Постановление Европейского суда по правам человека от 18.02.2010 «Дело Алиева (Aliyeva) против России» [англ.]

h 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

43. The Government pointed out a number of inconsistencies in the applicant's submissions. In the first place, whereas she alleged that there had been approximately thirty abductors, Ms B. referred only to ten. The applicant's allegations that they had arrived and left in APCs was not supported by any other witness. The Government considered that the abductors' conduct, as described by the applicant, had not been typical for servicemen. Furthermore, the applicant failed to mention any specific military insignia, whereas weapons and camouflage uniforms could have been accessible to offenders other than servicemen. The applicant's allegations that a certain Mr Yu.A. had been detained by the same persons is irrelevant. Moreover, she had never mentioned it to the domestic investigating authorities. The Government also submitted that there had been no curfew in Grozny on the date of Mr Abu Aliyev's abduction, but conceded that checkpoints had been operating. They enclosed a letter of the commander of the United Group Alignment (UGA) in this respect.
44. The Government argued that the investigation into the abduction of the applicant's husband had met the Convention requirement of effectiveness. It was promptly instituted, and all measures available under national law were being taken to identify those responsible, which was supported by findings of domestic courts with respect to the applicant's complaint.
45. The applicant submitted that at the relevant time the district where she lived with her husband was under the full control of Russian federal troops. She argued that, on the contrary, the abductors' conduct clearly showed that they were servicemen, since they had acted openly, clearly convinced of their impunity. In the applicant's view, her account of the events was supported by other witnesses. She also stated that at the time of the abduction Grozny was under curfew. To support her statement she referred to several cases where the Court had found that there had been curfew in different parts of the Chechen Republic in the autumn - winter of 2002, in particular, to Dangayeva and Taramova v. Russia, No. 1896/04, § 81, 8 January 2009, and Dokayev and Others v. Russia, No. 16629/05, § 72, 9 April 2009, where the Court had established that there had been curfew in Grozny on 23 October and 10 December 2002 respectively.
46. The applicant also argued that the investigation had not met the effectiveness and adequacy requirements laid down by the Court's case-law. In particular, necessary investigative measures were either not taken promptly enough or not taken at all. She 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. The applicant 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

47. 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 42 ab



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