The ECHR case of Ayubov v. Russia (application no. 7654\/02).<\/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 AYUBOV v. RUSSIA<\/span><\/span><\/p>\n (Application no. 7654\/02)<\/span><\/span><\/p>\n JUDGMENT<\/span><\/p>\n STRASBOURG<\/span><\/p>\n 12 February 2009<\/span><\/p>\n This judgment will become final in the circumstances set out in Article\u00a044<\/span> \u00a7\u00a02 of the Convention. It may be subject to editorial revision.<\/span><\/span><\/p>\n In the case of Ayubov 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 22 January 2009,<\/span><\/p>\n Delivers the following judgment, which was adopted on that date:<\/span><\/p>\n PROCEDURE<\/span><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 7654\/02) 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 a Russian national, Mr Dusid Ayubov (\u201cthe applicant\u201d), on 31 January 2002.<\/span><\/p>\n 2.\u00a0\u00a0The applicant, who had been granted legal aid, was represented by lawyers of the Memorial Human Rights Centre (Moscow) and the European Human Rights Advocacy Centre (London). The Russian Government (\u201cthe Government\u201d) were represented first by Mr P. Laptev and then by Ms\u00a0V.\u00a0Milinchuk, both former Representatives of the Russian Federation at the European Court of Human Rights.<\/span><\/p>\n 3.\u00a0\u00a0The applicant alleged that his son had disappeared following his unacknowledged detention and that there had been no adequate investigation into the matter. He also complained of the destruction of his property and the lack of effective remedies in respect of those violations. The applicant referred to Articles 2, 5 and 13 of the Convention and Article\u00a01 of Protocol No. 1.<\/span><\/p>\n 4.\u00a0\u00a0On 29 August 2004 the President of the First Section decided to grant priority to the application under Rule 41 of the Rules of Court.<\/span><\/p>\n 5.\u00a0\u00a0By a decision of 5 July 2007, the Court declared the application admissible.<\/span><\/p>\n 6.\u00a0\u00a0The applicant and the Government each filed further written observations (Rule 59 \u00a7 1).<\/span><\/p>\n THE FACTS<\/span><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/span><\/p>\n 7.\u00a0\u00a0The applicant was born in 1926 and lived in Grozny, the Chechen Republic. On 9 January 2003 the applicant died and his wife, Ms Ashat Ayubova, expressed her intention to pursue the application before the Court on the applicant’s behalf in letters of 31\u00a0January and 26 December 2005.<\/span><\/p>\n A.\u00a0\u00a0The facts<\/span><\/p>\n 8.\u00a0\u00a0The applicant and his wife, Ms Ashat Ayubova, are the parents of Mr\u00a0Adam Ayubov, born in 1959. They lived in Grozny in their privately owned house at 17\u00a0Narvskaya Street with other family members. In the winter of 1999-00 the applicant and other members of his family left Grozny because of the hostilities. Adam Ayubov remained in Grozny to guard the house and property. He was married and had two children. Before the unrest in Chechnya he had served in the elite troops of the Ministry of the Interior and had held the highest sport title of the USSR.<\/span><\/p>\n 1.\u00a0\u00a0Events of 19 January 2000<\/span><\/p>\n 9.\u00a0\u00a0On 19 January 2000, during daylight hours, a group of armed men in camouflage uniforms arrived at Narvskaya Street in a Ural military truck. The applicant, who did not witness his son’s detention, referred to eyewitness statements of his neighbours to the effect that they were federal servicemen. According to the Government, they were \u201cunidentified armed men in camouflage uniforms\u201d.<\/span><\/p>\n 10.\u00a0\u00a0The men checked the residents’ documents and ordered three men \u2013 Adam Ayubov, Mr Sh. and a man named Oleg or Vladimir \u2013 to get into the truck. The neighbours who were present in the street tried to intervene, and for about 20 minutes obstructed the vehicle, asking the men in camouflage uniforms to release the three men and saying that they had not been involved in anything illegal. Despite their efforts the applicant’s son and the two other men were taken away.<\/span><\/p>\n 11.\u00a0\u00a0The applicant submitted with reference to his neighbours’ statements that about an hour later the same Ural truck with the same armed men in camouflage uniforms had returned and destroyed the house at 17 Narvskaya Street and two cars in the courtyard with a flame-thrower. The applicant produced photographs of his destroyed house and burnt cars and a list of his destroyed possessions (see paragraphs 40 and 41 below).<\/span><\/p>\n 12.\u00a0\u00a0Mr Sh. and the man named Oleg or Vladimir were released later that day. They stated that they had been detained by a detachment of the police special force from Novosibirsk.<\/span><\/p>\n 13.\u00a0\u00a0The applicant and his family have had no news of Adam Ayubov since that date.<\/span><\/p>\n 14.\u00a0\u00a0The applicant’s wife corroborated the above account of the events with two eyewitness statements made by Mr G. and Ms Kh. They both confirmed that on 19 January 2000 they had seen Adam Ayubov being detained by servicemen and taken away in a military Ural truck, and that the servicemen had returned later on 19 January and then on 20 January 2000 and had taken property from the Ayubovs’ house and burned a Volga car and a Niva car in the courtyard of the house. The applicant’s wife also submitted a written statement of one of her representatives to the effect that he had on several occasions approached Mr Sh. with a request to give a written statement concerning the events of 19 January 2000. Mr Sh. had confirmed the circumstances of that incident orally, but had refused to make any written statements out of fear for his security, stating that he had been warned by law-enforcement officials to refrain from describing that incident to any human rights organisations.<\/span><\/p>\n 15.\u00a0\u00a0According to Adam Ayubov’s sister, Ms Liza Azimova, on 19\u00a0January 2000 the Russian TV channel NTV showed an interview with Russian servicemen concerning the military actions in Grozny, which was recorded in the vicinity of the Ayubov family domicile. One of the servicemen mentioned the capture of a Chechen sniper, \u201ca master of sports in shooting\u201d, briefly showed a passport with that man’s photograph and stated that the sniper’s name was Arsanov [rather than Ayubov]. Ms\u00a0Azimova insisted that she had recognised her brother’s photograph in the passport and that he had been the only master of sports in shooting in the Northern Caucasus, and that therefore the servicemen had been describing the arrest of Adam Ayubov. A copy of the aforementioned interview has been submitted to the Court.<\/span><\/p>\n 2.\u00a0\u00a0The applicant’s search for Adam Ayubov<\/span><\/p>\n 16.\u00a0\u00a0As soon as the applicant learned of his son’s detention, he and other members of the family started searching for him. On numerous occasions, both in person and in writing, they applied to prosecutors at various levels, to the Ministry of the Interior, to the administrative authorities in Chechnya. He also personally visited military commander’s offices and pre-trial detention centres in Chechnya and further afield in the region. In the letters addressed to the authorities the applicant stated the facts of Adam Ayubov’s detention and asked for assistance and details on the investigation.<\/span><\/p>\n 17.\u00a0\u00a0The applicant was given no substantive information from official bodies about the investigation into his son’s disappearance. On several occasions he received copies of letters stating that his requests had been forwarded to the different prosecutors’ services.<\/span><\/p>\n 18.\u00a0\u00a0According to the applicant, he had first applied to a prosecutor’s office in April 2000.<\/span><\/p>\n 19.\u00a0\u00a0In letters of 10 and 16 June 2000 the prosecutor’s office of the Chechen Republic (\u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u0427\u0435\u0447\u0435\u043d\u0441\u043a\u043e\u0439 \u0420\u0435\u0441\u043f\u0443\u0431\u043b\u0438\u043a\u0438<\/span> \u2013 \u201cthe republican prosecutor’s office\u201d) forwarded the applicant’s complaints to the Grozny prosecutor’s office (\u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u0433. \u0413\u0440\u043e\u0437\u043d\u043e\u0433\u043e<\/span>).<\/span><\/p>\n 20.\u00a0\u00a0On 3 July 2000 the Memorial Human Rights Centre wrote on the applicant’s behalf to the republican prosecutor’s office. They stated the facts of Adam Ayubov’s detention, listed the neighbours who had witnessed it and asked for information about his whereabouts.<\/span><\/p>\n 21.\u00a0\u00a0On 8 August 2000 the Grozny prosecutor’s office forwarded the applicant’s complaint to the temporary district office of the interior of the Staropromyslovskiy District of Grozny. The letter instructed the district office to \u201cconduct a full and thorough verification of the applicant’s complaint, in accordance with Article 109 of the Code of Criminal Procedure\u201d which obliged investigative bodies to verify facts stated in a complaint and to decide within three days whether a criminal investigation should be opened.<\/span><\/p>\n 22.\u00a0\u00a0On 10 August 2000 the republican prosecutor’s office forwarded one of the applicant’s letters to the Chechen Department of the Interior for \u201corganisation of a search for a missing person\u201d and another to the Grozny prosecutor’s office.<\/span><\/p>\n 23.\u00a0\u00a0On 18 January 2001 the Department of Justice of the Republic of Ingushetia, in reply to a request of Adam Ayubov’s brother concerning the whereabouts of Adam Ayubov who had been detained by servicemen on 19\u00a0January 2000, stated that they had requested the Ministry of Justice to check whether Adam Ayubov was being kept in any detention centre.<\/span><\/p>\n 24.\u00a0\u00a0On 28 March 2001 the applicant’s family submitted to the Zavodskoy District Administration of Grozny a request to investigate his son’s disappearance, co-signed by eight of his neighbours. The neighbours described Adam Ayubov as a good-natured man who had no links with any illegal groups and who had on many occasions risked his own life to help his neighbours during the hostilities in the winter of 1999-00.<\/span><\/p>\n 25.\u00a0\u00a0On the same day the Zavodskoy District Administration wrote to the Memorial Human Rights Centre, asking them to help the applicant to find his son, \u201cwho had been taken from his home on 19 January 2000 by the servicemen of the Novosibirsk OMON during a \u201csweeping\u201d operation<\/span><\/p>\n 26.\u00a0\u00a0On 6 April 2001 the Memorial Human Rights Centre wrote to the Prosecutor General’s Office on the applicant’s behalf. Referring to their letter of 3 July 2000, they stated the known facts of Adam Ayubov’s detention and summarised the correspondence maintained by the applicant. They enquired whether a criminal investigation had been opened into Adam Ayubov’s disappearance, and requested an update on the proceedings. It does not appear that any answer was received to that letter.<\/span><\/p>\n 3.\u00a0\u00a0Official investigation<\/span><\/p>\n 27.\u00a0\u00a0Referring to the information provided by the Prosecutor General’s Office, the Government submitted that on 14 November 2000 the Grozny prosecutor’s office had instituted a criminal investigation into the abduction of the applicant’s son as well as misappropriation and intentional infliction of damage by setting fire to the property of the Ayubov family. The case file was assigned the number 12275.<\/span><\/p>\n 28.\u00a0\u00a0It also appears that at some point the case was transferred to the prosecutor’s office of the Zavodskoy District (\u0417\u0430\u0432\u043e\u0434\u0441\u043a\u0430\u044f \u0440\u0430\u0439\u043e\u043d\u043d\u0430\u044f \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430<\/span> \u2013 \u201cdistrict prosecutor’s office\u201d).<\/span><\/p>\n 29.\u00a0\u00a0According to the Government, in the context of those proceedings on 21\u00a0November 2000 an investigator of the prosecutor’s office had inspected the house of the Ayubov family. The applicant had been granted the status of victim of a crime and questioned on 24 November 2000. Following the applicant’s death in 2003, his wife, Adam Ayubov’s mother, had been declared a victim and questioned on 3 January 2005. The investigating authorities had also questioned Adam Ayubov’s brother on 6 and 10\u00a0January 2005, granted him the status of a victim on 10 January 2005 and declared him a civil claimant in the criminal case on 11 January 2005. The latter had produced photographs of the burnt property which had been included in the file of criminal case no. 12275.<\/span><\/p>\n 30.\u00a0\u00a0In their observations on the admissibility of the present application the Government stated that the investigating authorities had also questioned nine witnesses, the applicant’s neighbours and relatives, who \u201c[had] confirmed the circumstances of Adam Ayubov’s abduction and stated that they had no information concerning his whereabouts\u201d. According to the Government, it was not possible to identify other witnesses in the case.<\/span><\/p>\n 31.\u00a0\u00a0After the present application had been declared admissible, the Government refused to provide transcripts of any witness interviews despite the Court’s specific request to that end, stating that they had reproduced the contents of those interviews in their observations on the merits of the present case. They submitted in particular that Mr Sh. had stated in his witness interview of 12 January 2001 that on 19 January 2000 armed men in camouflage uniforms and masks had taken him, his neighbour Adam Ayubov and a man named Vladimir away and delivered them in a truck to the location of an unknown military unit, and that the next day he, Vladimir and a man named Akhmed had been taken to the village of Alkhan-Kala and released there. According to the Government, during that interview Mr Sh. also stated that there had been no identifying signs on the truck in which he, Vladimir and the applicant’s son had been taken away; however during his subsequent interviews he submitted that the truck had borne the inscription \u201cNovosibirsk\u201d.<\/span><\/p>\n 32.\u00a0\u00a0Mr Z. stated during a witness interview of 26 November 2001 that on 19 January 2000 servicemen had taken away three men, namely Sh., Adam Ayubov and the latter’s acquaintance, for an identity check and that later Mr Sh.’s mother had told him that Mr Sh. had been released.<\/span><\/p>\n 33.\u00a0\u00a0Ms Kh. who was questioned as a witness on 2 January 2005 submitted that on 19\u00a0January 2000 Adam Ayubov, his acquaintance and Sh. had been taken away by servicemen. She also described in detail the appearance of a man who, in her opinion, had been in command of that operation and indicated his insignia. Ms Kh. further stated that the registration plates of a Ural truck in which the three men had been taken away had been black with white letters and figures on them, including figures \u201c2\u201d and \u201c6\u201d and a letter \u201cG\u201d, and that she did not remember whether there had been any identification signs on the truck.<\/span><\/p>\n 34.\u00a0\u00a0During witness interviews on 7 January 2005 Mr Sh.’s mother gave oral evidence similar to that of Mr Sh., and Ms Z. stated that she did not remember the events of 19 January 2000.<\/span><\/p>\n 35.\u00a0\u00a0The Government also stated that the investigating authorities had sent a number of queries to various State bodies on 1 May, 30 August and 26 November 2000, 5, 8, 9, 11 and 12 January and 20 April 2005 and undertaken other investigative measures, but did not specify what those measures had been.<\/span><\/p>\n 36.\u00a0\u00a0Finally, the Government submitted that the investigation had been suspended and resumed on several occasion, but had failed to identify those responsible so far.<\/span><\/p>\n B.\u00a0\u00a0Evidence submitted by the parties<\/span><\/p>\n 1.\u00a0\u00a0Evidence submitted by the applicant<\/span><\/p>\n 37.\u00a0\u00a0Among other documents, the applicant’s wife submitted several documents relating to the claims concerning the destruction of property.<\/span><\/p>\n 38.\u00a0\u00a0A certificate of right to inherit dated 21 May 2004 confirms that the applicant’s property after his death in 2003 was inherited by his son, and that that property consists of a destroyed house situated on a plot of land measuring 469 square metres, which was held by the applicant under a contract of a building lease.<\/span><\/p>\n 39.\u00a0\u00a0A handwritten plan of the household at 17 Narvskaya Street represents a courtyard with the gates, two car boxes adjacent to a house, a summer kitchen and awning, and the house consisting of a lobby, a corridor, a kitchen, a boiler room, a bathroom, two living rooms and two bedrooms. There is no indication of any dimensions or general surface of the house or of any of premises depicted in the plan.<\/span><\/p>\n 40.\u00a0\u00a0A handwritten document dated 10 June 2005 and signed by the applicant’s wife lists articles of property destroyed on 19 and 20\u00a0January\u00a02000 and indicates their value in United States dollars (USD). These are a VAZ Niva car (USD\u00a05,000), a Volga car (USD 4,000), living room furniture (USD 6,000), bedroom furniture (USD 4,000), kitchen furniture (USD 2,000), twenty carpets (USD 3,500), two refrigerators (USD\u00a01,500), video equipment and TV set (USD 800), chandeliers (USD\u00a0500), crockery (USD 3,000), lobby furniture (USD 1,000), a boiler (USD 400), sanitary equipment (USD 500), two gas cookers (USD 700), car spare parts and tools (USD 1,000), two air-conditioners (USD 600), current generator (USD\u00a01,000), jewels (USD 10,000), clothes for all family members (USD\u00a010,000), and household appliances (USD 2,000).<\/span><\/p>\n 41.\u00a0\u00a0Four photographs represent two burnt cars and a burnt house at 17\u00a0Narvskaya Street. According to the applicant’s wife, she was unable to submit documents for the cars, as they had been kept in the house and burnt there.<\/span><\/p>\n 42.\u00a0\u00a0The applicant’s wife also submitted a DVD with records of various family events in 1995 and 1996, showing the cars and some furnishings inside the house.<\/span><\/p>\n 2.\u00a0\u00a0Documents submitted by the Government<\/span><\/p>\n (a)\u00a0\u00a0The Court’s requests for the investigation file<\/span><\/p>\n 43.\u00a0\u00a0In November 2004, when the application was communicated to them, the Government were invited to produce a copy of the investigation file in a criminal case opened into the abduction of the applicant’s son. Relying on the information obtained from the Prosecutor General’s Office, the Government replied that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of \u201cthe documents [disclosing military information and personal data concerning the witnesses], and without the right to make copies of the case file or transmit it to others\u201d. In April 2005 the Court reiterated its request and suggested that Rule 33 \u00a7 3 of the Rules of Court be applied. In reply, the Government again refused to produce any documents from the file for the aforementioned reasons.<\/span><\/p>\n 44.\u00a0\u00a0In their additional memorial of 30 January 2007, however, the Government submitted copies of several documents which included:<\/span><\/p>\n (a) procedural decisions of 20 May 2005, 28 September and 4 November 2006 and 19 January 2007 suspending and reopening the investigation in case no. 12275;<\/span><\/p>\n (b) investigators’ decisions of 4 October 2006 and 19 January 2007 to take up case no. 12275;<\/span><\/p>\n (c) letters issued in 2005-07 informing the applicant’s wife and her other son, Adam Ayubov’s brother, of the suspension and reopening of the investigation in criminal case no. 12275.<\/span><\/p>\n 45.\u00a0\u00a0On 5 July 2007 the application was declared admissible. At that stage the Court once again invited the Government to submit the investigation file and to provide information concerning the progress of the investigation after January 2007. It also put a number of factual questions to the Government. The Court enquired, in particular, which units of the federal armed forces and\/or security agencies had been stationed in the vicinity of the Ayubov family’s domicile at the period described in the statement of facts; whether the federal armed forces and\/or security agencies had carried out any special operations in the vicinity of the Ayubov family’s domicile in January 2000, and, in particular, on 19 January 2000, and whether the possible involvement of the personnel of the Novosibirsk OMON in Adam Ayubov’s removal had been verified during the investigation in criminal case no. 12275. The Government were also furnished with a copy of the video material submitted by the applicant’s wife, and were requested to comment on it, in particular, to indicate whether the passport shown in that material belonged to Adam Ayubov (see paragraph 15 above).<\/span><\/p>\n 46.\u00a0\u00a0In reply, the Government refused to submit any documents from the case file other than those produced earlier and remained silent as regards the Court’s question relating to the progress in the investigation. They further stated that \u201cthere was no information concerning units of the federal armed forces and\/or security agencies stationed in the vicinity of the Ayubov family’s domicile at the relevant period\u201d and that, \u201caccording to the replies from competent State bodies, no special operation had been carried out by the federal armed forces and\/or security agencies in the vicinity of the Ayubov family’s domicile in January 2000\u201d. The Government also stated that the version concerning the possible involvement of the Novosibirsk OMON in Adam Ayubov’s apprehension had been checked, and that no such involvement had been established. In particular, according to a letter of the acting head of the Main Department of the Interior of the Novosibirsk Region dated 26 May 2005 in reply to a query by an investigator of the prosecutor’s office of the Zavodskoy District, \u201cthere [had been] no personnel of the Novosibirsk OMON in the territory of the Chechen Republic on 19 January 2000\u201d. The Government did not produce a copy of this letter. As regards the Court’s question concerning the video material, the Government stated that neither Ms Liza Azimova nor Ms Ayshat Ayubova had informed the investigating authorities of the existence of any video record of the interview of 19 January 2000 referred to by Ms\u00a0Azimova, and that therefore that piece of evidence had not been examined and included in the investigation file in proper time. According to the Government at present the prosecutor of the Zavodskoy District had been instructed \u201cto take measures aiming at identification of persons possessing that material and its seizure\u201d. They remained silent as to the Court’s question whether the passport shown in that material belonged to Adam Ayubov.<\/span><\/p>\n (b)\u00a0\u00a0Letters from domestic courts<\/span><\/p>\n 47.\u00a0\u00a0The Government also enclosed a number of letters from various higher courts in Russia, stating that the applicant had never made complaints regarding his son’s detention, the destruction of his property or the authorities’ inactivity with the respective courts or sought compensation of the damaged inflicted on his property.<\/span><\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/span><\/p>\n 48.\u00a0\u00a0For a summary of the relevant domestic law see Kukayev v. Russia<\/span>, no.\u00a029361\/02, \u00a7\u00a7\u00a067-69, 15\u00a0November 2007 and Musayeva and Others v.<\/span> Russia<\/span>, no.\u00a074239\/01, \u00a7\u00a7\u00a062-63, 26\u00a0July 2007.<\/span><\/p>\n THE LAW<\/span><\/p>\n I.\u00a0\u00a0THE GOVERNMENT’S PRELIMINARY OBJECTION<\/span><\/p>\n A.\u00a0\u00a0Submission by the parties<\/span><\/p>\n 49.\u00a0\u00a0The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies since the investigation into the abduction of the applicant’s son and the infliction of damage on his property had not yet been completed. They also contended that by virtue of relevant provisions of the Russian Constitution, the Russian Code of Criminal Procedure, the Russian Civil Code and other legal instruments it had been open to the applicant to make a court complaint to it about the allegedly unlawful detention of his son, or to challenge in court any actions or omissions of the investigating or other law-enforcement authorities. They also submitted that the applicant had been granted the status of a civil claimant in the criminal proceedings, and therefore could have made a court complaint or claim concerning the destruction of his property. The Government insisted that the applicant could have applied directly to the Supreme Court of Russia. However, he had not availed himself of any such remedy. In support of their argument, the Government referred to the letters from the Russian courts which they had submitted to the Court (see paragraph 47 above).<\/span><\/p>\n 50.\u00a0\u00a0The applicant’s wife, on his behalf, contested the Government’s objection. She first stated that in 2000 it had been impossible to make effective use of any remedy within the territory of the Chechen Republic, as the courts and law-enforcement agencies had not been functioning properly there.<\/span><\/p>\n 51.\u00a0\u00a0The applicant’s wife further argued that the fact that the investigation into the circumstances of her son’s disappearance was still pending cast doubt upon its effectiveness rather than indicating that the applicant’s complaints were premature.<\/span><\/p>\n 52.\u00a0\u00a0She also contended that the Government had failed to demonstrate the effectiveness of the domestic remedies relied on by them. In particular, she pointed out that under relevant provisions of national law the applicant would have only had the standing to challenge before a court the detention of his son if the latter had been a minor, which clearly was not the case, and that in any event in the absence of any information concerning the place of his son’s detention, the applicant had been deprived of the opportunity, even theoretically, of applying to a court which would have territorial jurisdiction over such a complaint.<\/span><\/p>\n 53.\u00a0\u00a0The applicant’s wife argued that it was impossible to bring any civil claim for compensation until those responsible for the crime had been identified in course of criminal proceedings. She also referred to the cases of Isayeva, Yusupova and Bazayeva v. Russia <\/span>(nos. 57947\/00, 57948\/00 and 57949\/00, judgment of 24 February 2005, \u00a7 149); Ya\u015fa v. Turkey<\/span> (judgment of 2 September 1998, Reports of Judgments and Decisions<\/span> 1998-VI, \u00a7 74); and Sel\u00e7uk and Asker v. Turkey<\/span> (judgment of 4 April 1998, Reports<\/span> 1998-II, \u00a7 96) and argued that the applicant had not been obliged to pursue any civil remedy as this would only lead to an award of damages and not to the identification and punishment of those responsible, as required by the Court’s settled case-law in relation to complaints such as his ones. She contended that in any event by virtue of a relevant provision of the Russian Civil Code, in the absence of any meaningful findings made by the domestic investigation, a court would suspend the consideration of any civil claim pending the outcome of the investigation.<\/span><\/p>\n B.\u00a0\u00a0The Court’s assessment<\/span><\/p>\n 54.\u00a0\u00a0The Court notes that, in its decision of 5 July 2007, it considered that the question of exhaustion of domestic remedies was closely linked to the substance of the present application and that it should be joined to the merits. It will now proceed to assess the parties’ arguments in the light of the Convention provisions and its relevant practice.<\/span><\/p>\n 55.\u00a0\u00a0The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 \u00a7 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. There is no obligation to have recourse to remedies which are inadequate or ineffective. It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicants’ complaints and offered reasonable prospects of success (see Aksoy v. Turkey<\/span>, judgment of 18 December 1996, Reports <\/span>1996-VI, \u00a7\u00a7 51-52; Akdivar and Others\u00a0v. Turkey<\/span>, judgment of 16\u00a0September 1996, Reports<\/span> 1996-IV, \u00a7\u00a065-68; and, most recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey<\/span>, no. 41964\/98, \u00a7 64-65, 27 June 2006).<\/span><\/p>\n 56.\u00a0\u00a0In the present case, in so far as the Government argued that the applicant had not lodged a court complaint about his son’s detention, the Court observes that after Adam Ayubov had been apprehended the applicant had actively attempted to establish his whereabouts and applied to various official bodies (see paragraphs 16, 20, 24 and 26 above), whereas the authorities had never acknowledged that they had detained the applicant’s son. In such circumstances, and in particular in the absence of any proof to confirm the very fact of the detention, even assuming that the remedy referred to by the Government was accessible to the applicant, it is more than questionable whether a court complaint about the unacknowledged detention of the applicant’s son by the authorities would have had any prospects of success. Moreover, the Government have not demonstrated that the remedy indicated by them would have been capable of providing redress in the applicant’s situation \u2013 in other words, that the applicant’s recourse to this remedy would have led to the release of Adam Ayubov, and to the identification and punishment of those responsible (see Musayeva and Others<\/span>, cited above, \u00a7\u00a069, or Kukayev<\/span>, cited above, \u00a7\u00a078). In the light of the foregoing, the Court considers that it has not been established with sufficient certainty that the remedy advanced by the Government would have been effective within the meaning of the Convention. The Court finds that the applicant was not obliged to pursue that remedy, and that this limb of the Government’s preliminary objection should therefore be dismissed.<\/span><\/p>\n 57.\u00a0\u00a0To the extent the Government argued that the investigation was still pending and that the applicant had not complained to a court about the actions or omissions of the investigating or other law-enforcement authorities during the investigation, the Court firstly observes that the Government did not indicate which particular actions or omissions of the investigators the applicant should have challenged before a court. It further notes that the Russian Code of Criminal Procedure referred to by the Government became operative on 1 July 2002 and that the applicant was clearly unable to have recourse to the remedy invoked by the Government prior to that date. As regards the period thereafter, the Court considers that this limb of the Government’s preliminary objection raises issues which are closely linked to the question of the effectiveness of the investigation, and it would therefore be appropriate to address the matter in the examination of the substance of the applicant’s complaints under Article 2 of the Convention.<\/span><\/p>\n 58.\u00a0\u00a0As regards the Government’s argument that the applicant did not bring a court complaint concerning the destruction of his property, or claim for compensation, the Court considers that this limb of the Government’s preliminary objection raises issues which are closely linked to the question of the availability at the national level of effective remedies. It is therefore appropriate to address this point in the Court’s examination of the substance of the applicant’s complaint under Article 13, in conjunction with Article 1 of Protocol No. 1 to the Convention.<\/span><\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION<\/span><\/p>\n 59.\u00a0\u00a0The applicant complained of a violation of the right to life in respect of his son, Adam Ayubov, and the absence of effective investigation into the matter. He relied on Article 2 of the Convention, which states as follows:<\/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\u00a0Alleged failure to protect the right to life<\/span><\/p>\n 1.\u00a0\u00a0Submissions by the parties<\/span><\/p>\n 60.\u00a0\u00a0The applicant’s wife contended that it was beyond reasonable doubt that Adam Ayubov had been detained by representatives of the federal forces, this fact having been confirmed by eyewitness statements. She further stressed that Adam Ayubov had been apprehended in life-endangering circumstances, given that his apprehension had been effected by a group of armed men who had arrived in military vehicles and had not produced any documents to authorise their actions. In this respect she referred to a Human Rights Watch document reporting on a widespread practice of forced disappearances during the period in question. She thus argued that, in view of the above and given that her son remained missing for several years, he may be presumed dead even in the absence of any formal evidence confirming his death. The applicant’s wife also invited the Court to draw inferences from the Government’s failure to provide any plausible explanation as to her son’s fate and from their refusal to submit the file of the criminal investigation.<\/span><\/p>\n 61.\u00a0\u00a0The Government relied on the information provided by the Prosecutor General’s Office and argued that the investigation had not obtained any evidence that Adam Ayubov was dead, or that representatives of the federal military or security agencies had been involved in his abduction or alleged killing. They contested the oral evidence given by witnesses during interviews by the investigating authorities as unreliable, stating that witness statements had been controversial and that the investigating authorities had checked the information given by the witnesses by sending queries to law-enforcement agencies and power structures, but that information had not been confirmed. The Government argued therefore that there were no grounds to claim that Adam Ayubov’s right to life secured by Article 2 of the Convention had been breached.<\/span><\/p>\n 2.\u00a0\u00a0The Court’s assessment<\/span><\/p>\n 62.\u00a0\u00a0The Court reiterates that, in the light of the importance of the protection afforded by Article\u00a02, it 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. It has held on many occasions that, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused. The obligation on the authorities to account for the treatment of an individual within their control is particularly stringent where that individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey<\/span>, no.\u00a025656\/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 63.\u00a0\u00a0In the present case, the Court observes that although the Government denied the State’s responsibility for the abduction and disappearance of the applicant’s son, they acknowledged the specific facts underlying the applicant’s version of events. In particular, it is common ground between the parties that Adam Ayubov was taken away from his home by men in camouflage uniforms armed with automatic firearms during the daylight hours on 19 January 2000. It has therefore first to be established whether the armed men belonged to the federal forces.<\/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> Sverre Erik Jebens,
\n<\/span> Giorgio Malinverni, judges,
\n<\/span>and S\u00f8ren Nielsen, Section Registrar<\/span><\/span>,<\/span><\/p>\n