Постановление Европейского суда по правам человека от 28.05.2009 «Дело Ненкаев и другие (Nenkayev and others) против России» [англ.]

icle 13 about the lack of domestic remedies in respect of their complaint under Article 3 that Muslim Nenkayev had been ill-treated while in detention at the hands of the authorities, the Court notes that this latter complaint has been found to be unsubstantiated. In the absence of an "arguable claim" of a violation of a substantive Convention provision the Court finds that there has been no violation of Article 13 in this respect.
200. As regards the applicants' reference to Article 13 in conjunction with Article 3 of the Convention, in so far as their mental suffering was concerned, the Court notes that it has found above that the first, second and third applicants endured severe mental suffering on account of, inter alia, the authorities' inadequate investigation into their relative's disappearance. It has also found a violation of Article 13 of the Convention in connection with Article 2 of the Convention on account of the lack of effective remedies available to the applicants as a result of the inadequacy of the investigation. Having regard to these findings, the Court is of the opinion that the applicants' complaint under Article 13 in conjunction with Article 3 is subsumed by those under Article 13 in conjunction with Article 2 of the Convention. It therefore does not consider it necessary to examine the complaint under Article 13 in connection with Article 3 of the Convention.
201. As regards the applicants' reference to Article 5 of the Convention, the Court notes that according to its established case-law the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements and in view of its above findings of a violation of Article 5 of the Convention by unacknowledged detention, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case.
202. Lastly, as regards the applicants' reference to Article 13 taken in conjunction with Article 8 of the Convention, the Court notes that it has been unable to look into the merits of the complaint concerning the search of the applicants' home for non-compliance with the six months' rule and that the applicants therefore had not made an "arguable claim" under Article 8 of the Convention. Hence, there has been no violation of Article 13 in conjunction with this provision.

VIII. Observance of Article 38 § 1 (a) of the Convention

203. The applicants argued that the Government's failure to submit the documents requested by the Court at the communication stage disclosed a failure to comply with their obligations under Article 38 § 1 (a) of the Convention, which provides, in so far as relevant:
"1. If the Court declares the application admissible, it shall
(a) pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities;
..."
204. The applicants invited the Court to conclude that the Government's refusal to submit a copy of the entire investigation file in response to the Court's requests was incompatible with their obligations under Article 38 of the Convention.
205. The Government reiterated that the submission of the case file would be contrary to Article 161 of the Code of Criminal Procedure.
206. The Court reiterates that proceedings in certain types of applications do not in all cases lend themselves to a rigorous application of the principle whereby a person who alleges something must prove that allegation and that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States shou

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