Постановление Европейского суда по правам человека от 05.02.2009 «Дело Идалова и Идалов (Idalova and Idalov) против России» [англ.]

ave in the execution of a sentence of a court following his conviction of a crime for 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

98. The Government contended that the domestic investigation had obtained no evidence to the effect that Marvan Idalov was dead or that any servicemen of the federal law-enforcement agencies had been involved in his kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of the applicants' relative met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. The delay in commencing the investigation was attributable to the first applicant as she had officially reported the crime only in August 2003 and not to a prosecutor's office, but to the President's Administration. The first applicant had allegedly mentioned the crime to officials from a prosecutor's office, whom she had seen on the VOVD premises, but their identities remained unknown. Furthermore, the Idalovs had moved out of Akhkinchu-Borzoy and thus impeded the investigation. The first applicant had a right of access to non-confidential case documents. The prosecutors' offices dealing with the case were independent and impartial.
99. The applicants argued that Marvan Idalov had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for almost seven 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 of the Convention. They had verbally informed the authorities of Marvan Idalov's kidnapping immediately after the crime, but had not considered it necessary to lodge written complaints owing to their lack of legal background. In any event, the first written reply to their complaints had been sent by the prosecutor's office of unit No. 20116 on 27 March 2003, which proved that the applicants had complained before that date. The applicants pointed out that the investigating authorities had not tried to establish the owners of the APC and IBV or to question the servicemen of military unit No. 24. The investigation had several times been suspended and then resumed, which illustrated its ineffectiveness. 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

100. 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 74 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 Marvan Idalov
101. 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



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