CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 avril 2009

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page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s9A11571B { width:2.87pt; display:inline-block } .sDC8E1F0A { width:193.11pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       FIRST SECTION     CASE OF GAZIYEVA AND OTHERS v. RUSSIA   (Application no. 15439/05)       JUDGMENT   This version was rectified on 4 May 2009 under Rule 81 of the Rules of the Court     STRASBOURG   9 April 2009   FINAL   06/11/2009   This judgment may be subject to editorial revision. In the case of Gaziyeva 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,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 19 March 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 15439/05) 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 three Russian nationals, listed below (“the applicants”), on 29 March 2005. 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 Ms V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights and subsequently by their new representative, Mr G. Matyushkin. 3.     On 1 September 2005 the Court decided to apply Rule   41 of the Rules of Court and to grant priority treatment to the application 4.     On 7 March 2008 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 Zareta Khamidovna Gaziyeva [1] , born in 1973, 2) Ms Radima Abdul-Malikovna Shakhmurzayeva, born in 2001 and 3) Mr Rakhim Abdul-Malikovich Shakhmurzayev, born in 1999. 7.     The applicants live in the village of Chechen-Aul, in the Grozny district of Chechnya. The first applicant is the wife of Abdul-Malik Shakhmurzayev, born in 1968. The second applicant is his daughter and the third applicant is his son. A.     Disappearance of Abdul-Malik Shakhmurzayev and subsequent events 1. The applicants’ account 8.     At the material time the village of Chechen-Aul and its premises were under full control of the Russian military; checkpoints manned by military servicemen were located on roads leading to and from the settlement. 9.     In the afternoon of 8 February 2001 three APCs (armoured personnel carriers) blocked the road between the village of Chechen-Aul and the Grozny-Shatoy motorway. The APCs’ registration numbers were covered with mud. The men who had arrived in the APCs were stopping every car driving by on the road. They were wearing black masks and uniforms and were carrying portable radios. They behaved like an organised group with a chain of command. It appears that the group belonged to division Don-100 of the North-Caucasian Military Circuit of the Internal Troops of the Ministry of the Interior ( Дивизия Северокавказского округа внутренних войск “Дон-100” ). 10.     That afternoon Abdul-Malik Shakhmurzayev was driving a ZIL-130 lorry in the direction of Chechen-Aul. Earlier that day he had picked up two fellow villagers, Mr Malik Z. and Mr Gilani M., to give them a lift to Chechen-Aul. 11.     At about 3 p.m. Abdul-Malik Shakhmurzayev’s lorry was stopped by the group of servicemen in APCs. He and the two passengers were told to step out of the vehicle and lie face down on the ground to answer the servicemen’s questions. 12.     Abdul-Malik Shakhmurzayev refused to lie down on the ground and said that he would answer the questions standing. One of the servicemen told him: “You will not only lie down, you will crawl and bark like a dog if we say so” and three of the servicemen started swearing and beating him with rifle butts. The beating was witnessed by three other persons who had also been stopped by the same group of servicemen: Mr S., Mr G. and Mr   Yu. 13.     After the beating Abdul-Malik Shakhmurzayev was put in one of the APCs and taken away. The two passengers Abdul-Malik Shakhmurzayev had picked up earlier that morning were also detained. The servicemen also detained the drivers of two other ZIL lorries, who were also beaten up but let go in the evening of 8 February 2001. These drivers, Mr Yu. and Mr G., came to the applicants and told them about the arrest of Abdul-Malik Shakhmurzayev. 14.     On 9 February 2001 the first applicant went to the military commander’s office in the nearby village of Gikalo. There she spoke to an officer who refused to reveal his name. He confirmed that Abdul-Malik Shakhmurzayev had been arrested on 8 February 2001 by military servicemen, but stated that no charges had been brought against him. The two men to whom Abdul-Malik Shakhmurzayev had given a lift on 8   February had also been arrested. 15. On 9 February 2001 the applicant went to the Urus-Martan district military commander’s office. There she met an officer who told her that Abdul-Malik Shakhmurzayev and his two passengers were being held in the “Tangi-Chu pits” in the village of Tangi-Chu (also spelled Tenghi-Chu). 16.     The applicants’ description of the circumstances surrounding the abduction of Abdul-Malik Shakhmurzayev was based on the witness statements provided by the applicants to the Court: a statement by the applicants’ relative Mr R. S., an account of the events by Mr S. (undated); an account of the events by witness Mr G. dated 30 September 2003; an account of the events by witness Mr E. dated 30 September 2003; an account of the events by witness Mr Yu. dated 30 September 2003 and on a hand-drawn map of Chechen-Aul. 2. Information submitted by the Government 17.     The Government did not dispute the facts as presented by the applicants. In their memorandum they stated “.... in connection with the abduction on 8 February 2001 by unidentified persons of the residents of Chechen-Aul, Mr Malik Z., Mr Abdul-Malik Shakhmurzayev and Mr Gilani M., who had been taken away [by the abductors] to an unknown destination, the Grozny district prosecutor’s office of Chechnya opened criminal case no.   19074 under Article 126   §   2 [of the Criminal Code] (aggravated kidnapping)”. 18.     Referring to the information received from the investigation into the abduction of Abdul-Malik Shakhmurzayev, the Government submitted the following information concerning the circumstances of his abduction. 19.     On 18 June 2001 the investigators questioned Mr Kh.Z. and Mr   A.M., relatives of the disappeared men, who stated that their fellow villagers had told them that on 8 February 2001 at about 4 p.m. military servicemen stationed in a former canning factory in Gikalo had arrested Abdul-Malik Shakhmurzayev, who had been driving a ZIl-131 lorry, together with two passengers he had picked up earlier that day. In the evening of the same day the three men had been taken to the headquarters of the Russian military unit located at the canning factory. On 9 February 2001 the arrested men had been taken to the premises of the DON-100 military unit in the village of Tangi-Chu. Three days later the military servicemen had returned the ZIL lorry to the Shakhmurzayevs and had explained that on 11 February 2001 the arrested men had been handed over to the Urus-Martan military commander’s office. 20.     On 27 July 2001 the investigators questioned the applicants’ relative Mr U.G., who stated that on the morning of 8 February 2001 his relative Abdul-Malik Shakhmurzayev had borrowed his ZIL-131 lorry to go to the village of Oldy for oil waste products and that after that he had disappeared. Some time later the witness had found out that Abdul-Malik Shakhmurzayev and his two passengers had been detained at a road-block in Chechen-Aul and taken to Gikalo. On 9 February 2001 the witness had been informed by his acquaintances that A.-M. Shakhmurzayev and the two other men had been transferred to Urus-Martan, where the head of the local administration informed them that the three detained men had been transferred from Urus-Martan to the village of Tangi-Chu. At a later date the investigators questioned the witness again, and he stated that he had learnt that on 8 February 2001 Abdul-Malik Shakhmurzayev had picked up two residents of Chechen-Aul, Mr   M.   Zubkhadzhiyev and Mr G. Magomadov, to give them a lift to the village. They had been driving from Gikalo to Chechen-Aul when their lorry had been stopped by unidentified persons in camouflage uniforms, who had detained the three men. Their relatives had started searching for them; they had found out that initially the three men had been taken to the military commander’s office in Gikalo, which was located in a former canning factory, and that afterwards they had been taken to the village of Tangi-Chu in the Urus-Martan district of Chechnya. 21.     On 28 July 2001 the investigators questioned the applicants’ relative Mrs M.G., who provided a statement similar to that of Mr U.G. 22.     On 24 December 2001 the investigators questioned Mr A.Kh., who stated that on 8 February 2001 at about 4 p.m. he had been driving to Chechen-Aul in his VAZ-2104 car. Abdul-Malik Shakhmurzayev’s ZIL lorry had been driving in front of him in the same direction. At the entrance to the village a group of unidentified armed masked men in two APCs had been checking the identity documents of those who had been passing by on the road. The witness had seen that the three men from Abdul-Malik Shakhmurzayev’s lorry had been taken out and put in one of the APCs, which had driven away. On the following day, he had found out that these three men were A.-M. Shakhmurzayev, M. Z. and G. M. At a later date the investigators questioned the witness again, and he stated early in 2001 he, together with his cousin Mr I.K. and another young man, had been travelling in a VAZ car from Grozny to Chechen-Aul. At the entrance to the village they had been stopped by a group of unidentified men in two APCs. The men were armed and were wearing camouflage uniform. They had taken the witness and his passengers out from the car, checked their identity documents and made them put their hands on the boot. Three or four lorries with tanks for oil waste products were parked between the APCs. Several men were lying face down on the ground. One of them jumped up and tried to run away. One of the men in camouflage uniform had shouted at him “Stop!” and had fired twice. The man who had attempted to run away fell to the ground and started screaming: “Kill me!” It appeared that this man had been wounded. After that several men in camouflage uniform put the wounded man in the APC, saying “You were told not to run away.” Several other detained men were also put in the same APC. After that the men in camouflage uniform said: “Let’s get ready, we are leaving”. After that the witness and his passengers managed to get back in their car and drove away. After that the witness arrived at the market in Chechen-Aul where he told his fellow villagers what had happened. 23.     On 24 December 2001 the investigators also questioned Mr B.Sh., Abdul-Malik Shakhmurzayev’s brother. The witness stated that on 8   February 2001 Abdul-Malik Shakhmurzayev, Malik Z. and Gilani M. had been driving from Gikalo to Chechen-Aul. At the entrance to the village they were stopped, taken out of the vehicle and taken to the military commander’s office in Gikalo. In the morning of 9 February 2001 the witness had gone to the military commander’s office, where he was told that the men had been transferred to the Urus-Martan department of the Federal Security Service (the Urus-Martan FSB). The witness had not been able to obtain any information about his brother in Urus-Martan. 24.     On an unspecified date the investigators questioned Mr A.M., Gilani M.’s brother. The witness stated that residents of Chechen-Aul had told him that on 8 February 2001 his brother had gone to Gikalo with Malik Z. to have their pictures taken for the driver’s licence. At the entrance to Chechen-Aul they had been taken out of the vehicle and taken to the military commander’s office in Gikalo. In the morning of 9 February 2001 the witness had visited the office, where he had been told that the men had been handed over to officers of the Urus-Martan FSB. The witness had not been able to obtain any information about his relative in Urus-Martan. 25.     On 22 May 2002 the investigators questioned Mr R.R., Abdul-Malik Shakhmurzayev’s neighbour, who stated that his fellow villagers had told him that when Abdul-Malik Shakhmurzayev had been driving in a ZIL-131 lorry from Gikalo to Chechen-Aul he had picked up two passengers, Malik   Z. and Gilani M. Two other residents of Chechen-Aul had been driving in another ZIL-131 lorry behind Abdul-Malik Shakhmurzayev’s vehicle. These two residents of Chechen-Aul had also been apprehended by the same servicemen and taken together with Abdul-Malik Shakhmurzayev and his passengers to the military commander’s office in Gikalo. These two men had been released two hours later and they had informed the applicants about the arrest of Abdul-Malik Shakhmurzayev and his passengers. At a later date the investigators questioned the witness again, and he stated that on 8 February 2001 he had been driving from Grozny to Chechen-Aul. At the entrance to the village he had met his fellow villagers Mr L.D. and another man, who had told him that about ten minutes previously a group of unidentified persons in APCs had taken away Abdul-Malik Shakhmurzayev, Malik Z. and Gilani M. From what he had heard the witness also had understood that one of the men taken away had been wounded. According to the witness, he had learnt that the men had been taken to the former canning factory in Gikalo, where the local military commander’s office and a unit of the Russian military was stationed at the time. Some time later the three men had been taken somewhere in the Urus-Martan district. 26.     On an unspecified date the investigators questioned Mr I.R., who gave a statement similar to that of Mr R.R. 27.     On 27 May 2002 the applicants and their relatives wrote to the Grozny district prosecutor’s office (the district prosecutor’s office) and provided the following details concerning the circumstances of Abdul-Malik Shakhmurzayev’s abduction. On 8 February 2001 he was driving from Gikalo to Chechen-Aul in ZIL-131 lorry. At the turning for Chechen-Aul he picked up two residents of Chechen-Aul to give them a lift to the village. At the entrance to Chechen-Aul his vehicle was stopped by a group of military servicemen in two APCs. When the lorry stopped one of Abdul-Malik Shakhmurzayev’s passengers tried to run away. However, he was caught by the servicemen, who took all three men to Gikalo. From there the men were taken to another place. The lorry was returned to the Shakhmurzayevs. Three days after the arrest Abdul-Malik Shakhmurzayev and his two passengers were handed over to the Urus-Martan FSB. However, when the applicants and their relatives visited the Urus-Martan FSB, an officer had told them that the three men had never been transferred to their department. In August 2001 a man who had been detained in the Urus-Martan FSB at some point prior to August 2001 had told the applicants that he had seen Abdul-Malik Shakhmurzayev in a cell at the Urus-Martan FSB and had even spoken to him. 28.     On an unspecified date the investigators questioned Mrs Z.A., Abdul-Malik Shakhmurzayev’s sister, who stated that her brother A.-M. Shakhmurzayev had been working as a driver and transporting oil waste products in a ZIL-131 lorry. On 8 February 2001 he went to work. On the same day she found out from residents of Chechen-Aul that he and two other men from their village had been detained by unidentified men in camouflage uniform who were driving around in three APCs. Eyewitnesses had told her that they had seen a group of men in camouflage uniform who had stopped her brother’s lorry at the entrance to the village. One of the men had tried to escape, but he was wounded in the leg and caught. The men in APCs put Abdul-Malik Shakhmurzayev, Malik Z. and Gilani M. into one of the APCs and drove away in the direction of the military commander’s office in Gikalo, which was in a former canning factory. 29.     On an unspecified date the investigators questioned Mrs L.Ya, Mrs   M.A. and Mr I.I., all of whom stated that at the beginning of 2001 on the outskirt of Chechen-Aul unidentified persons in camouflage uniform had taken away three of their fellow villagers, Abdul-Malik Shakhmurzayev, Malik Z. and Gilani M. 30.     Referring to the report of an officer of the Grozny district department of the interior (the ROVD) the Government submitted that “in 2001 on the premises of the former canning factory [in Gikalo] a unit of the Internal Troops of the Ministry of the Interior had been stationed for some time”. 31.     The Government also pointed out that the applicants had never informed the domestic authorities about the eyewitnesses to the detention and the alleged beating of Abdul-Malik Shakhmurzayev. B.   The search for Abdul-Malik Shakhmurzayev and the official investigation into his abduction 1. The applicants’ account 32.     The first applicant was assisted in the search for her husband by Abdul-Malik Shakhmurzayev’s sister. They contacted, both in person and in writing, various official bodies, such as the Chechen administration, military commanders’ offices and prosecutors’ offices at different levels, describing in detail the circumstances of their relative’s abduction and asking for help in establishing his whereabouts. The applicants retained copies of a number of their complaints and submitted them to the Court. The relevant information is summarised below. 33.     On 9 June 2001 the district prosecutor’s office instituted an investigation into the disappearance of Abdul-Malik Shakhmurzayev under Article 126   §   2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned no. 19074 (in the submitted documents it is also stated as no.   19127). 34.     On 16 and 25 July 2001 the Chechnya prosecutor’s office forwarded to the district prosecutor’s office letters from the applicants’ relative requesting assistance in the search for Abdul-Malik Shakhmurzayev. 35.     On 21 March 2003 the military prosecutor’s office of a military unit forwarded the request for the search for Abdul-Malik Shakhmurzayev to a number of law enforcement agencies. 36.     On 18 April 2003, 4 December 2003, 2 June 2004, 6 October 2004 and 21 March 2005 the applicants’ representatives repeatedly and unsuccessfully requested information from the district prosecutor’s office. They asked to be informed when the criminal investigation into the abduction had been opened; what number the case file had been given; who had been in charge of the investigation; and whether there had been any progress. In addition, they requested to be informed whether the applicants or their relatives had been granted victim status in the proceedings, whether the authorities had forwarded information requests concerning the whereabouts of Abdul-Malik Shakhmurzayev to various detention facilities and whether the investigation had questioned the eyewitnesses to Abdul-Malik Shakhmurzayev’s abduction. 37.   On 6 May 2003 and 8 January 2004 the district prosecutor’s office informed the applicants that the investigation in the criminal case had been suspended owing to the failure to establish the identity of the perpetrators. 38.     On 23 May 2003 the military prosecutor’s office of military unit no.   20102 informed the applicants’ relative that military unit no.   3660 had not conducted any operations in Chechen-Aul in February 2001. 39.     In August 2004 (the date is illegible) the district prosecutor’s office informed the applicants that the investigation in the criminal case had been resumed on 29 July 2004. 40.     On 19 April 2005 the Chechnya prosecutor’s office informed the applicants that they had been duly informed about the progress of the investigation. 2. Information submitted by the Government 41.     In their submission to the Court the Government pointed out that the applicants had complained to the district prosecutor’s office about the abduction of Abdul-Malik Shakhmurzayev only on 7 August 2001. 42.     The Government further stated that on an unspecified date a relative of another person abducted together with Abdul-Malik Shakhmurzayev, Mr   Kh.Z., had complained about the abduction to the Special Envoy of the Russian President on Human Rights and Freedoms in Chechnya (the Envoy). On 9 June 2001 the Envoy forwarded this complaint to the district prosecutor’s office. Therefore, on 9 June 2001 the district prosecutor’s office opened criminal case no.   19074. 43.   On 17 June 2001 the investigators requested the ROVD to establish whether any special operations had been conducted by the military or law-enforcement agencies in the vicinity of Chechen-Aul on 8 February 2001. 44.     On 20 or 28 June 2001 the investigators requested the ROVD to question relatives of the abducted men and those residents of Chechen-Aul who might have witnessed the abduction. 45.     On an unspecified date the investigators requested the Grozny department of the FSB and the ROVD to establish whether any law enforcement agencies or military units had been involved in the abduction of the applicants’ relative. They were also requested to establish which units of federal forces had been stationed on the premises of the former canning factory in Gikalo in 2001 and whether Abdul-Malik Shakhmurzayev, Malik   Z. and Gilani M. had been taken there. 46.     On an unspecified date the investigators conducted a crime scene examination at the site of the abduction. It does not appear that any evidence was collected from the scene. 47.     According to the responses received from the ROVD, Abdul-Malik Shakhmurzayev, Malik Z. and Gilani M. had not been listed by the authorities as members of illegal armed groups. They had never been prosecuted or detained on criminal or administrative charges; they had not applied for medical assistance and no unidentified corpses with features similar to theirs had been found. The responses also confirmed that a unit of the Internal Troops of the Ministry of the Interior had been stationed on the premises of the former canning factory (see paragraph 30 above). 48.     According to the response received from the Operational-Search Bureau no.   2 of the Main Department of the Ministry of the Interior in the Southern Federal Circuit ( Оперативно-Розыскное Бюро-2 Главного Управления по ЮФО МВД РФ ), their units had not conducted any special operations in Chechen-Aul and they did not have any information about the whereabouts of the abducted men. 49.     According to the Government, although the investigation had failed to establish the whereabouts of Abdul-Malik Shakhmurzayev and the perpetrators of his abduction, it was still in progress. Additional information requests had been forwarded to various military and law enforcement agencies. The applicants had been duly informed of all decisions taken during the investigation. 50.     Despite specific request by the Court the Government did not disclose any documents from criminal case no.   19074 stating 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. II.   RELEVANT DOMESTIC LAW 51.     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 objection AS TO non-exhaustion of domestic remedies A.     The parties’ submissions 52.     The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the disappearance of Abdul-Malik Shakhmurzayev had not yet been completed. They further argued that it had been open to the applicants to lodge court complaints against the investigating or other law-enforcement authorities, but that the applicants had not availed themselves of that remedy. They also argued that it had been open to the applicants to pursue civil complaints but they had failed to do so. 53.     The applicants contested that objection. They stated that the criminal investigation had proved to be ineffective. Referring to the other cases concerning such crimes reviewed by the Court, they also alleged that the existence of an administrative practice of non-investigation of crimes committed by State servicemen in Chechnya rendered any potentially effective remedies inadequate and illusory in their case. They also pointed out that the lack of information about the criminal investigation had precluded them from complaining to domestic courts. B.     The Court’s assessment 54.     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). 55.     The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies. 56.     As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v.   Russia , nos.   57942/00 and 57945/00, §§   119-121, 24 February 2005, and Estamirov and Others , cited above, §   77). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. 57.     As regards criminal law remedies, the Court observes that the applicants complained to the law enforcement authorities after the kidnapping of Abdul-Malik Shakhmurzayev and that an investigation has been pending since 9 June 2001. The applicants and the Government dispute the effectiveness of the investigation of the kidnapping. 58.     Furthermore, 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 the objection should be joined to the merits and falls to be examined below under the relevant substantive provisions of the Convention.   II.   THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A.     The parties’ arguments 59.     The applicants maintained that it was beyond reasonable doubt that the men who had taken away Abdul-Malik Shakhmurzayev were State agents. In support of their complaint they referred to the following facts. In February 2001 Chechen-Aul had been under the total control of federal troops. Russian military checkpoints had been stationed on the roads leading to and from the village. The armed men in camouflage uniform who had abducted Abdul-Malik Shakhmurzayev had been driving in military vehicles, APCs, and this had been confirmed by eyewitness accounts. The armed men had blocked the road and acted in a manner similar to that of special forces carrying out identity checks. 60.     The Government submitted that unidentified armed men had kidnapped Abdul-Malik Shakhmurzayev. They further contended that the investigation of the incident was pending, that there was no evidence that the men were State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants’ rights. They further argued that there was no convincing evidence that the applicants’ relative was dead. The Government also stated that “without denying the necessity to verify the theory of possible involvement of federal forces in the abduction of A.-M. Shakhmurzayev, it should be noted that his abduction could have been committed by persons connected with the criminal world, or that it could have been the result of a blood feud”. At the same time the Government pointed out that the applicants’ submissions concerning the factual circumstances of Abdul-Malik Shakhmurzayev’s abduction had been inconsistent. In particular, they alleged that the applicants had failed to inform the domestic authorities about the eyewitnesses to the abduction; that some of the witnesses had stated that a man had been wounded during the detention of the applicants’ relative whereas others had not mentioned that in their testimonies to domestic authorities or to the Court and that the witnesses to A.-M. Shakhmurzayev’s apprehension had not been consistent in their description of the number of the APCs involved in the abduction. B. The Court’s evaluation of the facts 61.     The Court observes that in its extensive jurisprudence it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v.   Russia , no. 69481/01, §§   103-109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom , cited above, pp. 64-65, § 161). 62.     The Court notes that despite its request for a copy of the investigation file into the abduction of Abdul-Malik Shakhmurzayev, the Government did not produce any 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)). 63.     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’ relative can be presumed dead and whether his death can be attributed to the authorities. 64.     The applicants alleged that the persons who had taken Abdul-Malik Shakhmurzayev away on 8   February 2001 and then killed him were State agents. 65.     The Government suggested in their submission that the persons who had detained Abdul-Malik Shakhmurzayev could have been criminals or that he could have been kidnapped as a result of a blood feud. However, these allegations were not specific and the Government did not submit any material to support it. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and that it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see Çelikbilek v. Turkey , no.   27693/95, §   71, 31   May 2005). 66.     The Court notes that the applicants’ allegation is supported by the witness statements and by the investigation. It finds that the fact that a large group of armed men in uniform equipped with military vehicles was able to move freely through military checkpoints in broad daylight and proceeded to check identity documents and detained several persons strongly supports the applicants’ allegation that these were State servicemen conducting a security operation. The domestic investigation also accepted factual assumptions as presented by the applicants and took steps to check whether law enforcement agencies or the military were involved in the abduction. The investigation was unable to establish which precise military or security units had carried out the operation, but it does not appear that any serious steps had been taken in that direction. 67.     The Court observes that where the applicants make 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 applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey , no.   27601/95, §   95, 31 May 2005, and Akkum and Others v. Turkey , no.   21894/93, §   211, ECHR 2005 ‑ II). 68.     The Government seemed to raise doubts as to the credibility of the witnesses’ statements concerning the circumstances of the abduction of Abdul-Malik Shakhmurzayev (see paragraph 60 above).     The Court notes in this connection that the crucial elements underlying the applicants’ submissions as to the facts have not been disputed by the Government. The Government did not dispute that the abduction of the applicants’ relative had actually been committed by a group of armed men in APCs at the time stated by the applicants. This was confirmed by the official investigation conducted by the district prosecutor’s office (see paragraph 17 above). The Court finds that the inconsistencies pointed out by the Government in the applicants’ description of the events are so insignificant that they cannot cast doubt on the overall credibility of the applicants’ submission. 69.     Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relative was abducted 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 of the events in question, the Court considers that Abdul-Malik Shakhmurzayev was detained on 8 February 2001 by State servicemen during an unacknowledged security operation. 70.     There has been no reliable news of Abdul-Malik Shakhmurzayev since the date of his kidnapping. His name has not been found in any official detention facilities’ records. Finally, the Government did not submit any explanation as to what had happened to him after his arrest. 71.     Having regard to the previous cases concerning disappearances of people in Chechnya which have come before the Court (see, among others, Bazorkina , cited above; 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), in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Abdul-Malik Shakhmurzayev or of any news of him for several years supports this assumption. 72.     The Court further notes that, regrettably, it has been unable to benefit from the results of the domestic investigation, owing to the Government’s failure to disclose any of the documents from the file (see paragraph 50 above). Nevertheless, it is clear that the investigation did not identify the perpetrators of the kidnapping. 73.     Accordingly, the Court finds that the evidence available permits it to establish that Abdul-Malik Shakhmurzayev must be presumed dead following his unacknowledged detention by State servicemen. III.   ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 74.     The applicants complained under Article 2 of the Convention that their relative 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 75.     The Government contended that the domestic investigation had obtained no evidence to the effect that Abdul-Malik Shakhmurzayev was dead or that any servicemen of the federal law-enforcement agencies had been involved in his kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of the applicants’ relative met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. 76.     The applicants argued that Abdul-Malik Shakhmurzayev had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for several 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 applicants pointed out that for several years the district prosecutor’s office had not questioned some important witnesses. The investigation into Abdul-Malik Shakhmurzayev’s kidnapping had been opened four months after the events and then it had been suspended and resumed a number of times – thus delaying the taking of the most basic steps – and that the applicants had not been properly informed of the most important investigative measures. The fact that the investigation had been pending for more than seven years without producing any tangible results had been 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 77.     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 58 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 Abdul-Malik Shakhmurzayev 78.     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)). 79.     The Court has already found that the applicants’ relative must be presumed dead following unacknowledged detention by State servicemen and that his death can be attributed to the State. In