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Постановление Европейского суда по правам человека от 08.04.2010 «Дело Сериевы (Seriyevy) против России» [англ.]





ng his unacknowledged detention by State servicemen.

III. Alleged violation of Article 2 of the Convention

87. The applicants complained under Article 2 of the Convention that Bilkis Askhabayeva and Sarali Seriyev had been deprived of their lives by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the incidents. Article 2 reads:
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article 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

88. The Government contended that the domestic investigation had obtained no evidence to the effect that Sarali Seriyev was dead or that any servicemen of the federal law-enforcement agencies had been involved in his kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of Sarali Seriyev met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible.
89. The applicants argued that Sarali Seriyev 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. The applicants also argued that the investigation had not met the effectiveness and adequacy requirements, laid down by the Court's case-law. The applicants pointed out that the district prosecutor's office had not taken some crucial investigative steps. The investigation into Sarali Seriyev's kidnapping had been opened a month after the events and then had been suspended and resumed a number of times, thus delaying the taking of the most basic steps, and that the relatives had not been properly informed of the most important investigative measures. The fact that the investigation had been pending for such a long period of time without producing any known results was further proof of its ineffectiveness. They also invited the Court to draw conclusions from the Government's unjustified failure to submit the documents from the case file to them or to the Court.

B. The Court's assessment

1. Admissibility

(a) The alleged violation of the right to life of Bilkis Askhabayeva and the alleged inadequacy of the investigation of her death
90. As for the applicants' allegations concerning the responsibility of State agents for the killing of Bilkis Askhabayeva, the Court observes that the applicants neither challenged the investigators' decision that her death was a result of an accident (see paragraph 10 above), nor their subsequent decision to terminate the criminal case on the grounds of lack of corpus delicti and the amnesty act which applied to military officers (see paragraph 12 above). It should be further noted that the applicants successfully brought civil proceedings against the military unit responsible for her death (see paragraphs 18 and 19 above). The Court finds that in bringing these civil proceedings for damages the applicants have used the local remedies available and that in accepting and receiving compensation the applicants have effectively renounced further use of these remedies. They may no longer in these circumstances claim to be victims of a violation of the Convention within the



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