The ECHR case of Dokuyev and Others v. Russia (application no. 6704\/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 DOKUYEV AND OTHERS v. RUSSIA<\/span><\/span><\/p>\n (Application no. 6704\/03)<\/span><\/span><\/p>\n JUDGMENT<\/span><\/p>\n STRASBOURG<\/span><\/p>\n 2 April 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 Dokuyev 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 12 March 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. 6704\/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 14 February 2003.<\/span><\/p>\n 2.\u00a0\u00a0The applicants, who had been granted legal aid, 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<\/span> and<\/span> Ms\u00a0V. Milinchuk<\/span><\/span>, 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 14 February 2001. They complained under Articles 2, 3, 5, 6, 8, 13 and 34.<\/span><\/p>\n 4.\u00a0\u00a0By a decision of 29 November 2007, the Court declared the application admissible.<\/span><\/p>\n 5.\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’s observations.<\/span><\/p>\n THE FACTS<\/span><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/span><\/p>\n 6.\u00a0\u00a0The applicants are:<\/span><\/p>\n 1) Mr Vakhit Abdurashidovich Dokuyev, born in 1947;<\/span><\/p>\n 2) Mrs Zina Abdulayevna Dokuyeva, born in 1952;<\/span><\/p>\n 3) Mrs Imani Ramzanovna Makayeva, born in 1983;<\/span><\/p>\n 4) Mrs Rukiyat Vakhitovna Dokuyeva, born in 1972;<\/span><\/p>\n 5) Mrs Makka Vakhitovna Dokuyeva, born in 1983;<\/span><\/p>\n 6) Mr Khavazh Abdurashidovich Dokuyev, born in 1951;<\/span><\/p>\n 7) Mrs Kheda Khavazhovna Dokuyeva, born in 1978.<\/span><\/p>\n They live in the village of Novye Atagi, the Chechen Republic<\/span><\/p>\n 7.\u00a0\u00a0The first and second applicants are the parents of Mr Magomed Dokuyev, born in 1977. The third applicant is the wife of Mr Magomed Dokuyev, with whom she had a son born in 2000. The fourth and the fifth applicants are sisters of Mr Magomed Dokuyev, and the sixth and the seventh applicants are his uncle and cousin.<\/span><\/p>\n 8.\u00a0\u00a0The Dokuyev family live in the village of Novye Atagi at 4\u00a0Podgornaya Street in a household composed of two houses and a common courtyard. The first five applicants and Mr Magomed Dokuyev lived in one house. The other house belongs to the sixth applicant and his family.<\/span><\/p>\n 9.\u00a0\u00a0Mr Magomed Dokuyev finished school in 1994 and studied to become a translator from English and Arabic. His higher education was interrupted by the first and the second periods of hostilities in Chechnya. He never had a full-time job.<\/span><\/p>\n A.\u00a0\u00a0Arrest and detention of Mr Magomed Dokuyev and Mr Vakhit Dokuyev<\/span><\/p>\n 1.\u00a0\u00a0The applicants’ account<\/span><\/p>\n 10.\u00a0\u00a0On 14 February 2001 at about 6 a.m. two armoured personnel carriers (APCs) and a Ural truck with obscured number plates drove up to the Dokuyevs’ family home. Mr Magomed Dokuyev, his father, wife and two sisters (the first, third, fourth and fifth applicants) were at home at the time. The second applicant, Mr Magomed Dokuyev’s mother, was away that day. A large group of more than twenty uniformed armed soldiers, most of whom were wearing masks, broke into the house. They asked the first applicant for his passport. They also asked Mr Magomed Dokuyev to confirm his identity. However, they did not ask for his documents. The soldiers then allowed the first applicant to dress, whereas his son had to remain barefoot. Both men were taken into the courtyard of the house, while the women and children were ordered to stay inside the house. In the courtyard the soldiers started to kick and beat Mr Magomed Dokuyev with their rifle butts. When the first applicant tried to intervene, the soldiers beat him too and ordered him to stand against the wall.<\/span><\/p>\n 11.\u00a0\u00a0The sixth and the seventh applicants were in their house at that time and witnessed the detention of Mr Magomed Dokuyev and Mr Vakhit Dokuyev. The sixth applicant, woken by the noise, went out into the courtyard and was forced by the soldiers to lie face down while his brother and nephew were taken away.<\/span><\/p>\n 12.\u00a0\u00a0The first applicant and his son were subsequently taken to an APC parked at the back of the house. The first applicant heard the sound of a second APC driving behind them and guessed that they were being taken in the direction of the Grozny-Shali road. While in the APC the detainees were not allowed to talk or look around. About one hour later the vehicles stopped and the men were taken outside. They were handcuffed and blindfolded, but the first applicant managed to catch a glimpse of military tents around. Later he heard helicopters landing and taking off and the sounds of morning exercise, which convinced him that he was in a large military base, probably in Khankala.<\/span><\/p>\n 13.\u00a0\u00a0The first applicant was thrown on the ground inside a tent, and he could hear his son and another man screaming in a tent near by. He understood that they were being beaten and tortured. While he was lying on the floor, the soldiers who came into the tent kicked him several times, calling him a \u201cWahhabi\u201d and a \u201cbandit\u201d. The first applicant said that he was just a construction worker. A while later the soldiers permitted the first applicant to move into a less uncomfortable position and handcuffed his hands in front of him. They told him that he would be permitted to exchange last words with his son, who was a \u201cbandit\u201d and would be shot. The two men were allowed to speak briefly in Russian, in the presence of the soldiers, who threatened to shoot them both if they spoke in Chechen. The first applicant remained blindfolded during the meeting and could only hear his son’s voice; he said he had done nothing wrong and said farewell. Then Mr\u00a0Magomed Dokuyev was taken away. At about 1 a.m. a soldier told the first applicant that he was innocent and would be released. Later his hands were untied, but his feet remained bound.<\/span><\/p>\n 14.\u00a0\u00a0On 15 February 2001 at about 9 a.m. the first applicant, blindfolded, was taken inside an APC and driven somewhere shortly. Then he was transferred into another vehicle, probably a UAZ, in which were two other persons. The applicant was forced under the seat. After approximately one hour’s driving, during which they stopped twice at checkpoints and his captors said that there were \u201conly Russians inside\u201d, the vehicle stopped and the men took the first applicant outside and helped him to climb into a building through a broken window. They then told him not to move for ten minutes and the car left.<\/span><\/p>\n 15.\u00a0\u00a0When the first applicant removed his blindfold he realised he was in an old brewery building between Shali and Novye Atagi. He climbed out of the building, hitched a lift and returned home the same day. There he found out that he and his son were the only two men detained in the village on that day and that his son had not returned home. The family has had no news from Mr Magomed Dokuyev since that date.<\/span><\/p>\n 2.\u00a0\u00a0The Government’s account<\/span><\/p>\n 16.\u00a0\u00a0The Government submitted that the Prosecutor General’s Office had established that on 14 February 2001 at approximately 6 a.m. unidentified armed persons wearing camouflage and masks and accompanied by armoured vehicles had taken the first applicant and his son, Mr Magomed Dokuyev, from their house at 4 Podgornaya Street to an unknown destination. On the next day the first applicant had been released. Mr\u00a0Magomed Dokuyev’s whereabouts had not been established.<\/span><\/p>\n B.\u00a0\u00a0Search for Mr Magomed Dokuyev and the investigation<\/span><\/p>\n 1.\u00a0\u00a0Applications to State authorities<\/span><\/p>\n 17.\u00a0\u00a0According to the applicants, on 16 February 2001 the first applicant and other family members started looking for Mr Magomed Dokuyev. They applied to various official bodies both in person and in writing, trying to find out the whereabouts and the fate of Mr Magomed Dokuyev. The applicants kept copies of some of these complaints and submitted them to the Court. In particular, they applied in writing to the Prosecutor’s Office of the Chechen Republic on 5 and 7 July and 24\u00a0December 2001, to the military prosecutor of military unit no. 20116 on 7 July 2001, to the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms on 7 July and 5 September 2001 and to the Shali District Prosecutor’s Office on 13 April 2002.<\/span><\/p>\n 18.\u00a0\u00a0On 16 February 2001 the first applicant travelled to Gudermes and handed over a complaint about his son’s detention, addressed to the head of the Chechen Administration, Mr Akhmad Kadyrov. Among other authorities the applicants applied to immediately following Mr Magomed Dokuyev’s detention were the departments of the Interior, military commanders, the Federal Security Service (FSB), civil and military prosecutors of various levels and administrative authorities.<\/span><\/p>\n 19.\u00a0\u00a0The applicants received hardly any substantive information about the fate of their close relative and about the investigation. On several occasions they were sent copies of letters by means of which their requests had been forwarded to the different prosecutors’ services. In particular, on 28\u00a0May\u00a02001 the Prosecutor’s Office of the Chechen Republic forwarded the first applicant’s complaint to the Shali District Prosecutor’s Office. On 5\u00a0August 2001 the first applicant’s letter of complaint was forwarded to the military prosecutor of military unit no. 20116. On 23 August 2001 the Prosecutor General’s Office forwarded the first applicant’s letter concerning his son’s detention to the Prosecutor’s Office of the Chechen Republic. On 31 August 2001 the Prosecutor’s Office of the Chechen Republic forwarded it to the Shali District Prosecutor’s Office. On 4 February and 20 May 2002 the Directorate of the Prosecutor General’s Office for the Southern Federal Circuit forwarded the first applicant’s complaint to the Shali District Prosecutor’s Office.<\/span><\/p>\n 20.\u00a0\u00a0In early April 2001 the applicants were contacted by a person who said that a young man had been detained together with Mr Magomed Dokuyev. The first and the second applicants met this young man. He presented himself as Kh., but they did not know his last name. He was able to give them Mr Magomed Dokuyev’s handkerchief and a cord from his leather jacket and said that they had been detained together for several weeks, first at the military base in Khankala and then in the vicinity of Novogrozny in the mountains. The man told him that they had been detained in awful conditions in a deep and narrow pit in the ground, regularly beaten and tortured with electric shocks and had been given hardly any food. When they were brought to the district of Novogrozny, they were told that they would be exchanged for a Russian officer captured by the fighters. Then the soldiers told them that they were in too bad a shape for exchange and gave them some medicine, allegedly to restore their strength. After taking the pills or liquid both became very sick, started vomiting and lost consciousness. When the young man regained consciousness, he found Mr\u00a0Magomed Dokuyev without signs of life. He called the soldiers, and after a while they took his body away. The young man heard an APC going away and returning and heard the soldiers talking about burying Mr\u00a0Dokuyev. He also heard them talking about finishing the mission and going back to Stavropol. The applicants were convinced of the truth of his statements because he was aware of their names and address, while they did not know him and supposed that these had been given to him by their son.<\/span><\/p>\n 21.\u00a0\u00a0The first applicant identified a military base in Novogrozny which had at some point been manned by servicemen from Stavropol. However, he did not manage to find out anything else about his son’s fate or his alleged place of burial.<\/span><\/p>\n 22.\u00a0\u00a0On 22 October 2001 an investigator of the Shali District Prosecutor’s Office informed the first and the second applicants that following their complaints criminal investigation file no. 23177 had been opened by that office on 12 August 2001 under Article 126 part 2 of the Criminal Code (kidnapping). He also stated that they would be informed of the results of the investigation.<\/span><\/p>\n 23.\u00a0\u00a0On 10 December 2001 the first applicant sent the Duma Deputy for the Chechen Republic a detailed letter containing information about his son’s arrest, disappearance and alleged death in custody. The letter stated that the area where Mr Magomed Dokuyev had allegedly been buried remained under military control and access there was limited, and requested help to find his remains and take them away for a proper burial. On 15\u00a0February\u00a02002 this letter was forwarded to the Prosecutor General’s Office and on 14 June 2002 to the Prosecutor’s Office of the Chechen Republic.<\/span><\/p>\n 24.\u00a0\u00a0On 31 December 2001 the military prosecutor of military unit no.\u00a020116 forwarded the first applicant’s letter to the Shali District Prosecutor’s Office and stated that the military prosecutor’s office had no competence in the matter, since the involvement of servicemen was only alleged by the applicants, but not supported by any material evidence.<\/span><\/p>\n 25.\u00a0\u00a0On 26 March 2002 the Directorate of the Prosecutor General’s Office for the Southern Federal Circuit replied to the first applicant that on 12\u00a0August\u00a02001 the Shali District Prosecutor’s Office had opened a criminal investigation file under Article 126 part 2 of the Criminal Code. On 12\u00a0October 2001 the investigation was suspended due to failure to identify the culprits. The letter concluded by stating that actions aimed at establishing the whereabouts of the missing person and finding the culprits were continuing.<\/span><\/p>\n 26.\u00a0\u00a0On 26 February 2003 the Shali Town Court declared Mr Magomed Dokuyev a missing person.<\/span><\/p>\n 27.\u00a0\u00a0Mr Magomed Dokuyev’s arrest and ensuing disappearance were reported by Human Rights Watch in their report ‘Last Seen: Continuing Disappearances in Chechnya’ in April 2002 and by the Memorial Human Rights Centre in their report ‘Counter-Terrorist Operation’ in October 2002.<\/span><\/p>\n 2.\u00a0\u00a0Progress of the investigation<\/span><\/p>\n 28.\u00a0\u00a0The Government submitted the following information on the progress of the investigation.<\/span><\/p>\n 29.\u00a0\u00a0On 12 August 2001 the Shali District Prosecutor’s Office instituted criminal investigation no. 23177 into the kidnapping of Mr Magomed Dokuyev on 14 February 2001.<\/span><\/p>\n 30.\u00a0\u00a0On 20 August 2001 the first applicant was questioned and granted victim status in the proceedings.<\/span><\/p>\n 31.\u00a0\u00a0On 6 September 2001 the sixth applicant was questioned.<\/span><\/p>\n 32.\u00a0\u00a0On 12 October 2001 the investigation was suspended on the ground of failure to identify persons to be charged with the offence.<\/span><\/p>\n 33.\u00a0\u00a0On 24 April 2002 the Prosecutor’s Office of the Chechen Republic quashed the decision to suspend the investigation. The first applicant was notified accordingly.<\/span><\/p>\n 34.\u00a0\u00a0On 24 May 2002 the investigation was again suspended on the ground of the failure to identify persons to be charged with the offence. The first applicant was notified accordingly.<\/span><\/p>\n 35.\u00a0\u00a0On 5 November 2002 the Prosecutor’s Office of the Chechen Republic quashed the decision to suspend the investigation.<\/span><\/p>\n 36.\u00a0\u00a0On 17 November 2002 the first applicant was notified of the resumption of the investigation.<\/span><\/p>\n 37.\u00a0\u00a0On 16 December 2002 the investigation was once more suspended on the ground of failure to identify persons to be charged with the offence. The first applicant was notified accordingly.<\/span><\/p>\n 38.\u00a0\u00a0On 20 January 2004 the Prosecutor’s Office of the Chechen Republic quashed the decision to suspend the investigation.<\/span><\/p>\n 39.\u00a0\u00a0On 3 February 2004 the first applicant was notified of the resumption of the investigation.<\/span><\/p>\n 40.\u00a0\u00a0On 18 February 2004 the first applicant was again questioned.<\/span><\/p>\n 41.\u00a0\u00a0On 19 February 2004 the sixth applicant was again questioned.<\/span><\/p>\n 42.\u00a0\u00a0On 20 February 2004 the fourth applicant was questioned<\/span><\/p>\n 43.\u00a0\u00a0On 3 March 2004 the investigation was suspended again on the ground of failure to identify persons to be charged with the offence. The first applicant was notified accordingly.<\/span><\/p>\n 44.\u00a0\u00a0On 21 October 2005 the Prosecutor’s Office of the Chechen Republic quashed the decision to suspend the investigation. On the same date the first applicant was notified of the resumption of the investigation and questioned. The second applicant was granted victim status in the proceedings and questioned. Also questioned were I. D., Z. Kh. and K.\u00a0Kh., apparently the applicants’ neighbours.<\/span><\/p>\n 45.\u00a0\u00a0On 25 October 2005 the first applicant was again questioned. According to the transcript of the interview, he stated, inter alia<\/span>, that he had not applied to the Court (see paragraph 51 below).<\/span><\/p>\n 46.\u00a0\u00a0On 26 October 2005 the fifth applicant was questioned. According to the transcript of the interview, she confirmed the account given earlier of the events of 14 February 2001 and also stated that she had not applied to the Court (see paragraph 53 below). The first applicant was also questioned on this date.<\/span><\/p>\n 47.\u00a0\u00a0On 21 November 2005 the investigation was again suspended on account of the failure to identify persons to be charged with the offence. The first applicant was notified accordingly on the same date.<\/span><\/p>\n 48.\u00a0\u00a0On 16 January 2006 the Shali District Prosecutor’s Office quashed the decision to suspend the investigation.<\/span><\/p>\n 49.\u00a0\u00a0On 22 January 2008 the first applicant was again questioned. He confirmed his earlier statements.<\/span><\/p>\n 50.\u00a0\u00a0The investigation failed to establish the whereabouts of Mr\u00a0Magomed Dokuyev. The investigating authorities sent requests for information to competent State agencies on 30 August 2001, 17\u00a0November\u00a02002, 18\u00a0February 2004 and 25 October 2005. However, it was not established that servicemen had been involved in the offence. In particular, following the resumption of the investigation on 16 January 2006 the United Group Alignment (UGA) and the Temporary United Alignment of Agencies and Units of the Ministry of the Interior [\u0412\u041e\u0413\u041e \u0438 \u041f \u041c\u0412\u0414 \u2013 \u0432\u0440\u0435\u043c\u0435\u043d\u043d\u0430\u044f \u043e\u0431\u044a\u0435\u0434\u0438\u043d\u0435\u043d\u043d\u0430\u044f \u0433\u0440\u0443\u043f\u043f\u0438\u0440\u043e\u0432\u043a\u0430 \u043e\u0440\u0433\u0430\u043d\u043e\u0432 \u0438 \u043f\u043e\u0434\u0440\u0430\u0437\u0434\u0435\u043b\u0435\u043d\u0438\u0439 \u041c\u0412\u0414<\/span>] informed the investigation that they had not conducted any special operations in Novye Atagi on 14 February 2001. Mr\u00a0Magomed Dokuyev had not been held in either criminal detention or administrative detention facilities. According to information from the Ministry of the Interior and the FSB, they had not detained the first applicant or Mr\u00a0Magomed Dokuyev. Heads of three remand prisons in Dagestan, Kabardino-Balkaria and the Stavropol Region also submitted that the latter had not been held in those facilities. The investigation was under way.<\/span><\/p>\n C.\u00a0\u00a0Alleged interference with the right of individual petition<\/span><\/p>\n 51.\u00a0\u00a0The transcript of the first applicant’s questioning on 25\u00a0October\u00a02005 read, in so far as relevant:<\/span><\/p>\n \u201c…Neither [I] personally nor members of my family have applied to the European Court of Human Rights. In 2001 and 2002 I applied to human rights organisations of our Republic, in particular, to the Memorial and the organisation on human rights in the Chechen Republic. …I would like to clarify that [the third and fifth applicant] did not apply to the European Court either.\u201d<\/span><\/p>\n 52.\u00a0\u00a0The transcript was signed by the first applicant and contained a record made by him to the effect that he had read the transcript and confirmed that it was accurate. According to the first applicant, the transcript was neither read by him nor read out to him by the investigator. However, he signed it because he trusted the investigator who was \u201ca relative of his neighbours\u201d.<\/span><\/p>\n 53.\u00a0\u00a0The transcript of the fifth applicant’s questioning on 26\u00a0October\u00a02005 read, in so far as relevant:<\/span><\/p>\n \u201cI personally did not apply to [any authorities] in respect of my brother’s detention… including the European Court of Human Rights. The search for my brother was conducted by my father. I do not know whether he applied to any organisations in this connection.\u201d<\/span><\/p>\n 54.\u00a0\u00a0The transcript was signed by the fifth applicant and contained a record made by her to the effect that she had read the transcript and confirmed that it was accurate.<\/span><\/p>\n 55.\u00a0\u00a0The transcripts of the questioning were submitted by the Government together with their observations following the communication of the application by the Court. In their observations the Government requested to strike the application out of its list of cases on the ground that it was a \u201ccounterfeit\u201d. In their observations in reply the applicants confirmed their counsel’s power of authority to represent them in the proceedings before the Court as well as their wish to pursue the proceedings. In the decision as to admissibility of 29 November 2007 the Court dismissed the Government’s request.<\/span><\/p>\n 56.\u00a0\u00a0On 7 February 2006 the first applicant complained to the Prosecutor General’s Office concerning investigator K., who questioned him in October 2005. He claimed that he had never stated that he had not applied to the Court and that the investigator had forged the transcript of the questioning. He stated, in particular, that he had not even been questioned as to whether he had applied to the Court and therefore could not have replied in the negative. The first applicant maintained that as he had been questioned in the presence of his wife, the second applicant, she could confirm his statement.<\/span><\/p>\n 57.\u00a0\u00a0On 10 March 2006 the first applicant was notified that his complaint had been transmitted to the Prosecutor’s Office of the Chechen Republic.<\/span><\/p>\n 58.\u00a0\u00a0On 12 April 2006 the Prosecutor’s Office of the Chechen Republic replied to the first applicant. The reply read, in so far as relevant:<\/span><\/p>\n \u201cOn 21 and 26 October 2005 you were questioned as a witness by an investigator of the Shali District Prosecutor’s Office concerning [the abduction of Mr Magomed Dokuyev]. As it follows from the transcripts of the questioning, no questions concerning your application to the European Court of Human Rights were put to you and, likewise, no clarifications were made by you in this respect. It is indicated in [both] transcripts that your statements [as set out in the transcripts] were read out to you by the investigator, after which they were signed by you. The transcripts met the requirements of the Code on Criminal Procedure.\u201d<\/span><\/p>\n D.\u00a0\u00a0Request for information<\/span><\/p>\n 59.\u00a0\u00a0Despite a specific request by the Court the Government did not submit a copy of the file in criminal case no.\u00a023177, having provided only copies of decisions to suspend and resume the investigation and to grant victim status, and of the transcripts of the interviews with the first and fifth applicants. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.<\/span><\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/span><\/p>\n 60.\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 PRELIMINARY OBJECTION<\/span><\/p>\n A.\u00a0\u00a0Arguments of the parties<\/span><\/p>\n 61.\u00a0\u00a0The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies, since the investigation into the abduction of Mr Magomed Dokuyev had not yet been completed. They also argued that it had been open to the applicants to challenge in court any actions or omissions by the investigating or other law-enforcement authorities during the investigation as well as to apply to the courts to have Mr Magomed Dokuyev declared a missing person; however, they had not availed themselves of any such remedy.<\/span><\/p>\n 62.\u00a0\u00a0The applicants disputed that objection. In their view, the fact that the investigation had been pending for seven years with no tangible results proved that it was an ineffective remedy in this case. They further argued that in the Chechen Republic a court appeal against a decision of an investigator would be futile and the remedy referred to was illusory and ineffective.<\/span><\/p>\n B.\u00a0\u00a0The Court’s assessment<\/span><\/p>\n 63.\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 64.\u00a0\u00a0The Court reiterates that Article 35 \u00a7 1 of the Convention provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France<\/span> [GC], no. 25803\/94, \u00a7 76, ECHR 1999-V, and Mifsud v. France<\/span> (dec.), no. 57220\/00, \u00a7\u00a015, ECHR 2002-VIII).<\/span><\/p>\n 65.\u00a0\u00a0As regards the Government’s argument that the applicants failed to apply to the courts to have Mr Magomed Dokuyev declared a missing person, the Court notes that they provided no information as to how such proceedings could have provided the applicants with the adequate redress. Accordingly, the Court finds that the Government did not substantiate that the remedy the applicants had allegedly failed to make use of was an effective one (see, among other authorities, Kranz v. Poland<\/span>, no.\u00a06214\/02, \u00a7\u00a023, 17\u00a0February 2004, and Skawinska v. Poland<\/span> (dec.), no.\u00a042096\/98, 4\u00a0March\u00a02003). It therefore dismisses the Government’s preliminary objection in this part.<\/span><\/p>\n 66.\u00a0\u00a0The Court further observes that an investigation into the disappearance of Mr Magomed Dokuyev had been pending since 12\u00a0August\u00a02001. The applicants and the Government dispute the effectiveness of this investigation.<\/span><\/p>\n 67.\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 68.\u00a0\u00a0The applicants complained under Article 2 of the Convention that their family member had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 reads:<\/span><\/p>\n
\n<\/span><\/p>\n
<\/span><\/p>\n
\n<\/span> Nina Vaji\u0107,
\n<\/span> Anatoly Kovler,
\n<\/span> Khanlar Hajiyev,
\n<\/span> Dean Spielmann,
\n<\/span> Giorgio Malinverni,
\n<\/span> George Nicolaou, judges,<\/span><\/span>
\nand S\u00f8ren Nielsen, Section Registrar<\/span><\/span>,<\/span><\/p>\n