Постановление ЕСПЧ от 08.01.2009 «Дело «Закриева и другие (Zakriyeva and Others) против Российской Федерации» (жалоба N 20583/04) [рус., англ.] Часть 4

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EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF ZAKRIYEVA AND OTHERS v. RUSSIA
(Application No. 20583/04)
JUDGMENT <*>
(Strasbourg, 8.I.2009)

———————————
<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Zakriyeva and Others v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Nielsen, Section Registrar,
Having deliberated in private on 4 December 2008,
Delivers the following judgment, which was adopted on that date:

PROCEDURE

 

  1. The case originated in an application (No. 20583/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») by eight Russian nationals listed below («the applicants») on 18 May 2004.
  2. The applicants were represented by lawyers of the Stichting Russian Justice Initiative («SRJI»), an NGO based in the Netherlands with a representative office in Russia. The Russian Government («the Government») were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
  3. On 1 September 2005 the Court decided to apply Rule 41 of the Rules of Court.
  4. On 21 May 2007 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
  5. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it.

 

THE FACTS

  1. The circumstances of the case

 

  1. The applicants are:

(1) Ms Tamara Adnanovna Zakriyeva, who was born in 1951;

(2) Ms Amnat Khasiyevna Khakimova, who was born in 1978;

(3) Ms Movsar Aslanbekovich Khamzayev, who was born in 1999;

(4) Ms Iman Aslanbekovna Khamzayeva, who was born in 2002;

(5) Mr Ilyas Aslanbekovich Khamzayev, who was born in 2003;

(6) Mr Duk-Vakha Esikayevich Khamzayev, who was born in 1972;

(7) Mr Aslan Esikovich Khamzayev, who was born in 1980; and

(8) Mr Khavazh Esikovich Khamzayev, who was born in 1983.

The second applicant lives in the village of Achkhoy-Martan, in the Chechen Republic. The other applicants live in the village of Gekhi, the Urus-Martan District, in the Chechen Republic.

  1. The first applicant is the mother of the sixth, seventh and eighth applicants and of Mr Aslanbek Esikovich Khamzayev, who was born in 1974. Aslanbek Khamzayev was married to the second applicant; they are the parents of the third, fourth and fifth applicants.

 

  1. Disappearance of Aslanbek Khamzayev

 

  1. The applicants’ account

 

  1. The applicants did not witness the disappearance of Aslanbek Khamzayev. The account below is based on statements by third parties submitted by the applicants.
  2. On 25 June 2002 Aslanbek Khamzayev was visiting his aunt, Ms Yu., in Grozny. At about 3 p.m., while driving a car in the direction of his home village, he was stopped by a group of armed men at a Russian military checkpoint near the village of Aldy. The servicemen ordered Aslanbek Khamzayev to get out of the car and then put him into one of several armoured personnel carriers («APCs») parked next to the checkpoint. That APC’s registration number was covered with mud so that only two figures, «2» and «8», out of three were visible. Then all the APCs drove off in the direction of Grozny.
  3. Meanwhile a rumour spread that Russian military units were carrying out a special operation on the outskirts of Grozny. Ms Yu. was concerned for her nephew’s safety and drove towards Gekhi to meet him. Near the Aldy checkpoint she encountered a group of women who had witnessed Aslanbek Khamzayev’s abduction and told her about it. Ms Yu. drove to Grozny in pursuit of the APCs, which she eventually overtook and followed to the secured courtyard of the military commander’s office of the Zavodskoy District of Grozny («the Zavodskoy military commander’s office»).
  4. Later the same day the applicants visited the Zavodskoy military commander’s office and enquired about Aslanbek Khamzayev’s whereabouts but received no information.
  5. Some eighteen months later the applicants were told by unknown persons that not all of the APCs had arrived at the Zavodskoy military commander’s office on 25 July 2002 as one of them had left the group and driven in the direction of the Oktyabrskiy District of Grozny.

 

  1. Information submitted by the Government

 

  1. The Government stated that on 25 June 2002 unidentified persons in camouflage uniforms had kidnapped Aslanbek Khamzayev in the village of Aldy in the Zavodskiy District of Grozny in the Chechen Republic.

 

  1. The search for Aslanbek Khamzayev and the investigation

 

  1. The applicants’ account

 

  1. On 28 June 2002 the second applicant wrote to the Memorial Human Rights Centre («Memorial»), an NGO based in Moscow, informing it that her husband had been arrested by Russian servicemen and asking for its help in searching for him. On the same date lawyers from Memorial wrote to the Grozny prosecutor’s office («the city prosecutor’s office») requesting that criminal proceedings be instituted in respect of Aslanbek Khamzayev’s disappearance.
  2. On 6 August 2002 the city prosecutor’s office instituted an investigation into Aslanbek Khamzayev’s disappearance under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned number 50115.
  3. On 22 August 2002 the city prosecutor’s office granted the first applicant victim status in the case.
  4. On 6 November 2002 the city prosecutor’s office suspended the investigation on the grounds that it had not been possible to identify those responsible for the crime.
  5. On 6 March 2003 the first applicant sent a letter to the prosecutor’s office of the Chechen Republic with a copy to the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms. She said that her son had been arrested by Russian servicemen in the course of a «sweeping» operation in the village of Aldy and taken away in an APC. She requested that the crime be investigated.
  6. On 3 June 2003 the Main Military Prosecutor’s Office forwarded the first applicant’s complaint to the military prosecutor’s office of the United Group Alignment («the UGA prosecutor’s office»).
  7. On 7 July 2003 the prosecutor’s office of the Chechen Republic resumed the investigation into Aslanbek Khamzayev’s kidnapping and informed the first applicant accordingly. They also invited her to send any further queries to the prosecutor’s office of the Zavodskoy District of Grozny («the district prosecutor’s office»).
  8. On 11 July 2003 the UGA prosecutor’s office forwarded the first applicant’s complaint to the military prosecutor’s office of military unit No. 20102 («the unit prosecutor’s office»).
  9. On 21 July 2003 the department of the interior of the Zavodskoy District of Grozny («ROVD») issued a certificate confirming that Aslanbek Khamzayev had been missing since 25 June 2002 and that search case No. 02027 was pending before the ROVD.
  10. On 15 August 2003 the unit prosecutor’s office informed the first applicant that an inquiry into Aslanbek Khamzayev’s disappearance had established that her son had not been arrested in the course of «sweeping» operations on 25 June 2002. No implication of the Russian military in the crime had been established. They also noted that her complaint had been forwarded to the prosecutor’s office of the Urus-Martan District.
  11. On 20 August 2003 the Prosecutor General’s Office for the Southern Federal Circuit informed the first applicant that her complaint had been forwarded to the prosecutor’s office of the Chechen Republic.
  12. On 4 September 2003 the unit prosecutor’s office forwarded the first applicant’s complaint to the military commander of the Urus-Martan District.
  13. On 25 November 2003 the SRJI requested the district prosecutor’s office to inform them whether an investigation into Aslabek Khamzayev’s kidnapping by Russian servicemen had been opened and what investigative measures, if any, had been taken. They also requested the investigators to interrogate certain witnesses of the crime.
  14. On 27 November 2003 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s letter to the district prosecutor’s office ordering that it be included in the investigation file in case No. 50115.
  15. On 2 February 2005 the SRJI requested the district prosecutor’s office to inform them of progress in the investigation in case No. 50115.

 

  1. Information submitted by the Government

 

  1. On 5 August 2002 the first applicant complained about her son’s abduction to the city prosecutor’s office.
  2. On 6 August 2002 the city prosecutor’s office instituted an investigation into Aslanbek Khamzayev’s abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned number 50115.
  3. On 22 August 2002 the first applicant was granted victim status and questioned. She submitted that Aslanbek Khamzayev had resided in the village of Gekhi. On 24 July 2002 he had gone to the Zavodskoy District to visit his relative, Ms Yu. On 25 July 2002 Ms Yu. had told the first applicant that earlier that day federal servicemen carrying out a «sweeping» security operation had checked Aslanbek Khamzayev’s identity papers and then let him go. He had then left for his home village. At about 5 p.m. a woman had told Ms Yu. that unknown men in camouflage uniforms had apprehended a young man near a dam. To protect the young man, the woman had told the men that she was his mother. The men in camouflage uniforms had proved that that was not the case by showing her identity papers in the name of A. Khamzayev and left.
  4. On 27 July 2003 Ms V. was questioned as a witness. She stated that on 25 July 2002 she had overheard an elderly lady saying that she had witnessed the arrest of a young man by federal servicemen. When the lady told the servicemen that the arrested man was her son, they had produced identity papers in the name of Aslambek Khamzayev. The lady had also mentioned that she had seen an APC with numbers «2» and «8» on a muddied registration number plate.
  5. On 31 July 2003 Ms Yu. was questioned and stated that on 25 July 2005 she had seen a large group of people at a bus stop being subjected to an identity check. Her nephew Aslanbek Khamzayev was among them. An hour later he had come to her home, packed his belongings and gone home. Later that day her sister, Ms R.Yu., had told her that according to an unknown woman then nephew had been taken away by armed men in an APC.
  6. On 3 August 2003 Mr Kh., Aslanbek Khamzayev’s father, was questioned. He said that on 24 July 2002 his son had gone to the village of Aldy. On 25 July 2003 Ms Yu. had informed him that earlier that day servicemen had checked his son’s identity papers. Later Ms Yu. had been told that at 5 p.m. unidentified persons had taken a young man away in an APC.
  7. On 18 May 2004 Ms R.Yu. was questioned and stated that on 25 July 2002 she, her son and Ms Yu. had been travelling on a bus, which had broken down and stopped near the dam in the village of Chernorechye. Servicemen had taken Ms R.Yu.’s son away for an identity check; her sister had gone with them. On her return, her sister had told Ms R.Yu. that an acquaintance had informed her that their nephew Aslanbek Khamzayev had been arrested by unknown servicemen and taken away in an APC in the direction of school No. 39 in the Zavodskoy District of Grozny.
  8. On 18 May 2004 Ms Yu. was again questioned. She stated that on 25 July 2002 she and her sister Mrs R. Yu. had been travelling on a bus which had broken down near the dam. She had approached a crowd standing at the bus stop, where servicemen were carrying out identity checks. Her nephew Aslanbek Khamzayev had been there. Ms Yu. had observed the servicemen checking his identity using a computer before returning his identity papers. A half an hour later her nephew had returned to her house and then fallen asleep. Ms Yu. and her husband had driven back to the bus stop to give a lift to her sister who had been waiting by the bus. Her sister had shown them a piece of paper marked with the words «Khamzayev Aslanbek» which she explained an unknown woman had given her after saying that she had witnessed servicemen placing Aslanbek Khamzayev in an APC and driving away. Ms Yu. had immediately asked servicemen standing near the dam about her nephew, but they had replied that they knew nothing about him.
  9. On 19 May 2004 Mr Yu., Ms Yu.’s husband, was questioned. He is said that in June 2002 his wife had told him that servicemen had arrested her nephew and taken him away in an APC. On the same day he and his wife had gone to the village of Chernorechye. They had overtaken a motorcade consisting of APCs and asked the servicemen about Aslanbek Khamzayev but they had given them no information. Mr Yu. had taken a look inside several APCs but found nobody there.
  10. On an unspecified date Ms E. was questioned. She stated that on 25 July 2002 in the village of Aldy she had seen an APC and servicemen standing next to it. She had looked into through the window of one of the APCs and noticed a young man; she had not seen his face. Ms E. had asked the servicemen to let the young man go, claiming that he was her son. The servicemen had asked her the man’s name and she had said «Magomed». One of the servicemen had shown her identity papers in the name of Aslambek Yesikovich Khamzayev. The APC’s registration number plate was covered in mud and illegible.
  11. On 28 August 2007 the first applicant was questioned and submitted that her son had been kidnapped not on 25 July 2002, but on 25 June 2002.
  12. The Government stated that the investigating authorities had sent a number of queries to various State bodies and had taken other investigative measures, but did not specify what those measures had been. According to various law-enforcement agencies of the Chechen Republic, no special operations had been carried out on 25 June 2002 in the village of Aldy.
  13. The investigation failed to identify the perpetrators. The implication of any law-enforcement agencies in the crime had not been established. Aslanbek Khamzayev had not been prosecuted, arrested or placed in a temporary detention facility in the Chechen Republic.
  14. The investigation had been suspended on several occasions for failure to identify the perpetrators and then resumed. The applicants had been duly informed of all decisions taken during the investigation, which was still pending under the supervision of the Russian Prosecutor General’s Office.
  15. Despite specific requests by the Court the Government did not disclose any documents from the investigation file in case No. 50115. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.

 

  1. Relevant domestic law

 

  1. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia, No. 40464/02, § 67 — 69, 10 May 2007.

 

THE LAW

 

  1. The Government’s objection regarding abuse of the right of petition

 

  1. The Government submitted that the application had not been lodged in order to restore the allegedly violated rights of the applicants. Its actual object and purpose was clearly political and it had been «lodged for … purposes contrary to the goals and objectives of justice administered by the European Court of Human Rights». The Government concluded that there had been an abuse of the right of petition on the part of the applicants and that the application should be dismissed pursuant to Article 35 § 3 of the Convention.
  2. The Court observes that the complaints the applicants brought to its attention concerned genuine grievances. Nothing in the case file reveals any appearance of an abuse of their right of individual petition. Accordingly, the Government’s objection must be dismissed.

 

  1. The Government’s objection regarding locus standi

 

  1. The Government suggested that the applicants had been unaware of the contents of the application form, which had been signed not by the applicants, but by their representatives and two other collaborators of the SRJI. Furthermore, they doubted that the SRJI had prepared the observations on the admissibility and merits of the application of 20 December 2007 «with [the] participation and … consent» of the applicants. Referring to the Court’s decision in Vasila and Petre Constantin in the name of Mihai Ciobanu v. Romania (No. 52414/99, 16 December 2003), the Government concluded that there was a lack of locus standi in the present case.
  2. The Court notes that the applicants issued the SRJI with powers of attorney to represent their interests in the Strasbourg proceedings, in particular, to sign application forms and other materials submitted to the Registry on their behalf. There are no reasons to believe that the applicants issued the authorities against their will. Accordingly, the Government’s objection must be dismissed.

 

III. The Government’s objection regarding non-exhaustion of domestic remedies

 

  1. The parties’ submissions

 

  1. The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into Aslanbek Khamzayev’s disappearance had not yet been completed. They further argued that it had been open to the applicants to challenge in court or before higher prosecutors any acts or omissions of the investigating or other law-enforcement authorities, but that the applicants had not availed themselves of that remedy. They also submitted that it had been open to the applicants to file civil claims for damages but they had failed to do so.
  2. The applicants contested that objection and stated that the criminal investigation had proved to be ineffective.

 

  1. The Court’s assessment

 

  1. 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. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51 — 52, Reports of Judgments and Decisions 1996-VI, and Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, No. 41964/98, § 64, 27 June 2006).
  2. 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 applicant’s complaints and offered reasonable prospects of success (see Cennet Ayhan and Mehmet Salih Ayhan, cited above, § 65).
  3. The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.
  4. As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v. Russia, Nos. 57942/00 and 57945/00, §§ 119 — 21, 24 February 2005; and Estamirov and Others v. Russia, No. 60272/00, § 77, 12 October 2006). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies.
  5. As regards criminal-law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law-enforcement authorities shortly after the disappearance of Aslanbek Khamzayev and that an investigation has been pending since 6 August 2002. The applicants and the Government disagreed about the effectiveness of the investigation into the disappearance.
  6. The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants’ complaints and that therefore this objection should be joined to the merits and examined below.

 

  1. The court’s assessment of the evidence and the establishment of the facts

 

  1. The parties’ arguments

 

  1. The applicants claimed that Aslanbek Khamzayev had been arrested on 25 June 2002 and that the date of 25 July 2002 had been mentioned in the statements by the first applicant and Ms E. by mistake. They further pointed out that in all other respects different witnesses had given a consistent account of the events. In their submission, it was beyond reasonable doubt that the men who had taken away Aslanbek Khamzayev were State agents. In support of their complaint they noted that Russian servicemen had carried out a special «sweeping» operation on the day of the disappearance; Aslanbek Khamzayev had been subjected to an identity check shortly before his disappearance; and an APC could only be used by federal troops.
  2. The Government submitted that unidentified armed men had kidnapped Aslanbek Khamzayev. They further pointed out that the applicants were not sure of the exact date of the disappearance. According to the Government, the crime was committed on 25 June 2002. The information related by Ms E. to the applicants and investigators was not coherent. The applicants and their relatives had not given a consistent and corroborated account of the circumstances of their relative’s kidnapping. 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 applicants’ rights. They further argued that there was no convincing evidence that the applicants’ relative was dead.

 

  1. The Court’s evaluation of the facts

 

  1. In cases where there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. When, as in the instant case, the respondent Government have exclusive access to information able to corroborate or refute the applicants’ allegations, any lack of cooperation by the Government without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see and Others v. Turkey, No. 65899/01, § 160, ECHR 2005-…).
  2. The Court points out that a number of principles have been developed in its case-law as regards cases where it is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence requiring the standard of proof «beyond reasonable doubt» in its assessment of evidence (see v. Turkey, No. 25657/94, § 282, ECHR 2001-VII (extracts)). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see and Others, cited above, § 160).
  3. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), No. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A No. 336; and , cited above, § 283) even if certain domestic proceedings and investigations have already taken place.
  4. The Court reiterates that it has noted the difficulties for applicants to obtain the necessary evidence in support of allegations in cases where the respondent Government are in possession of the relevant documentation and fail to submit it. Where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such 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 v. Turkey, No. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, No. 21894/93, § 211, ECHR 2005-II).
  5. The Court notes that despite its requests for a copy of the investigation file into the kidnapping of Aslanbek Khamzayev, the Government produced no documents from the file on the grounds that they were precluded from doing so by Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has 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)).
  6. The Court has found the Russian State authorities responsible for extra-judicial executions or disappearances of civilians in the Chechen Republic in a number of cases, even in the absence of final conclusions from the domestic investigation (see Khashiyev and Akayeva, cited above; Luluyev and Others v. Russia, No. 69480/01, ECHR 2006-… (extracts); Estamirov and Others, cited above; and Baysayeva v. Russia, No. 74237/01, 5 April 2007). It has done so primarily on the basis of witness statements and other documents attesting to the presence of military or security personnel in the area concerned at the relevant time. It has relied on references to military vehicles and equipment, on witness accounts, on other information on security operations and on the undisputed effective control of the areas in question by the Russian military. On that basis, it has concluded that the areas in question were «within the exclusive control of the authorities of the State» in view of military or security operations being conducted there and the presence of servicemen (see, mutatis mutandis, Akkum v. Turkey, cited above, § 211, and Zubayrayev v. Russia, No. 67797/01, § 82, 10 January 2008).
  7. However, in the present case the Court has little evidence on which to draw such conclusions as the account of the events made by the applicants on the basis of the witnesses’ submissions is rather disjointed.
  8. First, neither the applicants nor any other witnesses have ever stated that they saw Aslanbek Khamzayev being arrested by armed men and placed in an APC or other military vehicle. On the contrary, Ms Yu. informed the investigators that she had observed her nephew while his identity papers were being checked and that later he had arrived at her home (see paragraph 33 above). It follows that the servicemen carrying out the identity check decided not to arrest Aslanbek Khamzayev on the spot.
  9. Secondly, it is noteworthy that the witnesses’ statements regarding certain facts made before the investigators and the Court differ substantially, if not drastically. Moreover, the fact that the confusion over the date of the incident persisted throughout the witnesses’ statements from August 2002 until August 2007 (see paragraphs 31 — 39 above) also gives reasons to doubt the coherence of the applicants’ version.
  10. Lastly, in their submissions both before the domestic authorities and the Court the applicants relied heavily on a witness statement by Ms E. (see paragraph 38 above). Owing to its subsidiary role, the Court is not in a position to establish the veracity of Ms E.’s account of events. However, it refers to Mr Yu.’s statement that he overtook a motorcade of APCs and looked inside the vehicles but found no trace of Aslanbek Khamzayev (see paragraph 37 above). It is highly unlikely that two motorcades of APCs were moving in the area at the same time. Accordingly, the Court is disinclined to consider Ms E.’s statement in itself as persuasive evidence that Aslanbek Khamzayev was held in the APC by Russian servicemen.
  11. Accordingly, the information in the Court’s possession does not suffice to establish that Aslanbek Khamzayev was kidnapped by State agents in the course of a security operation. In such circumstances, the Court cannot attribute responsibility for the unlawful acts in the present case to the respondent State without additional evidence to that effect.
  12. To sum up, it has not been established to the required standard of proof «beyond reasonable doubt» that the security forces were implicated in the disappearance of Aslanbek Khamzayev; nor does the Court consider that the burden of proof can be entirely shifted to the Government.

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