Постановление Европейского суда по правам человека от 17.06.2010 «Дело Товсултанова (Tovsultanova) против России» [англ.]

icle when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."

A. The parties' submissions

84. The Government contended that the domestic investigation had obtained no evidence that Said-Magamed Tovsultanov was dead or that any servicemen from federal law-enforcement agencies had been involved in his alleged kidnapping or killing. The Government claimed that the investigation of the kidnapping met the Convention requirement of effectiveness, as all measures available in national law were being taken to identify the perpetrators. The applicant herself had been responsible for the delay in the opening of the investigation as she had complained to the Russian President on 14 February 2005, that is, seven months after the events and that subsequently she had reported the crime to the district prosecutor's office only on 1 June 2005.
85. The applicant argued that Said-Magamed Tovsultanov had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for more than five years. She also argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court's case-law on Article 2. The applicant invited the Court to draw conclusions from the Government's unjustified failure to submit the entire contents of the investigation file to the Court.

B. The Court's assessment

1. Admissibility

86. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government's objection concerning the alleged non-exhaustion of criminal domestic remedies should be joined to the merits of the complaint (see paragraph 69 above). The complaint under Article 2 of the Convention must therefore be declared admissible.

2. Merits

a) The alleged violation of the right to life of Said-Magamed Tovsultanov
87. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146 - 47, Series A No. 324, and {Avsar}, cited above, § 391).
88. As noted above, the domestic investigation failed to produce any tangible results as to the identities of the persons responsible for the alleged kidnapping of Said-Magamed Tovsultanov. The applicant has not submitted persuasive evidence to support her allegations that State agents were the perpetrators of such a crime. The Court has already found above that, in the absence of relevant information, it is unable to find that security forces were implicated in the disappearance of the applicant's son (see paragraph 82 above). Neither has it established "beyond reasonable doubt" that Said-Magamed Tovsultanov was deprived of his life by State agents.
89. In such circumstances the Court finds no State responsibility, and thus no violation of the substantive limb of Article 2 of the Convention.
(b) The alleged inadequacy of t



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