Постановление Европейского суда по правам человека от 18.06.2009 «Дело Магомадова (Magomadova) против России» [англ.]

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

A. The parties' arguments

116. The applicant maintained that it was beyond reasonable doubt that the men who had taken away Ibragim Uruskhanov were State agents, this being confirmed by witness statements. In support of her complaint she referred to the following facts. At the material time the town was under full control of Russian federal forces. Checkpoints manned by military servicemen were located on the roads leading to and from the settlement. The area was under curfew. Ibragim Uruskhanov's abduction was carried out by a large group of armed men in camouflage uniform, which was similar to the one used by Russian military. The men spoke unaccented Russian, had Slavic appearance, were armed with machine guns and moved freely around Urus-Martan at night, during the curfew. On the night of the abduction an APC and a URAL military vehicle had been seen in Obyezdnaya Street, not far from the applicant's house, and after the abduction of the applicant's son these vehicles drove in the direction of the Russian military checkpoint. On 1 April 2008 the local court declared Ibragim Uruskhanov as a deceased person.
117. The Government submitted that the investigation of the incident was pending, that there was no evidence that the men had been State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicant's rights. They further argued that the Slavic appearance of the perpetrators and their unaccented Russian, along with camouflage uniform did not mean that they belonged to the Russian military. The Government further contended that the witnesses had been unable to recognise insignia on the perpetrators' uniform; that the military APC and the URAL vehicle had had nothing to do with the abduction of Ibragim Uruskhanov and none of the witnesses had seen the perpetrators putting the applicant's son into the vehicles. Finally, the Government contended that the decision of the domestic court recognising Ibragim Uruskhanov as a deceased person was irrelevant to establishment of the death of the applicant's son and that there was no proof that the human remains discovered near the village of Goyty in April 2002 belonged to the applicant's son.

B. The Court's evaluation

118. The Court observes that in its extensive jurisprudence it has developed a number of general principles relating to the establishment of matters 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, 18 January 1978, § 161, Series A No. 25).
119. The Court notes that despite its requests for a copy of the investigation file into the abduction of Ibragim Uruskhanov, the Government produced only a part of the documents from the 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)).
120. 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

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