Постановление Европейского суда по правам человека от 29.10.2009 «Дело Сатабаева (Satabayeva) против России» [англ.]

there has been a violation of Article 13 in conjunction with Article 2 of the Convention.
153. As regards the applicant's 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.

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

154. The applicant 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, the relevant part of which provides:
"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;
..."
155. The applicant 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.
156. The Government reiterated that the submission of the case file would be contrary to Article 161 of the Code of Criminal Procedure.
157. 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 should furnish all necessary facilities to make possible a proper and effective examination of applications.
158. This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. It is inherent in the proceedings relating to cases of this nature, where individual applicants accuse State agents of violating their rights under the Convention, that in certain instances it is only the respondent State that has access to information capable of corroborating or refuting these allegations. A failure on a Government's part to submit such information which is in their possession without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant's allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention. In a case where the application raises issues as to the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of the facts and their absence may prejudice the Court's proper examination of the complaint both at the admissibility and at the merits stage (see {Tanrikulu} v. Turkey [GC], No. 23763/94, § 71, ECHR 1999-IV).
159. The Court notes that despite its repeated requests for a copy of the investigation file opened into the disappearance of the applicant's son, the Government refused to produce such a copy, relying on Article 161 of the Code of Criminal Procedure, having provided only copies of decisions to suspend and resume the investigation and to grant victim status. The Court observes that in previous cases i



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