Постановление Европейского суда по правам человека от 26.02.2009 «Дело Астамирова и другие (Astamirova and others) против России» [англ.]

he incident was still pending, that there was no evidence that the men had been State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants' rights. No information had been obtained by the investigation about special operations in Gekhi on that day. They also referred to some other criminal investigations where gangs in Chechnya had been equipped with camouflage uniforms, weapons and forged documents belonging to members of the security forces. Finally, in their submissions of May 2008 the Government questioned the credibility and accuracy of the applicants' statements submitted to the Court and to the investigation. They drew attention to the fact that the fourth applicant had submitted to the Court that the men who had entered their room had pushed her against the wall, while she did not give this information to the investigation. They also noted certain discrepancies in the description of the clothes Mr Astamirov had been wearing upon detention in their witness statements given to the investigation. They also noted inconsistencies in the descriptions by the applicants and witnesses of the clothes and weapons of the intruders given to the Court and to the investigation. The Government concluded that the applicants' submissions were so confused and contradictory that they had probably been invented by them. In any event, they could not constitute a basis for making findings of State responsibility according to the standards developed by the Court. It could not be excluded that Aslanbek Astamirov had voluntarily left the village or escaped, especially in view of the relatives' failure to apply to the authorities immediately after his alleged arrest.

B. Article 38 § 1 (a) and consequent inferences
drawn by the Court

64. The Court has on many occasions reiterated that the Contracting States are required to furnish all necessary facilities to the Court and that a failure on a Government's part to submit information which is in their hands without a satisfactory explanation may reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention (see {Timurtas} v. Turkey, No. 23531/94, § 66, ECHR 2000-VI).
65. In the present case the applicants alleged that their relative had been illegally arrested by the authorities and then disappeared. They also alleged that no proper investigation had taken place. In view of these allegations, the Court asked the Government to produce documents from the criminal investigation file opened in relation to the kidnapping. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case.
66. The Government refused to disclose almost all the documents of substance 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 applicants in the event of a breach of confidentiality. They also argued that the applicants were represented by foreign nationals who could not be brought to account in Russia in the event of such a breach.
67. The Court notes that the Government did not request the application of Rule 33 § 2 of the Rules of Court, which 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 and the private life of the parties, as well as 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



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