Постановление Европейского суда по правам человека от 22.01.2009 «Дело Заурбекова и Заурбекова (Zaurbekova and Zaurbekova) против России» [англ.]

ecured by Article 8 of the Convention and Article 1 of Protocol No. 1. Accordingly, there has been a violation on that account.

VII. Compliance with Article 38 § 1 (a) of the Convention

122. The applicants complained that the Government's refusal to submit the file in criminal case No. 20123 was in breach of the State's obligations under Article 38 § 1 (a) of the Convention, which in its relevant part reads as follows:
"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;
..."
123. 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 § 1 (a) of the Convention.
124. The Government reiterated that the submission of the entire case file would be contrary to Article 161 of the Russian Code of Criminal Procedure. They also submitted that they had taken into account the possibility to request confidentiality under Rule 33 of the Rules of Court, but noted that the Court provided no guarantees that once in receipt of the investigation file, the applicants or their representatives would not disclose these materials to the public. In the Government's submission, the absence of any sanctions against the applicants for the disclosure of confidential information and materials meant that there were no guarantees that they would comply with the Convention and the Rules of Court. They also considered that they had complied with their obligation under Article 38 § 1 of the Convention, as they had given a reasoned refusal to submit the entire copy of the investigation file and had adduced copies of documents whose disclosure was not in contradiction with domestic law and the interests of the State and the participants in the criminal proceedings.
125. 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). In a case where the application raises issues concerning the effectiveness of an investigation, the documents from 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 stage and at the merits stage (see {Tanrikulu}, cited above, § 70).
126. The Court observes that it has on several occasions requested the Government to submit a copy of the file on the investigation opened in connection with the disappearance of the applicants' relative. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case. Moreover, the Court specifically requested the Government



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