Постановление Европейского суда по правам человека от 29.10.2009 «Дело Хантиева и другие (Khantiyeva and others) против России» [англ.]

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

1. Submissions by the Government

84. The Government submitted that there was no evidence that the applicants' relative had been abducted by Russian servicemen or that he was not alive. The domestic investigation had not established that the security forces had carried out any special operations on 4 December 2000 aimed at arresting Mayrudin Khantiyev. None of the applicants had submitted in the course of the investigation that their relative's abductors belonged to any specific service of the Russian army. In particular, the third applicant had claimed that the abductors had had no insignia, had not addressed each others by rank or name and that she had inferred that they were not Russians. In her statement to representatives of the SRJI the first applicant had submitted that the abductors had worn camouflage uniforms and masks and had been armed with sub-machine guns. However, according to the third applicant, the first applicant had come outside already after Mayrudin Khantiyev had been put into the NIVA vehicle and the abductors had left, taking him away. Hence, she could not have seen them. In fact, only the third applicant had witnessed the abduction. Other persons, including the first applicant, had gone outside later and had only seen the NIVA vehicle driving off and the first and third applicants running after it. In any event, the fact that Mayrudin Khantiyev's abductors were wearing camouflage uniforms and masks and were armed was not sufficient to conclude that they were State agents. The Government further stressed that members of illegal armed groups had often passed themselves off as servicemen or members of law-enforcement bodies by wearing camouflage uniforms, carrying arms and passing unimpeded through federal forces checkpoints.
85. The applicants' allegation that their relative could not have been abducted without the connivance of State authorities because the soldiers on the roof and on the checkpoints had not reacted to the abduction was unfounded. Mr Ut. and Mr P. submitted that they had not seen the Niva vehicle, had not heard it arrive and had learnt about the abduction later. Furthermore, while being questioned by investigators, the second applicant submitted that when Mr S. had contacted some checkpoints, the latter had been told that no Niva vehicle had passed through those checkpoints.
86. The domestic authorities had promptly opened an investigation into the abduction of Mayrudin Khantiyev and had checked various theses, including his kidnapping by State officials. The investigation had been conducted by an independent body which had sent out numerous requests for information. The third applicant was provided with sufficient information on the progress in the investigation.

2. The applicants' submissions

87. The applicants submitted that it had been proved beyond reasonable doubt that their relative had been abducted by State agents and was to be presumed dead following his unacknowledged detention. They pointed out that soldiers from the district military commander's office had been on the roof during the entire night and that, according to Mr Z., some servicemen had told him they had seen the Niva vehicle. It had not been contested that the applicants had asked the soldiers on the roof for help; that the applicants' block of flats wa



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