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
80. The Government contended that the domestic investigation had obtained no evidence to the effect that Abubakar Bantayev and Salman Bantayev were dead or that any servicemen of the federal law-enforcement agencies had been involved in their kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of the applicants' relatives met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators.
81. The applicants argued that Abubakar Bantayev and Salman Bantayev had been detained by State servicemen and should be presumed dead in the absence of any reliable news of them for several years. The applicants also argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court's case-law on Article 2. The applicants pointed out that the district prosecutor's office had not taken some crucial investigative steps, such as questioning the servicemen of the military commander's office located in the vicinity of the houses of the disappeared Bantayev brothers. The investigation into Abubakar Bantayev and Salman Bantayev's kidnapping had been opened four days after the events and then had been suspended and resumed a number of times; it had lasted for several years without producing any tangible results. The applicants had not been properly informed of the most important investigative measures. The applicants 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
82. 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 67 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 Abubakar Bantayev and Salman Bantayev
83. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A No. 324, pp. 45 - 46, §§ 146 - 147, and {Avsar} v. Turkey, No. 25657/94, § 391, ECHR 2001-VII (extracts)).
84. The Court has already found it established that the applicants' relatives must be presumed dead following unacknowledged detention by State servicemen and that the deaths can be attributed to the State. In the absence of any justification put forward by the Government, the Court finds that
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