The ECHR case of Sambiyev and Pokayeva v. Russia (application no. 38693\/04.<\/p>\n
<\/p>\n
..<\/span><\/p>\n \n \u2026<\/span><\/p>\n .<\/span><\/p>\n EUROPEAN COURT OF HUMAN RIGHTS<\/span><\/span><\/p>\n CASE OF SAMBIYEV AND POKAYEVA v. RUSSIA<\/span><\/span><\/p>\n (Application no. 38693\/04)<\/span><\/span><\/p>\n JUDGMENT<\/span><\/p>\n STRASBOURG<\/span><\/p>\n 22 January 2009<\/span><\/p>\n This judgment will become final in the circumstances set out in Article\u00a044 \u00a7\u00a02 of the Convention. It may be subject to editorial revision.<\/span><\/span><\/p>\n In the case of Sambiyev and Pokayeva v. Russia,<\/span><\/p>\n The European Court of Human Rights (First Section), sitting as a Chamber composed of:<\/span><\/p>\n Christos Rozakis, President, Having deliberated in private on 16 December 2008,<\/span><\/p>\n Delivers the following judgment, which was adopted on the last-mentioned date:<\/span><\/p>\n PROCEDURE<\/span><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 38693\/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by two Russian nationals, Mr Sharpudin Saydkhasanovich Sambiyev and Mrs Rukiyat\u00a0Supyanovna\u00a0Pokayeva (\u201cthe applicants\u201d), on 8 October 2004.<\/span><\/p>\n 2.\u00a0\u00a0The applicants were represented by lawyers of the Stichting Russian Justice Initiative (\u201cSRJI\u201d), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (\u201cthe Government\u201d) were represented by Ms V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights and subsequently by their new representative, Mr G. Matyushkin.<\/span><\/p>\n 3.\u00a0\u00a0On 21 January 2008 the Court decided to apply Rule\u00a041 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. Under the provisions of Article 29 \u00a7 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.<\/span><\/p>\n THE FACTS<\/span><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/span><\/p>\n 4.\u00a0\u00a0The applicants were born in 1955 and 1958 respectively. They live in Stariye Atagi, the Chechen Republic.\u00a0\u00a0They are the parents of Mr Anzor Sambiyev (also known as Anzor Pokayev), born in 1980.<\/span><\/p>\n A.\u00a0\u00a0Death of Mr Anzor Sambiyev<\/span><\/p>\n 1.\u00a0\u00a0The applicants’ account<\/span><\/p>\n 5.\u00a0\u00a0According to the applicants, after the disappearance of their other son, Mr Amir Pokayev, in March 2002 (see Arzu<\/span> Akhmadova and Others v. Russia<\/span>, no. 13670\/03), the second applicant sent Mr Anzor Sambiyev to live with her sister in Nazran where she believed him to be safe. Servicemen often enquired after his whereabouts and asked for his photographs, although they never explained why. The second applicant never told them where he was and removed all his photographs.<\/span><\/p>\n 6.\u00a0\u00a0On 8 April 2004 Mr Anzor Sambiyev came to Stariye Atagi to visit his family.<\/span><\/p>\n 7.\u00a0\u00a0On 10 April 2004 at approximately 9 p.m. the second applicant and Mr\u00a0Anzor Sambiyev were at home. Suddenly armed servicemen of federal troops wearing camouflage uniform rushed into the yard of the house. There were about fifty servicemen who had arrived in armoured personnel carriers (APCs) and a \u201cUral\u201d vehicle. Some of them surrounded the house. The second applicant told Mr\u00a0Anzor Sambiyev to jump out of the window into the garden. After he did, she went to the yard and asked the servicemen what was wrong and what they were looking for. They told her to step out of the house. When she refused, they forced her into the yard. At that moment she heard shooting.<\/span><\/p>\n 8.\u00a0\u00a0The second applicant was not allowed to enter her house for approximately half an hour while the servicemen were inside. She went into her neighbours’ yard. While she remained there she heard the neighbours’ children, who managed to see something through the fence, saying: \u201cThey killed someone, they are dragging someone\u201d.<\/span><\/p>\n 9.\u00a0\u00a0When the servicemen left, the second applicant returned home and found that everything had been thrown around the house. She noticed that they had taken the first applicant’s passport, driving licence, medical certificate and a car certificate.<\/span><\/p>\n 10.\u00a0\u00a0In the morning the next day the applicants went to the head of the village administration and told him about the events of the previous evening. At the same time a body was found on the outskirts of the village of Prigorodnoye, which was identified as Mr Anzor Sambiyev. At approximately 10 a.m. his body was brought to Stariye Atagi and buried. He had a large wound near his heart, his arm was broken and there was a bullet mark on his watch.<\/span><\/p>\n 2.\u00a0\u00a0The Government’s account<\/span><\/p>\n 11.\u00a0\u00a0According to the Government, on 10 April 2004 at around 9 p.m. unidentified men wearing camouflage uniform and masks, and armed with automatic weapons, approached the house at 91 Nasrudilova Street in Stariye Atagi in an Ural vehicle. Mr Anzor Sambiyev, who was inside the house, jumped out of the window, and his mother, the second applicant, did not want to leave the house but was forced to by the armed men. After a short time she heard shooting and went out to the yard, where one of her neighbours told her that Mr Anzor Sambiyev had been taken away in the Ural vehicle. The neighbours also told her that they had seen two APCs.<\/span><\/p>\n 12.\u00a0\u00a0On 11 April 2004 at around 9 a.m. the body of Mr Anzor Sambiyev, showing signs of having died a violent death, was found on the left-hand side of the Grozny \u2013 Shatoy road in the direction of Shatoy within 20 metres of the turning to the village of Prigorodnoye in the Grozny District.<\/span><\/p>\n B.\u00a0\u00a0Official investigation<\/span><\/p>\n 13.\u00a0\u00a0On 11 April 2004 the Grozny District Prosecutor’s Office opened criminal investigation no. 34046 into Mr Anzor Sambiyev’s abduction and murder.<\/span><\/p>\n 14.\u00a0\u00a0During an inspection of the place where the body had been found, conducted on the same date, a cartridge case of 5.45 mm calibre was found under the body. According to the report no. 526\/K of the forensic ballistic examination conducted on 9 May 2004, the cartridge <\/span><\/span>could have been fired either from a Kalashnikov assault rifle or from a Kalashnikov light machine gun.<\/span><\/p>\n 15.\u00a0\u00a0On 13 and 19 April 2004 the applicants applied to the head of the Grozny District Police Department, the Grozny District Prosecutor’s Office, the head of the village administration and the internal passport authority (\u043f\u0430\u0441\u043f\u043e\u0440\u0442\u043d\u044b\u0439 \u0441\u0442\u043e\u043b<\/span>) with a description of the circumstances leading to the death of Mr Anzor Sambiyev. They sought the identification and punishment of those responsible for their son’s murder and the return of the documents stolen from their house during the search.<\/span><\/p>\n 16.\u00a0\u00a0The forensic<\/span><\/span> report no. 156 of 6 May 2004 recorded the following injuries on <\/span><\/span>Mr Anzor Sambiyev’s body: two perforating bullet wounds to the chest and stomach and two perforating bullet wounds to the right forearm. The report described the perforating bullet wounds to the chest and stomach as life-threatening and said that death could have been caused by either of them. The report no. 156 was drawn up on the basis of a previous report of an examination of the body on 11\u00a0April 2004.<\/span><\/p>\n 17.\u00a0\u00a0On 15 May 2004, during an inspection of their house, a cartridge case of 5.45 mm calibre was found in their garden. According to the report no. 580\/K of the forensic ballistic examination conducted on 22\u00a0May 2004, the cartridge <\/span><\/span> could have been fired either from a Kalashnikov assault rifle or from a Kalashnikov light machine gun<\/span><\/p>\n 18.\u00a0\u00a0On 15 May 2004 the applicants were granted victim status in the criminal proceedings.<\/span><\/p>\n 19.\u00a0\u00a0The second applicant was questioned on 15 May 2004, 15 May 2005 and 13 March 2008. She submitted that on 10 April 2004 she had been at home with her son, Mr\u00a0Anzor Sambiyev. At approximately 9 p.m. he had said that \u201cRussians\u201d had come. She had told him to try to escape through their neighbours’ garden, which he had tried to do, having jumped out of the window. Then she had gone out to the yard where there had been a lot of men in camouflage uniform and masks armed with automatic weapons. In the street, behind the gates, she had seen an Ural vehicle. At that moment she had heard shooting. She had tried to enter the house, but the armed men would not let her. After a while she had entered the neighbours’ yard and somebody had told her that Anzor had been taken away in the Ural vehicle. At the back of the yard, within approximately 10 metres of the window out of which Mr\u00a0Anzor Sambiyev had jumped she had noticed a spot of blood and traces of a body being dragged from the window to the place where the Ural vehicle had been parked.<\/span><\/p>\n 20.\u00a0\u00a0The first applicant was questioned on 15 May 2004 and 13 March 2008. He submitted that on the date in question he had been away and had learned from the second applicant what had happened.<\/span><\/p>\n 21.\u00a0\u00a0Mr S., a relative of the Sambiyevs, was questioned on 15\u00a0May 2004 and 29 February 2008. He stated that on 11 April 2004 at 7\u00a0a.m. he had left for Grozny and on the road, within six kilometres from Grozny, he had noticed a group of residents and a body lying on the edge of the road wrapped in polyethylene. After the residents had unwrapped the body, he had realised that it was his relative, Mr\u00a0Anzor Sambiyev.<\/span><\/p>\n 22.\u00a0\u00a0Mr A. S., Mr Anzor Sambiyev’s uncle, was questioned on 15\u00a0May\u00a02004 and 22 January 2005. He submitted that on 10 April 2004, while at home, he had heard shooting. In the evening of that day he had learned that men in camouflage uniform had abducted his nephew, whose body had been found the next day with multiple wounds.<\/span><\/p>\n 23.\u00a0\u00a0The investigating authorities also questioned other residents of Stariye Atagi, in particular: Ms Ya. S. on 14 May 2004, Mr R. A. and Mr A. Ch. on 12 January 2005, Ms M.Ch., Mr M.A., Mr Z. D and Mr I. Ch on 16\u00a0January 2005, and Ms R. S. and Ms Z. Ch. on 22 January 2005. They all stated that they had seen a group of armed men arrive at the village in two APCs and two Ural vehicles. Otherwise their submissions had been identical to those of Mr A. S.<\/span><\/p>\n 24.\u00a0\u00a0On 15 July 2004 the Grozny District Prosecutor’s Office issued the applicants with the following certificate:<\/span><\/p>\n \u201c…[O]n 11 April 2004 the Grozny District Prosecutor’s Office instituted a criminal case no. 34046 … in respect of the following fact[s]:<\/span><\/p>\n On 10 April 2004 at approximately 9 p.m. a group of persons wearing camouflage and masks and armed with automatic weapons and accompanied by two APCs and two \u201cUral\u201d vehicles abducted Mr Anzor Sharpudinovich Pokayev, born in 1980, from his house at 91, Kh. Nuradilova Street in the village of Stariye Atagi, the Grozny District, the Chechen Republic.<\/span><\/p>\n On 11 April 2004 at approximately 9 a.m. on the left-hand side of the Grozny to Shatoy road, in the direction of Shatoy, within twenty metres from the turning to the village of Prigorodnoye, in the Grozny District, A. Sh. Pokayev’s body was found. [The] body had multiple shotgun and stab wounds.<\/span><\/p>\n In the course of the preliminary investigation victim status was granted to the parents of A. Sh. Pokayev.\u201d<\/span><\/p>\n 25.\u00a0\u00a0On 5 and 16 July 2004 and 2 November 2005 the SRJI applied, on behalf of the first applicant, in writing to the Grozny District Prosecutor’s Office asking for information on the progress of the investigation and on the measures taken in order to identify the culprits.<\/span><\/p>\n 26.\u00a0\u00a0On 26 November 2005 the Grozny District Prosecutor’s Office replied to the SRJI that the investigation was being suspended, but that certain investigative measures were nevertheless being carried out. It further stated that, as had been noted in previous correspondence, should the first applicant wish to study the case file, he should come to the Grozny District Prosecutor’s Office on any weekday from 9 a.m. to 6 p.m.<\/span><\/p>\n 27.\u00a0\u00a0On 24 December 2004 the investigating authorities questioned Mr\u00a0Sh., an officer of the Grozny Department of the Interior (ROVD). He submitted that on 11 April 2004 he had been informed that a body with shotgun wounds had been found on the edge of the Grozny \u2013 Shatoy road which had been identified by relatives as Mr\u00a0Anzor Sambiyev.<\/span><\/p>\n 28.\u00a0\u00a0On 25 December 2004 and 18 January 2005 the investigating authorities questioned six officers of the Grozny ROVD. They stated that they had information to the effect that Mr\u00a0Anzor Sambiyev was a member of an illegal armed group and had been involved in a number of killings.<\/span><\/p>\n 29.\u00a0\u00a0According to the Government, the Grozny ROVD obtained information from the villagers to the effect that Mr\u00a0Anzor Sambiyev had been a member of an illegal armed group under the command of Magomed, born in Stariye Atagi, nicknamed \u201cNasrula\u201d. Magomed, in turn, was under the command of emir Isa Sadayev who headed an illegal armed group called \u201cDzhamat\u201d. Isa Sadayev was wanted for the commission of particularly grave offences. The group of which Mr\u00a0Anzor Sambiyev had formed part was conducting terrorist acts against the federal forces, officers of the Ministry of the Interior and representatives of the local authorities. In particular, Mr\u00a0Anzor Sambiyev was suspected of complicity in the murder of four officials of the department of the Federal Security Service (FSB) in the Chechen Republic in Stariye Atagi in 2002. Mr S. K., a member of the illegal armed group under the command of \u201cNasrula\u201d, submitted that apart from him Mr\u00a0Anzor Sambiyev and eight other residents of Stariye Atagi formed part of the group.<\/span><\/p>\n 30.\u00a0\u00a0In order to establish the circumstances of the case, the investigating authorities sent numerous requests for information to other law-enforcement authorities, in particular: to the FSB department in the Grozny District on 12\u00a0April and 20 December 2004, and on 4 and 27 February and 3\u00a0March\u00a02008; to Bureau no. 2 of the Investigation and Search Department of the Ministry of the Interior on 12 April and 2 May 2004; to the Grozny ROVD on 17 May, 8\u00a0June and 18 December 2004, 1 April 2005, and on 4\u00a0and 6\u00a0February 2008; to the Main Information Centre of the Ministry of the Interior on 21\u00a0August\u00a02004; to the Directorate on Combating Organised Crime of the Ministry of the Interior and the Temporary Alignment of Departments of the Ministry of the Interior on 4 and 27 February and 3\u00a0March 2008.<\/span><\/p>\n 31.\u00a0\u00a0In order to establish whether a special operation had been conducted in Stariye Atagi on 10 and 11 April 2004, the investigating authorities sent the following requests for information: to the archive of the North Caucasia military district of internal troops of the Ministry of the Interior and to the archive of the North Caucasia military district of the Ministry of Defence on 2 May 2004; to the military prosecutor of military unit no. 20102 on 18\u00a0May, 8 June and 25 August 2004 and 18 December 2005; to the FSB department in the Grozny District on 20 January 2005; to the Temporary Alignment of Departments of the Ministry of the Interior on 20\u00a0January\u00a02005.<\/span><\/p>\n 32.\u00a0\u00a0According to the information received, no special operations had been conducted in Stariye Atagi on 10 and 11 April 2004. At the same time, it was confirmed that Mr\u00a0Anzor Sambiyev had been a member of the illegal armed group \u201cDzhamat\u201d and since 1999 had been involved in military actions against federal servicemen under the nickname \u201cDzhandula\u201d.<\/span><\/p>\n 33.\u00a0\u00a0The Government submitted that the investigation in the case had been suspended and resumed a number of times on account of the failure to identify a person to be charged with the offence. The most recent decision suspending the investigation of 15 March 2008 was quashed on 17 March 2008 and the investigation was resumed.<\/span><\/p>\n C.\u00a0\u00a0The Court’s request for the investigation file<\/span><\/p>\n 34.\u00a0\u00a0Despite a specific request by the Court, the Government did not submit a copy of the entire file of the investigation into the abduction of Mr\u00a0Anzor Sambiyev. However, they submitted sixty-four pages of case-file materials containing copies of expert reports, records of questioning and various procedural decisions. 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.<\/span><\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/span><\/p>\n 35.\u00a0\u00a0For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia<\/span>, no. 40464\/02, \u00a7\u00a067-69, 10\u00a0May 2007.<\/span><\/p>\n THE LAW<\/span><\/p>\n I.\u00a0\u00a0The government’s objection regarding non-exhaustion of domestic remedies<\/span><\/span><\/p>\n A.\u00a0\u00a0The parties’ submissions<\/span><\/p>\n 36.\u00a0\u00a0The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that it had been open to the applicants to challenge in court any actions 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 they had failed to do so.<\/span><\/p>\n 37.\u00a0\u00a0The applicants contested that objection. Referring to the other cases concerning abductions in the Chechen Republic reviewed by the Court, they also alleged that the existence of an administrative practice of non-investigation of crimes committed by State servicemen in the Chechnya rendered any potentially effective remedies inadequate and illusory in their case. Also with reference to the Court’s case-law, they argued that they had not been obliged to apply to the courts with a civil claim in order to exhaust domestic remedies.<\/span><\/p>\n B.\u00a0\u00a0The Court’s assessment<\/span><\/p>\n 38.\u00a0\u00a0The 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<\/span>, no. 60272\/00, \u00a7\u00a073-74, 12\u00a0October 2006).<\/span><\/p>\n 39.\u00a0\u00a0 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.<\/span><\/p>\n 40.\u00a0\u00a0As 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.\u00a0Russia<\/span>, nos.\u00a057942\/00 and 57945\/00, \u00a7\u00a7\u00a0119-121, 24 February 2005, and Estamirov and Others<\/span>, cited above, \u00a7\u00a077). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed.<\/span><\/p>\n 41.\u00a0\u00a0As regards criminal-law remedies, the Court observes that the investigation into the abduction and killing of Mr Anzor Sambiyev has been pending since 11 April 2004. The applicants and the Government dispute the effectiveness of the investigation.<\/span><\/p>\n 42.\u00a0\u00a0The 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.<\/span><\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION<\/span><\/p>\n 43.\u00a0\u00a0The applicants complained under Article 2 of the Convention that their relative had been abducted and killed by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads:<\/span><\/p>\n \u201c1.\u00a0\u00a0Everyone’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.<\/span><\/p>\n 2.\u00a0\u00a0Deprivation 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:<\/span><\/p>\n (a)\u00a0\u00a0in defence of any person from unlawful violence;<\/span><\/p>\n (b)\u00a0\u00a0in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;<\/span><\/p>\n (c)\u00a0\u00a0in action lawfully taken for the purpose of quelling a riot or insurrection.\u201d<\/span><\/p>\n A.\u00a0\u00a0The parties’ submissions<\/span><\/p>\n 44.\u00a0\u00a0The Government submitted that the domestic investigation had obtained no evidence to the effect that any servicemen of the federal law-enforcement agencies had been involved in Mr Anzor Sambiyev’s abduction or killing. They pointed out, firstly, that no special operation had been conducted in Stariye Atagi on the dates in question. Secondly, no witness statements had been obtained by the applicants themselves. Furthermore, the witnesses questioned by the investigation had merely said that the men who had abducted Mr Anzor Sambiyev had spoken Russian, had been wearing camouflage uniform and had arrived in two APCs and two Ural vehicles. However, no more precise description of those men had been provided. In particular, there was no information about any military insignia which would permit it to be established to which particular troops belonged those men if they were indeed servicemen. The Government further submitted that both camouflage uniform and weapons could easily have been available to paramilitary groups in Chechnya. They referred to a number of domestic decisions in respect of members of illegal armed groups who had committed crimes dressed in camouflage uniform and had identity documents of law-enforcement or other State authorities. The Government further noted that, as had been established by the domestic investigation, Mr Anzor Sambiyev had been a member of an illegal armed group. They alleged that he could have been killed by other members of the illegal armed group so as to prevent a possible information leak or by other persons on account of a feud for instance. The Government also claimed that the domestic investigation had met the Convention requirement of effectiveness, as evidenced by the questioning of witnesses by the investigating authorities and requests sent by them to other State agencies.<\/span><\/p>\n 45.\u00a0\u00a0The applicants argued that Mr Anzor Sambiyev had been abducted and killed by State servicemen, which was confirmed by statements of other residents who stated that on the date in question they had seen servicemen arrive at the village in military vehicles. They further argued that the investigation had not met the requirements of effectiveness and adequacy required by the Court’s case-law on Article 2. The applicants noted that the investigation had been adjourned and reopened a number of times, thus delaying the taking of the most basic steps, and that they had not been properly informed of the most important investigative measures.<\/span><\/p>\n B.\u00a0\u00a0The Court’s assessment<\/span><\/p>\n 1.\u00a0\u00a0Admissibility<\/span><\/p>\n 46.\u00a0\u00a0The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies in the part related to criminal remedies should be joined to the merits of the complaint (see paragraph 42 above). The complaint under Article\u00a02 of the Convention must therefore be declared admissible.<\/span><\/p>\n 2.\u00a0\u00a0Merits<\/span><\/p>\n (a)\u00a0\u00a0The alleged violation of Mr Anzor Sambiyev’s right to life<\/span><\/p>\n i.\u00a0\u00a0General principles<\/span><\/p>\n 47.\u00a0\u00a0The Court reiterates that, in the light of the importance of the protection afforded by Article\u00a02, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey<\/span>, no. 25656\/94, \u00a7\u00a0326, 18 June 2002, and the authorities cited therein). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey<\/span> [GC], no. 21986\/93, \u00a7\u00a0100, ECHR 2000-VII, and \u00c7ak\u0131c\u0131 v. Turkey<\/span> [GC], no. 23657\/94, \u00a7 85, ECHR 1999-IV).<\/span><\/p>\n ii.\u00a0\u00a0Establishment of the facts<\/span><\/p>\n 48.\u00a0\u00a0The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia<\/span>, no. 69481\/01, \u00a7\u00a7\u00a0103-109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v.\u00a0the United Kingdom<\/span>, 18 January 1978, \u00a7\u00a0161, Series\u00a0A no.\u00a025).<\/span><\/p>\n 49.\u00a0\u00a0The applicants alleged that in the evening of 10 April 2004 their son, Mr Anzor Sambiyev, had been apprehended by Russian servicemen and then disappeared. The second applicant witnessed servicemen arriving at their house, which was supported by statements by several other witnesses. According to the applicants, the fact that his dead body had been found the next morning proved that he had been killed by the servicemen.<\/span><\/p>\n 50.\u00a0\u00a0The Government conceded that Mr Anzor Sambiyev had been abducted by unknown armed men on 10 April 2004 and subsequently killed by them. However, they denied that any special operations had been carried out in Stariye Atagi on that date. The Government referred to the absence of reliable evidence which, in their view, would support the conclusion that servicemen had been involved in the offence. In particular, the applicants had failed to obtain any witness statements themselves and, furthermore, the mere fact that the abductors had been armed and had been wearing camouflage was not sufficient to reach the above conclusion.<\/span><\/p>\n 51.\u00a0\u00a0The Court observes that the Government did not deny that Mr Anzor Sambiyev had been abducted by armed men; however, they denied that those men were State agents. It notes that the second applicant was an eyewitness to the events and that her account had been confirmed by statements of ten other residents of Stariye Atagi questioned in the course of the investigation. They all stated, in particular, that they had seen a group of armed men arrive at the village in two APCs and two Ural vehicles. The Court thus considers that the applicants have presented a coherent and convincing picture of their son’s abduction on 10 April\u00a02004.<\/span><\/p>\n 52.\u00a0\u00a0 The Court further notes that, according to the applicants and other witnesses to the events, not only had Mr Anzor Sambiyev’s abductors been armed and dressed in camouflage uniform, but they had arrived in two Ural vehicles and two APCs, which could not have been available to paramilitary groups. This fact strongly supports the applicants’ allegation that they were State servicemen. In their application to the authorities the applicants consistently maintained that Mr Anzor Sambiyev had been detained by unknown servicemen and requested the investigating authorities to look into that possibility. It notes in addition that after four years the domestic investigation has produced no tangible results.<\/span><\/p>\n 53.\u00a0\u00a0The Court further observes that, although the Government refused to provide a copy of the entire investigation file, they submitted a significant part of the case file containing key elements that considerably facilitated the examination of the present case by the Court. Thus, from the materials available it can be established that, although the investigation has not rendered any conclusive results, the applicants’ account of the events as supported by witness statements was largely accepted by the investigating authorities. In particular, on 15 July 2004 the Grozny District Prosecutor’s Office issued the applicants with a certificate stating that on 10 April 2004 a group of persons wearing camouflage and masks armed with automatic weapons and accompanied by two APCs and two \u201cUral\u201d vehicles abducted Mr Anzor Sambiyev. However, the investigating authorities failed to establish the identity of Mr Anzor Sambiyev’s abductors. In the Court’s view, the information obtained by the investigation to the effect that no special operations had been conducted in Stariye Atagi on the dates in question is not sufficient to refute the allegations that these were servicemen. The supposition that, being a member of an illegal armed group, he could have been abducted by other members or by unrelated persons, is likewise too vague to disprove them.<\/span><\/p>\n 54.\u00a0\u00a0 Accordingly, on the basis of the body of evidence submitted by the parties, the Court finds that on 10 April 2004 Mr Anzor Sambiyev was apprehended by servicemen at his house in Stariye Atagi.<\/span><\/p>\n 55.\u00a0\u00a0The Court further notes that in the morning of 11 April 2004 his dead body, with bullet wounds, was found on the edge of the Grozny-Shatoy road. Taking into account that no information has been submitted by the Government concerning Mr Anzor Sambiyev’s possible release or escape following his apprehension by servicemen in the evening of 10 April 2004 and no other explanation has been provided as to his subsequent death, and having regard to the general principles cited in paragraph 47 above, the Court finds that Mr Anzor Sambiyev was killed by State servicemen between 10 and 11 April 2004.<\/span><\/p>\n 56.\u00a0\u00a0Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that on 10 April 2004 Mr\u00a0Anzor Sambiyev was apprehended by State servicemen and that he was killed by them between 10 and 11 April 2004.<\/span><\/p>\n iii.\u00a0\u00a0The State’s compliance with Article 2<\/span><\/p>\n 57.\u00a0\u00a0Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom<\/span><\/span>, 27\u00a0September 1995, \u00a7\u00a7 146-47, Series A no. 324, and <\/a>Av\u015far v. Turkey<\/span>, no.\u00a025657\/94, \u00a7\u00a0391, ECHR 2001-VII (extracts)).<\/span><\/p>\n 58.\u00a0\u00a0The Court has already found it established that the applicants’ son was killed by State servicemen following his apprehension. Noting that the authorities do not rely on any ground of justification in respect of the use of lethal force by their agents, it follows that liability for his presumed death is attributable to the respondent Government.<\/span><\/p>\n 59.\u00a0\u00a0Accordingly, the Court finds that there has been a violation of Article 2 in respect of Mr Anzor Sambiyev.<\/span><\/p>\n
\n<\/span><\/p>\n
<\/span><\/p>\n
\n<\/span> Nina Vaji\u0107,
\n<\/span> Anatoly Kovler,
\n<\/span> Elisabeth Steiner,
\n<\/span> Khanlar Hajiyev,
\n<\/span> Giorgio Malinverni,
\n<\/span> George Nicolaou, judges,
\n<\/span>and <\/span>Andr\u00e9 Wampach, Deputy Section Registrar<\/span><\/span>,<\/span><\/p>\n