Постановление Европейского суда по правам человека от 23.04.2009 «Дело Хачукаев (Khachukayev) против России» [англ.]

Court as crucial to the establishment of the facts in the present case.
106. The Government confirmed the principal facts as submitted by the applicant. They refused to disclose most of the documents from the criminal investigation file, relying on Article 161 of the Code of Criminal Procedure. The Government also argued that the Court's procedure contained no guarantees of the confidentiality of documents, in the absence of sanctions for applicant in the event of a breach of confidentiality. They also argued that the applicant's representative was not a participant in the criminal proceedings and therefore was not entitled to have access to contents of the case file. Lastly, the Government argued that by providing detailed information about the progress of the investigation and some documents from the criminal investigation file they had complied with their obligations under Article 38 § 1 (a).
107. The Court notes that Rule 33 § 2 of the Rules of Court permits a restriction on the principle of the public character of documents deposited with the Court for legitimate purposes, such as the protection of national security, the private life of the parties or the interests of justice. The Court cannot speculate as to whether the information contained in the criminal investigation file in the present case was indeed of such a nature, since the Government did not request the application of this Rule and it is the obligation of the party requesting confidentiality to substantiate its request.
108. The Court further notes that it has already found on a number of occasions that the provisions of Article 161 of the Code of Criminal Procedure do not preclude the disclosure of documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure (see Mikheyev v. Russia, No. 77617/01, § 104, 26 January 2006, and Imakayeva v. Russia, No. 7615/02, § 123, ECHR 2006-XIII). For these reasons the Court considers the Government's explanation insufficient to justify the withholding of the key information requested by it.
109. As to the Government's argument that they had complied with the requirements of Article 38 § 1 (a) by providing a summary of the investigative steps and some documents from the investigation file requested, the Court reiterates that in cases where the applicants raise the issue of the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of 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, § 70, ECHR 1999-IV). The Court would also stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see {Celikbilek} v. Turkey, No. 27693/95, § 71, 31 May 2005).
110. Reiterating the importance of a respondent Government's cooperation in Convention proceedings, the Court finds that there has been a breach of the obligation laid down in Article 38 § 1 (a) of the Convention to furnish all necessary facilities to assist the Court in its task of establishing the facts.

C. The Court's evaluation of the facts

111. The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, No. 69481/01, §§ 103 - 109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A No. 25). In view of this, and bearing i



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