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

; allegation is supported by the witness statements collected by the applicants and by the investigation. In particular, the Court notes that a number of witnesses pointed out that Aslan and Mokhmad Mudayev had not been released from detention in the FSB office unlike the other men who had been apprehended as a result of the special operation (see paragraphs 20, 21, 52 and 60 above). It further observes that the Government's allegation that the applicants' relatives were released after questioning was not substantiated by any documents. In their application to the authorities the applicants consistently maintained that Aslan and Mokhmad Mudayev had been arrested by servicemen under the command of officer M.Kh. and subsequently detained in the FSB office and requested the investigation to examine that possibility (see paragraphs 31, 41, 45, 49 and 53 above). The domestic investigation also accepted factual assumptions as presented by the applicants and questioned officer M.Kh. However, it does not appear that any serious steps were taken to verify his statement concerning the release of the applicants' relatives.
89. The Court observes that where applicants make out a prima facie case and the Court is prevented from reaching factual conclusions owing to a lack of relevant documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see {Togcu} v. Turkey, No. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, No. 21894/93, § 211, ECHR 2005-II).
90. Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relatives were apprehended by State servicemen. The Court observes that the Government submitted no evidence, such as records of detention and release, to corroborate their contention that the applicants' relatives had been set free. As to the Government's contention that the records were destroyed as a result of the fire (see paragraph 26 above), they failed to submit any evidence confirming that the impugned documents had been indeed destroyed as a result of it. No documents in the case file indeed refer to the destruction of the documents as a result of the incident. The Court is struck by the fact that the source of this assertion is none other than the officer most closely implicated in the detention of the Mudayev brothers. In such circumstances and taking into account the absence of any evidence to the contrary, the Court finds that Aslan and Mokhmad Mudayev remained under the control of the authorities after being apprehended during the special operation.
91. The Court further notes that no documents relating to the applicants' relatives' apprehension and subsequent detention have been made available to it. There has been no reliable news of the Aslan and Mokhmad Mudayev since the date of the kidnapping. Their names have not been found in any official detention facility records. Finally, the Government have not submitted any explanation as to what happened to them after their arrest.
92. Having regard to the previous cases concerning disappearances in Chechnya which have come before it (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, No. 69480/01, ECHR 2006-... (extracts); Baysayeva v. Russia, No. 74237/01, 5 April 2007; Akhmadova and Sadulayeva, cited above; and Alikhadzhiyeva v. Russia, No. 68007/01, 5 July 2007), the Court finds that in the context of the conflict in the Republic, when a person is detained by servicemen without any subsequent acknowledgment of the detention, this can be regarde

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