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Постановление Европейского суда по правам человека от 12.02.2009 «Дело Нолан (Nolan) и K. против России» [англ.]





The Court reiterates 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 (see {Tanrikulu} v. Turkey [GC], No. 23763/94, § 70, ECHR 1999-IV). 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. Failure on a Government's part to submit such information which is in their hands, 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 (see {Timurtas} v. Turkey, No. 3531/94, § 66, ECHR 2000-VI).
56. The Court notes that the Government failed to produce a copy of the document requested by the Court, despite repeated requests to that effect. They did not deny that the report was in their possession. By way of justification for their refusal, they referred to the absence of an established procedure for making available such documents to international organisations. However, the Court reiterates that in ratifying the Convention, the States Parties have agreed, under Article 38 § 1 (a) of the Convention, to furnish all necessary facilities for the effective conduct of the Court's investigation. That obligation implies putting in place any such procedures as would be necessary for unhindered communication and exchange of documents with the Court. In these circumstances, a mere reference to the structural deficiency of the domestic law which renders impossible the communication of sensitive documents to international bodies is an insufficient explanation to justify the withholding of key information requested by the Court. Furthermore, it is noted that the report was examined in the domestic proceedings and the applicant's representative in those proceedings was allowed to take cognisance of its contents but he could not disclose its contents to the Court because of the confidentiality undertaking he had been required to sign. This fact indicates that the nature of the information contained in the report was not such as to exclude any possibility of making it known to anyone outside the secret intelligence services and the highest State officials. Finally, even if there existed legitimate State security concerns preventing the disclosure of the report, the Government should have been able to address those concerns by editing out the sensitive passages or supplying a summary of the relevant factual grounds, whereas in the present case they have done neither.
57. Having regard to the importance of cooperation by the respondent Government in Convention proceedings and the difficulties associated with the establishment of the facts in cases such as the present one, the Court finds that the Russian Government fell short of their obligations under Article 38 § 1 (a) of the Convention on account of their failure to submit a copy of the requested report.

II. Alleged violation of Article 9 of the Convention

58. The applicant complained under Article 9 of the Convention about his exclusion from Russia, which allegedly purported to penalise him for manifesting and spreading his religion. Article 9 reads as follows:
"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one



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