CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 avril 2009

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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 DOKUYEV AND OTHERS v. RUSSIA   (Application no. 6704/03)               JUDGMENT       STRASBOURG   2 April 2009     FINAL   14/09/2009     This judgment may be subject to editorial revision. In the case of Dokuyev 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,   Khanlar Hajiyev,   Dean Spielmann,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 12 March 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 6704/03) 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 seven Russian nationals, listed below (“the applicants”), on 14 February 2003. 2.     The applicants, who had been granted legal aid, were represented by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Mr   P.   Laptev and Ms   V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3.     The applicants alleged that their relative had disappeared after being detained by servicemen in Chechnya on 14 February 2001. They complained under Articles 2, 3, 5, 6, 8, 13 and 34. 4.     By a decision of 29 November 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 applicants are: 1) Mr Vakhit Abdurashidovich Dokuyev, born in 1947; 2) Mrs Zina Abdulayevna Dokuyeva, born in 1952; 3) Mrs Imani Ramzanovna Makayeva, born in 1983; 4) Mrs Rukiyat Vakhitovna Dokuyeva, born in 1972; 5) Mrs Makka Vakhitovna Dokuyeva, born in 1983; 6) Mr Khavazh Abdurashidovich Dokuyev, born in 1951; 7) Mrs Kheda Khavazhovna Dokuyeva, born in 1978. They live in the village of Novye Atagi, the Chechen Republic 7.     The first and second applicants are the parents of Mr Magomed Dokuyev, born in 1977. The third applicant is the wife of Mr Magomed Dokuyev, with whom she had a son born in 2000. The fourth and the fifth applicants are sisters of Mr Magomed Dokuyev, and the sixth and the seventh applicants are his uncle and cousin. 8.     The Dokuyev family live in the village of Novye Atagi at 4   Podgornaya Street in a household composed of two houses and a common courtyard. The first five applicants and Mr Magomed Dokuyev lived in one house. The other house belongs to the sixth applicant and his family. 9.     Mr Magomed Dokuyev finished school in 1994 and studied to become a translator from English and Arabic. His higher education was interrupted by the first and the second periods of hostilities in Chechnya. He never had a full-time job. A.     Arrest and detention of Mr Magomed Dokuyev and Mr Vakhit Dokuyev 1.     The applicants’ account 10.     On 14 February 2001 at about 6 a.m. two armoured personnel carriers (APCs) and a Ural truck with obscured number plates drove up to the Dokuyevs’ family home. Mr Magomed Dokuyev, his father, wife and two sisters (the first, third, fourth and fifth applicants) were at home at the time. The second applicant, Mr Magomed Dokuyev’s mother, was away that day. A large group of more than twenty uniformed armed soldiers, most of whom were wearing masks, broke into the house. They asked the first applicant for his passport. They also asked Mr Magomed Dokuyev to confirm his identity. However, they did not ask for his documents. The soldiers then allowed the first applicant to dress, whereas his son had to remain barefoot. Both men were taken into the courtyard of the house, while the women and children were ordered to stay inside the house. In the courtyard the soldiers started to kick and beat Mr Magomed Dokuyev with their rifle butts. When the first applicant tried to intervene, the soldiers beat him too and ordered him to stand against the wall. 11.     The sixth and the seventh applicants were in their house at that time and witnessed the detention of Mr Magomed Dokuyev and Mr Vakhit Dokuyev. The sixth applicant, woken by the noise, went out into the courtyard and was forced by the soldiers to lie face down while his brother and nephew were taken away. 12.     The first applicant and his son were subsequently taken to an APC parked at the back of the house. The first applicant heard the sound of a second APC driving behind them and guessed that they were being taken in the direction of the Grozny-Shali road. While in the APC the detainees were not allowed to talk or look around. About one hour later the vehicles stopped and the men were taken outside. They were handcuffed and blindfolded, but the first applicant managed to catch a glimpse of military tents around. Later he heard helicopters landing and taking off and the sounds of morning exercise, which convinced him that he was in a large military base, probably in Khankala. 13.     The first applicant was thrown on the ground inside a tent, and he could hear his son and another man screaming in a tent near by. He understood that they were being beaten and tortured. While he was lying on the floor, the soldiers who came into the tent kicked him several times, calling him a “Wahhabi” and a “bandit”. The first applicant said that he was just a construction worker. A while later the soldiers permitted the first applicant to move into a less uncomfortable position and handcuffed his hands in front of him. They told him that he would be permitted to exchange last words with his son, who was a “bandit” and would be shot. The two men were allowed to speak briefly in Russian, in the presence of the soldiers, who threatened to shoot them both if they spoke in Chechen. The first applicant remained blindfolded during the meeting and could only hear his son’s voice; he said he had done nothing wrong and said farewell. Then Mr   Magomed Dokuyev was taken away. At about 1 a.m. a soldier told the first applicant that he was innocent and would be released. Later his hands were untied, but his feet remained bound. 14.     On 15 February 2001 at about 9 a.m. the first applicant, blindfolded, was taken inside an APC and driven somewhere shortly. Then he was transferred into another vehicle, probably a UAZ, in which were two other persons. The applicant was forced under the seat. After approximately one hour’s driving, during which they stopped twice at checkpoints and his captors said that there were “only Russians inside”, the vehicle stopped and the men took the first applicant outside and helped him to climb into a building through a broken window. They then told him not to move for ten minutes and the car left. 15.     When the first applicant removed his blindfold he realised he was in an old brewery building between Shali and Novye Atagi. He climbed out of the building, hitched a lift and returned home the same day. There he found out that he and his son were the only two men detained in the village on that day and that his son had not returned home. The family has had no news from Mr Magomed Dokuyev since that date. 2.     The Government’s account 16.     The Government submitted that the Prosecutor General’s Office had established that on 14 February 2001 at approximately 6 a.m. unidentified armed persons wearing camouflage and masks and accompanied by armoured vehicles had taken the first applicant and his son, Mr Magomed Dokuyev, from their house at 4 Podgornaya Street to an unknown destination. On the next day the first applicant had been released. Mr   Magomed Dokuyev’s whereabouts had not been established. B.     Search for Mr Magomed Dokuyev and the investigation 1.     Applications to State authorities 17.     According to the applicants, on 16 February 2001 the first applicant and other family members started looking for Mr Magomed Dokuyev. They applied to various official bodies both in person and in writing, trying to find out the whereabouts and the fate of Mr Magomed Dokuyev. The applicants kept copies of some of these complaints and submitted them to the Court. In particular, they applied in writing to the Prosecutor’s Office of the Chechen Republic on 5 and 7 July and 24   December 2001, to the military prosecutor of military unit no. 20116 on 7 July 2001, to the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms on 7 July and 5 September 2001 and to the Shali District Prosecutor’s Office on 13 April 2002. 18.     On 16 February 2001 the first applicant travelled to Gudermes and handed over a complaint about his son’s detention, addressed to the head of the Chechen Administration, Mr Akhmad Kadyrov. Among other authorities the applicants applied to immediately following Mr Magomed Dokuyev’s detention were the departments of the Interior, military commanders, the Federal Security Service (FSB), civil and military prosecutors of various levels and administrative authorities. 19.     The applicants received hardly any substantive information about the fate of their close relative and about the investigation. On several occasions they were sent copies of letters by means of which their requests had been forwarded to the different prosecutors’ services. In particular, on 28   May   2001 the Prosecutor’s Office of the Chechen Republic forwarded the first applicant’s complaint to the Shali District Prosecutor’s Office. On 5   August 2001 the first applicant’s letter of complaint was forwarded to the military prosecutor of military unit no. 20116. On 23 August 2001 the Prosecutor General’s Office forwarded the first applicant’s letter concerning his son’s detention to the Prosecutor’s Office of the Chechen Republic. On 31 August 2001 the Prosecutor’s Office of the Chechen Republic forwarded it to the Shali District Prosecutor’s Office. On 4 February and 20 May 2002 the Directorate of the Prosecutor General’s Office for the Southern Federal Circuit forwarded the first applicant’s complaint to the Shali District Prosecutor’s Office. 20.     In early April 2001 the applicants were contacted by a person who said that a young man had been detained together with Mr Magomed Dokuyev. The first and the second applicants met this young man. He presented himself as Kh., but they did not know his last name. He was able to give them Mr Magomed Dokuyev’s handkerchief and a cord from his leather jacket and said that they had been detained together for several weeks, first at the military base in Khankala and then in the vicinity of Novogrozny in the mountains. The man told him that they had been detained in awful conditions in a deep and narrow pit in the ground, regularly beaten and tortured with electric shocks and had been given hardly any food. When they were brought to the district of Novogrozny, they were told that they would be exchanged for a Russian officer captured by the fighters. Then the soldiers told them that they were in too bad a shape for exchange and gave them some medicine, allegedly to restore their strength. After taking the pills or liquid both became very sick, started vomiting and lost consciousness. When the young man regained consciousness, he found Mr   Magomed Dokuyev without signs of life. He called the soldiers, and after a while they took his body away. The young man heard an APC going away and returning and heard the soldiers talking about burying Mr   Dokuyev. He also heard them talking about finishing the mission and going back to Stavropol. The applicants were convinced of the truth of his statements because he was aware of their names and address, while they did not know him and supposed that these had been given to him by their son. 21.     The first applicant identified a military base in Novogrozny which had at some point been manned by servicemen from Stavropol. However, he did not manage to find out anything else about his son’s fate or his alleged place of burial. 22.     On 22 October 2001 an investigator of the Shali District Prosecutor’s Office informed the first and the second applicants that following their complaints criminal investigation file no. 23177 had been opened by that office on 12 August 2001 under Article 126 part 2 of the Criminal Code (kidnapping). He also stated that they would be informed of the results of the investigation. 23.     On 10 December 2001 the first applicant sent the Duma Deputy for the Chechen Republic a detailed letter containing information about his son’s arrest, disappearance and alleged death in custody. The letter stated that the area where Mr Magomed Dokuyev had allegedly been buried remained under military control and access there was limited, and requested help to find his remains and take them away for a proper burial. On 15   February   2002 this letter was forwarded to the Prosecutor General’s Office and on 14 June 2002 to the Prosecutor’s Office of the Chechen Republic. 24.     On 31 December 2001 the military prosecutor of military unit no.   20116 forwarded the first applicant’s letter to the Shali District Prosecutor’s Office and stated that the military prosecutor’s office had no competence in the matter, since the involvement of servicemen was only alleged by the applicants, but not supported by any material evidence. 25.     On 26 March 2002 the Directorate of the Prosecutor General’s Office for the Southern Federal Circuit replied to the first applicant that on 12   August   2001 the Shali District Prosecutor’s Office had opened a criminal investigation file under Article 126 part 2 of the Criminal Code. On 12   October 2001 the investigation was suspended due to failure to identify the culprits. The letter concluded by stating that actions aimed at establishing the whereabouts of the missing person and finding the culprits were continuing. 26.     On 26 February 2003 the Shali Town Court declared Mr Magomed Dokuyev a missing person. 27.     Mr Magomed Dokuyev’s arrest and ensuing disappearance were reported by Human Rights Watch in their report ‘Last Seen: Continuing Disappearances in Chechnya’ in April 2002 and by the Memorial Human Rights Centre in their report ‘Counter-Terrorist Operation’ in October 2002. 2.     Progress of the investigation 28.     The Government submitted the following information on the progress of the investigation. 29.     On 12 August 2001 the Shali District Prosecutor’s Office instituted criminal investigation no. 23177 into the kidnapping of Mr Magomed Dokuyev on 14 February 2001. 30.     On 20 August 2001 the first applicant was questioned and granted victim status in the proceedings. 31.     On 6 September 2001 the sixth applicant was questioned. 32.     On 12 October 2001 the investigation was suspended on the ground of failure to identify persons to be charged with the offence. 33.     On 24 April 2002 the Prosecutor’s Office of the Chechen Republic quashed the decision to suspend the investigation. The first applicant was notified accordingly. 34.     On 24 May 2002 the investigation was again suspended on the ground of the failure to identify persons to be charged with the offence. The first applicant was notified accordingly. 35.     On 5 November 2002 the Prosecutor’s Office of the Chechen Republic quashed the decision to suspend the investigation. 36.     On 17 November 2002 the first applicant was notified of the resumption of the investigation. 37.     On 16 December 2002 the investigation was once more suspended on the ground of failure to identify persons to be charged with the offence. The first applicant was notified accordingly. 38.     On 20 January 2004 the Prosecutor’s Office of the Chechen Republic quashed the decision to suspend the investigation. 39.     On 3 February 2004 the first applicant was notified of the resumption of the investigation. 40.     On 18 February 2004 the first applicant was again questioned. 41.     On 19 February 2004 the sixth applicant was again questioned. 42.     On 20 February 2004 the fourth applicant was questioned 43.     On 3 March 2004 the investigation was suspended again on the ground of failure to identify persons to be charged with the offence. The first applicant was notified accordingly. 44.     On 21 October 2005 the Prosecutor’s Office of the Chechen Republic quashed the decision to suspend the investigation. On the same date the first applicant was notified of the resumption of the investigation and questioned. The second applicant was granted victim status in the proceedings and questioned. Also questioned were I. D., Z. Kh. and K.   Kh., apparently the applicants’ neighbours. 45.     On 25 October 2005 the first applicant was again questioned. According to the transcript of the interview, he stated, inter alia , that he had not applied to the Court (see paragraph 51 below). 46.     On 26 October 2005 the fifth applicant was questioned. According to the transcript of the interview, she confirmed the account given earlier of the events of 14 February 2001 and also stated that she had not applied to the Court (see paragraph 53 below). The first applicant was also questioned on this date. 47.     On 21 November 2005 the investigation was again suspended on account of the failure to identify persons to be charged with the offence. The first applicant was notified accordingly on the same date. 48.     On 16 January 2006 the Shali District Prosecutor’s Office quashed the decision to suspend the investigation. 49.     On 22 January 2008 the first applicant was again questioned. He confirmed his earlier statements. 50.     The investigation failed to establish the whereabouts of Mr   Magomed Dokuyev. The investigating authorities sent requests for information to competent State agencies on 30 August 2001, 17   November   2002, 18   February 2004 and 25 October 2005. However, it was not established that servicemen had been involved in the offence. In particular, following the resumption of the investigation on 16 January 2006 the United Group Alignment (UGA) and 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 ] informed the investigation that they had not conducted any special operations in Novye Atagi on 14 February 2001. Mr   Magomed Dokuyev had not been held in either criminal detention or administrative detention facilities. According to information from the Ministry of the Interior and the FSB, they had not detained the first applicant or Mr   Magomed Dokuyev. Heads of three remand prisons in Dagestan, Kabardino-Balkaria and the Stavropol Region also submitted that the latter had not been held in those facilities. The investigation was under way. C.     Alleged interference with the right of individual petition 51.     The transcript of the first applicant’s questioning on 25   October   2005 read, in so far as relevant: “...Neither [I] personally nor members of my family have applied to the European Court of Human Rights. In 2001 and 2002 I applied to human rights organisations of our Republic, in particular, to the Memorial and the organisation on human rights in the Chechen Republic. ...I would like to clarify that [the third and fifth applicant] did not apply to the European Court either.” 52.     The transcript was signed by the first applicant and contained a record made by him to the effect that he had read the transcript and confirmed that it was accurate. According to the first applicant, the transcript was neither read by him nor read out to him by the investigator. However, he signed it because he trusted the investigator who was “a relative of his neighbours”. 53.     The transcript of the fifth applicant’s questioning on 26   October   2005 read, in so far as relevant: “I personally did not apply to [any authorities] in respect of my brother’s detention... including the European Court of Human Rights. The search for my brother was conducted by my father. I do not know whether he applied to any organisations in this connection.” 54.     The transcript was signed by the fifth applicant and contained a record made by her to the effect that she had read the transcript and confirmed that it was accurate. 55.     The transcripts of the questioning were submitted by the Government together with their observations following the communication of the application by the Court. In their observations the Government requested to strike the application out of its list of cases on the ground that it was a “counterfeit”. In their observations in reply the applicants confirmed their counsel’s power of authority to represent them in the proceedings before the Court as well as their wish to pursue the proceedings. In the decision as to admissibility of 29 November 2007 the Court dismissed the Government’s request. 56.     On 7 February 2006 the first applicant complained to the Prosecutor General’s Office concerning investigator K., who questioned him in October 2005. He claimed that he had never stated that he had not applied to the Court and that the investigator had forged the transcript of the questioning. He stated, in particular, that he had not even been questioned as to whether he had applied to the Court and therefore could not have replied in the negative. The first applicant maintained that as he had been questioned in the presence of his wife, the second applicant, she could confirm his statement. 57.     On 10 March 2006 the first applicant was notified that his complaint had been transmitted to the Prosecutor’s Office of the Chechen Republic. 58.     On 12 April 2006 the Prosecutor’s Office of the Chechen Republic replied to the first applicant. The reply read, in so far as relevant: “On 21 and 26 October 2005 you were questioned as a witness by an investigator of the Shali District Prosecutor’s Office concerning [the abduction of Mr Magomed Dokuyev]. As it follows from the transcripts of the questioning, no questions concerning your application to the European Court of Human Rights were put to you and, likewise, no clarifications were made by you in this respect. It is indicated in [both] transcripts that your statements [as set out in the transcripts] were read out to you by the investigator, after which they were signed by you. The transcripts met the requirements of the Code on Criminal Procedure.” D.     Request for information 59.     Despite a specific request by the Court the Government did not submit a copy of the file in criminal case no.   23177, having provided only copies of decisions to suspend and resume the investigation and to grant victim status, and of the transcripts of the interviews with the first and fifth applicants. 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. II.     RELEVANT DOMESTIC LAW 60.     For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §   67-69, 10   May 2007). THE LAW I.     THE GOVERNMENT’S PRELIMINARY OBJECTION A.     Arguments of the parties 61.     The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies, since the investigation into the abduction of Mr Magomed Dokuyev had not yet been completed. They also argued that it had been open to the applicants to challenge in court any actions or omissions by the investigating or other law-enforcement authorities during the investigation as well as to apply to the courts to have Mr Magomed Dokuyev declared a missing person; however, they had not availed themselves of any such remedy. 62.     The applicants disputed that objection. In their view, the fact that the investigation had been pending for seven years with no tangible results proved that it was an ineffective remedy in this case. They further argued that in the Chechen Republic a court appeal against a decision of an investigator would be futile and the remedy referred to was illusory and ineffective. B.     The Court’s assessment 63.     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). 64.     The Court reiterates that Article 35 § 1 of the Convention provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, §   15, ECHR 2002-VIII). 65.     As regards the Government’s argument that the applicants failed to apply to the courts to have Mr Magomed Dokuyev declared a missing person, the Court notes that they provided no information as to how such proceedings could have provided the applicants with the adequate redress. Accordingly, the Court finds that the Government did not substantiate that the remedy the applicants had allegedly failed to make use of was an effective one (see, among other authorities, Kranz v. Poland , no.   6214/02, §   23, 17   February 2004, and Skawinska v. Poland (dec.), no.   42096/98, 4   March   2003). It therefore dismisses the Government’s preliminary objection in this part. 66.     The Court further observes that an investigation into the disappearance of Mr Magomed Dokuyev had been pending since 12   August   2001. The applicants and the Government dispute the effectiveness of this investigation. 67.     The Court considers that this limb of the Government’s preliminary objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicants’ complaints. Thus, it considers that these matters fall to be examined below under the substantive provisions of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 68.     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 into 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.     Alleged violation of Magomed Dokuyev’s right to life 1.     Arguments of the parties 69.     The applicants maintained their complaint and argued that their relative had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for several years. 70.     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. In particular, no special operations had been conducted in Novye Atagi on the relevant date. 2.     The Court’s assessment (a)     General principles 71.     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). (b)     Establishment of the facts 72.     The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia , no. 69481/01, §§   103-109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v.   the United Kingdom , cited above, § 161). 73.     The applicants maintained that it was beyond reasonable doubt that the men who had intruded into their home and taken away Mr Magomed Dokuyev had been State agents. The applicants who, except for the second applicant, had been eyewitnesses to the apprehension submitted their account of the events. Furthermore, the first applicant himself had been detained by the same persons but later released and described the circumstances of his detention and release. The applicants 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. 74.     The Government submitted that on 14 February 2001 unidentified armed men in camouflage and masks accompanied by APCs had taken Mr   Magomed Dokuyev and the first applicant from their home to an unknown destination. The first applicant had been released the next day but the whereabouts of Mr Magomed Dokuyev had not been established. They further pointed out that the investigation into the incident had been pending and that there was no evidence that the armed men had been State agents. Accordingly, there were no grounds for holding the State responsible for the events in question. The Government particularly emphasised that information allegedly provided by Kh. could not be relied upon, since he had not been identified and it was not certain whether he even existed. They further argued that there was no convincing evidence that Mr Magomed Dokuyev was dead, given that his whereabouts had not been established and his body had not been found. 75.     The Court notes that despite its repeated requests for a copy of the investigation file concerning the abduction of Mr Magomed Dokuyev, the Government have failed to produce it. They 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 ‑ ... ). 76.     In view of the foregoing 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 relative’s detention on 14   February   2001. Six applicants were eyewitnesses to the events and the first applicant was himself abducted by those persons but released the next day. The applicants stated that the perpetrators had acted in a manner similar to that of a security operation – they had checked identity documents and used APCs, which could not have been available to paramilitary groups. Furthermore, according to the first applicant, although his captors kept him blindfolded, after he had been taken out the APC he once managed to catch a glimpse of military tents around. He then heard helicopters landing and taking off and his son’s voice coming from a nearby tent. In their applications to the authorities the applicants consistently maintained that their relative had been detained by unknown servicemen and requested the investigation to look into that possibility. 77.     The Court finds that the fact that a large group of armed men in uniform, equipped with military vehicles and able to move freely through military roadblocks, proceeded to apprehend two persons at their home in a town area strongly supports the applicants’ allegation that these were State servicemen. The Court further notes that after seven years the domestic investigation had produced no tangible results. 78.     The Court observes that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of documents withheld by the Government, it is for the latter 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). 79.     Taking into account the above elements, the Court is satisfied that the applicants have made 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 another plausible explanation for the events in question, the Court considers that Mr Magomed Dokuyev was apprehended on 14 February 2001 at his house in Novye Atagi by State servicemen during an unacknowledged security operation. 80.     The Court has to decide further whether Mr Magomed Dokuyev may be presumed dead. It considers in this regard that no weight may be attached to Kh.’s alleged testimony, since, as pointed out by the Government, his identity had not been established and the information concerning his statement is confined to hearsay evidence. Nevertheless, other evidence available allows the Court to conclude that Mr   Magomed Dokuyev must be presumed dead. In particular, it notes that there has been no reliable news of the applicants’ relative since 14 February 2001. His name has not been found in any official records of detention facilities. Lastly, the Government did not submit any explanation as to what had happened to him after his apprehension. 81.     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 ‑ ... ), 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 Magomed Dokuyev or any news of him for over seven years corroborates this assumption. Furthermore, the Government have failed to provide any explanation of Mr   Magomed Dokuyev’s disappearance and the official investigation into his abduction, dragging on for seven years, has produced no tangible results. 82.     Accordingly, the Court finds it established that on 14 February 2001 Mr   Magomed Dokuyev was apprehended by State servicemen and that he must be presumed dead following his unacknowledged detention. (c)     The State’s compliance with Article 2 83.     Article 2, which safeguards the right to life and sets out the circumstances in which 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, §§ 146-147, Series A no. 324, and Avşar , cited above, §   391). 84.     The Court has already found it established that the applicants’ relative 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, or otherwise accounting for his death, it follows that liability for his presumed death is attributable to the respondent Government. 85.     Accordingly, the Court finds that there has been a violation of Article 2 in respect of Mr Magomed Dokuyev. B.     The alleged inadequacy of the investigation into the abduction 1.     Arguments of the parties 86.     The applicants argued that the investigation had not been effective and adequate, as required by the Court’s case-law on Article 2. In particular, it had been opened six months after Mr   Magomed Dokuyev’s disappearance and had been pending for over seven years without any tangible results so far, having been repeatedly suspended and reopened. 87.     The Government claimed that the investigation into the disappearance of the applicants’ relative met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. 2.     The Court’s assessment 88.     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, §   86, Reports of Judgments and Decisions 1998-I). The essential purpose of such 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). 89.     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 information about its progress presented by the Government. 90.     Turning to the facts of the case, the Court notes that, according to the applicants, they applied to the authorities asking for assistance in establishing the whereabouts of Mr Magomed Dokuyev two days after his detention, that is on 16 February 2001. The Government did not contest this information. However, the investigation was not opened until 12   August   2001, that is almost six months later. This delay, for which no explanation was provided, was in itself liable to affect the investigation of a crime such as abduction in life-threatening circumstances, where crucial action must be taken in first days after the event. 91.     The Court observes that on 20   August 2001 the first applicant was granted victim status and questioned. However, it appears that after that a number of crucial steps were delayed and were eventually taken only after the communication of the complaint to the respondent Government, or not at all. In particular, the Court notes that the fourth applicant was questioned for the first time on 20