CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 septembre 2009

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display:inline-block }       FIRST SECTION       CASE OF BABUSHEVA AND OTHERS v. RUSSIA   (Application no. 33944/05)                   JUDGMENT       STRASBOURG   24 September 2009   FINAL   01/03/2010   This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Babusheva 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,   Elisabeth Steiner,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 3 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 33944/05) 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 the seven Russian nationals listed below (“the applicants”), on 20 September 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. Note The Russian Government (“the Government”) were represented by Mr A. Savenkov, First Deputy Minister of Justice, and , subsequently , by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.     On 31 March 2008 the Court decided to apply Rule   41 of the Rules of Court, grant priority treatment to the application and give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 4.     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 are: 1) Ms Roza Babusheva, born in 1966, 2) Mr Kharon Babushev, born in 1928, 3) Mr Lomali (also spelled as Lom-Ali) Babushev, born in 1986, 4) Ms Khadizhat Babusheva, born in 1988, 5) Ms Nura Babusheva, born in 1993, 6) Mr Turpal-Ali Babushev, born in 1994 and 7) Ms Nurseda Babusheva, born in 2003. The applicants live in the village of Makhkety, in the Vedeno district, Chechnya. 6.     The first applicant is the wife of Ramzan (also known as Vakha) Babushev, who was born in 1960; the second applicant is his father; and the third to seventh applicants are his children. 7.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     Disappearance of Ramzan Babushev 1.     The applicants' account a.     The abduction of the applicants' relative 8.     At the material time Ramzan Babushev worked as a car mechanic. On 4 February 2003 the first, second and sixth applicants and Ramzan Babushev were at their home at 27 Zarechnaya Street (in the submitted documents the address was also referred to as 37 Zarechnaya Street) in Makhkety, Chechnya. The third, fourth and fifth applicants were at school. The first applicant was pregnant with the seventh applicant. Two neighbours had come to visit and were also in the applicants' house. 9.     At around 11 a.m. a military UAZ car arrived at the house. A group of about ten to fifteen Russian military servicemen got out of the car; some of them remained in the street next to the house, whereas others went inside. The men spoke Russian without an accent and were of Slavic appearance. The person who was apparently in charge of the group introduced himself as Mr Y. B., the head of the department of the interior of Khattuni (also spelled as Khatuni) village (the Khattuni OVD). It appeared that he was on mission in Chechnya from the OMON (special police forces) unit of the Perm region, Russia. The servicemen asked Ramzan Babushev to repair their car. He agreed and they moved the car into the applicants' yard. Ramzan Babushev changed into his work clothes and started the repair work. 10.     Meanwhile, the servicemen contacted someone via their portable radio set. Approximately 10-15 minutes later an armoured personnel carrier (“APC”) carrying a group of about twenty masked servicemen arrived at the applicants' house. The servicemen from the APC ran into the yard and put handcuffs on Ramzan Babushev and a dark sack over his head. They ordered the first applicant to go into the house, threatening to kill her if she stayed in the yard. After that they put Ramzan Babushev into the APC. The servicemen neither introduced themselves nor produced any documents. Almost all of them were wearing masks; three of them, who did not have masks, were of Slavic appearance. The first applicant asked them who their commander was and why they were taking her husband away. She did not receive any answer to her questions. 11.     After that Mr Y. B. asked the servicemen from the APC whether his group was free to go. They received permission and the UAZ car and the servicemen left. Immediately after their departure, the servicemen from the APC started to search the applicants' house. The search took about one and a half hours. During the search the servicemen seized a number of the applicants' possessions, including a videocassette recorder, a TV set, Ramzan Babushev's clothing and tools, the first applicant's jewellery, the family photographs, two car engines and car repair parts. The servicemen loaded the applicants' belongings into the APC and drove away. 12.     The abduction of Ramzan Babushev was witnessed by a number of the applicants' neighbours and relatives. b.     Subsequent events 13.     The applicants immediately started their search for Ramzan Babushev. On the same day, 4 February 2003, the first applicant and her relatives went to the local department of the Federal Security Service (the FSB) in the village of Khattuni, in the Vedeno district, Chechnya. At the checkpoint located at the entrance to the building they met the deputy head of the department of the FSB, who introduced himself as officer V. He confirmed that they had arrested Ramzan Babushev in order to assist the servicemen of the Khattuni OVD, which at the time was staffed with policemen from the Perm region. Officer V. told the first applicant that the military commander of the Vedeno district (the district military commander) had issued an order for the arrest of Ramzan Babushev as the local authorities had opened criminal proceedings against him. According to the officer, at some point Ramzan Babushev was supposed to be transferred from the Khattuni OVD to the Vedeno temporary district department of the interior (the Vedeno VOVD). Officer V. had seen Ramzan Babushev after the arrest and agreed to take a warm jacket from the first applicant and pass it on to him. 14.     On 4 February 2003, at the checkpoint in Khattuni, the first applicant and her relatives saw the three servicemen who had participated in the arrest of Ramzan Babushev and had not been wearing masks during the abduction. 15.     On 5 February 2003 the first applicant and a relative spoke to the deputy district military commander officer Yr., who assured them that their office had not opened any criminal proceedings against Ramzan Babushev and had not issued any orders for his arrest. 16.     In the middle of February 2003 the first applicant went to the department of the FSB in Khattuni, together with the head of Makhkety village administration. There they met with the officer V. who showed them a written statement certifying that on 4 February 2003 at 6 p.m. hours the head of the local department of the FSB, Mr M.G., had handed Ramzan Babushev over to the head of the Khattuni OVD, Mr Y.B. 17.     In the beginning of March 2003, during their visit to the Khattuni OVD, the first applicant met with a serviceman who introduced himself as an operational-search officer V. K. The applicant recognized him as one of the servicemen who had participated in the abduction of Ramzan Babushev. Officer V. K. told the first applicant that her husband had been transferred from the Khattuni OVD to “the Chechen special task group” ( чеченская группа специального назначения ) and that from there he had been transferred to a prison in Vedeno. The officer confirmed that he had seen Ramzan Babushev in prison, and that he had asked him to say hello to his family. V. K. took a package from the first applicant to pass to her husband. 18.     On the following day the first applicant again met with officer V.K. He told her that he had passed on the package to her husband and that Ramzan Babushev had been beaten up, but that he was feeling better and recovering. 19.     Some time later in March 2003 the first applicant spoke again to the head of the Khattuni OVD, Mr Y. B. He told her that Ramzan Babushev had been transferred to the Vedeno ROVD. He suggested to the first applicant that she speak to the head of the Vedeno ROVD, officer V.P. 20.     After that, in March 2003, the first applicant went to the Vedeno ROVD and spoke to officer V.P. He told her that Ramzan Babushev had not been guilty of anything and promised that he would assist in expediting his release. However, it appears that this officer left Chechnya on or about 10   April 2003 without having helped the applicants. 21.     On a number of occasions the first applicant complained in person to the Vedeno district prosecutor's office (the district prosecutor's office) requesting that they conduct a confrontation between her and the head of the Khattuni OVD, Mr Y.B. Her requests were ignored. 22.     On an unspecified date the first applicant lodged a claim with the Vedeno District Court of Chechnya seeking to have her husband Ramzan Babushev declared a missing person. On 27 February 2004 the district court granted her claim and declared him a missing person as of 4 February 2003. 23.     In support of their statements, the applicants submitted: an account by the applicants' neighbour Ms I.A. given on 13 March 2005; an account by the applicants' relative Mr I.B. given on 15 March 2005; an account by the applicants' neighbour Mr V.T. given on 16 March 2005; an account by the applicants' relative Ms A.A. given on 16   March 2005 and an account by the applicants' neighbour Mr S.A. given on 20 March 2005. 2.     Information submitted by the Government 24.     The Government did not challenge most of the facts as submitted by the applicants. According to their submission “...in connection with the abduction by unidentified persons of R.Kh. Babushev on 4   February 2003 in Makhkety in the Vedeno district, on 12 February 2003 the Vedeno district prosecutor's office instituted a criminal investigation...” B.     The search for Ramzan Babushev and the investigation 1.     Information submitted by the applicants 25.     Since 4   February 2003 the applicants have repeatedly applied in person and in writing to various public bodies. They have been supported in their efforts by the NGO SRJI. In their letters to the authorities the applicants referred to their relative's detention and asked for assistance and details of the investigation. Mostly these enquiries have remained unanswered, or purely formal replies have been given in which the applicants' requests have been forwarded to various prosecutors' offices. The applicants submitted some of the letters to the authorities and the replies to the Court, which are summarised below. 26.     On 12 February 2003 (in the submitted documents the date is also referred to as 6 February 2003) the district prosecutor's office instituted an investigation into the disappearance of Ramzan Babushev under Article   126   §   2 of the Criminal Code (aggravated kidnapping). The decision stated, inter alia , the following: “... at about 12 noon on 4 February 2003, during a special operation, a resident of Makhkety in the Vedeno district R. Kh. Babushev was detained by unidentified military servicemen at his house in Makhkety and taken away in an APC to an unknown destination ...” The case file was given number 24012 (in the submitted documents the case file is also referred to under no.   25137). 27.     On 14 February 2003 the first applicant was granted victim status in criminal case no.   24012. The decision stated, inter alia , the following: “...on 4 February 2003, during a special operation in Makhkety in the Vedeno district, unidentified military servicemen took away all property from the household at 37 Zarechnaya Street, and detained Ramzan Babushev whom they took away to an unknown destination...” 28.     On 14 July 2003 the first applicant wrote to the head of the department of the search for missing persons of the Vedeno ROVD, to the military prosecutor's office of military unit no.   20116 and to the military prosecutor's office of the United Group Alignment (“the military prosecutor's officer of the UGA”). In her letters she described in detail the circumstances of her husband's abduction and stated that he had been abducted by officers of the Khattuni OVD under the command of Mr Y.B. and by servicemen of Russian military forces who had arrived in an APC and taken him away in this vehicle. She pointed out that the servicemen had searched the house and had taken away family possessions; that some time later she had found out that her husband had been transferred from the local department of the FSB to the Khattuni OVD; that officer V. K. had seen Ramzan Babushev in prison in Vedeno; and that, in spite of all this information, the investigative authorities had failed to establish the whereabouts of Ramzan Babushev. 29.     On 17 July 2003 the military prosecutor's officer of the UGA forwarded a letter from the applicants' relative concerning the search for Ramzan Babushev to the military prosecutor's office of military unit no.   20116 for examination. 30.     On 22 July 2003 the Chechnya prosecutor's office forwarded the first applicant's request for assistance in the search for Ramzan Babushev to the district prosecutor's office for inclusion in criminal case no.   25137. 31.     On 22 July 2003 the military prosecutor's officer of the UGA forwarded the first applicant's request to the military prosecutor's office of military unit no.   20116. The letter stated that the latter was to examine the first applicant's version of the involvement of servicemen of the 45th   airborne regiment of the Russian military forces in the abduction of her husband. 32.     On 12 September 2003 the Chechnya prosecutor's office forwarded the first applicant's request for assistance in the search for Ramzan Babushev to the district prosecutor's office for examination. 33.     On 17 January 2004 the military prosecutor's officer of the UGA informed the first applicant that the examination of her complaint had not established any involvement of the Russian military forces in the abduction of Ramzan Babushev. 34.     On 28 January 2004 the first applicant wrote to the military prosecutor's officer of the UGA. She stated that her husband had been abducted by Russian military servicemen together with representatives of the Khattuni OVD and complained that the criminal investigation had failed to establish the whereabouts of Ramzan Babushev. 35.     On 4 February 2004 the military prosecutor's officer of the UGA informed the first applicant that her complaint had not disclosed any information demonstrating the involvement of the Russian military forces in the abduction of Ramzan Babushev. 36.     On 18 February 2004 the military prosecutor's office of the North-Caucasus military circuit forwarded the first applicant's request concerning the search for her husband to the military prosecutor's officer of the UGA. 37.     On 20 February 2004 the Chechnya Ministry of the Interior forwarded the first applicant's complaint about her husband's abduction to the Vedeno ROVD for examination. 38.     On 26 February 2004 the department of the Prosecutor General's office in the Southern Federal Circuit informed the first applicant that her complaint had been forwarded to the Chechnya prosecutor's office. 39.     On 3 March 2004 the Chechnya prosecutor's office forwarded the first applicant's request for assistance in the search for her husband to the district prosecutor's office. 40.     On 27 March 2004 the military prosecutor's officer of the UGA forwarded the first applicant's request for assistance in the search for her husband to the military prosecutor's office of military unit no.   20116 for examination. 41.     On 20 April 2004 the Chief Military Prosecutor's office forwarded the first applicant's request for assistance in the search for her husband to the military prosecutor's officer of the UGA for examination. 42.     On 22 April 2004 the Perm regional department of the interior (the Perm UVD) informed the first applicant of the following: “...Your complaint was examined by the chiefs of the Perm UVD. Our inquiry established that the arrest of your husband Ramzan Babushev had been conducted at the initiative of the local [Chechen] law-enforcement bodies. Officers of the Vedeno VOVD had participated only in his detention; his further whereabouts were unknown to them...” 43.     On 8 June 2004 the military prosecutor's officer of the UGA informed the first applicant that the examination of her complaint had established that the Russian military servicemen had not been involved in the abduction of Ramzan Babushev. 44.     On 25 June 2004 the Vedeno ROVD informed the first applicant that in order to establish the whereabouts of her abducted husband, they had opened operational-search file no.   141395 and the search was under way. 45.     On 24 August 2004 the Chechnya prosecutor's office forwarded the first applicant's complaint about the search for her husband to the district prosecutor's office. The letter stated that the investigation of criminal case no.   24012 had been taken over by the Chechnya prosecutor's office. 46.     On 13 January 2005 the first applicant wrote to the district prosecutor's office about her husband's abduction. She said that he had been arrested by Russian military servicemen together with the representatives of the Khattuni OVD and that for two years the criminal investigation had failed to establish his whereabouts. She also requested to be informed of the reasons for the suspension of the investigation in the criminal case and that the proceedings be resumed. 47.     On 13 January 2005 the first applicant complained to the Prosecutor General. She requested that the authorities investigate the involvement of representatives of the Perm UVD in the abduction of Ramzan Babushev. 48.     On 22 January 2005 the district prosecutor's office informed the first applicant that on an unspecified date the investigation in criminal case no.   24012 had been suspended and that on 22 January 2005 it had been resumed. 49.     On 9 February 2005 the Chechnya prosecutor's office informed the first applicant that they had instructed the district prosecutor's office to undertake a number of operational-search measures in the investigation of the abduction. 50.     On 24 February 2005 the Chechnya Ministry of the Interior (the MVD) informed the first applicant that they had instructed the Vedeno ROVD to activate their operational-search measures to solve the abduction of Ramzan Babushev. 51.     On 22 July 2005 the Chechnya prosecutor's office forwarded the first applicant's request for assistance in the search for her husband to the district prosecutor's office. 52.     On an unspecified date the first applicant again complained to the Prosecutor General. In her letter she said, in particular, that her husband Ramzan Babushev had been abducted by representatives of the Khattuni OVD under the command of Mr Y.B. and representatives of Russian military forces; that they had taken her husband away in an APC; that they had searched the house and taken away family possessions; that officer   V.   K. had later seen her husband in prison in Vedeno; and that the criminal investigation initiated by the district prosecutor's office had failed to establish her husband's whereabouts. 53.     On an unspecified date the district prosecutor's office informed the first applicant that the investigation in criminal case no.   24012 had been suspended for failure to establish the identities of the perpetrators. 2.     Information submitted by the Government 54.     The Government submitted that the investigation into Ramzan Babushev's abduction by “unidentified persons” had commenced on 12   February 2003. 55.     On 6 February 2003 the investigators requested information about the detention of Ramzan Babushev from military unit no.   45 stationed in Khattuni. According to their reply of 22 February 2003, the Vedeno district military commander's office had not detained Ramzan Babushev and had no information about his whereabouts. 56.     On 7 February 2003 the investigators requested information about the arrest of Ramzan Babushev from the Chechnya FSB and the Khattuni OVD. They also requested to be informed whether the applicants' relative was suspected of participation in illegal armed groups. According to the replies from the Khattuni OVD of 11 February 2003 and the Chechnya FSB of 14 February 2003, Ramzan Babushev was on the wanted list, but their offices had not detained him. 57.     On 14 February 2003 the investigators questioned the first applicant's sister-in-law, Ms E.B. She stated that on 4 February 2003 the first applicant had come to her house and told her that at about 11 a.m. on that day the head of the Khattuni OVD and police officers had arrived at their house and asked Ramzan Babushev to repair their car. Then a group of military servicemen had arrived at their house in an APC and taken Ramzan Babushev away without providing any explanation; they had also searched the first applicant's house. After that the witness and the first applicant had gone to the checkpoint in Khattuni and asked the duty officer for news of Ramzan Babushev. They were told that he had been arrested on the order of the Vedeno military commander and that he would be transferred to Vedeno. The next day, 5 February 2003, the witness and the first applicant went to Vedeno and met the deputy military commander, who told them that Ramzan Babushev had not been delivered to their office. The Vedeno VOVD also denied that Ramzan Babushev was detained on their premises. On the same date, 5 February 2003, at the checkpoint in Khattuni, officer V., the deputy head of the local department of the FSB, informed the witness and the first applicant that he had a receipt confirming that Ramzan Babushev had been taken by officers of the Vedeno VOVD. 58.     On an unspecified date the investigators granted the first applicant victim status and questioned her. She stated that on 4 February 2003 she and her husband Ramzan Babushev had been at home, at 27 Zarechnaya Street in Makhkety. At about 11 a.m. a group of six officers from the Khattuni OVD had arrived at their house in an UAZ vehicle. One of them had introduced himself as the head of the Khattuni OVD officer B. He and the driver of the vehicle went into the applicant's house and spoke to Ramzan Babushev about some repair work for the UAZ vehicle. Then Ramzan suggested that the officers move the car into the yard and changed into his work clothes. When the driver moved the car into the yard and the applicant's husband started inspecting it, an APC pulled up to the house. A group of about fifteen masked men, supposedly military servicemen, got out of it. They rushed into the yard and demanded that the OVD officers turn their faces to the UAZ. After that, without providing any explanation, they grabbed Ramzan Babushev, put handcuffs on him and placed him in the APC. Then the servicemen and the OVD officers left. According to the first applicant, she told her sister-in-law about the events and went with her to the checkpoint located at the entrance to the Khattuni military commander's office. The officer on duty called officer V. over from the FSB who had informed the applicant that Ramzan Babushev had been arrested on the order of the Vedeno military commander. The next day, 5 February 2003, the applicant and her sister-in-law went to Vedeno, where the deputy military commander and the head of the Vedeno VOVD informed her that they had not detained her husband and that they had not issued any orders to that effect. 59.     On an unspecified date the investigators questioned the applicants' neighbour, Ms A.A. who stated that on 4 February 2003, at about 11 a.m., she had gone to the house of the first applicant. When she was there, an UAZ car without registration numbers arrived at the house. Five or six men in camouflage uniform, of Slavic appearance, got out of the car. They introduced themselves as police officers and explained that they had brought the car for repairs. Some time later, from the window of her house, the witness had seen an APC which had arrived at the applicants' house. About ten men in masks had got out of the APC, cordoned the street and went into the applicants' house. They spent about an hour there; after that they took some sacks from the house outside and loaded them into the APC. After these men had left, the witness learnt from the first applicant that they had taken Ramzan Babushev away. 60.   On an unspecified date the investigators questioned the applicants' relative, Mr M.B., who provided a statement similar to the one given by Ms   A.A. 61.     On an unspecified date the investigators questioned another witness, Mr A. Kh., who provided a statement similar to one given by Ms A.A. In addition, he stated that after the unidentified men had left the applicants' house, he had gone there and spoken to the first applicant. The latter told him that the men had searched the house and taken away valuables. According to the witness, the first applicant and other local residents had applied to the Khattuni OVD on a number of occasions trying to obtain information about her husband's whereabouts. The police officers had denied having any information about him. 62.     According to the Government, on unspecified dates the investigators requested information, inter alia , about special operations conducted in the area between 1 and 5 February 2003 and officers who had served in the Vedeno district at the material time, from various State authorities, including a number of the district prosecutor's officers in Chechnya, the district military commander's offices and military unit no.   20116. The investigators also requested that the Chechnya FSB inform them whether they had detained Ramzan Babushev and transferred him to the Vedeno district military commander's office. 63.     The investigation failed to establish the whereabouts of Ramzan Babushev, even though the investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime resolved. At the same time the investigation found no evidence to support the involvement of the federal forces in the crime. The law ‑ enforcement authorities of Chechnya had never arrested or detained Ramzan Babushev on criminal or administrative charges and had not carried out a criminal investigation in his respect. No special operations had been carried out in Makhkety on 4 February 2003. 64.     According to the Government, the investigation of the criminal case had been suspended and resumed on a number of occasions. However, it was still in progress and operational-search measures aimed at establishing the whereabouts of Ramzan Babushev were being taken. 65.     Despite specific requests by the Court the Government did not disclose any documents of criminal case no.   24012. 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 personal data concerning the witnesses or other participants in the criminal proceedings. II.     RELEVANT DOMESTIC LAW 66.   For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§   67-69, 10   May 2007). THE LAW I.     THE GOVERNMENT'S OBJECTION as to abuse of the right of petition 67.     The Government submitted that the application had not been lodged in order to restore the allegedly violated rights of the applicants. According to them, the actual object and purpose of the application were incompatible with the tasks and activities of the European Court of Human Rights. They concluded that the application should be dismissed pursuant to Article   35   §   3 of the Convention. 68.     The Court considers that the Government may be understood to be suggesting that there was an abuse of the right of petition on the part of the applicants. It observes in this connection that the complaints the applicants brought to its attention concerned genuine grievances. Nothing in the case file reveals any appearance of abuse of their right of individual petition. Accordingly, the Government's objection must be dismissed. II.     THE GOVERNMENT'S OBJECTION REGARDING the VALIDITY OF THE APPLICATION FORM 69.     The Government suggested that the applicants had probably been unaware of the contents of the application form, which had been signed not by the applicants, but by the lawyers working for SRJI. 70.     The Court considers that the Government may be understood to be suggesting that the lawyers are not acting under instructions of the applicants. The Court observes that the applicants gave the SRJI and its lawyers powers of attorney, thus duly authorising this NGO to represent their interests in the Strasbourg proceedings, and in particular to sign on their behalf the application form submitted to the Registry. There are no grounds to indicate that there has been anything inappropriate in the lodging of this application. Accordingly, the Government's objection must be dismissed. III.     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 into the disappearance of Ramzan Babushev had not yet been completed. They further argued that it had been open to the applicants to lodge court complaints about any acts or omissions of 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 that they had failed to do so. 72.     The applicants contested that objection. They stated that the criminal investigation had proved to be ineffective. With reference to the Court's practice, they argued that they were not obliged to claim damages through civil proceedings in order to exhaust domestic remedies. B.     The Court's assessment 73.     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). 74.     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. 75.     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 (see Khashiyev and Akayeva   v.   Russia , nos.   57942/00 and 57945/00, §§   119-21, 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. 76.     As regards criminal-law remedies, the Court observes that the applicants complained to the law-enforcement authorities immediately after the kidnapping of Ramzan Babushev and that an investigation has been pending since 12 February 2003. The applicants and the Government dispute the effectiveness of the investigation of the kidnapping. 77.     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. IV.     THE COURT'S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A.     The parties' arguments 78.     The applicants maintained that it was beyond reasonable doubt that the men who had taken Ramzan Babushev away had been State agents. In support of their complaint they referred to the following facts. At the material time the village of Makhkety had been under the total control of federal troops. There were Russian military checkpoints on the roads leading to and from the settlement. Russian federal forces had conducted a special operation on 4 February 2003, as had been confirmed by the investigation (see paragraphs 26, 27 and 42). Ramzan Babushev was wanted by the authorities (see paragraph 56 above). The armed men who had abducted Ramzan Babushev had had Slavic features and had spoken Russian without an accent, which proved that they were not of Chechen origin. The men had arrived in a military APC in broad daylight, which indicated that they were able to pass through the roadblocks and were not afraid to be seen by the authorities. The men were wearing specific camouflage uniform, were armed and had portable radios. They acted in a manner similar to that of special forces carrying out identity checks. All the information disclosed to the applicants from the criminal investigation file supported their assertion as to the involvement of State agents in the abduction. Since Ramzan Babushev had been missing for a very lengthy period, he could be presumed dead. That presumption was further supported by the circumstances in which he had been arrested, which should be recognised as life-threatening. 79.     The Government submitted that unidentified armed men had kidnapped Ramzan Babushev. They further contended that the investigation of the incident was pending, that there was no evidence that the men had been 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 raised an objection to the applicants' presentation of facts. The fact that the perpetrators of the abduction spoke unaccented Russian, were wearing camouflage uniforms and used military vehicles did not mean that these men could not have been members of illegal armed groups or criminals. They asserted that the crime could have been attributable to illegal armed groups and pointed out that groups of mercenaries had committed crimes in the Chechen Republic. They further emphasised that a considerable number of armaments and APCs had been stolen from Russian arsenals by insurgents in the 1990s and that members of illegal armed groups could have possessed military vehicles. B.     The Court's evaluation of the facts 80.     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, §§   103-09, 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 , § 161, Series A no. 25). 81.     The Court notes that despite its requests for a copy of the investigation file into the abduction of Ramzan Babushev, the Government produced none of the 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)). 82.     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. 83.     The applicants alleged that the persons who had taken Ramzan Babushev away on 4   February 2003 and then killed him had been State agents. 84.     The Government suggested in their submissions that the abductors of Ramzan Babushev may have been members of paramilitary groups. However, this allegation was not specific and the Government did not submit any material to support it. The Court takes note of the Government's allegation that the military vehicles, firearms and camouflage uniforms had probably been stolen by insurgents from Russian arsenals in the 1990s. Nevertheless, it considers it very unlikely that several military vehicles, such as APCs and Ural vehicles, unlawfully possessed by members of illegal armed groups, could have moved freely through Russian military checkpoints without being noticed. 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). 85.     The Court notes that the applicants' allegation is supported by the witness statements collected by the applicants and by the investigation. It finds that the fact that a large group of armed men in uniform in broad daylight, equipped with military vehicles, was able to move freely through military checkpoints and proceed to check identity documents and arrest the applicants' relative at his home strongly supports the applicants' allegation that these were State servicemen conducting a security operation. In their application to the authorities the applicants consistently maintained that Ramzan Babushev had been detained by unknown servicemen and requested the investigation to look into that possibility (see paragraphs 28, 31, 34, 46, 47, 52, 57 and 58 above). The domestic investigation accepted factual assumptions as presented by the applicants (see paragraphs 26, 27 and 42 above) and took steps to check whether law-enforcement agencies were involved in the kidnapping (see paragraphs 31, 35 and 43 above), but it does not appear that any serious steps have been taken in that direction. 86.     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 relevant 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). 87.     Taking into account the above elements, the Court is satisfied that the applicants have made out a prima facie case that their relative was arrested by State servicemen. The Government's statement that the investigators had not found 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. Having examined the documents submitted by the applicants, and drawing inferences from the Government's failure to submit the documents which were in their exclusive possession or to provide another plausible explanation for the events in question, the Court finds that Ramzan Babushev was arrested on 4   February 2003 by State servicemen during an unacknowledged security operation. 88.     There has been no reliable news of Ramzan Babushev since the date of the kidnapping. His name has not been found in any official detention facility records. Finally, the Government have not submitted any explanation as to what happened to him after his arrest. 89.     Having regard to the previous ca