The ECHR case of Astemirova and Others v. Russia (application no. 27256\/03).<\/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 ASTAMIROVA AND OTHERS v. RUSSIA<\/span><\/span><\/p>\n (Application no. 27256\/03)<\/span><\/span><\/p>\n JUDGMENT<\/span><\/p>\n STRASBOURG<\/span><\/p>\n 26 February 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 Astamirova and Others 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 5 February 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. 27256\/03) 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 seven Russian nationals, listed below (\u201cthe applicants\u201d), on 11 July 2003.<\/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 Mr\u00a0P.\u00a0Laptev and Ms\u00a0V.\u00a0Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.<\/span><\/p>\n 3.\u00a0\u00a0The applicants alleged that their relative had disappeared after being detained by servicemen in Chechnya on 5\u00a0August 2002. They complained under Articles 2, 3, 5, 13 and 14.<\/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 13 March 2008, the Court declared the application partly admissible.<\/span><\/p>\n 6.\u00a0\u00a0The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 \u00a7 3 in fine<\/span>), the parties replied in writing to each other\u2019s observations.<\/span><\/p>\n THE FACTS<\/span><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/span><\/p>\n 7.\u00a0\u00a0The applicants are relatives. They are:<\/span><\/p>\n 1.\u00a0\u00a0\u00a0\u00a0\u00a0 Ms Rumisa Zayndyevna Astamirova, born in 1978;<\/span><\/p>\n 2.\u00a0\u00a0\u00a0\u00a0\u00a0 Ms Zoya Khamzatovna Astamirova, born in 1944;<\/span><\/p>\n 3.\u00a0\u00a0\u00a0\u00a0\u00a0 Ms Roza Zayndyevna Astamirova, born in 1970;<\/span><\/p>\n 4.\u00a0\u00a0\u00a0\u00a0\u00a0 Ms Petimat Shaitovna Algiriyeva, born in 1976;<\/span><\/p>\n 5.\u00a0\u00a0\u00a0\u00a0\u00a0 Ms Kheda Aslanbekovna Algiriyeva, born in 2001;<\/span><\/p>\n 6.\u00a0\u00a0\u00a0\u00a0\u00a0 Ms Dinara Aslanbekovna Algiriyeva, born in 2003;<\/span><\/p>\n 7.\u00a0\u00a0\u00a0\u00a0\u00a0 Ms Raisa Zayndyevna Astamirova, born in 1968.<\/span><\/p>\n 8.\u00a0\u00a0They live in the village of Gekhi, in the Urus-Martan district of Chechnya.<\/span><\/p>\n A.\u00a0The applicants\u2019 relative\u2019s arrest<\/span><\/p>\n 9.\u00a0\u00a0The first, third and seventh applicants are sisters of Aslanbek Zayndyevich Astamirov (born in 1974). The second applicant is Aslanbek Astamirov\u2019s mother. The fourth applicant is his wife, and the fifth and sixth applicants are their daughters (the sixth applicant was born in March 2003). The seventh applicant is deaf mute. The applicants submitted that their relative Aslanbek Astamirov had suffered from TB for the previous seven years and that he had been in need of regular medical assistance.<\/span><\/p>\n 10.\u00a0\u00a0The applicants live in their own six-room house at 45 Sheripova Street in the village of Gekhi, in the Urus-Martan district. In the same courtyard there is another house, owned by the family of Aslanbek Astamirov\u2019s brother, Alkha A.<\/span><\/p>\n 11.\u00a0\u00a0According to the applicants\u2019 submissions, on 5 August 2002 at around 3\u00a0a.m. a group of about thirty masked men in blue camouflage uniforms forcibly entered the applicants\u2019 house. The applicants believed that they were servicemen, as they were armed with machine guns and spoke Russian without an accent. The servicemen did not produce identity papers or any documents to justify their actions and gave no explanations.<\/span><\/p>\n 12.\u00a0\u00a0The fourth applicant submitted that she had been sleeping in the room with her husband, Aslanbek Astamirov, and their daughter, the fifth applicant. The first applicant, Aslanbek Astamirov\u2019s sister, and her two daughters had been in another room, and the second and seventh applicants had been sleeping in another room.<\/span><\/p>\n 13.\u00a0\u00a0The fourth applicant submitted that she had been woken at 3\u00a0a.m. by the sound of Russian being spoken in their courtyard. Then the door to their room opened and four or five men in camouflage and masks, armed with automatic weapons, rushed into the room. They shouted \u201cLie down\u201d and approached the fourth applicant\u2019s husband. One of the servicemen pushed the fourth applicant against the wall and she fell down. Another serviceman gave her the crying child and ordered her to calm her down and to remain seated.<\/span><\/p>\n 14.\u00a0\u00a0The men tied Aslanbek Astamirov\u2019s hands behind his back and escorted him out of the room. They took along his slippers, trousers and a shirt. Two men remained in the room and searched it, but did not take anything. One of them found Aslanbek Astamirov\u2019s passport and took it with him. Then the fourth applicant was permitted to come out of her room and into the courtyard, where she saw her sisters-in-law and mother-in-law. The servicemen were leaving and told them to be quiet. About five minutes later the electricity went off in the village and the applicants returned to the house. They submitted that the intruders had remained in their house for about twenty to twenty-five minutes.<\/span><\/p>\n 15.\u00a0\u00a0The first applicant submitted that about five minutes after the men and her brother had left they had heard the sound of a military Ural truck leaving from the direction of the main road. They did not follow the armed men into the street because there was no electricity and because they were afraid.<\/span><\/p>\n 16.\u00a0\u00a0The applicants submitted that the following morning the neighbours told them that they had seen an armoured personnel carrier (APC) and a military all-terrain UAZ vehicle in the village. They also submitted that both exits from the village on the main road were controlled by the Russian military and that there was a curfew in place, so no movement of vehicles or of such a large group was possible without the knowledge of the personnel at the roadblocks. The applicants submitted a copy of the published order of the Urus-Martan district military commander no.\u00a0263 of 25 September 2001 by which a curfew had been established in the district between 8\u00a0p.m. and 6\u00a0a.m.<\/span><\/p>\n 17.\u00a0\u00a0The applicants have had no news of Aslanbek Astamirov since 5\u00a0August 2002.<\/span><\/p>\n 18.\u00a0\u00a0The Government in their observations did not challenge most of the facts as presented by the applicants. They stated that it had been established that on 5 August 2002 at about 3\u00a0a.m. unidentified men wearing camouflage uniforms and armed with automatic weapons had entered the applicants\u2019 house and taken Aslanbek Astamirov away to an unknown destination. His whereabouts could not be established. The Government objected to the term \u201cservicemen\u201d used by the applicants because in their opinion there were no grounds to believe that the persons who had apprehended Mr Astamirov were servicemen of the Russian Federation.<\/span><\/p>\n 19.\u00a0\u00a0The Government also disputed the applicants\u2019 reference to the presence of military vehicles on that night. They argued that the statements taken during the investigation from the victims of and witnesses to the crime had not mentioned military vehicles. The Government did not submit copies of any of the statements to which they referred (see below).<\/span><\/p>\n B.\u00a0The search for Aslanbek Astamirov and the investigation<\/span><\/p>\n 20.\u00a0\u00a0Immediately after Aslanbek Astamirov\u2019s abduction the applicants started looking for him. In the morning of 5 August 2002 the first and second applicants, accompanied by Alkha A. and another man, went to Urus-Martan. They approached the district military commander\u2019s office, the head of the district administration and other authorities, but did not find out anything about their missing relative. After that for about two weeks the applicants and their relatives continued to travel daily to Urus-Martan in the hope of finding out about Aslanbek Astamirov, but also in the hope that he would be released because, as the first applicant submitted, they were certain that he had been detained by mistake. The first applicant also submitted that they had been afraid to ask for a criminal investigation because they thought it could have harmed her brother. According to the first applicant, they only submitted an application to the prosecutor\u2019s office two weeks after the arrest.<\/span><\/p>\n 21.\u00a0\u00a0On numerous occasions, both in person and in writing, the applicants applied to prosecutors at various levels, to the Ministry of the Interior, to the administrative authorities and to public figures. The first applicant went to look at unidentified bodies found in Urus-Martan and in Grozny on several occasions. In the letters to the authorities the applicants stated the facts of Mr. Astamirov\u2019s disappearance and asked for assistance and details of the investigation. Most of these enquiries remained unanswered, and the rest received only formal replies by which the respective requests were forwarded to various prosecutors\u2019 offices \u201cfor examination\u201d. The applicants did not retain copies of all the letters, especially during the first months following the apprehension, but they submitted a number of them to the Court. Below is a summary of their correspondence with the authorities.<\/span><\/p>\n 22.\u00a0\u00a0On 10 November 2002 the second applicant wrote to the Prosecutor General\u2019s Office, to the South Federal Circuit Department of the Prosecutor General\u2019s Office, to the military prosecutor of Chechnya, to the National Public Commission for Investigation of Offences and Protection of Human Rights in the North Caucasus (\u041d\u0430\u0446\u0438\u043e\u043d\u0430\u043b\u044c\u043d\u0430\u044f \u043e\u0431\u0449\u0435\u0441\u0442\u0432\u0435\u043d\u043d\u0430\u044f \u043a\u043e\u043c\u0438\u0441\u0441\u0438\u044f \u043f\u043e \u0440\u0430\u0441\u0441\u043b\u0435\u0434\u043e\u0432\u0430\u043d\u0438\u044e \u043f\u0440\u0430\u0432\u043e\u043d\u0430\u0440\u0443\u0448\u0435\u043d\u0438\u0439 \u0438 \u0441\u043e\u0431\u043b\u044e\u0434\u0435\u043d\u0438\u044e \u043f\u0440\u0430\u0432 \u0447\u0435\u043b\u043e\u0432\u0435\u043a\u0430 \u043d\u0430 \u0421\u0435\u0432\u0435\u0440\u043d\u043e\u043c \u041a\u0430\u0432\u043a\u0430\u0437\u0435<\/span>) and to the member of the State Duma for Chechnya. She stated the details of her son\u2019s disappearance and asked for assistance in finding him. She stressed that Aslanbek Astamirov was suffering from TB and was in need of medical help. She mentioned that she had applied to the Urus-Martan district prosecutor\u2019s office but that she had received no news about the missing man.<\/span><\/p>\n 23.\u00a0\u00a0On 20 November 2002 the Urus-Martan district prosecutor\u2019s office (the district prosecutor\u2019s office) forwarded the second applicant\u2019s complaint to the Urus-Martan district department of the interior (ROVD) for a check.<\/span><\/p>\n 24.\u00a0\u00a0On 6 December 2002 (or on 1 January 2003 \u2013 see below) the district prosecutor\u2019s office opened criminal investigation file no.\u00a034001 into the abduction of Aslanbek Astamirov on 5 August 2002 by unidentified armed persons wearing camouflage uniforms and masks. An investigation was opened into a kidnapping committed by a group under Article 126 part 2 of the Criminal Code.<\/span><\/p>\n 25.\u00a0\u00a0On 12 December 2002 the Urus-Martan district prosecutor\u2019s office summoned Maret T., the wife of Alkha A., for questioning as a witness.<\/span><\/p>\n 26.\u00a0\u00a0On 13 January 2003 the first applicant was granted victim status in the criminal investigation into her brother\u2019s abduction.<\/span><\/p>\n 27.\u00a0\u00a0On 20 January 2003 the military prosecutor of military unit no.\u00a020102 (based in Khankala, the main Russian military base in Chechnya) informed the second applicant that the investigation should be conducted by the local district prosecutor\u2019s office, unless it had been established that servicemen of the Ministry of Defence or of the Interior Troops of the Ministry of the Interior had been implicated in the crime.<\/span><\/p>\n 28.\u00a0\u00a0On 7 April 2003 the first applicant asked the district prosecutor\u2019s office to provide her with an update on criminal investigation no.\u00a034001 into her brother\u2019s abduction.<\/span><\/p>\n 29.\u00a0\u00a0On 3 June 2003 the Chechnya prosecutor\u2019s office forwarded a complaint by the fourth applicant of inefficiency of the investigation to the district prosecutor\u2019s office and instructed them to inform the Chechnya prosecutor\u2019s office about the investigation into the abduction.<\/span><\/p>\n 30.\u00a0\u00a0On 20 June 2003 the district prosecutor\u2019s office informed the SRJI that on 1 March 2003 the investigation in criminal case no.\u00a034001 had been suspended due to failure to identify the culprits. The letter also stated that the ROVD had been instructed to take \u201cactive measures\u201d to solve the crime.<\/span><\/p>\n 31.\u00a0\u00a0On 29 September 2003 the first applicant wrote to the district prosecutor\u2019s office and asked him to grant her access to case file no.\u00a034001.<\/span><\/p>\n 32.\u00a0\u00a0On 17 December 2003 and on 6 January 2004 the Chechnya prosecutor\u2019s office informed the SRJI, in identical wording, that the criminal investigation into Aslanbek Astamirov\u2019s abduction had been opened by the district prosecutor\u2019s office on 1 January 2003 and suspended on 1\u00a0March 2003. On 15 December 2003 the investigation had been reopened and all the necessary steps taken to find Mr. Astamirov and to identify the culprits.<\/span><\/p>\n 33.\u00a0\u00a0On 16 February 2004 the SRJI requested the Chechnya and the district prosecutors\u2019 offices to clarify if the criminal investigation into the abduction of Aslanbek Astamirov had been opened on 6 December 2002 or on 1 January 2003. They also asked them to inform them about the progress of the investigation.<\/span><\/p>\n 34.\u00a0\u00a0On 23 June 2005 the SRJI, acting on the second applicant\u2019s behalf, again asked the district prosecutor\u2019s office to give them information about the date on which the criminal investigation had been opened, to inform them about the progress of the proceedings and to allow the second applicant, as a victim, to access the case file.<\/span><\/p>\n 35.\u00a0\u00a0On 12 July 2005 the district prosecutor\u2019s office informed the second applicant and the SRJI that the investigation into the crime was ongoing and that she could access the case file at that office.<\/span><\/p>\n 36.\u00a0\u00a0The applicants submitted that they received no further information about the investigation into Aslanbek Astamirov\u2019s abduction and that they were not aware of the exact date on which the case had been opened.<\/span><\/p>\n 37.\u00a0\u00a0The applicants submitted that as a result of the severe stress following her son\u2019s disappearance the health of the second applicant had deteriorated significantly and that she had often been forced to remain in bed.<\/span><\/p>\n C.\u00a0\u00a0Information from the Government<\/span><\/p>\n 38.\u00a0\u00a0In their observations the Government did not dispute the information concerning the investigation of the abduction of Aslanbek Astamirov as presented by the applicants. Relying on information obtained from the General Prosecutor\u2019s Office, they referred to a number of other procedural steps taken by the investigation which had not been mentioned by the applicants. However, despite specific requests from the Court, the Government did not submit copies of most of the documents to which they referred (see below). In reply to the Court\u2019s requests, the Government submitted the following information concerning the progress of the investigation.<\/span><\/p>\n 39.\u00a0\u00a0The criminal investigation into Mr Astamirov\u2019s abduction had been opened on 1 January 2003 by the district prosecutor\u2019s office.<\/span><\/p>\n 40.\u00a0\u00a0The first applicant had been questioned by the investigators on 13\u00a0January 2003, and then again on unspecified dates. On 13 January 2003 she had been granted the status of a victim in the criminal proceedings related to her brother\u2019s abduction. According to the Government, the first applicant stated that she and other family members had not been subjected to violence and that no valuables had been taken from the house. She also stated that they had not seen the vehicles used by the abductors.<\/span><\/p>\n 41.\u00a0\u00a0Furthermore, the Government stated that on 28 July 2005 the investigators had questioned and granted victim status to the second applicant, the mother of Aslanbek Astamirov. According to the Government, she stated that she had not applied to the law-enforcement bodies for several months because they had been hoping that her son would come back. She also stated that the abductors had not damaged the door to the house and had not fired any shots.<\/span><\/p>\n 42.\u00a0\u00a0According to the Government, the fourth applicant was questioned on 9\u00a0January 2003. She stated that on 5\u00a0August 2002 at about\u00a03 a.m. unknown armed and masked men had burst into their house and taken away her husband. He had been allowed to dress. No valuables had been taken. She was again questioned in July 2006, when she specified that the men who had entered their home and taken away her husband had also taken away his passport and driving licence.<\/span><\/p>\n 43.\u00a0\u00a0The Government stated that on 10 January 2003 Markha T., Aslanbek Astamirov\u2019s sister-in-law, had been questioned and had confirmed the latter\u2019s abduction.<\/span><\/p>\n 44.\u00a0\u00a0According to the Government, another family member was questioned in July 2006 and stated that one of the men who had intruded into their house on 5 August 2002 had been armed with a sniper\u2019s rifle. She added that she would be unable to identify any of them since all the men had been wearing masks.<\/span><\/p>\n 45.\u00a0\u00a0The Government submitted that in March and April 2006 the investigators had questioned at least seven of the applicants\u2019 neighbours, who had stated that on the night in question they had seen a group of armed and masked men walking down Sheripova Street. They had not seen any special vehicles or cars around. Later they had learnt of Aslanbek Astamirov\u2019s abduction. In July 2006 one neighbour was questioned and submitted that on the night of 5 August 2003 he had heard the sound of engines in the street and had seen a group of about ten persons wearing black uniforms and masks and walking along Sheripova Street towards the Astamirovs\u2019 house. The investigators questioned another four neighbours in July 2006, who had not heard anything on that night.<\/span><\/p>\n 46.\u00a0\u00a0Also in April 2006 the investigators questioned the former head of administration of Urus-Martan district. He stated that he had received a lot of inquiries from relatives of missing persons, but he could not recall the applicants\u2019 case.<\/span><\/p>\n 47.\u00a0\u00a0According to the Government, the investigators also requested information about Mr\u00a0Astamirov\u2019s disappearance from various State authorities. On 19 December 2003 the Urus-Martan district department of the Federal Security Service stated that their office had not detained Mr\u00a0Astamirov nor carried out a criminal investigation into his activities. The Ministry of the Interior of Chechnya also replied on an unspecified date that their agents had not detained the applicants\u2019 relative and had not carried out any investigation in respect of him. Also on unspecified dates all the district departments of the interior in Chechnya informed the investigation that they had never detained or delivered Aslanbek Astamirov to a temporary detention facility. On 4 February 2006 the remand centre in Chechnya IZ-20\/1 informed the investigation that the missing man had never been detained there. In April 2006 the pre-trial detention centres of the Southern Federal Circuit informed the investigators that Mr\u00a0Astamirov had not been detained in any of them.<\/span><\/p>\n 48.\u00a0\u00a0After April 2006 various bodies of the interior and the headquarters of the United Group Alliance (UGA) informed the investigators that they had no information about a special operation in Gekhi on 5 August 2002.<\/span><\/p>\n 49.\u00a0\u00a0The investigation failed to establish the whereabouts of Mr Aslanbek Astamirov. The investigation found no evidence to support the involvement of the \u201cspecial branches\u201d (\u0441\u043f\u0435\u0446\u0438\u0430\u043b\u044c\u043d\u044b\u0445 \u043f\u043e\u0434\u0440\u0430\u0437\u0434\u0435\u043b\u0435\u043d\u0438\u0439<\/span>) in the crime. The law enforcement authorities of Chechnya had never arrested or detained Mr\u00a0Astamirov on criminal or administrative charges and had not carried out a criminal investigation in his respect. No special operations had been carried out in respect of the applicants\u2019 relative.<\/span><\/p>\n 50.\u00a0\u00a0The Government also noted that the investigation had found no grounds to support the fourth applicant\u2019s allegations that she had been ill-treated during the arrest of her husband.<\/span><\/p>\n 51.\u00a0\u00a0As to the applicants\u2019 complaint about inability to access the case file, the Government noted that the victims had the right to access the materials of the investigation in full after the investigation had been completed. Since the investigation had still been ongoing, and at times had been suspended, the victims could not be granted access to the entire case file. Furthermore, the Government noted that in July 2005 the applicants and their representatives had been invited to access the available documents from the case file at the district prosecutor\u2019s office.<\/span><\/p>\n 52.\u00a0\u00a0The Government stated that the investigation into the abduction of Aslanbek Astamirov had been suspended and reopened a number of times. The latest decision to reopen the proceedings had been taken on 21 March 2008. The applicants had been duly informed of these developments. The investigation was under the control of the Prosecutor General\u2019s Office.<\/span><\/p>\n 53.\u00a0\u00a0Despite specific requests by the Court the Government did not submit a copy of the file in criminal case no.\u00a034001, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of the notifications to the applicants of the suspension and reopening of the proceedings. Relying on the information obtained from the Prosecutor General\u2019s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in breach of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.<\/span><\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/span><\/p>\n 54.\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\u2019S PRELIMINARY OBJECTION<\/span><\/p>\n A.\u00a0\u00a0Arguments of the parties<\/span><\/p>\n 55 The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They noted in this regard that the investigation into the abduction of the applicants\u2019 relative had not yet been completed. They submitted that the applicants had not made use of the rights accorded to them as victims in criminal proceedings, such as lodging applications and requests with the investigators or a court. They could have appealed to a court the investigators\u2019 decisions. The applicants were furthermore entitled to sue the investigation bodies in civil proceedings for pecuniary and non-pecuniary damage.<\/span><\/p>\n 56.\u00a0\u00a0The applicants disputed the Government\u2019s objection. They argued that the criminal investigation had proved to be ineffective and that their complaints to that effect had been futile. They also alleged the existence of an administrative practice of non-investigation of crimes committed by State servicemen in Chechnya and referred to the other cases concerning such crimes reviewed by the Court, as well as reports of various NGOs and international bodies.<\/span><\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n 57.\u00a0\u00a0In the present case, the Court took no decision about the exhaustion of domestic remedies at the admissibility stage, having found that this question was too closely linked to the merits. It will now proceed to examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia<\/span>, no. 60272\/00, \u00a7\u00a073-74, 12 October 2006).<\/span><\/p>\n 58.\u00a0\u00a0The 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 59.\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 (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 preliminary objection in this regard is thus dismissed.<\/span><\/p>\n 60.\u00a0\u00a0As regards criminal law remedies, the Court observes that the applicants complained to the law enforcement authorities after the detention of Aslanbek Astamirov and that an investigation has been pending since December 2002. The applicants and the Government dispute the effectiveness of this investigation.<\/span><\/p>\n 61.\u00a0\u00a0The Court considers that this limb of the Government\u2019s preliminary objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicants\u2019 complaints. Thus, it considers that these matters fall to be examined below under the substantive provisions of the Convention.<\/span><\/p>\n II.\u00a0\u00a0THE COURT\u2019S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS<\/span><\/p>\n A.\u00a0\u00a0The parties\u2019 arguments<\/span><\/p>\n 62.\u00a0\u00a0The applicants submitted that the representatives of the State should be held responsible for the unlawful detention and killing of Aslanbek Astamirov. They stated that since their relative had been missing for a very lengthy period, it could be presumed that he was dead. That presumption was further supported by the circumstances in which he had been arrested, which should be recognised as life-threatening. The applicants contended that their relative had been detained within the context of a security operation. In support of their complaint they referred to the facts that the men had spoken Russian without any accent, worn camouflage uniforms and were armed with automatic weapons. Moreover, the men had arrived late at night, which indicated that they were able to circulate freely during the curfew, despite the presence of roadblocks in the village. They also stated that the Government\u2019s failure to produce the documents from the case file or to provide a plausible explanation of the events had put the burden of proof on the Government, who should be obliged to prove that their agents were not responsible for the arbitrary detention and killing of Mr\u00a0Astamirov.<\/span><\/p>\n 63.\u00a0\u00a0In their observations submitted in April 2006 the Government submitted that on 5\u00a0August 2002 \u201cunidentified masked men in camouflage uniforms armed with machine guns\u201d had abducted Aslanbek Astamirov. They further contended that the investigation into the incident was still 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\u2019 rights. No information had been obtained by the investigation about special operations in Gekhi on that day. They also referred to some other criminal investigations where gangs in Chechnya had been equipped with camouflage uniforms, weapons and forged documents belonging to members of the security forces. Finally, in their submissions of May 2008 the Government questioned the credibility and accuracy of the applicants\u2019 statements submitted to the Court and to the investigation. They drew attention to the fact that the fourth applicant had submitted to the Court that the men who had entered their room had pushed her against the wall, while she did not give this information to the investigation. They also noted certain discrepancies in the description of the clothes Mr\u00a0Astamirov had been wearing upon detention in their witness statements given to the investigation. They also noted inconsistencies in the descriptions by the applicants and witnesses of the clothes and weapons of the intruders given to the Court and to the investigation. The Government concluded that the applicants\u2019 submissions were so confused and contradictory that they had probably been invented by them. In any event, they could not constitute a basis for making findings of State responsibility according to the standards developed by the Court. It could not be excluded that Aslanbek Astamirov had voluntarily left the village or escaped, especially in view of the relatives\u2019 failure to apply to the authorities immediately after his alleged arrest.<\/span><\/p>\n B.\u00a0\u00a0Article 38 \u00a7 1\u00a0(a) and consequent inferences drawn by the Court<\/span><\/p>\n 64.\u00a0\u00a0The Court has on many occasions reiterated that the Contracting States are required to furnish all necessary facilities to the Court and that a failure on a Government\u2019s part to submit information which is in their hands without a satisfactory explanation may reflect negatively on the level of compliance by a respondent State with its obligations under Article\u00a038\u00a0\u00a7\u00a01\u00a0(a) of the Convention (see Timurta\u015f<\/span><\/span> v. Turkey<\/span>, no. 23531\/94, \u00a7 66, ECHR 2000-VI).<\/span><\/p>\n 65.\u00a0\u00a0In the present case the applicants alleged that their relative had been illegally arrested by the authorities and then disappeared. They also alleged that no proper investigation had taken place. In view of these allegations, the Court asked the Government to produce documents from the criminal investigation file opened in relation to the kidnapping. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case.<\/span><\/p>\n 66.\u00a0\u00a0The Government refused to disclose almost all the documents of substance from the criminal investigation file, relying on Article 161 of the Code of Criminal Procedure. The Government also argued that the Court\u2019s procedure contained no guarantees of the confidentiality of documents, in the absence of sanctions for applicants in the event of a breach of confidentiality. They also argued that the applicants were represented by foreign nationals who could not be brought to account in Russia in the event of such a breach.<\/span><\/p>\n 67.\u00a0\u00a0The Court notes that the Government did not request the application of Rule 33\u00a0\u00a7\u00a02 of the Rules of Court, which permits a restriction on the principle of the public character of documents deposited with the Court for legitimate purposes, such as the protection of national security and the private life of the parties, as well as the interests of justice. The Court cannot speculate as to whether the information contained in the criminal investigation file in the present case was indeed of such a nature, since the Government did not request the application of this Rule and it is the obligation of the party requesting confidentiality to substantiate its request.<\/span><\/p>\n 68.\u00a0\u00a0The Court further notes that it has already found on a number of occasions that the provisions of Article 161 of the Code of Criminal Procedure do not preclude disclosure of documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure (see Mikheyev v.\u00a0Russia<\/span>, no.\u00a077617\/01, \u00a7\u00a0104, 26 January 2006, and Imakayeva v. Russia<\/span>, no.\u00a07615\/02, \u00a7\u00a0123, ECHR 2006-… (extracts)). For these reasons the Court considers the Government\u2019s explanation insufficient to justify the withholding of the key information requested by the Court.<\/span><\/p>\n 69.\u00a0\u00a0Referring to the importance of a respondent government\u2019s cooperation in Convention proceedings, the Court notes that there has been a breach of the obligations laid down in Article 38\u00a0\u00a7\u00a01\u00a0(a) of the Convention to furnish all necessary facilities to the Court in its task of establishing the facts.<\/span><\/p>\n C. The Court\u2019s evaluation of the facts<\/span><\/p>\n 70.\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. the United Kingdom<\/span><\/span>, cited above, pp. 64-65, \u00a7 161). In view of this and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government\u2019s conduct in respect of the well-foundedness of the applicants\u2019 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\u2019 relative can be presumed dead and whether his death can be attributed to the authorities.<\/span><\/p>\n 71.\u00a0\u00a0The applicants alleged that the persons who had taken Aslanbek Astamirov away on 5\u00a0August 2002 had been State agents.<\/span><\/p>\n 72.\u00a0\u00a0The Government seemed to suggest in their submission that the persons who had detained Aslanbek Astamirov could be members of paramilitary groups. They also alleged, alternatively, that he could have left his home on his own. However, these allegations were not specific and they did not submit any material to support them. 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 \u00c7elikbilek v. Turkey<\/span>, no.\u00a027693\/95, \u00a7\u00a071, 31\u00a0May 2005).<\/span><\/p>\n 73.\u00a0\u00a0The Court notes that, on the contrary, the applicants\u2019 version of the events is supported by their statements and by the information collected by the investigation. The applicants and the neighbours stated that the perpetrators had acted in a manner similar to that of a security operation \u2013 they had checked the residents\u2019 passports and they had spoken Russian among themselves and to the applicants. Some witnesses also referred to the use of military vehicles such as APCs, which would not have been available to paramilitary groups (see paragraph 16 above). In their applications to the authorities the applicants consistently maintained that their relative had been detained by unknown servicemen and requested the investigation to look into that possibility.<\/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> Dean Spielmann,
\n<\/span> Sverre Erik Jebens, judges,<\/span><\/span>
\nand S\u00f8ren Nielsen, Section Registrar<\/span><\/span>,<\/span><\/p>\n