Постановление Европейского суда по правам человека от 09.04.2009 «Дело Газиева и другие (Gaziyeva and others) против России» [англ.]

land v. the United Kingdom, cited above, pp. 64 - 65, § 161).
62. The Court notes that despite its request for a copy of the investigation file into the abduction of Abdul-Malik Shakhmurzayev, the Government did not produce any documents from the case file. The Government referred to Article 161 of the Code of Criminal Procedure. 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)).
63. 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 applicants' allegations. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the applicants' relative can be presumed dead and whether his death can be attributed to the authorities.
64. The applicants alleged that the persons who had taken Abdul-Malik Shakhmurzayev away on 8 February 2001 and then killed him were State agents.
65. The Government suggested in their submission that the persons who had detained Abdul-Malik Shakhmurzayev could have been criminals or that he could have been kidnapped as a result of a blood feud. However, these allegations were not specific and the Government 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 that 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).
66. The Court notes that the applicants' allegation is supported by the witness statements and by the investigation. It finds that the fact that a large group of armed men in uniform equipped with military vehicles was able to move freely through military checkpoints in broad daylight and proceeded to check identity documents and detained several persons strongly supports the applicants' allegation that these were State servicemen conducting a security operation. The domestic investigation also accepted factual assumptions as presented by the applicants and took steps to check whether law enforcement agencies or the military were involved in the abduction. The investigation was unable to establish which precise military or security units had carried out the operation, but it does not appear that any serious steps had been taken in that direction.
67. 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).
68. The Government seemed to raise doubts as to the credibility of the witnesses' statements concerning the circumstances of the abduction of Abdul-Malik Shakhmurzayev (see paragraph 60 above). The Court notes in this connection that the crucial elements underlying the applicants' submissions as to the facts have not been disputed by the Government. The Government did not dispute that the abduction of the applicants' relative had actually been committed by a group of armed men in APCs at the time stated by the applicants. This was confirmed by the official investigation condu



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