Постановление Европейского суда по правам человека от 08.04.2010 «Дело Мудаевы (Mudayevy) против России» [англ.]

liged to claim damages through civil proceedings in order to exhaust domestic remedies.

B. The Court's assessment

76. The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, No. 60272/00, §§ 73 - 74, 12 October 2006).
77. The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely, civil and criminal remedies.
78. As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, Nos. 57942/00 and 57945/00, §§ 119 - 21, 24 February 2005, and Estamirov and Others, cited above, § 77). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies.
79. As regards criminal law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law enforcement authorities about the kidnapping of Aslan and Mokhmad Mudayev and that an investigation has been ongoing since 29 September 2003. The applicants and the Government dispute the effectiveness of the investigation of the kidnapping.
80. The Court considers that the Government's objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants' complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below.

II. The Court's assessment of the evidence
and the establishment of the facts

A. The parties' arguments

81. The applicants maintained that it was beyond reasonable doubt that the men who had taken away Aslan and Mokhmad Mudayev had been State agents. In support of their complaint they referred to the following facts. The Government had confirmed to the Court that the local law-enforcement authorities had conducted a special operation on 29 January 2003, as a result of which Aslan and Mokhmad Mudayev had been taken to the Nadterechniy district department of the FSB along with other residents of Raduzhnoye. However, the applicants' relatives had not been released on the following day, unlike the other detainees, and had never returned home. The Government's allegations that the two brothers had been released shortly after their apprehension were completely unsubstantiated and refuted by witness statements collected by the applicants and the official investigation. All the information disclosed by the Government about the criminal investigation supported the applicants' assertion as to the involvement of State agents in the abduction of their relatives. Since Aslan and Mokhmad Mudayev had been missing for a very lengthy period, they could be presumed dead. That presumption was further supported by the circumstances in which they had been arrested, which should be recognised as life-threatening.
82. The Government submitted that on 29 January 2003 the Nadterechniy district department of the FSB, under the command of its head officer M.Kh., had conducted a special operation to identify the perpetrators of the abduction of two prosecution officials which had taken place prior to the events in question. As a result of the operation, Aslan and Mokhmad Mudayev had been taken to the Nadterechniy district department of the FSB for questioning. Their non-participation in the abduction of the officials had been established an



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