Постановление Европейского суда по правам человека от 23.07.2009 «Дело Муцаева (Mutsayeva) против России» [англ.]

not submit them to the Court.

B. The Court's evaluation of the facts

80. The Court observes that in its extensive jurisprudence 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, No. 69481/01, §§ 103 - 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, § 161, Series A No. 25).
81. The Court notes that despite its requests for a copy of the investigation file into the abduction of Khizir Tepsurkayev, the Government did not produce any of the documents from the case file. The Government referred to Article 161 of the Criminal Procedure Code. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, No. 7615/02, § 123, ECHR 2006-... (extracts)).
82. In view of this and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government's conduct in respect of the well-foundedness of the applicant's allegations. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the applicant's son can be presumed dead and whether his death can be attributed to the authorities.
83. The applicant alleged that the persons who had taken Khizir Tepsurkayev away on 27 August 2001 and then killed him were State agents. The Government did not dispute the main factual elements underlying the application and did not provide any other explanation of the events.
84. The Court notes that little evidence has been submitted by the applicant, which is rather comprehensible in the light of the investigators' reluctance to provide the parents of the missing man with copies of important investigation documents. Nevertheless, the Court notes that the applicant's allegation is supported by the witness statements collected by her and by the investigation. It finds that the fact that a large group of armed men in uniform in broad daylight, equipped with military vehicles, proceeded to check identity documents and opened fire strongly supports the applicant's allegation that these were State servicemen conducting a security operation. In her applications to the authorities the applicant consistently maintained that Khizir Tepsurkayev had been detained by unknown servicemen and requested the investigation to look into that possibility (see paragraphs 21, 22, 27, 41, 43, 48 and 49 above). The domestic investigation also accepted factual assumptions as presented by the applicant and took steps to check whether law enforcement agencies were involved in the kidnapping (see paragraph 33 above).
85. The Government questioned the credibility of the applicant's statements, in view of certain discrepancies relating to the exact circumstances of the arrests and the description of the hours immediately following the detention. The Court notes in this respect that no other elements underlying the applicant's submissions of facts have been disputed by the Government. The Government did not provide the Court with the witness statements to which they referred in their submissions. In the Court's view, the fact that over a period of several years the witnesses' recollection of the circumstances of the abduction differed in rather insignificant details does not in itself suffice to cast doubt on the overall veracity of their statements.
86. The Court observes that where an applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing



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