CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 mai 2009

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text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s53D63747 { margin-top:36pt; margin-bottom:36pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right }       FIRST SECTION       CASE OF NENKAYEV AND OTHERS v. RUSSIA   (Application no. 13737/03)         JUDGMENT       STRASBOURG   28 May 2009   FINAL   06/11/2009   This judgment may be subject to editorial revision. In the case of Nenkayev 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 7 May 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 13737/03) 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 ten Russian nationals listed below (“the applicants”), on 24 March 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, in particular, that their relative, Muslim Nenkayev, had disappeared after having been unlawfully detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter; that Muslim Nenkayev had probably been ill-treated; that they had had no access to court; that the servicemen had unlawfully searched their home; that Muslim Nenkayev’s disappearance had caused them profound mental suffering; and that they had been deprived of effective remedies in respect of the aforementioned violations. The third applicant also complained about his unlawful detention and lack of compensation for it. 4.     On 24 October 2005 the Court decided to apply Rule 41 of the Rules of Court. 5.     By a decision of 20 March 2008, the Court declared the application partly admissible. 6.     The applicants and the Government each submitted further written observations (Rule 59 § 1). 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 7.     The applicants are: 1) Mr Moldi Nazhmudinovich Nenkayev, born in 1952; 2) Ms Zura Vakhayevna Nenkayeva, born in 1955; 3) Mr Isa Moldiyevich Nenkayev, born in 1977; 4) Mr Musa Moldiyevich Nenkayev, born in 1976; 5) Mr Ruslan Moldiyevich Nenkayev, born in 1984; 6) Mr Apti Moldiyevich Nenkayev, born in 1986; 7) Mr Sulim Moldiyevich Nenkayev, born in 1990; 8) Mr Islam Moldiyevich Nenkayev, born in 1993; 9) Ms Iman Moldiyevna Nenkayeva, born in 1996; and 10) Ms Aminat Khasanovna Nenkayeva, born in 1982. They live in the town of Urus-Martan, in the Chechen Republic. 8.     The first two applicants are spouses and the parents of eight children – the third to ninth applicants and Mr Muslim Moldiyevich Nenkayev, born in 1982. The tenth applicant is the fourth applicant’s wife. At the material time Muslim Nenkayev was a serviceman of the Gudermes district office of the interior. The applicants lived in a private house at 84 Pervomayskaya Street, Urus-Martan. A.     Disappearance of Muslim Nenkayev 1.     The applicants’ account (a)     Abduction of Muslim Nenkayev and the third applicant 9.     At about 3 a.m. on 8 June 2002 a group of around twenty-five or thirty masked men in camouflage uniforms forcibly entered the Nenkayevs’ house. They were armed with submachine guns with silencers and, swearing profusely, spoke Russian with no accent. The men did not identify themselves, but the applicants inferred that they belonged to the Russian military. 10.     The first applicant, who was sleeping in his room, was woken by a blow to the leg from a machine gun butt. He saw several servicemen pointing machine guns at him. One of the servicemen was checking the first applicant’s identity papers left on a table. The soldiers asked the first applicant whether his name was Moldi Nenkayev and whether he had sons. The first applicant answered in the affirmative. Then the servicemen asked the first applicant whether he had sons named Musa, Isa and Muslim. The first applicant confirmed that he had. Thereafter one of the servicemen put his machine gun against the first applicant’s neck and escorted him to the courtyard and then to another entrance into the house of the Nenkayev family. The door was locked. One of the soldiers pushed a door knob and broke it. The first applicant asked his relatives inside to open the door, and the sixth applicant did so. 11.     The servicemen came in with the first applicant in front of them and using him as a shield. About five of them entered a room in which the second and ninth applicants and the first applicant’s sister-in-law and her daughter were sleeping. Threatening them with firearms, the servicemen ordered everyone to stay in bed and conducted a search which lasted about an hour. 12.     During the search the servicemen seized a service machine gun belonging to the third applicant, who was an officer of the special police unit of the Chechen Republic. One of the servicemen attempted to take away the third applicant’s leather jacket but another armed man ordered him to leave it. 13.     Another group comprising around ten servicemen entered the room in which the fourth and tenth applicants were sleeping. They forced the fourth applicant out into the corridor and ordered him to lie face down. The tenth applicant was ordered to put her hands behind her head and also to lie down on the floor. Then the military searched the room and took away a leather waistcoat, a leather jacket, a gold ring and perfumes. The tenth applicant heard one of them telling another one to look for diamonds. Ten minutes later they left the room, having ordered the tenth applicant to stay down. 14.     Several servicemen entered the room occupied by Muslim Nenkayev, the third, sixth, seventh and eighth applicants and the first applicant’s nephew. The servicemen asked for Muslim and Isa Nenkayev. When the two Nenkayev brothers identified themselves, the servicemen ordered them to get dressed and leave the room. The other Nenkayev family members were ordered not to move. 15.     Thereafter the servicemen led the first, third and fourth applicants and Muslim Nenkayev into the corridor and, swearing and threatening them with machine guns, ordered them to lie down and keep still. The third applicant tried to explain that he was a police officer and inquired what authority the servicemen represented and why they had intruded into the Nenkayevs’ house. The servicemen left those questions unanswered. 16.     The servicemen then declared that they would take away the third applicant and Muslim Nenkayev, handcuffed and blindfolded them. They also covered Muslim Nenkayev’s mouth with adhesive tape. They further asked the third applicant whether he had any firearms. The latter replied that as a police officer he had a service pistol and machine gun. The servicemen, who had already seized the third applicant’s service machine gun, then took his pistol as well. 17.     Thereafter the servicemen ordered the fourth applicant to stay down and took the first and third applicants and Muslim Nenkayev out into the courtyard. When the fourth applicant enquired where his brothers would be taken, the servicemen stated that they were from the Urus-Martan military commander’s office and would take the detainees to a local police station. 18.     In the courtyard the servicemen asked the third applicant for his identity papers. The latter replied that he had left them in the Nenkayev women’s room. The servicemen took the first and third applicants to that room and took the third applicant’s identity papers. The women asked the servicemen why they intended to take the third applicant away, but received no answer and were told to keep silent. The servicemen then noticed a machine gun ammunition belt and seized it. Thereafter they covered the third applicant’s mouth with adhesive tape and took him outside. 19.     The servicemen left the house and escorted the third applicant and Muslim Nenkayev into the street. Muslim Nenkayev was wearing a red T ‑ shirt, black trousers and running shoes. The first applicant attempted to follow his sons, but the military warned him that they would shoot down any member of the Nenkayev family who attempted to stop them taking Muslim Nenkayev and the third applicant away. The first applicant stayed at the gate watching his two sons being taken on foot by the servicemen in the direction of the town centre. 20.     The applicants have not seen Muslim Nenkayev since 8 June 2002. (b)     The Nenkayev brothers’ detention 21.     Even blindfolded, the third applicant managed to get his bearings and realised that they were walking towards the centre of Urus-Martan, where the Urus-Martan military commander’s office and the Urus-Martan district administration (“the local administrative authority”) were located. 22 .     According to the third applicant, they walked for some fifty minutes. Then he heard a gate being opened. It was an iron gate, like the one in the military commander’s office. They passed through that gate and entered a building. Then the third applicant and his brother were taken upstairs to the first floor and placed in a cell. The servicemen left the Nenkayev brothers blindfolded and handcuffed and went away. 23.     Some time later the third applicant heard the sound of footsteps from above and realised that there were more than two floors in the building in which they were being held. The third applicant inferred that he and his brother had probably been taken to the military commander’s office, since there were only two buildings comprising more than two floors in the centre of Urus-Martan: the military commander’s office and a block of flats, the latter, however, having no fence or gate and being fully occupied by civilians. 24.     While in the cell, the third applicant fell asleep on several occasions. When at some point he called his brother, there was no reply. The third applicant assumed that Muslim Nenkayev must have been taken out of the cell while he was sleeping. 25.     Then the third applicant heard the cell door being opened and someone asked him in Russian, without an accent, whether he knew why he had been brought there. The third applicant answered in the negative. Thereafter he was questioned for about twenty or thirty minutes. The interviewer told the third applicant that he would be released and that Muslim Nenkayev would be taken to a prosecutor’s office and left. 26.     Some time later the door opened again and the third applicant was ordered to rise. Somebody grabbed the blindfolded and handcuffed third applicant by the collar and escorted him downstairs and then outside. In the street he was put in the back seat of a car and two persons sat beside him. The car was rather high and the third applicant assumed that it was a UAZ   vehicle. The car drove for about fifteen minutes. Then it stopped and the third applicant was taken out and put on the ground, face down. His handcuffs were removed and he was ordered to lie still for ten minutes. After the vehicle had left, the third applicant removed the adhesive tape from his eyes and saw that it was dark in the street. His service machine gun was lying nearby, but his pistol was missing. 27.     At 3 a.m. on 9 June 2002 the third applicant returned home. 2.     The Government’s account 28.     The Prosecutor General’s Office established that at about 1 a.m. on 8   June 2002 unidentified persons wearing camouflage uniforms and masks and armed with machine guns had entered the house at 84 Pervomayskaya Street, Urus-Martan, and kidnapped Muslim Nenkayev and Isa Nenkayev. The latter had been released the following day. B.     The search for Muslim Nenkayev and the investigation 1.     The applicants’ account 29.     On 8 June 2002 the first applicant visited the local administrative authority to ascertain his missing sons’ whereabouts. He talked to Mr L.G., a deputy head, and Mr K., an official of the authority. Both officials stated that the applicants’ relatives had been detained by federal troops. Two months later, however, Mr L.G. and Mr   K. retracted their earlier statements. 30.     About a month after Muslim Nenkayev’s arrest, the first applicant talked to another deputy head of the local administrative authority, Mr M., who told him that Muslim Nenkayev had been detained by the Federal Security Service (“FSB”), the Main Intelligence Department (“GRU”) and servicemen of the Urus-Martan military commander’s office, and then taken to GRU headquarters. 31.     On 15 or 20 July 2002 the first applicant talked to Mr L.-A.G., an FSB officer living in Urus-Martan, who told him that representatives of federal forces, namely the GRU, had been involved in the arrest of the Nenkayev brothers. 32.     Since 8 June 2002 the applicants have tried to establish Muslim Nenkayev’s whereabouts and have repeatedly applied to various State agencies, including prosecutors’ offices at different levels, the Urus-Martan district department of the interior (“the ROVD”), the local administrative authority, the Urus-Martan military commander’s office, the department of the FSB of the Chechen Republic (“the Chechen FSB”) and other authorities. The applicants referred to the facts of the kidnapping of Muslim Nenkayev and the third applicant and asked for assistance and details of the investigation. Mostly their enquiries remained unanswered, or only formal replies were given according to which the requests had been forwarded to various prosecutor’s offices “for examination”. 33.     On 8 July 2002 the South Federal Circuit Department of the Prosecutor General’s Office informed the first applicant that his request to establish his son’s whereabouts had been transmitted to the prosecutor’s office of the Chechen Republic. 34.     On 15 July 2002 the Chechen FSB notified the first applicant that his query had been sent to the military prosecutor of military unit no. 20102 (“the unit prosecutor’s office”). 35.     On 17 July 2002 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaint about the Nenkayev brothers’ arrest and subsequent disappearance of Muslim Nenkayev to the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”). 36.     On 15 August 2002 the district prosecutor’s office instituted criminal proceedings in connection with “the kidnapping of Isa and Muslim Nenkayev by unidentified persons in camouflage uniforms”, under Article   126   §   2 of the Russian Criminal Code (aggravated kidnapping), and notified the first applicant accordingly. The file was assigned the number   61116. 37.     On 19 August 2002 the unit prosecutor’s office informed the first applicant that law-enforcement agencies of Urus-Martan had not carried out any special operations in June 2002. 38.     On 10 September 2002 the National Public Commission for Investigation of Offences and Protection of Human Rights in the North Caucasus requested the military prosecutor’s office of the North Caucasus Circuit (“the North Caucasus prosecutor’s office") to investigate the first applicant’s allegations of Muslim Nenkayev’s kidnapping by armed federal servicemen in masks and camouflage uniforms, and to search for him.     On 25 September 2002 the North Caucasus prosecutor’s office forwarded the request to the unit prosecutor’s office “for a thorough investigation”. 39.     On 4 April 2003 the first applicant requested an update on progress in the investigation in case no. 61116 from the district prosecutor’s office. In reply, he was informed on 11 April 2003 that the investigation instituted on 15 August 2002 had been suspended on 15 October 2002 for failure to identify the perpetrators, and that an active search for Muslim Nenkayev and those involved in his kidnapping was under way. 40.     By letter of 25 April 2003 the North Caucasus prosecutor’s office informed the first applicant that his request concerning the search for Muslim Nenkayev had been referred to the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”). 41.     On 8 May 2003 the Chief Military Prosecutor’s Office forwarded the applications of several residents of the Chechen Republic relating to the disappearance of their relatives, including that of the first applicant, to the UGA prosecutor’s office for examination. 42.     On 12 May 2003 the UGA prosecutor’s office forwarded the first applicant’s request to the unit prosecutor’s office. On the same date the South Federal Circuit Department of the Prosecutor General’s Office informed the first applicant that they had transmitted his complaint about the unlawful detention and subsequent disappearance of his son to the prosecutor’s office of the Chechen Republic. 43.     By letter of 9 June 2003 the prosecutor’s office of the Chechen Republic instructed the district prosecutor’s office to conduct “a thorough and full investigation” into the circumstances of the kidnapping of Muslim Nenkayev and the third applicant and verify whether military personnel had been involved. 44.     On 17 June 2003 the unit prosecutor’s office notified the first applicant that no involvement of military personnel in the kidnapping of his son had been established. 45.     On 11 July 2003 the UGA prosecutor’s office transmitted the applications of the first applicant and several other residents of the Chechen Republic concerning the kidnapping of their relatives to the unit prosecutor’s office and asked if there was any information concerning the whereabouts of those missing and whether military servicemen had participated in the kidnappings. 46.     On 15 July 2003 the prosecutor’s office of the Chechen Republic, in reply to the first applicant’s complaint that the district prosecutor’s office had taken no action, informed him that the criminal proceedings instituted on 15 August 2002 in respect of the kidnapping of his son and suspended on 15 October 2002 had subsequently been resumed on 15 July 2003, since the investigation had been incomplete. The letter also stated that the term for the preliminary investigation had been extended until 15 August 2003, that the search for Muslim Nenkayev and those responsible for his disappearance was in progress and that the prosecutor’s office of the Chechen Republic was closely supervising the investigation. 47.     By letters of 1 and 19 August 2003 the first applicant requested the district prosecutor’s office to update him on the latest developments in the investigation. 48.     On 25 August 2003 the first applicant complained to the prosecutor’s office of the Chechen Republic that the investigation into the disappearance of his son had been suspended on 25 July 2003, that is before the time-limit for the preliminary investigation, 15 August 2003, and inquired about the results of the investigation. 49.     On 15 September 2003 the prosecutor’s office of the Chechen Republic notified the first applicant that the investigation had been resumed on 12 September 2003 and that investigative measures were being taken to find Muslim Nenkayev and the culprits. 50.     Between August and October 2003 the first applicant tried on four occasions to talk to the head of the ROVD, but the latter was unavailable. At the beginning of October 2003 the first applicant talked to an officer of the ROVD who said that he was trying to find out whether Muslim Nenkayev was being held in any prison, and that he had not achieved any results so far. At some point in October 2003 the first applicant also talked to a deputy military commander of Urus-Martan, who reassured him that the search for his missing son was in progress and that he would be notified of any results. 51.     On 21 April 2004 the first applicant requested the district prosecutor’s office to take certain investigative measures and to transfer the case file to a military prosecutor’s office. 52.     On 10 July 2004 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaint to the district prosecutor’s office. 53.     On 19 August 2004 the unit prosecutor’s office informed the applicants that they had carried out an inquiry into the Nenkayev brothers’ kidnapping, which had established no traces of any involvement of military personnel. 54.     On 30 November 2004 the district prosecutor’s office informed the first applicant that in the course of the investigation into the Nenkayev brothers’ kidnapping various measures had been taken but had produced no results. 55.     On 30 June 2005 the first applicant requested the district prosecutor’s office to update him on progress in the investigation and to resume the proceedings if they had been suspended. 56.     On 28 July 2005 the district prosecutor’s office informed the first applicant that the investigation had been resumed. 57.     On 15 November 2005 the first applicant again requested information on the investigation from the district prosecutor’s office. 58.     On 16 January 2006 the district prosecutor’s office informed the first applicant that the investigation had been resumed. 59.     On 16 January 2006 the second applicant was questioned by an investigator of the district prosecutor’s office. She claimed that certain items had been stolen from her house on the night of her sons’ kidnapping. The investigator refused to insert that piece of information into the record. On the same date the investigator questioned the tenth applicant, who described the circumstances of the Nenkayev brothers’ kidnapping and submitted that the perpetrators had stolen her leather waistcoat, her husband’s leather jacket and other items. According to the tenth applicant, the investigator did not include that information in the record. 60.     On 3 March 2006 the second and tenth applicants requested the prosecutor’s office of the Chechen Republic and the district prosecutor’s office to investigate the theft of their belongings on the night of their relatives’ kidnapping. 61.     On 6 March 2006 the district prosecutor’s office granted the tenth applicant victim status in case no. 61116 as her belongings had been stolen on the night of 7 to 8 June 2002. 2.     Information submitted by the Government 62.     On 15 August 2002 the district prosecutor’s office opened criminal investigation file no. 61116 into the kidnapping of Muslim Nenkayev and the third applicant, under Article 126 § 2 of the Russian Criminal Code (“aggravated kidnapping”). 63.     On 9 September 2002 the district prosecutor’s office granted the first applicant victim status in the criminal investigation. 64.     On 13 September 2002 the district prosecutor’s office questioned the third applicant. He described the circumstances of the crime and submitted that his service gun had been stolen. 65.     On 15 October 2002 the district prosecutor’s office suspended the investigation in case no. 61116 for failure to identify those responsible, informed the first applicant and instructed the police to carry out certain investigative measures. 66.     On 22 June 2003 the district prosecutor’s office quashed the decision of 15 October 2002 and resumed the investigation. On 25 June 2003 the first applicant was informed of that decision. 67.     On 2 July 2003 the district prosecutor’s office sent requests for information concerning Muslim Nenkayev to several penitentiary facilities and law-enforcement agencies in the Urus-Martan District. 68.     On 25 July 2003 the district prosecutor’s office suspended the investigation and notified the first applicant accordingly. 69.     On 12 September 2003 the investigation in case no. 61116 was resumed. 70.     On 1 October 2003 the district prosecutor’s office sent requests concerning Muslim Nenkayev to several penitentiary institutions located in the south of Russia. No relevant information was received in reply. 71.     On 12 October 2003 the district prosecutor’s office again suspended the investigation. 72.     On 10 November 2003 the prosecutor’s office of the Chechen Republic quashed the decision of 12 October 2003 and resumed the investigation. 73.     On 15 and 16 November 2003 the district prosecutor’s office questioned as witnesses the second and fourth applicants, respectively. 74.     On 13 December 2003 the district prosecutor’s office suspended the investigation and instructed the ROVD to search for Muslim Nenkayev more actively. 75.     On 28 July 2005 the district prosecutor’s office resumed the investigation in case no. 61116 and ordered the ROVD to find witnesses to the Nenkayev brothers’ kidnapping. 76.     On 1 August 2005 the district prosecutor’s office questioned the first applicant as a witness. 77.     On 28 August 2005 the investigation was again suspended. 78.     On 15 November 2005 the district prosecutor’s office questioned the second applicant. She stated that on the night of 8 June 2002 she had been awakened by unidentified armed men who had then taken her sons away. 79.     On 16 November 2005 the district prosecutor’s office resumed the proceedings at the first applicant’s request. 80.     On 17 November 2005 the district prosecutor’s office suspended the investigation for failure to identify the perpetrators. 81.     On 13 January 2006 the prosecutor’s office of the Chechen Republic quashed the decision of 17 November 2005 and resumed the proceedings. 82.     On 16 January 2006 the investigation in case no. 61116 was extended to an offence under Article 226 § 3 of the Russian Criminal Code (“theft of weapons”) on account of the theft of the third applicant’s gun. 83.     On 16 January 2006 the district prosecutor’s office questioned as witnesses the second, third and fourth applicants. They also questioned several relatives and acquaintances of the Nenkayev brothers, who said that they had no precise information concerning the perpetrators’ identities; nor could they confirm that any belongings had been stolen from the Nenkayevs. 84.     On 16 January 2006 the district prosecutor’s office questioned the head of the local administrative authority, Mr K., and his deputy. They did not confirm that they had been aware of the Nenkayev brothers’ kidnapping; nor did they confirm the fact that the applicants had complained to them about it. Further, Mr L.-A.G. who, according to the first applicant had been an FSB officer, denied that he had known anything about the kidnapping and submitted that he had never been an officer of any law enforcement agency. 85.     On 20 February 2006 the seventh applicant was questioned. 86.     On 16 February 2006 the district prosecutor’s office suspended the investigation in case no. 61116. On the same date the decision on suspension was quashed and the investigation resumed. The first applicant was notified of both decisions. 87.     On 3 March 2006 the district prosecutor’s office received a request from the second and tenth applicant to investigate the robbery that had occurred on 8 June 2002, to grant them victim status and to join the proceedings to case no. 61116. 88.     On 5 March 2006 the district prosecutor’s office granted the second and tenth applicants’ request in part and admitted the tenth applicant to the proceedings as a victim. 89.     On an unspecified date the Central Archives of the Russian Ministry of the Defence informed the investigators that there was no documented information on special operations in Urus-Martan on 8 June 2002 or on Muslim Nenkayev’s arrest. 90.     On 14 November 2007 the investigators requested all units of the Investigative Committee of the Russian Prosecutor’s Office for the Chechen Republic to inform them whether they had any information on criminal proceedings instituted against Muslim Nenkayev, any complaints lodged by him or discovery of his dead body. The replies received were negative. 91.     On 14 November 2007 the third applicant was questioned again. He stated that he had been abducted by ten to fifteen masked men in camouflage uniforms armed with machine guns and pistols. He had not examined their faces carefully as he had been blindfolded. He could not identify any of those persons by voice. 92.     On 20 November 2007 the first applicant was again questioned and reaffirmed his previous statement. 93.     On 26 November 2007 the investigation was suspended for failure to identify those responsible. The first applicant was notified accordingly and the ROVD were instructed to search for the perpetrators more vigorously. 94.     On 14 December 2007 the ROVD informed the district prosecutor’s office that they were taking measures to solve the crime. 95.     On 4 December 2007 the Achkhoy-Martan inter-district prosecutor’s office (“the inter-district prosecutor’s office”) quashed the decision of 26   November 2007, resumed the investigation and notified the first applicant accordingly. 96.     On 7 December 2007 the first applicant was again questioned and stated that his two sons had been kidnapped by men armed with sawn-off machine guns with silencers that differed from those used by the military. It was rumoured that Muslim Nenkayev had been kept in the premises of the Urus-Martan Department of the FSB (“the Urus-Martan FSB”), however, there was no evidence of that. 97.     On 8 December 2007 the sixth applicant was again questioned and stated that on the night of 8 June 2002 he had been sleeping in the same room as Muslim Nenkayev. At about 3 a.m. someone had knocked on the door; Muslim had opened it and armed and masked men in camouflage uniforms had burst in. The men had spoken Russian and Chechen. Muslim Nenkayev and the third applicant had been forced to the floor. The third applicant’s service weapons had been seized. Then the armed men had covered his brothers’ mouth with adhesive tape and taken them away, ordering the other Nenkayev family members not to leave the house for ten minutes, threatening to open fire. On the following day the third applicant had been released; his machine gun had been returned while his pistol, bullet-proof jacket and machine-gun bullets had been seized. 98.     On 20 December 2007 the investigators sent requests for information on Muslim Nenkayev to numerous penitentiary facilities in the North Caucasus. 99.     On 21 and 22 December 2007 three of the applicants’ neighbours were questioned and stated that they had heard of Muslim Nenkayev’s abduction but had no information on the perpetrators’ identities. 100.     On 23 January 2008 the inter-district prosecutor’s office suspended the investigation and notified the first applicant accordingly. 101.     On 28 January 2008 the investigators instructed the ROVD to search for the perpetrators more vigorously, in particular to verify involvement in the crime of illegal armed groups, to establish Muslim Nenkayev’s connections and the lifestyle he had led prior to the kidnapping and to verify meticulously any possible implication of the Urus-Martan FSB servicemen in the crime. 102.     On 2 February 2008 requests for information on special operations carried out in Urus-Martan on 8 June 2002 were sent to numerous units of the Ministry of the Interior. On the same day information on military units located in the Urus-Martan District on 8 June 2002 was requested from the military commanders of the Chechen Republic and the Urus-Martan District. 103.     On 5 February 2008 a request for information concerning Muslim Nenkayev was sent to the Federal Migration Service. 104.     On 19 February 2008 the inter-district prosecutor’s office held a conference with departments of the interior for the Urus-Martan District and discussed the investigation in case no. 61116. The ROVD were instructed to take investigative measures more vigorously. 105.     On 20 February 2008 the investigators recommended that the ROVD question Muslim Nenkayev’s relatives and fellow villagers and examine cemeteries. On 21 February 2008 another instruction to reactivate the investigation was sent to the ROVD. 106.     On 21 February 2008 the investigation was suspended and the first applicant was notified accordingly. 107.     On 23 February 2008 the ROVD informed the investigators that they were taking measures to solve the crime. 108.     On 28 February 2008 the inter-district prosecutor’s office requested the district prosecutor’s office to assess the effectiveness of the investigation. 109.     Requests concerning Muslim Nenkayev were sent to various information centres of the Ministry of the Interior. 110.     On 10 April 2008 the inter-district prosecutor’s office quashed the decision of 21 February 2008 and resumed the investigation. 111.     The investigation in case no. 61116 was ongoing. 112.     Despite a specific request by the Court the Government did not submit a copy of the entire file in case no.   61116, providing copies of several decisions to suspend and resume the investigation and to grant victim status. 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. C.     Judicial proceedings against investigators 1.     The applicants’ account 113.     On 15 April 2003 the first applicant lodged a complaint against the district prosecutor’s office with the Urus-Martan Town Court (“the town court”). He complained that the authorities had failed to conduct an effective investigation into the kidnapping of his sons and sought to have the decision of 15 October 2002 to suspend the investigation quashed and the criminal proceedings in case no. 61116 resumed. 114.     On 31 December 2003 the first applicant requested the town court to notify him of the date on which his complaint of 15 April 2003 would be examined. 115.     On 1 March 2004 the first applicant went to the town court and enquired about his complaint. He did not manage to meet the judge, who was absent, but talked to officials of the town court’s registry who told him that on 19 April 2004 a letter had been sent to his address. The officials were unable to provide any information as to the contents of that letter. 116.     On 25 January 2006 the first applicant went to see the president of the town court. The latter said that the complaint about the investigators had not been examined because of a fire in the town court building, and requested that the first applicant provide him with a copy of the complaint. On the following day the first applicant delivered the required copy to the president of the town court. 2.     Information submitted by the Government 117.     On 25 April 2003 the town court received the first applicant’s complaint against the district prosecutor’s office dated 15 April 2003. In the body of the complaint the first applicant’s last name was spelled on one occasion as “Nenkev” and then as “Nenkayev”. The complaint was not signed. 118.     On 28 April 2003 the town court sent a copy of the complaint to the district prosecutor’s office and summoned the first applicant. Later the first applicant was repeatedly invited to the town court to sign the complaint properly but never did so. 119.     On an unspecified date the town court returned the complaint to the first applicant for failure to sign it. 120.     The president of the town court claimed that he had never met the first applicant in person and had not had any conversations with him. II.     RELEVANT DOMESTIC LAW 121.     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 122.     The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies, since the investigation into the abduction of Muslim Nenkayev and the third applicant 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. The first applicant could not be considered to have used this remedy because, when lodging the complaint with the town court, he had misspelled his last name as “Nenkev” and had failed to sign his complaint. The Government further argued that the third applicant had not made any complaints concerning his alleged unlawful detention. Lastly, the Government asserted that the applicants had failed to complain about the allegedly unlawful search to the investigators in due time and had not lodged any relevant court actions. 123.     The applicants disputed that objection. In their view, the fact that the investigation had been pending for more than six years with no tangible results proved that it was an ineffective remedy in this case. They also asserted that the first applicant’s court complaint against the district prosecutor’s office had never been examined on the merits, which demonstrated the ineffectiveness of the court remedies relied on by the Government. B.     The Court’s assessment   124.     In the present case the Court took no decision about the exhaustion of criminal 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). 125.     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). 126.     The Court further observes that an investigation into the kidnapping of Muslim Nenkayev and the third applicant had been pending since 15   August 2002. The applicants and the Government dispute the effectiveness of this investigation. 127.     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 128.     The applicants complained that Muslim Nenkayev 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. 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.     Alleged violation of Muslim Nenkayev’s right to life 1.     Arguments of the parties 129.     The applicants argued that it was beyond reasonable doubt that Muslim Nenkayev had been kidnapped by representatives of federal forces. They further stressed that their relative had been abducted in life-threatening circumstances and argued, relying on Article 2 of the Convention, that the fact that he had remained missing for more than six years proved that he was dead. 130.     The Government referred to the fact that the investigation had obtained no evidence to the effect that Muslim Nenkayev was dead, or that representatives of the federal forces had been involved in his kidnapping or alleged killing. 2.     The Court’s assessment (a)     General principles 131.     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 ind