGA, the first deputy head of the Temporary United Alignment of Agencies and Units of the Ministry of the Interior [ ВОГО и П МВД – временная объединенная группировка органов и подразделений МВД ], and the commander of the interior troops of the Ministry of the Interior in the North-Caucasian Region so as to identify which units were involved in the special operation carried out in Mesker-Yurt on 15   November 2002. According to the replies received, none of those agencies had conducted a special operation in Mesker-Yurt on the date in question or had any information about Mr   Adam Ilyasov or his whereabouts. Likewise, the heads of remand prisons situated in North Caucasia reported that they had no information about Mr   Adam Ilyasov since he had never been held in those facilities. 15.     According to the Government, during an inspection of the Ilyasov’s house conducted on an unspecified date no items were seized and no evidence was found. 16.     On 10 February 2003 the investigation was suspended on account of the failure to identify the culprits.     On 14 February 2003 the Shalinskiy District Prosecutor’s Office informed the first applicant of the suspension. 17.     On 13 August 2003 the Shalinskiy District Prosecutor’s Office informed the applicants’ representatives, SRJI, that the proceedings in criminal case no. 59274 instituted on 2 December 2002 had been suspended, that the first applicant had been granted victim status and that she could apply to the Shalinskiy District Prosecutor’s Office for a copy of the decision to that effect. 18.     On 15 August 2003 the Prosecutor’s Office of the Chechen Republic informed the first applicant that on that date the decision to suspend the preliminary investigation had been quashed on account of its incompleteness, and the proceedings had been resumed. 19.     On 15 August 2003 the FSB informed the first applicant that Mr   Adam Ilyasov had not been detained by the FSB. 20.     On 18 August 2003 the Military Prosecutor’s Office of the UGA informed the first applicant that her application had been examined. The inspection conducted had produced no evidence of involvement of servicemen in the abduction of Mr   Adam Ilyasov. 21.     On 22 August 2003 the investigation in criminal case no.   59274 was actually resumed. The first applicant was informed of the resumption by a letter of 25 August 2003. 22.     On 23 August 2003 the Shalinskiy District Prosecutor’s Office informed the first applicant that her applications addressed to the Military Prosecutor’s Office and the President of Russia had been received by the Shalinskiy District Prosecutor’s Office and enclosed in the file pertaining to criminal case no. 59274. Investigative measures aimed at establishing the whereabouts of Mr   Adam Ilyasov were being taken. 23.     The Government submitted the following information concerning the questioning of witnesses in the course of the investigation. 24.     On 25 August 2003 the investigating authorities questioned Ms   Z.   Sh., who submitted that she was the Ilyasovs’ neighbour. She stated that shortly after 6 a.m. on 15 November 2002 two APCs had driven down Lenina Street and stopped at the Ilyasovs’ house. After a while she had heard screaming coming from their yard. Later she had learned that Mr   Adam Ilyasov had been abducted and his documents had been stolen. She submitted that Mr   Adam Ilyasov had not been a member of any illegal armed groups. 25.     On an unspecified date the investigating authorities questioned Ms   M. Il., Mr   Adam Ilyasov’s aunt, who was the Ilyasovs’ neighbour. She submitted that in the morning of 15 November 2002 she had been at home. When she had heard a woman crying she had left her room and in the yard she had seen armed men dressed in camouflage and wearing masks. The first applicant, who had also been in the yard, had told her that those men had taken Mr   Adam Ilyasov and his papers. Ms   M. Il. had seen APCs in the street but had not noted their registration numbers. 26.     Ms E. Il., another aunt of Mr Adam Ilyasov, who was questioned on an unspecified date, submitted that she had learned about his abduction from her relatives. She also stated that Mr   Adam Ilyasov had not been a member of any illegal armed groups. 27.     Ms P. A., questioned on an unspecified date, submitted that she was the Ilyasov’s relative. In the morning of 15 November 2002 she had learned from a fellow villager that Mr   Adam Ilyasov had been abducted. She had no information that he had been involved in any unlawful activity. Ms Z. Kh. made a similar statement. It is not clear who she was. 28.     On 22 September 2003 the investigation was suspended. 29.     On 14 October 2003 SRJI applied in writing to the Prosecutor of the Shalinskiy District, asking him to provide information on the progress and results of the criminal investigation and to grant the first applicant the opportunity to study the case-file if the proceedings had been suspended. No reply was received. 30.     On 21 February 2005 the first applicant asked the Shalinskiy District Prosecutor’s Office for an update on the investigation. 31.     On 26 May 2005 the Prosecutor’s Office of the Chechen Republic informed the first applicant that requests had been sent to law-enforcement agencies and remand prisons of the neighbouring regions. According to the replies received, Mr   Adam Ilyasov had not been held in any of those facilities. Investigative measures aimed at establishing his whereabouts and identification of the perpetrators were being carried out. 32.     On 28 May 2005 the Prosecutor’s Office of the Chechen Republic informed the first applicant that the investigation had been suspended on 22   September 2003. 33.     On 20 June 2005 the investigation was resumed. The first applicant was notified of the resumption on 21 June 2005. 34.     On 20 July 2005 the investigation was again suspended on account of the failure to identify the culprits. The first applicant was notified accordingly on the same day. 35.     On 19 October 2005 the Shali District Prosecutor’s Office resumed the investigation. The decision read, in particular: “On 15 November 2002, at 6.15 a.m. unidentified persons in camouflage clothes armed with automatic weapons who arrived in two APCs abducted [Mr] Adam Ilyasov from his home ... and took [him] to an unknown destination. ... Examination of the materials of the case revealed that the decision [to suspend the investigation] was premature, since investigative actions and operational measures to ... identify the culprits had not been fully carried out. ... In the course of additional investigation in the case it is necessary: to update the plan of investigative-operational measures so as to include verification of new versions of events, to obtain and join to the materials of the case replies from law-enforcement agencies to which requests had been sent earlier, question again [the first applicant] (who might have new information concerning the circumstances of her son’s apprehension of which the investigation is not aware), to identify and question additional witnesses to [Mr Adam] Ilyasov’s abduction and to carry out other investigative-operational measures so as to take a final decision in the case. ...” 36.     The first applicant was informed of the resumption of the investigation on the same day. 37.     On 19 November 2005 the investigation was suspended again on account of the failure to identify the culprits. 38.     On 31 May 2007 the investigation was resumed. The decision read, in particular: “...The decision to suspend the investigation was unlawful [since] not all the measures that could have been taken while the persons to be charged with the offence had not been identified had been carried out. In particular, [witness V. M.] was not questioned, the GAZ-3307 truck was not inspected, a forensic medical examination of [the first applicant] was not conducted, a copy of [Mr Adam] Ilyasov’s identity document was not enclosed in the case file, no legal assessment was made in respect of the unidentified persons’ actions in the part related to the damaging of the Ilyasovs’ property and theft of [Mr Adam Ilyasov’s] documents.” C.   Proceedings against law-enforcement officials 39.     On 19 December 2003 SRJI brought before the Shali Town Court a complaint concerning the inaction of the Shalinskiy District Prosecutor’s Office. 40.     On 23 June 2005 SRJI brought before the Shali Town Court another complaint concerning the inaction of the Shalinskiy District Prosecutor’s Office. 41.     On 23 September 2005 SRJI complained to the Supreme Court of the Chechen Republic and the High Judicial Qualification Board that neither of the two complaints had been examined by the Shali Town Court. 42.     According to the reply of the Shali Town Court of 11 October 2005 it had not received either of the complaints. 43.     On 14 October 2005 SRJI re-submitted the complaint concerning the inaction of the Shalinskiy District Prosecutor’s Office to the Shali Town Court. They asked it, in particular, to order the Prosecutor’s Office to grant the first applicant access to the case file and to conduct a thorough investigation into her son’s abduction. 44.     On 13 March 2006 the Shali Town Court partially allowed the complaint. The district court ordered the district prosecutor’s office to grant the first applicant access to the case file in accordance with the procedure provided for in the Code of Criminal Procedure. It rejected the complaint in the remaining part. D.     The Court’s request for the investigation file 45.     Despite a specific request by the Court, the Government did not submit a copy of the file of the investigation into the abduction of Mr Adam Ilyasov. They submitted twenty-three pages of case-file materials containing decisions instituting, suspending and resuming the investigation and the decision of the Shali Town Court of 13 March 2006. 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. At the same time, the Government suggested that a Court delegation could have access to the “materials of the criminal cases containing no state or military secrets ... without making copies thereof” at the place where the preliminary investigation was being conducted in Russia. II.     RELEVANT DOMESTIC LAW 46.     For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia , no. 40464/02, §   67-69, 10   May 2007. THE LAW I.     The government’s objection regarding non-exhaustion of domestic remedies A.     The parties’ submissions 47.     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 Mr Adam Ilyasov 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 relative or to challenge in court any actions or omissions of the investigating or other law-enforcement authorities, but, apart from the complaint examined by the Shali Town Court on 13 March 2006, they had not availed themselves of that remedy. Furthermore, they had failed to appeal against the decision of 13 March 2006. 48.     The applicants contested that objection. They stated that the criminal investigation had proved to be ineffective and that their complaints to that effect, including the application to the court, had been futile. B.     The Court’s assessment 49.     The Court will 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). 50.     The Court first notes, having regard to the Government’s objection concerning the applicants’ failure to complain of their relative’s unlawful detention to the domestic authorities, that after Mr Adam Ilyasov had been taken away by armed men, the applicants actively attempted to establish his whereabouts and applied to various official bodies, whereas the authorities denied responsibility for the detention of the missing person. 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 Mr   Adam Ilyasov 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 Mr   Adam Ilyasov 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 must be rejected in this part. 51.     As regards criminal law remedies, the Court observes that the applicants complained to the law enforcement authorities shortly after the abduction of their relative and that the criminal proceedings have been pending since 10 December 2002. The applicants and the Government dispute the effectiveness of the investigation into the complaint. 52.     The Court considers that this limb of the Government’s 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.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 53.     The applicants complained under Article 2 of the Convention that their family member 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.     Arguments of the parties 54.     The Government argued that the complaint was unfounded. They 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. In particular, there was no evidence that any special operations had been conducted on the date in question. The Government also claimed that the investigation of the disappearance of the applicants’ family member met the Convention requirement of effectiveness, as evidenced by the questioning of witnesses by the investigating authorities and requests sent by them to other State agencies. 55.     The applicants maintained their complaint and contended that their family member had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for several years. They further argued that the investigation had not met the requirements of effectiveness and adequacy required by the Court’s case-law on Article 2. The applicants noted that the investigation had been adjourned and reopened a number of times, thus delaying the taking of the most basic steps, and that they had not been properly informed of the most important investigative measures. They argued that the fact that the investigation had been ongoing for such a long period of time 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 them or to the Court. B.     The Court’s assessment 1.     Admissibility 56.     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. 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 52 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 Mr Adam Ilyasov i.     General principles 57.     The Court reiterates that, in the light of the importance of the protection afforded by Article   2, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey , no. 25656/94, §   326, 18 June 2002, and the authorities cited therein). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, 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 Salman v. Turkey [GC], no. 21986/93, §   100, ECHR 2000-VII, and Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999 ‑ IV). ii.     Establishment of the facts 58.     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 , 18 January 1978, §   161, Series   A no.   25). 59.     The applicants alleged that on 15 November 2002 their family member, Mr Adam Ilyasov, had been apprehended by Russian servicemen and then disappeared. They invited the Court to draw inferences as to the well-foundedness of their allegations from the Government’s failure to provide the documents requested from them. The first applicant was an eye-witness to his apprehension and the applicants supported her account of the events with statements by two more eye-witnesses. The latter provided a coherent account of the events that took place in Mesker-Yurt in the morning of 15 November 2002 and stated that Mr Adam Ilyasov had been apprehended by servicemen and taken away in an APC. 60.     The Government conceded that Mr Adam Ilyasov had been abducted by unknown armed men on 15 November 2002. However, they denied that any special operations had been carried out in Mesker-Yurt on that date. The Government referred to the absence of conclusions from the ongoing investigation and denied that the State was responsible for the disappearance of the applicants’ family member. 61.     The Court notes that despite its repeated requests for a copy of the investigation file into the abduction of Mr Adam Ilyasov, apart from twenty-three pages of copies of procedural decisions, the Government have produced no documents from the case file at all, relying on 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)). 62.     In view of this and bearing in mind the principles cited above, the Court finds that it can draw inferences from the Government’s conduct in this respect. It considers that the applicants have presented a coherent and convincing picture of their family member’s apprehension on 15   November   2002. The first applicant was an eyewitness to the events and collected statements from two other witnesses referring to the involvement of the military or security forces in the abduction. 63.     The Court observes that the Government did not deny that Mr Adam Ilyasov had been abducted by armed men; however, they denied that those men were State agents. The Court finds that the fact that a large group of armed men in uniform, equipped with armoured vehicles which could not have been available to paramilitary groups, was able to move freely during curfew hours strongly supports the applicants’ allegation that these were State servicemen. In their application to the authorities the applicants consistently maintained that Mr Adam Ilyasov had been detained by unknown servicemen and requested the investigating authorities to look into that possibility. It further notes that after six years the domestic investigation has produced no tangible results. 64.     The Court reiterates 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 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). 65.     Taking into account the above elements, the Court is satisfied that the applicants have made out a prima facie case that their family member was 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 a plausible explanation of the events in question, the Court finds it established that Mr Adam Ilyasov was apprehended on 15   November   2002 at his house in Mesker-Yurt by State servicemen during a security operation. 66.     The Court further notes that there has been no reliable news of Mr   Adam Ilyasov since 15 November 2002. His name has not been found in the official records of any detention facilities. Finally, the Government did not submit any explanation as to what had happened to him after his apprehension. 67.     Having regard to the previous cases concerning disappearances of people in Chechnya which have come before the Court (see, for example, Imakayeva, cited above, and Luluyev and Others   v. Russia , no.   69480/01, ECHR 2006 ‑ ... (extracts)), 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 Mr Adam Ilyasov or any news of him for over six years corroborates this assumption. Furthermore, the Government have failed to provide any explanation of Mr Adam Ilyasov’s disappearance and the official investigation into his abduction, which has gone on for over six years, has produced no tangible results. 68.     Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that on 15   November   2002 Mr   Adam Ilyasov was apprehended by State servicemen and that he must be presumed dead following his unacknowledged detention. iii.     The State’s compliance with Article 2 69.     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. 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)). 70.     The Court has already found it established that the applicants’ family member must be presumed dead following unacknowledged detention by State servicemen. Noting that the authorities do not rely on any ground of justification in respect of the use of lethal force by their agents, it follows that liability for his presumed death is attributable to the respondent Government. 71.     Accordingly, the Court finds that there has been a violation of Article 2 in respect of Mr Adam Ilyasov. (b)     The alleged inadequacy of the investigation into the abduction 72.     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). 73.     The Court notes at the outset that most of 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 parties and the information about its progress presented by the Government. 74.     Turning to the facts of the present case, the Court notes that the authorities were notified of the offence by the first applicant’s written complaint of 29 November 2002. However, the investigation was not opened until 10 December 2002, that is, eleven days later. Therefore, the investigation was instituted with a delay, for which there has been no explanation, in a situation where prompt action was vital. 75.     The Court further notes that on 11 December 2002 the first applicant was questioned. It appears that after that a number of crucial steps were delayed or not taken at all. In particular, it appears that the investigating authorities did not question other witnesses until August 2003, that is, eight months after the events. Although the Government submitted that no evidence was found as a result of the inspection of the crime scene, the Court notes, firstly, that they provided no information as to the date of the inspection and, secondly, as is noted in the decision of 31 May 2007 to resume the investigation, the GAZ-3307 truck was not inspected. The failure to examine, over a period of five years, this vehicle, which obviously constituted a significant element of the crime scene, casts doubt as to the diligence with which the inspection was carried out. As for the requests to other State agencies purposed to establish whether a special operation was conducted in Mesker-Yurt on the relevant date, the Court notes that although they were sent on 15   December 2002, the decision to resume the investigation of 19 October 2005 notes that as of that date the relevant replies were not enclosed in the criminal file. Furthermore, it appears that no efforts had been made to trace the APCs after they had left Mesker-Yurt. 76.     It is obvious that these investigative measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, § 86, ECHR 2002-II). 77.     The Court also notes that even though the first applicant was granted victim status, she was only informed of the suspensions and resumptions of the investigation, sometimes with a significant delay. In particular, she was only notified on 28 May 2005 of the suspension of the investigation on 22   September 2003. It appears that she was not informed of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, and to safeguard the interests of the next of kin in the proceedings. 78.     Finally, the Court notes that the investigation was adjourned and resumed four times and that there were lengthy periods of inactivity of the district prosecutor’s office when no proceedings were pending. Higher prosecuting authorities criticised deficiencies in the proceedings and ordered remedial measures. However, it appears that their instructions were not fully complied with. 79.     Having regard to the limb of the Government’s preliminary objection that was joined to the merits of the complaint, inasmuch as it concerns the fact that the domestic investigation is still in progress, the Court notes that the investigation, having being repeatedly suspended and resumed and plagued by inexplicable delays, has been ongoing for many years having produced no tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and rejects their preliminary objection in this part. 80.     The Court further notes that the Government mentioned the possibility for the applicants to apply for judicial review of the decisions of the investigating authorities in the context of exhaustion of domestic remedies. The Court observes that the applicants did, in fact, make use of that remedy, which eventually led to their complaint having been partially allowed by the Shali Town Court on 13 March 2006. The applicants did not appeal against the decision in the part refusing their complaint. The Court notes, however, that the investigation has been resumed by the prosecuting authorities themselves a number of times due to the need to take additional investigative measures. Nevertheless, they still failed to investigate the applicants’ allegations properly. Moreover, owing to the time that had elapsed since the events complained of, certain investigative steps that ought to have been carried out much earlier could no longer usefully be conducted. Therefore, it considers it highly doubtful that the remedy relied on would have had any prospects of success. Accordingly, the Court finds that the remedy invoked by the Government was ineffective in the circumstances and rejects their preliminary objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation. 81.     In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Mr Adam Ilyasov, in breach of Article   2 in its procedural aspect. III.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 82.     The applicants relied on Article 3 of the Convention, submitting that as a result of their relative’s disappearance and the State’s failure to investigate it properly, they had endured mental suffering in breach of Article 3 of the Convention. The first applicant also complained that she had been ill-treated by servicemen during her son’s apprehension. Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 83.     The Government accepted that the applicants must have suffered as a result of their family member’s disappearance. However, since the involvement of State agents in his abduction had not been established, the State could not be held responsible for their suffering. 84.     The applicants maintained their submissions. B. The Court’s assessment 1. Admissibility (a) The complaint concerning the first applicant 85.     The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom , cited above, pp.   64-65, § 161 in fine )