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

the authorities.
121. The applicant alleged that the persons who had taken Ibragim Uruskhanov away on 12 April 2002 and then killed had been State agents.
122. The Government suggested in their submission that the persons who had detained Ibragim Uruskhanov could be members of paramilitary groups who were able to speak unaccented Russian, obtain camouflage uniforms anywhere in Russia and purchase machine guns illegally. However, this allegation was not specific and they did not submit any material to support it. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see {Celikbilek} v. Turkey, No. 27693/95, § 71, 31 May 2005).
123. The Court notes that the applicant's allegation is supported by the witness statements collected by the applicant and by the investigation. It finds that the fact that a large group of armed men in uniform during curfew hours was able to move freely through military roadblocks and proceeded to check identity documents and abduct the applicant's son at his home strongly supports the applicant's allegation that these were State servicemen conducting a security operation. In her application to the authorities the applicant consistently maintained that Ibragim Uruskhanov had been abducted by unknown servicemen and requested the investigation to look into that possibility (see paragraphs 29, 34, 35, 39, 40, 59, 61, 75 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 paragraphs 62, 69, 70, 102 above). From the submitted documents it is unclear whether the investigation was able to establish which military or security units had carried out the operation, but it does not appear that any serious steps had been taken in that direction.
124. The Court observes that where the applicant makes out a prima facie case and the Court is prevented from reaching conclusions as to the facts, owing to a lack of documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, 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).
125. Taking into account the above elements, the Court is satisfied that the applicant has made a prima facie case that her son was abducted by State servicemen. The Government's statement that the investigation did not find any evidence to support the involvement of the special forces in the kidnapping is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government's failure to submit the documents which were in their exclusive possession or to provide another plausible explanation of the events in question, the Court considers that Ibragim Uruskhanov was abducted on 12 April 2002 by State servicemen during an unacknowledged security operation.
126. There has been no reliable news of Ibragim Uruskhanov since the date of the kidnapping. His name has not been found in any official detention facilities' records. Finally, the Government did not submit any explanation as to what had happened to him after his arrest.
127. Having regard to the previous cases concerning disappearances in Chechnya which have come before the Court (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, No. 69480/01, ECHR 2006-.



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