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Постановление Европейского суда по правам человека от 08.04.2010 «Дело Умалатов и другие (Umalatov and others) против России» [англ.]





confirmed that Shamad Durdiyev and Usman Umalatov had been detained at the local FSB department on that day and that all other detainees had been released and returned home.
47. Despite specific requests by the Court, the Government did not disclose most of the contents of criminal case files Nos. 65048 and 65049. The Government stated 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 files contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.

II. Relevant domestic law

48. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (No. 40464/02, §§ 67 - 69, 10 May 2007) and Akhmadova and Others v. Russia (No. 3026/03, §§ 104 - 113, 4 December 2008).

THE LAW

I. The Government's objection regarding non-exhaustion
of domestic remedies

49. The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that it had been open to the applicants to pursue civil complaints but that they had failed to do so.
50. The applicants contested that objection. They stated that the criminal investigation had proved to be ineffective. With reference to the Court's practice, they argued that they were not obliged to apply to civil courts in order to exhaust domestic remedies.
51. The Court notes that 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 - 121, 24 February 2005, and Estamirov and Others v. Russia, No. 60272/00, § 77, 12 October 2006). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. The Government's objection in this regard is thus dismissed.

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

A. The parties' arguments

52. The applicants maintained that State agents were responsible for the disappearance and death of Usman Umalatov and Shamad Durdiyev. They pointed out that the two men had been detained in the course of a security operation, that they were last seen alive in the hands of State agents and that the Government had failed to discharge its burden of proof by submitting any explanation as to what had happened to them afterwards. The applicants also asked the Court to draw inferences from the Government's failure to present more than a few relevant documents from the investigation files, either to them or to the Court. Since their relatives had been missing for a very lengthy period, they could be presumed dead.
53. The Government submitted that, even though Usman Umalatov and Shamad Durdiyev had been briefly detained on 15 October 2002, they were released on the same day. The documents contained in the criminal investigation files, including witness statements by the officials and copies of the forms signed by the two men on their release, attested to that. They further contended that the investigation of the disappearances was ongoing and that there was no convincing evidence that the applicants' relatives were dead. The Government also noted that the applicants had been inconsistent in their descriptions of the exact dates and conversations they had had with various officials in the days following the disappearance of their relatives. The Government referred to



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