Постановление Европейского суда по правам человека от 23.04.2009 «Дело Гакиев и Гакиева (Gakiyev and Gakiyeva) против России» [англ.]

nts' son can be presumed dead and whether his death can be attributed to the authorities.
92. The applicants claimed that the persons who had taken Idris Gakiyev away on 30 November 2003 and then killed him had been State agents.
93. The Government suggested that those who had kidnapped and then killed Idris Gakiyev could have been members of paramilitary groups wishing to obtain a ransom. However, the domestic investigation did not establish that any claims for ransom had ever been addressed to the applicants. The fact that the kidnappers stole certain documents and burned the applicants' house does not in itself indicate their involvement in insurgence activities. Nor does it seem conceivable that only rebel fighters could use strangulation to kill others. Therefore, the Government's allegation was not specific or supported by any material. 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).
94. Moreover, the Court considers it very unlikely that the APCs stolen by paramilitary groups in the 1990s could have moved freely through Russian federal military check-points without being noticed. It thus finds that the fact that a large group of armed men in uniform travelling in APCs arrived in Argun at 2 a.m. and abducted three young men strongly supports the applicants' allegation that these were State servicemen. From the early stage of the proceedings the authorities were informed by the relatives of the missing men that Idris Gakiyev and the Elmarzayev brothers had been detained by unknown men in the APCs and the investigators had been asked to look into that possibility (see paragraphs 24 and 25 above). The domestic investigation also accepted factual assumptions as presented by the applicants and took steps to check whether law-enforcement agencies were involved in the kidnapping (see paragraphs 28 and 34 above).
95. The Court observes that where the applicants make out a prima facie case and the Court is prevented from reaching factual conclusions 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 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).
96. Taking into account the above elements, the Court is satisfied that the applicants have made out a prima facie case that their son was apprehended by State servicemen. The Government's statement that the investigation did not find any evidence to support the involvement of the military or law enforcers 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 Idris Gakiyev was abducted on 30 November 2002 by State servicemen during an unacknowledged security operation.
97. The next point to be considered by the Court is whether there is a link between Idris Gakiyev's abduction and his death.
98. According to the Government, Idris Gakiyev died some three to nine days before 1 April 2004 (see paragraph 58 above), that is, almost four months after his abduction. The Court is precluded from examining the data contained in the forensic report drawn up on Idris Gakiyev'



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