Постановление Европейского суда по правам человека от 12.02.2009 «Дело Аюбов (Ayubov) против России» [англ.]

ight of the Convention provisions and its relevant practice.
55. The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. There is no obligation to have recourse to remedies which are inadequate or ineffective. It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicants' complaints and offered reasonable prospects of success (see Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, §§ 51 - 52; Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, § 65 - 68; and, most recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, No. 41964/98, § 64 - 65, 27 June 2006).
56. In the present case, in so far as the Government argued that the applicant had not lodged a court complaint about his son's detention, the Court observes that after Adam Ayubov had been apprehended the applicant had actively attempted to establish his whereabouts and applied to various official bodies (see paragraphs 16, 20, 24 and 26 above), whereas the authorities had never acknowledged that they had detained the applicant's son. In such circumstances, and in particular in the absence of any proof to confirm the very fact of the detention, even assuming that the remedy referred to by the Government was accessible to the applicant, it is more than questionable whether a court complaint about the unacknowledged detention of the applicant's son by the authorities would have had any prospects of success. Moreover, the Government have not demonstrated that the remedy indicated by them would have been capable of providing redress in the applicant's situation - in other words, that the applicant's recourse to this remedy would have led to the release of Adam Ayubov, and to the identification and punishment of those responsible (see Musayeva and Others, cited above, § 69, or Kukayev, cited above, § 78). In the light of the foregoing, the Court considers that it has not been established with sufficient certainty that the remedy advanced by the Government would have been effective within the meaning of the Convention. The Court finds that the applicant was not obliged to pursue that remedy, and that this limb of the Government's preliminary objection should therefore be dismissed.
57. To the extent the Government argued that the investigation was still pending and that the applicant had not complained to a court about the actions or omissions of the investigating or other law-enforcement authorities during the investigation, the Court firstly observes that the Government did not indicate which particular actions or omissions of the investigators the applicant should have challenged before a court. It further notes that the Russian Code of Criminal Procedure referred to by the Government became operative on 1 July 2002 and that the applicant was clearly unable to have recourse to the remedy invoked by the Government prior to that date. As regards the period thereafter, the Court considers that this limb of the Government's preliminary objection raises issues which are closely linked to the question of the effectiveness of the investigation, and it would therefore be appropriate to address the matter in the examination of the substance of the applicant'

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