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

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

77. The Government contended that the domestic investigation had obtained no evidence to the effect that Aslan Sadulayev was dead or that any State agents had been involved in his abduction or alleged killing. The Government claimed that the investigation into the kidnapping of the applicant's son met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible.
78. The applicant argued that Aslan Sadulayev had been detained by State servicemen and should be presumed dead, in the absence of any reliable news of him for several years. The applicant also argued that the investigation had not met the effectiveness and adequacy requirements, laid down by the Court's case-law. The applicant pointed out that the district prosecutor's office had not taken some crucial investigative steps, such as identification of the APCs which had been used by the abductors and questioning of their drivers, and detailed questioning of such key witnesses to the abduction as Ms Z.M., Mr M.M. and Mr Rizvan. The investigation had been opened several weeks after she had lodged her official complaint about the abduction and then it had been suspended and resumed a number of times, thus delaying the taking of the most basic steps. The applicant further contended that she had not been properly informed of the most important investigative measures. The fact that the investigation had been pending for more than six years without producing any tangible results was further proof of its ineffectiveness. She also invited the Court to draw conclusions from the Government's unjustified failure to submit the documents from the case file to her or to the Court.

B. The Court's assessment

1. Admissibility

79. 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 domestic remedies should be joined to the merits of the complaint (see paragraph 61 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 Aslan Sadulayev
80. The Court has already found that the applicant's son must be presumed dead following unacknowledged detention by State servicemen. In the absence of any justification put forward by the Government, the Court finds that his death can be attributed to the State and that there has been a violation of Article 2 in respect of Aslan Sadulayev.
(b) The alleged inadequacy of the investigation of the kidnapping
81. The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention's requirements (for a summary of these principles see Bazorkina, cited above, §§ 117 - 119).
82. In the present case, the kidnapping



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