CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 avril 2009

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display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }       FIRST SECTION       CASE OF GAKIYEV AND GAKIYEVA v. RUSSIA   (Application no. 3179/05)           JUDGMENT       STRASBOURG   23 April 2009   FINAL   06/11/2009   This judgment may be subject to editorial revision.   In the case of Gakiyev and Gakiyeva 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 2 April 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 3179/05) 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 two Russian nationals, Mr Khalid Baykhayevich Gakiyev and Ms Malkan Shatayevna Gakiyeva (“the applicants”), on 14   January 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, former Representative of the Russian Federation at the European Court of Human Rights. 3.     On 24 October 2007 the President of the First Section decided to give the application priority (Rule 41 of the Rules of Court) and to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article   29   §   3 of the Convention). 4.     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 5.     The applicants were born in 1952 and 1960 respectively. They live in the town of Argun, in the Shali District of the Chechen Republic. 6.     The applicants are the parents of Mr Idris Khalidovich Gakiyev, born in 1980. At the material time the applicants and their son lived at 33 the Eighth of March Lane, in the town of Argun. A.     Events of 30 November 2003 1.     The applicants’ account (a)     Abduction of Idris Gakiyev 7.     At about 2 a.m. on 30 November 2003 three armoured personnel carriers (“APCs”) arrived at the applicants’ house. A group of armed men wearing camouflage uniforms got off the vehicles and burst inside. The men wore no masks and had Slavic features; they did not identify themselves but the applicants inferred that they belonged to the Russian special task forces. 8.     The servicemen severely beat the first applicant with the butts of their machine guns; when he lost consciousness, they left him lying on the floor. At some point they poured petrol over the first applicant’s body. Then they seized Idris Gakiyev, took him outside and placed him in one of the APCs. Before leaving, the servicemen set the applicants’ house on fire. Then they climbed into the APCs and drove away. 9.     The second applicant went out into the street and cried. The first applicant somehow managed to get out of the burning house. Later, the fire was extinguished but the house had been demolished by then. (b)     Medical examination of the first applicant 10 .     The case file contains a medical certificate issued by the Argun Town Hospital on 30 November 2003, which reads as follows: “... on 29 November 2003 [Khalid Gakiyev] applied to the Argun Town Hospital [for medical assistance] in relation to the bodily injuries inflicted on him. He was examined by a traumatologist and a neuropathologist and prescribed with the requisite treatment.” 11.     According to the certificate, the first applicant was diagnosed with a closed craniocerebral injury, cerebral concussion, injuries to the right parietal area, injuries and a bruise to the left cheekbone and orbital area, haemorrhage in the left eye and abrasions on the face, abdomen and hips. 2.     Information submitted by the Government 12.     At about 2 a.m. on 30 November 2003 unidentified armed persons in camouflage uniforms armed with machine guns and travelling in APCs entered the house at 11 Groznenskiy Lane, Argun, and kidnapped Mr   Khuseyn Elmarzayev, born in 1981, and Mr Khaseyn Elmarzayev, born in 1985. Then the same persons drove to the house at 33 the Eighth of March Lane, Argun, and kidnapped Idris Gakiyev. After the kidnappings the perpetrators set both houses on fire. B.     Official investigation into Idris Gakiyev’s disappearance 1.     The applicants’ account 13.     After their son’s abduction the applicants complained to various State agencies and officials, including the Russian President, the Russian State Duma, the Russian Ombudsman, the Russian Prosecutor General, the President of the Chechen Republic and the local administration. Most of those complaints were forwarded to the prosecutors’ offices at different levels. 14 .     By letter of 2 December 2003 the prosecutor’s office of the town of Argun (“the town prosecutor’s office”) requested the local administration to assess the damage to the applicants’ house. They mentioned that “unidentified persons wearing camouflage uniforms and armed with machine guns” had inflicted bodily injuries on the first applicant and had kidnapped his son. On 5 December 2003 the commission formed by the local administration drew up an evaluation report, according to which the applicants’ house had been completely demolished and could not be reconstructed. 15 .     On 6 December 2003 the town prosecutor’s office instituted an investigation into the disappearance of Idris Gakiyev and two other inhabitants of Argun under Article 126 § 2 of the Russian Criminal Code (“aggravated kidnapping”). The case file was assigned the number 26075. 16.     On 9 January 2004 the town prosecutor’s office informed the second applicant that her complaint to the Plenipotentiary Representative of the Russian President in the Southern Federal District had been included in the investigation file. They further commented that the search for Idris Gakiyev, although fruitless so far, was under way. 17.     On 21 January 2004 the prosecutor’s office of the Chechen Republic informed the second applicant that investigative measures were being taken to solve Idris Gakiyev’s kidnapping and advised her to send further queries to the town prosecutor’s office. 18.     On 23 January 2004 the Chechen Department of the Federal Security Service (“the Chechen FSB”) informed the second applicant that they were taking requisite measures to find Idris Gakiyev’s kidnappers. 19.     On 30 January 2004 the prosecutor’s office of the Chechen Republic forwarded the second applicant’s complaint to the town prosecutor’s office and ordered that the search for Idris Gakiyev be pursued actively. 20.     On 1 March 2004 the town prosecutor’s office suspended the investigation in case no. 26075 for failure to identify those responsible and notified the first applicant accordingly. 21.     On 29 March 2004 the town prosecutor’s office informed the applicants that the investigation in case no. 26075 had been resumed. 2.     Information submitted by the Government 22.     On 1 December 2003 the town prosecutor’s office instituted an investigation into aggravated kidnapping in case no. 26075. 23.     On an unspecified date the house at 33 the Eighth of March Lane was inspected as a crime scene. Nothing was found or collected there. 24 .     On an unspecified date the second applicant was granted victim status and questioned. She stated that on 30 November 2003 she had been at home with her husband and son. At about 2 a.m. her son had heard someone knocking at the door; the first applicant had told him to open it. Then armed men in camouflage uniforms and helmets had burst inside the house; two of them had had night vision devices. They had started beating her son and husband. One of the armed men had thrown something inside the house and the house had caught fire. The second applicant had taken her unconscious husband outside the house. In the meantime the armed men had put her son in an APC and driven away. The second applicant had not seen how many APCs had been there. The unknown men had taken away an attaché case with documents. The house had been destroyed by fire. Later, the second applicant had learned that two other young men had been kidnapped on the same night under similar circumstances. 25 .     On unspecified dates the investigators granted victim status to Mr   and Ms Elmarzayev, the parents of the two kidnapped young men, and questioned them. The Elmarzayevs stated that on 30 November 2003 an APC had driven into their courtyard. Then unknown armed men in camouflage uniforms and masks had entered their house and beaten up Mr   Elmarzayev and his sons Khuseyn and Khaseyn. One of the armed men had thrown something inside the house and it had caught fire. Khuseyn and Khaseyn Elmarzayev had been taken out of the house, put inside the APC and driven away. Mr and Ms Elmarzayev had not seen the APC’s registration number. 26.     The investigators questioned Mr B., the applicants’ neighbour, as a witness. He stated that on 30 November 2003 he had been awakened by the sound of the second applicant screaming, who had then told him about her son’s abduction. 27.     Ms I., Ms D. and Ms Dzh., the Elmarzayevs’ neighbours, stated that on 30 November 2003 they had been awakened by the noise of APCs driving past. Then they had seen that the Elmarzayevs’ house was burning and learned that Khuseyn and Khaseyn Elmarzayev had been kidnapped. 28 .     The commander of the UGA headquarters and the aide of the head of the Temporary Joined Group of Bodies and Units of the Russian Ministry of the Interior (“VOGOiP”) informed the investigators that no special operations had been carried out in Argun on the night of 30 November 2003. The VOGOiP had no information on the kidnapping of Idris Gakiyev and the Elmarzayev brothers and had no APCs in their armouries. 29 .     On an unspecified date the first applicant was also questioned. He stated that he had been told by an undisclosed source in the FSB that his son had been kidnapped by servicemen of the internal troops of the Ministry of the Interior and then kept in the territory of the Khankala base together with Mr Ch. 30 .     Mr Elmarzayev was questioned again and stated that he had learned from an undisclosed source that the commander of “the oil regiment” could have been involved in his sons’ kidnapping. 31 .     Later, Mr Elmarzayev stated that shortly before the kidnapping unknown men who had identified themselves as police officers had visited his house on two occasions and checked documents. Some servicemen of the department of the interior of Argun had told him that servicemen of special task force unit no. 34 could have been involved in the crime. At some point Mr Elmarzayev added that he had heard rumours that his sons had been kidnapped by a task force unit of the Ministry of the Interior under the command of Lieutenant-Colonel P. of the Khankala base. 32.     The damage to the applicants’ house was estimated at 147,113   Russian roubles. 33 .     On 29 February 2004 the first applicant lodged his civil claims in the criminal case concerning the damage to his house with the town prosecutor’s office. On the same date he was granted civil plaintiff’s status. 34 .     The investigators requested information on the kidnapping of Idris Gakiyev and the Elmarzayev brothers from law-enforcement agencies of the Chechen Republic. According to the replies received, no special operations had been carried out in Argun on 10 April 2003 and the three men had not been prosecuted for or suspected of participation in illegal armed groups. 35 .     The head of the Chechen FSB informed the investigators that Idris Gakiyev and the Elmarzayev brothers had participated in the State Duma elections on 7 December 2003 as they had signed the election register. 36 .     Servicemen of the task force unit of the town of Zlatoust, the Chelyabinsk Region, who had been on mission in Argun in November and December 2003, were questioned and stated that they knew nothing about the kidnapping of the residents of Argun on 30 November 2003. C.     Discovery of Idris Gakiyev’s dead body 1.     The applicants’ account 37.     At about 10.30 a.m. on 29 March 2004 unidentified corpses showing signs of violent death were found in a pit in the vicinity of a half-demolished nursery at Sapernaya Street in Grozny. 38 .     One of the corpses, referred to as “dead body no. 2”, was in a camouflage uniform, a sailor’s long-sleeve shirt and running shoes. The head was covered with a plastic bag and a sack; a piece of wire was wrapped round the neck. The first applicant identified the body as that of Idris Gakiyev. 39.     Between 1 and 30 April 2004 the expert of the forensic bureau of Mozdok carried out a port-mortem examination of Idris Gakiyev’s corpse. He established that the death had been caused by mechanical asphyxia and had occurred some three to nine days before the beginning of the autopsy. 40.     On 15 June 2004 the Argun Town Polyclinic issued a medical certificate concerning Idris Gakiyev’s death. 41.     On 16 June 2004 the Agrun Town Registry Office issued a certificate in respect of Idris Gakiyev, according to which the violent death had occurred on 22 March 2004. 2.     Information submitted by the Government 42.     At about 10.30 a.m. on 29 March 2004 three dead bodies were discovered in a pit near a demolished kindergarten at Sapernaya Street in Grozny. D.     Official investigation into Idris Gakiyev’s kidnapping and killing 1.     The applicants’ account 43.     On 8 April 2004 the district prosecutor’s office issued a certificate confirming that on 29 March 2004 three dead bodies showing signs of violent death, including that of Idris Gakiyev, had been discovered in Grozny. 44 .     On 8 April 2004 the district prosecutor’s office granted the first applicant victim status in case no. 32027 on the ground that he had sustained non-pecuniary damage caused by his son’s violent death. On the same date the first applicant was notified of that decision. 45.     On 22 April 2004 the Temporary Operational Group of the Russian Ministry of the Interior informed the second applicant that they had carried out an inquiry and established that the investigation into Idris Gakiyev’s kidnapping in case no. 26075 had been opened on 6   December 2003 by the town prosecutor’s office. They commented that the police had no further information on the identities of the perpetrators. 46.     On 27 April 2004 the district prosecutor’s office issued a certificate confirming that on 29 March 2004 two dead bodies showing signs of violent death, including that of Idris Gakiyev, had been discovered in Grozny. 47.     On 28 April 2004 the town prosecutor’s office forwarded criminal case no. 26075 to the district prosecutor’s office pursuant to the territorial jurisdiction rules. 48.     On 2 July 2004 the prosecutor’s office of the Chechen Republic informed the second applicant that the case file concerning Idris Gakiyev’s kidnapping had been transferred to the district prosecutor’s office following the discovery of his dead body and that investigative measures were being taken to establish the perpetrators’ identities. 49.     On 22 October 2004 the SRJI, acting on the applicants’ behalf, requested the town prosecutor’s office to inform them of progress in the investigation in case no. 26075. On 27 December 2004 the prosecutor’s office of the Chechen Republic replied that the investigation into Idris Gakiyev’s kidnapping and subsequent killing had been resumed and that investigative measures were being taken to solve the crime. 50.     On 2 November 2005 the SRJI requested an update on progress in the investigation from the town prosecutor’s office and the prosecutor’s office of the Chechen Republic. On 16 November 2005 the town prosecutor’s office replied that case file no.   26075 had been transferred to the district prosecutor’s office on 28   April   2004. 51.     On 28 November 2005 the district prosecutor’s office informed the SRJI that criminal case no. 32027 was pending before them. They noted that the case had been instituted following the discovery of five corpses, including that of Idris Gakiyev, in the pit in the Oktyabrskiy District of Grozny, and observed that the investigation had been suspended for failure to identify the perpetrators. They also mentioned that the first applicant had been admitted to the proceedings as a victim. 52.     In December 2005 the town prosecutor’s office informed the SRJI that case no. 26075 had been transferred to the district prosecutor’s office. 53.     On 22 December 2005 the applicants’ representatives requested the district prosecutor’s office to inform them of the progress in the investigation. 54 .     On 23 January 2006 the district prosecutor’s office informed the SRJI that the investigation in case no. 32027 had been suspended on 6 July 2005 for failure to identify those responsible. 55 .     On 13 March 2008 the first applicant was informed that case no.   32027 had been transferred to the Investigative Committee of the Prosecutor’s Office of Russia in the Chechen Republic. 2.     Information submitted by the Government 56.     On 29 March 2004 the district prosecutor’s office instituted an investigation into the murder of three persons under Article 105 § 2 of the Russian Criminal Code in case no. 32027. 57.     A witness who had seen the dead bodies in the pit on 28 March 2004 was questioned. 58 .     On 30 April 2004 post-mortem reports were drawn up in respect of the three unidentified corpses. It was stated that an unidentified person, referred to as “dead body no. 1”, had died of asphyxia by a loop round his neck some three to nine days before the expert examination, which had been carried out on 1 April 2004. An unidentified person referred to as “dead body no. 2” had died under the same circumstances. An unidentified person referred to as “dead body no. 3” had died of asphyxia as well but had also suffered an open cranial trauma with broken skull bones. 59.     On an unspecified date the first applicant identified one of the dead bodies as his son, Idris Gakiyev. He was then granted victim status in case no.   32027 and questioned. 60.     The town prosecutor’s office decided to transfer the investigation file in case no. 26074 to the district prosecutor’s office pursuant to the territorial jurisdiction rules. 61.     On 13 May 2004 the district prosecutor’s office joined case no.   26075 to case no. 32027. The joined case file was assigned the number 32027. 62 .     The investigators questioned ten servicemen of the task force unit of the town of Zlatoust, the Chelyabinsk Region. The Government did not disclose their last names. The servicemen stated that in November – December 2003 they had been on mission in Argun but had not heard of its residents’ kidnapping on 30 November 2003. 63.     The Chechen FSB informed the investigators that they had no information concerning Idris Gakiyev and the Elmarzayev brothers. 64.     The investigators checked whether Idris Gakiyev had been kept in any temporary detention facilities of the Chechen Republic. 65.     On an unspecified date a former investigator of the district prosecutor’s office was questioned. He stated that on 29 March 2004 the police had informed the district prosecutor’s office that the remains of five dead bodies had been found in two pits at Sapernaya Street in Grozny; two corpses had been skeletonised and three others had borne obvious marks of a violent death. Two criminal cases had been instituted that had later been joined under the number 32027. 66 .     On 19 January 2008 Mr Elmarzayev was again questioned as a victim. He stated that the armed men travelling in the APC and an UAZ vehicle who had kidnapped his sons on 30 November 2003 belonged to the task force unit under the command of Mr P. The servicemen had taken his sons’ identity papers and driver’s licenses and his unemployment registration card. That information remained unconfirmed. 67.     The first applicant and Mr Elmarzayev refused to disclose their sources of information, claiming that they feared for their lives. 68.     The investigation in case no. 32027, which had so far failed to identify the perpetrators, was ongoing. The implication of any law-enforcement agencies in the crime had not been established. 69.     Despite specific requests by the Court, the Government did not disclose any documents of the investigation file in case no. 32027. Relying on the information obtained from the Prosecutor General ’ ’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure since the file contained information of a military nature and personal data concerning witnesses or other participants in the criminal proceedings. II.     RELEVANT DOMESTIC LAW 70.     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 regarding non-exhaustion of domestic remedies A.     The parties’ submissions 71.     The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation of the kidnapping and murder of Idris Gakiyev had not yet been completed. It was also open to the applicants to complain about inaction of the investigators to higher prosecutors’ offices or to courts, as well as to lodge civil claims for pecuniary and non-pecuniary damages, which they had failed to do. 72.     The applicants contested that objection. They stated that the criminal investigation had been pending for five years without producing any meaningful results and thus had proved to be ineffective. Moreover, they pointed out that a complaint about investigators’ inaction lodged with a court could not produce any positive results as domestic courts were not allowed to order investigative measures directly. B.     The Court’s assessment 73.     The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article   35   § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey , 18   December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI, and Cennet Ayhan and Mehmet Salih Ayhan v. Turkey , no. 41964/98, §   64, 27   June 2006). 74.     It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Cennet Ayhan and Mehmet Salih Ayhan , cited above,   §   65). 75.     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. 76 .     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, §§   119-21, 24 February 2005). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. 77.     The Court observes that the applicants complained to the law-enforcement authorities immediately after the kidnapping of Idris Gakiyev and that an investigation into kidnapping and then murder has been pending since 1 December 2003. The applicants and the Government dispute the effectiveness of the investigation. 78 .     As regards criminal-law remedies provided for by the Russian legal system, 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. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below. II.     THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A.     The parties’ arguments 79.     The applicants maintained that it was beyond reasonable doubt that the men who had kidnapped and then killed Idris Gakiyev were State agents. In support of their complaint they referred to the following facts. The armed men who had abducted Idris Gakiyev had Slavic features and had spoken Russian without an accent, which proved that they were not of Chechen ethnic origin. They had arrived in APCs, military vehicles only available to Russian troops and security forces, and used night vision devices. There had been no grounds to suggest that illegal armed groups could have been involved in the crime. 80 .     The Government rejected the applicants’ allegations. They argued that it had not been proved that Idris Gakiyev had been abducted by State agents. The investigation file contained no information on special operations carried out on 30 November 2003 in Argun. The Government doubted that the neighbours questioned as witnesses could have recognised the noise made by APCs. They further observed that a considerable number of APCs and weapons had been stolen from Russian arsenals in the 1990s, and some had been captured by members of illegal armed groups in the course of battles with the federal military, while camouflage uniforms and night vision devices could have been freely purchased by anyone. The fact that the perpetrators had had Slavic features and spoken Russian did not prove their attachment to the Russian military because groups of Ukrainian, Belorussian and ethnic Russian mercenaries had committed crimes in the territory of the Chechen Republic. 81.     The applicants’ son had died almost four months after the date of his kidnapping, which proved that he had been kidnapped for a ransom and kept in detention by insurgents. Moreover, Idris Gakiyev had died of asphyxia. The Government suggested that such a silent method of murder was more likely to be used by insurgents kidnapping people for a ransom. 82.     The Government also pointed out that, while both the first applicant and Mr Elmarzayev had claimed to have heard rumours of military involvement in the crime, they had not been unanimous as regards the presumed identities of the perpetrators. They had mentioned servicemen of different State agencies, such as the internal troops of the Ministry of the Interior, the “oil regiment”, special task force unit no. 34 and police task force units. Neither of the victims had disclosed their sources of information and thus had impeded the investigation. 83.     The perpetrators had stolen an attaché case with some documents and had set the applicants’ house on fire. This proved that they had pursued a certain aim and had had a criminal intent and therefore obviously could not have been servicemen of law-enforcement agencies. B.     The Court’s evaluation of the facts 1.     General principles 84.     In cases in which there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. When, as in the instant case, the respondent Government have exclusive access to information capable of corroborating or refuting the applicants’ allegations, any lack of cooperation by the Government without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Taniş and Others v. Turkey , no. 65899/01, §   160, ECHR   2005 ‑ ...). 85.     The Court points out that a number of principles have been developed in its case-law when it is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey , no.   25657/94, §   282, ECHR 2001 ‑ VII (extracts)). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others , cited above, §   160). 86.     The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis , Ribitsch v.   Austria , 4 December 1995, § 32, Series A no. 336, and Avşar v. Turkey , cited above, § 283) even if certain domestic proceedings and investigations have already taken place. 87.     Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, such as in cases where persons are under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Tomasi v.   France , 27 August 1992, §§ 108-11, Series A no. 241-A; Ribitsch , cited above, § 34; and Selmouni v. France [GC], no.   25803/94, § 87, ECHR 1999-V). 88.     These principles apply also to cases in which, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible explanation of what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty (see Taniş, cited above, § 160). 89.     Lastly, when there have been criminal proceedings in the domestic courts concerning those same allegations, it must be borne in mind that criminal-law liability is distinct from international-law responsibility under the Convention. The Court’s competence is confined to the latter. Responsibility under the Convention is based on its own provisions, which are to be interpreted and applied on the basis of the objectives of the Convention and in the light of the relevant principles of international law. The responsibility of a State under the Convention, for the acts of its organs, agents and servants, is not to be confused with the domestic legal issues of individual criminal responsibility under examination in the national criminal courts. The Court is not concerned with reaching any findings as to guilt or innocence in that sense (see Avşar , cited above, §   284). 2.     Establishment of the facts 90.     The Court notes that despite its requests for a copy of the investigation file into the abduction and murder of Idris Gakiyev, 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)). 91.     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’ son can be presumed dead and whether his death can be attributed to the authorities. 92.     The applicants claimed that the persons who had taken Idris Gakiyev away on 30   November 2003 and then killed him had been State agents. 93.     The Government suggested that those who had kidnapped and then killed Idris Gakiyev could have been members of paramilitary groups wishing to obtain a ransom. However, the domestic investigation did not establish that any claims for ransom had ever been addressed to the applicants. The fact that the kidnappers stole certain documents and burned the applicants’ house does not in itself indicate their involvement in insurgence activities. Nor does it seem conceivable that only rebel fighters could use strangulation to kill others. Therefore, the Government’s allegation was not specific or supported by any material. 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 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). 94.     Moreover, the Court considers it very unlikely that the APCs stolen by paramilitary groups in the 1990s could have moved freely through Russian federal military check-points without being noticed. It thus finds that the fact that a large group of armed men in uniform travelling in APCs arrived in Argun at 2 a.m. and abducted three young men strongly supports the applicants’ allegation that these were State servicemen. From the early stage of the proceedings the authorities were informed by the relatives of the missing men that Idris Gakiyev and the Elmarzayev brothers had been detained by unknown men in the APCs and the investigators had been asked to look into that possibility (see paragraphs 24 and 25 above). The domestic investigation also accepted factual assumptions as presented by the applicants and took steps to check whether law-enforcement agencies were involved in the kidnapping (see paragraphs 28 and 34 above). 95.     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). 96 .     Taking into account the above elements, the Court is satisfied that the applicants have made out a prima facie case that their son was apprehended by State servicemen. The Government’s statement that the investigation did not find any evidence to support the involvement of the military or law enforcers 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 Idris Gakiyev was abducted on 30   November 2002 by State servicemen during an unacknowledged security operation. 97.     The next point to be considered by the Court is whether there is a link between Idris Gakiyev’s abduction and his death. 98.     According to the Government, Idris Gakiyev died some three to nine days before 1 April 2004 (see paragraph 58 above), that is, almost four months after his abduction. The Court is precluded from examining the data contained in the forensic report drawn up on Idris Gakiyev’s post-mortem examination due to the Government’s failure to submit a copy of it. In such circumstances the Court is ready to draw inferences from the Government’s unwillingness to produce this document. 99.     It is not entirely clear whether Idris Gakiyev spent the time between his abduction and death in the hands of his kidnappers or under the control of other persons or at liberty. The only information available in this respect is contained in the letter by the Chechen FSB stating that the State Duma election register of 7   December 2003 was signed with Idris Gakiyev’s name (see paragraph 35 above). Given that Idris Gakiyev’s immediate family had no news of him between 30 November 2003 and 29 March 2004, the Court considers it highly doubtful that, should he have been released by the kidnappers at some point during this period, the young man would perform his civic duty instead of trying to contact his parents. Therefore, the Court is not persuaded that on 7 December 2003 Idris Gakiyev was at liberty. 100.     Lacking any other plausible explanation, the Court considers that Idris Gakiyev remained under the control of State servicemen from the moment of his abduction until his killing. It does not deem it necessary to establish whether he was guarded throughout the whole period of unregistered detention and then killed by the same persons who had kidnapped him since in any event the responsibility for his fate lies with the State. 101 .     Having regard to the above, the Court finds it established that Idris Gakiyev was killed by State servicemen following his abduction and that the State authorities are to be held responsible for his death. III.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 102 .     The applicants complained that Idris Gakiyev had been detained and then killed by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. They relied on Article 2 of the Convention, which 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 103.     The Government contended that the domestic investigation had obtained no evidence to the effect that any servicemen of law-enforcement agencies had been involved in Idris Gakiyev’s kidnapping or killing. The Government claimed that the investigation met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. The applicants could have studied non-confidential case materials. The investigation had been suspended and resumed on nume