Постановление Европейского суда по правам человека от 17.09.2009 «Дело Забиева и другие (Zabiyeva and others) против России» [англ.]

leged violation of Umar Zabiyev's right to life.

B. The Court's assessment

1. Admissibility

(a) Alleged violation of the right to life of the first applicant
76. The Court first reiterates that Article 35 § 1 of the Convention requires that it may only deal with a matter where it has been introduced within six months from the date of the final decision. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on, or prejudice to, the applicant (see Dennis and Others v. the United Kingdom (dec.), No. 76573/01, 2 July 2002). It is not open to the Court to set aside the application of the six-month rule solely because a Government have not made a preliminary objection based on it (see Walker v. the United Kingdom (dec.), No. 34979/97, ECHR 2000-I).
77. The Court further points out that in the initial application form the applicants' representatives described the circumstances of the infliction of the wounds on the first applicant on 10 June 2003 and made a complaint on the subject under Article 3 of the Convention. The Court will examine the alleged ill-treatment of the first applicant from the standpoint of that Convention provision in due course (see paragraphs 123 - 126 below).
78. It is noteworthy that the first applicant produced no explanation of the fact that she had not raised the issue of an alleged violation of her right to life before the Court prior to 7 April 2008. At the same time the Court observes that as early as 18 November 2004, when the application form was submitted, the applicants themselves emphasised that, in their view, no effective remedies for the alleged violations existed at domestic level.
79. The Court notes that it has no reason to assume that the first applicant or her representatives were in any manner precluded from bringing to its attention the relevant complaint with a reference to Article 2 of the Convention at an earlier stage of the proceedings. In such circumstances it concludes that the first applicant failed to comply with the six-month limit as regards the alleged violation of her right to life.
80. It follows that the complaint under Article 2 of the Convention in respect of the first applicant was lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
(b) Alleged violation of the right to life of Umar Zabiyev
81. The Court considers, in the light of the parties' submissions, that this part of 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 66 above). The complaint concerning the alleged violation of the right to life in respect of Umar Zabiyev must therefore be declared admissible.

2. Merits

(a) Establishment of the facts
82. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances where deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which in peacetime no derogation is permitted under Article 15. The situations where deprivation of life may be justified are exhaustive and must be narrowly interpreted. The use of force which may result in the deprivation of life must be no more than "absolutely necessary" for the achievement of one of the purposes set out in Article 2 § 2 (a), (b) and (c). This term indicates that a stricter and more compelling test of necessity must be employed than



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