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B. The Court's assessment

Постановление ЕСПЧ от 02.10.2008 "Дело "Расаев и Чанкаева (Rasayev and Chankayeva) против Российской Федерации" (жалоба N 38003/03) [рус., англ.]

B. The Court's assessment

49. 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, judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275 - 76, §§ 51 - 52; Akdivar and Others, cited above, p. 1210, §§ 65 - 67; and, most recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, No. 41964/98, § 64, 27 June 2006).

50. 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 Akdivar and Others, cited above, p. 1211, § 68, and Cennet Ayhan and Mehmet Salih Ayhan, cited above, § 65).

51. Having regard to the Government's objection concerning the applicants' failure to complain of their family member's unlawful detention to the domestic authorities, the Court observes, that, after Ramzan Rasayev had been taken away by armed men on 25 December 2001, the applicants actively attempted to establish his whereabouts and applied to various official bodies, whereas the authorities denied their responsibility for his detention. 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 applicants, it is more than questionable whether a complaint to a court of the unacknowledged detention of the applicants' family member 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 applicants' situation, namely, that it would have led to the release of Ramzan Rasayev and the identification and punishment of those responsible. Accordingly, the Government's objection concerning non-exhaustion of domestic remedies must be dismissed.

52. In so far as the Government's objection concerns the fact that the domestic investigation is still pending, the Court considers that it raises issues which are closely linked to the merits of the applicant's complaints. Thus, it considers that this matter falls to be examined below under the substantive provisions of the Convention (see paragraphs 77 - 78 below).